FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 read with section 2(d) of the Consumer Protection Act, 1986 by the complainant stating that the petitioner had made a loan-cum-Hypothecation agreement with the ops i.e. L&T finance Limited, having their registered office at L&T House, N.M. Marg, Ballard Estate, Mumbai-400001 and corporate office at the Metropolitan, 8^th floor, C-25/C-26, E-Block, Bandra - Kurla Complex Bandra (East), Mumbai and having its inter alia branch at L&T finance Limited, 2^nd floor, Sewas Laxmipur, Burdwan (Purba), West Bengal. The petitioner had taken loan bearing no.OKG76 0009R1500942787 on 31.3.2015.  The loan sanctioned by the ops for a tractor which is used for agricultural purpose and to earn their daily means.  The chassis number is LZVSE46587053 and Engine no.3102 JL 43L 462201F5 by fulfilling all the legal compliances.  The petitioner agreed to repay the loan alongwith interest in 41 installments each as per the repayment schedule of the said agreement and in case of delay of payment of installments your petitioner agreed to pay @36% p.a delayed payment and since purchase of the said tractor the petitioner had been paying regular installments towards the above loan but suddenly on 31.3.2016 ops state that Rs.52,544/- is due and the statement dated 31.3.2016 the petitioner asked for a detailed description of the payment which he had paid as installments and if any payment is due after that he would clear all.  In terms of secretly, ops had also taken 10 blank cheques of State Bank of India, whose number starting from 686506 to 686515 and the ops had been utilizing the cheques by putting an unreasonable amount on the cheques and handing to petitioner and the petitioner asked many times to give a detailed descriptions of the payments he had made, so that he can clear the rest amount, but the ops did not cooperate and neither send details of it till this date and the petitioner in favour of the above named vehicle bearing Registration no.15C 7127, had paid towards insurance of vehicle whose date of expiry is midnight 8.4.2016, and insurance covered by L&T Insurance, Jeevika, and had also paid tax under M.V.Act, 1989 till 15^th March, 2016 whose documents endorsed herewith and suddenly on 27.04.2016 the petitioner repossessed or seized the same vehicle and on 29.4.2016 by Notice ops claims an amount of Rs.425342/- within 7 days of this notice, failing of payment, ops will sell the vehicle.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 90000/- for mental agony and financial loss and to pay a sum of Rs.10000/- for litigation cost.

Defense Case:-The opposite party Nos.1 &2contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that  the op company is a non-banking financial companyand is engaged in the business of providing financial assistance to the intending borrowers and the complainant approached the op company seeking for financial assistance for purchasing a tractor and represented that he would duly repay the same and the op company under a loan cum hypothecation agreement dated 31.3.2015, financed a sum of Rs.448000/- in favour of the complainant on the following terms and conditions-

1. The amount would be repaid in 48 installments @ Rs,.14410/- each commencing from 10.05.2015,
2. The vehicle would remain hypothecated till realization of the entire dues under the agreement. 
3. In case of default the lender would be entitled to take appropriate steps including taking possession of the vehicle in terms of the agreement. 
4. Any dispute arising out of the said agreement would be referred to the arbitrator appointed by the lender. 

The said tractor bearing registration no.WB15C7127 was insured.The complainant availed and utilized the aforesaid loan by purchasing the tractor bearing Engine no. 3102 JL43L 46220IFS, Chasis no. LZVSE46587053 and the complainant also availed a sum of Rs. 4,48,000/- towards insurance premium, which was repayable along with the loan amount in 41 installments @ Rs. 14,410/-. In breach of the agreement between the parties, the complainant paid only 12 installments and failed and/ or neglected to pay future installments. From time to time the op company gave reminders to the complainant to repay his dues. However, the complainant failed and neglected to do so. The op company lastly on 12.4.2016 issued a final reminder notice to the complainant as well as the guarantor to reply the outstanding as on that date, failing which the op company would be constrained to take steps as per the rights under the said agreement including the right to take possession and to initiate further proceeding for recovery. Inspite of receipt of aid notice the complainant failed and neglected to repay his dues. Being constrained in terms of clause 9.2 of the agreement, the op company repossessed the subject vehicle on 27.4.2016. After repossession of the vehicle the op company vide their letter dt. 29.4.2016 called upon the complainant to repay the total outstanding of Rs. 4,25,342/- as mentioned in the said notice within 7 days from receipt of the same. It was further indicates in the said notice that in the event the complainant fails to clear his total outstanding. The vehicle would be sold on as is where is basis without any further notice and the op company would be entitled to initiate proceeding for recovery of the balance amount, if remains dues after adjustment of the sale proceeds from the total outstanding. Inspite of receipt of the said notice the complainant did not turn up to clear his dues. As such the op company in terms of their right contained in the agreement, sold the subject vehicle on 2.6.2016 to one Sagir Ahemed at a highest available price of Rs. 3,25,000/-. After adjustment of the sale proceeds a total sum of Rs. 98944.66 is due and payable by the complainant under the said loan agreement. In view of the above the instant case should be dismissed.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

All the points of consideration adopted in this case are taken up for consideration jointly as the issues involved in these points of consideration are interlinked and/ or interconnected with one another. Over these points of consideration examined the evidence on record, considered the argument highlighted by both sides and perused the documents filed by both sides.

The jurisdiction point is a vital point for discussion in this case. In this case the complainant has claimed Rs. 1,00,000/- which well within the pecuniary jurisdiction of this District Commission as per Consumer Protection Act, 1986. But facts remain that in this case the complainant is a resident of Mogra area in the District of Hooghly but the op no. 1 has its place of business at Mumbai and the op no. 2 has its office and place of business at Purba Burdwan District in respect of which this District Commission Hooghly has no territorial jurisdiction according to the Consumer Protection Act, 1986. In this connection Section 11 of Consumer Protection Act, 1986 is very important. Section 11 of the Consumer Protection Act, 1986 runs as follows:

1. Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs).
2. A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office, or) personally works for gain; or
2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office), or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or has a branch office), or personally works for gain, as the case may be, acquiesce in such institution; or
3. the cause of action, wholly or in part, arises.

On close examination of the complaint petition it is found that the complainant has not clarified in his complaint petition as to when cause of action has arisen and how long the cause of action has continued.So it is clear that the cause of action issued which has been described in the complainant is also not just and proper.

Thus it is crystal clear that this District Commission has no territorial jurisdiction to try this complaint case and so this case is not maintainable.

Moreover in this complaint case the complaint has admitted the fact of execution of a loan cum hire purchase agreement but the op has adopted the plea that the complainant has violated the terms and conditions of the hire purchase agreement. It is important to note that execution/ implementation of hire purchase agreement is a contractual obligation. So, the fact of enforcement of a contract is only available by institution of a suit before the Civil Court as per Section 9 of the Civil Procedure Code. This factor is also reflecting that this case is not maintainable.

A cumulative consideration of the above noted discussion goes to show that this District Commission has no territorial jurisdiction to try this case and cause of action is also not proper and so this case is not maintainable.

In the result it is accordingly

ordered

that the complaint case being no. 129 of 2018 be and the same is dismissed on contest.

No order is passed as to costs.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.