PRADIP INDUSTRIES vs GOYAL MOTOR FINANCIERS

WHEN the matter was taken up for hearing on 5.12.92, the opposite party raised two preliminary objections as to the maintainability of the complaint, firstly, the claim is barred by limitation, and secondly as the transaction between the petitioner and the opposite party is of commercial purpose, the complainant is not a consumer in terms of Section 2(d) of the Consumer Protection Act, 1986 (Henceforth to be described as the act in brevity).

WE are not required to enter into the merits of the case, but before dealing with the preliminary points we propose to narrate the facts of the case in brief. As stated in the complaint the complainant is a proprietorial firm, and the opposite party is a firm which deals in hire purchase of vehicles. The complainant taking finance to the tune of Rs. 1,20,000/- from the opposite party purchased a Truck of Tata-Make from M/s. French Motor Car Company Ltd., Guwahati on 11.10.83. A hire purchase agreement was executed between the parties and the opposite party charged 17% interest on the amount for two years to be paid in 24 monthly instalments. The vehicle was accordingly registered as ASN 5874 in the name of the complainant showing the opposite party as financier. That the complainant duly paid all the 24 instalments, the last instalment being paid on 29.5.86 which was duly receipted by the opposite party. That while depositing the aforesaid amount the complainant wrote a letter to the opposite party on 29.5.86 requesting the opposite party to issue a clearance letter for cancellation of the endorsement in the registration certificate. Inspite of series of letters and reminders starting from 21.11.86 sent by the complainant, and by personal approaching the opposite party requesting for a release letter, the opposite party declined the same, and instead sent Advocate''s notice dated 9.7.90 wherein it was mentioned that the complainant had not paid the principal as well as interest on the loan amount. The complainant thereafter wrote registered letter to the opposite party requesting for the cancellation of the endorsement in the Registration Certificate, and this matter was also brought to the notice of the District Transport Officer; Nagaon, but the opposite party did not issue the release letter. Hence this complaint praying for an order directing the opposite party to issue the release letter and to pay compensation of Rs. 3,75,000/- for its failure and for future loss. In the written objection the opposite party has taken up the aforesaid two preliminary objections. The opposite party admits of the hire purchase finance, and further states in the written objections that the complainant did not duly clear all the 24 instalments in time, that the complainant on one occasion only paid the 6th instalment on 9.4.84 and all the remaining 23 instalments were paid after its due dates. Due to non-payment of the instalments in time, huge amount of arrear accumulated in the loan account in the form of late fee compounded with the further interest, and as such, the opposite party has not issued the release letter because the complainant is yet to clear the outstanding account. The opposite party denies the receipt of the letters and personnel meeting of the complainant except the receipt of the first reminder of the letter dated 6.10.90 on 22.10.90.

Mr. Z. Kumar, learned Counsel for the opposite party during the course of his argument and relying on the written statement submitted that the right to sue by the complainant accrued when the complainant had alleged to have cleared the last (24th) instalment or soon thereafter when he alleged to have written the letter dated 29.5.86. But the complaint has been filed as late as 10.7.92, and as such the claim is barred by limitation under Articles 113 and 137 of the schedule in the Limitation Act, 1963. On the other hand Mr. A.K. Goswami, learned Counsel for the petitioner submitted that the cause of action in the present case is a continuing one arising from day to day as is evident from the written demands made by the complainant from time to time, and the admission of the opposite party that one such letter dated 6.10.90 has been received by it on 22.10.90. The further submission of Mr. Goswami is that the present case is filed in the primary interest for issuance of the release letter, the responsibility for which never ceases with the opposite party upon fulfilment of the contractual terms by the complainant.

AT this stage we do not propose to enter into the merits of the written correspondences which are subject to evidentiary value, but we take note of the opposite parties'' own admission about the receipt of the letter on 22.10.90. We are inclined to accept the contention of the complainant that the right to sue for the issuance of the release certificate subsists which excludes the application of Articles 113 and 137 of the Limitation Act, in the present case. The first preliminary objection is accordingly rejected. As regards the second objection Mr. Kumar pointed out that the complainant himself in paragraph 3 of the complaint admitted that he purchased the Truck for making his industry more viable which admission itself established that the complainant purchased the Truck for commercial purpose, and as such the complainant is not a consumer within the defimtion of consumer as defined under Section 2(d)(i) of the Act. Mr. Goswami on the other hand submitted that the complainant is not a purchaser of goods from the opposite party but only a hirer of the service rendered by the opposite party.

FROM the pleadings the existence of the hire purchase agreement is admitted by both the parties. The Truck in question was admittedly purchased from M/s. French Motor Company Ltd., Guwahati. The complaint is not that the goods (Truck) suffer from any defects. Section 2(d)(i) relates to buying of goods only, and the liability for any defect or deficiency of service in respect of goods delivered lies with the seller or the supplier. In the present case the opposite party is not the seller or supplier of the goods. We agrees with the contention of the complainant that he sought service of rendering finance from the opposite party and not for any delivery of goods, and as such Section 2(d)(i) is not applicable in his case. Section 2(d)(ii) relates to hiring of services for consideration which has been paid or promised or partly paid and partly promised, and this is explicit in a scheme of hire purchase also. The grievance of the complainant in the present case is that the opposite party failed to render service for issuance of the release certificate. We hold that the exception applicable to goods for commercial purpose is not applicable in the case of any goods where grievances is made about rendering of service. Under Section 2(d)(ii) of the Act there is no bar of commercial purpose as regards service even though the vehicle is purchased for commercial purpose. We therefore hold that the complainant is a consumer in terms of Section 2(d)(ii) of the Act, and accordingly we reject the second objection. The preliminary objections are thus disposed of in terms of our discussions above. The case will proceed with hearing and evidence, if any. Preliminary objections disposed of.