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M/s. Srei Equipment Finance Pvt. Ltd. & Others v/s S. Natrajan

    Revision Petition No. 3474 of 2011 in Appeal No. 589 of 2008
    Decided On, 29 January 2016
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Petitioners: K.P.S. Rao, Advocate. For the Respondent: Srishti Govil for Balaji Srinivasan, Advocates.

Judgment Text
K.S. Chaudhari, Presiding Member

1. This revision petition has been filed by the petitioners against the order dated 1.4.2011 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, ‘the State Commission’) in Appeal No. 589/2008, Srei Infrastructure Finance Ltd.and Ors. v. S. Natarajan by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/respondent purchased a brand new Tata Hitachi Excavator equipment from the opposite parties/Petitioner for Rs. 19,00,000/- by paying Rs. 1,00,000/- as margin money to the 1st opposite party/Petitioner No.1 by obtaining finance from opposite parties 1 to 3 and on 12.3.04 again paid a margin money of Rs. 2,00,000/- and an advance amount of Rs. 66,665/- to the 1st opposite party and the 1st opposite party obtained many signatures on blank papers, 36 cheques, and also received securities on the immovable properties. The 1st opposite party does not give statement of accounts or repayment schedule or terms and conditions of loan to the complainant which are violation of law and deficiency of service. The complainant paid around Rs. 10,00,000/- towards loan and on 16.6.05 also he paid Rs. 66,665/- towards the due to the 1st opposite party. But within 3 days the equipment was taken away in an unlawful manner by 'Reliance recovery team'. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP resisted complaint denying allegations of the complaint and alleged that issues involved are purely contractual nature under arbitration agreement dated 12.3.04 entered in to between the parties and the District Forum has no jurisdiction and the complainant is not a consumer and the right to seize the equipment derived from the agreement entered into between the parties and the complainant was habitual defaulter and the cheques issued by him for the discharge of the monthly liability were dishonoured for want of funds. After due warning the vehicle was taken by the opposite party. The complainant yet to pay a sum of Rs. 18,17,336/-. Denying any deficiency on their part, prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OPs to pay Rs. 7 lakhs with 9% p.a. interest and further to pay compensation of Rs. 50,000/- and cost of Rs. 5,000/-. Appeal filed by OPs was partly allowed by learned State Commission vide impugned order and order allowing compensation was set aside against which, this revision petition has been filed.

3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that in spite of seizure of vehicle on surrender on account of non-payment of instalments, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal partly; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. It is not disputed that complainant got his Excavator financed from OPs and executed loan-cum-hypothecation agreement and amount was to be repaid in monthly instalments of Rs. 64,665/-. Perusal of complainant’s statement of accounts reveals that Rs. 1,98,000/- were outstanding in the complainant against payment of instalments by 31.5.2005. Complainant by letter dated 30.5.2005 admitted that Rs. 1,98,000/- were due in him and on 31.5.2005, he will remit Rs. 65,000/- and rest Rs. 1,30,000/- will be remitted before 15.6.2005 and in case he fails to remit the payment, he agrees that he will surrender machine to the OP. Letter dated 17.6.2005 written by complainant further reveals that he was unable to pay instalments and he agreed to give possession of machine. As per letter dated 25.6.2005 written by OP to the complainant after repossessing machine, complainant was asked to deposit Rs. 18,17,336/- within 7 days failing which, machine will be sold to recover dues. By letter dated 12.7.2005, complainant apprised that he is unable to make payment and he is searching party to sell aforesaid vehicle for which 10 to 15 days’ time may be given. Perusal of letter dated 25.7.2005 written by complainant further reveals that including delay charges Rs. 3,30,000 were outstanding against him and he proposed to remit aforesaid amount by 27.7.2005 to take machinery. There is nothing on record to suggest that after 25.7.2005, he made any payment against outstanding amount. Complainant was habitual defaulter in making of payments in instalments and every time he sought time and promised to pay amount, but failed to make the payment. In such circumstances, OP in taking possession of financed machinery has not committed any deficiency as machinery was surrendered on account of non-payment of instalments.

6. Perusal of agreement executed between the parties reveals that agreement was executed in Kolkatta and registered office of OP is in Kolkatta whereas complaint has been filed before District Forum, Salem in Tamil Nadu State. Merely because there is branch of OP at Salem and Chennai, complainant does not get jurisdiction to file complaint at branch office of OP and complaint was to be filed only in Kolkatta. In spite of specific objection by OP in its written statement towards jurisdiction neither District forum nor State Commission has dealt with this objection and learned State Commission decided appeal in absence of petitioner’s Counsel and I am of the view that District Forum, Salem had no territorial jurisdiction to entertain the complaint and on this count also complaint is liable to be dismissed.

7. Learned Counsel for the petitioner further submitted that complainant is not a consumer as he obtained loan for running a machine for commercial purpose. Work order dated 22.3.2004 given by Sri Amman Machineries to the complainant reveals that complainant was awarded contact for 200 hours and he was asked to send machine at Madurai. Complainant has nowhere in the complaint stated that he obtained loan for purchase of machine for earning livelihood by means of self-employment and in such circumstances, complainant does not fall within purview of consumer under C.P. Act and complaint is liable to be dismisse

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d. 8. In the light of aforesaid discussion, it becomes clear that learned District forum committed error in allowing complaint and learned State Commission further committed error in allowing appeal partly and revision petition is liable to be allowed. 9. Consequently, revision petition filed by the petitioner is allowed and order dated 1.4.2011 passed by the State Commission in Appeal No. 589/2008, Srei Infrastructure Finance Ltd.and Ors. v. S. Natarajan and order of District Forum dated 29.05.2008 passed in C.O.P. No. 11/2007, S. Natarajan v. Srei Infrastructure Finance Ltd. and Ors. is set aside and complaint stands dismissed with no order as to costs. Revision Petition allowed.