BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM

ANGUL

INTERIM APPLICATION NO. IA 15/2022

(Arising out of C.C. Case No. CC/56/2022)

RITENDRA SENAPATI …COMPLAINANT

-VERSUS-

ZONALBRANCH MANAGER,
ANUGUL, TATA MOTORS FINANCE LTD. … OPP. PARTIES

OBJECTION TO THE INTERIM APPLICATION NO. IA 15/2022 arising

out of CC/56/2022

1. That the instant Interim Application purportedly filed U/s 38(I) of the

C.P. Act,2019 Amended is thoroughly misconceived and the same is

liable to be rejected.

2. That, the Opposite Parties are working for gains in Tata Motors
Finance Ltd is a company duly incorporated under Section 45-IA of
company, formerly having its registered office at at Nanavati
Mahalaya, 3rd Floor, 18, Homi Mody Street, Mumbai – 400001now at
Sir HC Dinshaw Building, Office No. 14, 4th Floor, 16 Horniman
Circle, Fort, Mumbai- 400001 and having its ZONAL office at Keshari
Takies Complex, Plot No- 98, 1st Floor, Unit- 3, Kharbel Nagar,
Bhubaneswar, also ZONAL office at 2 nd Floor , Sandhya Complex,N.H-
55, Near Divyajyoti talkies, Angul, 759122, represented through its
Power of Attorney holder ARABINDA MOHAPATRA, S/o-JANAKI
BALLAVA MOHAPATRA, aged about 41 years, working as ZONAL
Legal Officer, at Tata Motors Finance, Angul.

3. That the Complainant has filed a INTERIM APPLICATION NO bearing

No IA 15/2022 in Consumer Complaint No. CC/56/2022 before this

Hon’ble Forum praying for

I. Complainant Praying for Complainant alleged for release of

vehicle no. OD19R6447 after receiving 50% of overdue
installment of Rs. 1, 33,552/-.
 II. To receive the balance amount in next two months
III. Total Compensation and cost : Rs. 60,000/-
This Hon’ble forum An directed vide interim Order Dtd- 14/09/2022

for release of vehicle no. OD19R6447 after receiving 50% of overdue

installment of Rs. 1, 33,552/-Rs. 1,00,000/- from the .complainant.

4. That the Instant Consumer Complainant is not maintainable for the

following reasons:-reasons: -

i. The complainant is not a ‘consumer’ as the

complainant is engaged in construction Business and he

has purchased this vehicles for commercial Purpose and

as admitted by the complainant in Para-8 of CC 56/22

that the subject vehicle was deployed under a coal

transport contractor and thus was used for commercial

gain which is precluded by the legislation intent under

section 2(7) of The Consumer Protection Act,2019 and

thus the instant consumer complaint is not

maintainable as the complainant is not a Consumer

under the Consumer Protection Act. The Hon’ble

Supreme Court in ‘Laxmi Engineering Work’s v PSG

Industrial Institute’ cited in 1995-AIR-SC –1428 has

clearly explained that, “A person who purchases an

auto-rickshaw to ply it himself on hire for earning her

livelihood would be a consumer. Similarly, a purchaser

of a truck who purchases it for plying it as a public

carrier by himself would be a consumer. A person who

purchases a lathe machine or other machine to operate

it himself for earning her livelihood would be a

consumer. (In the above illustrations, if such buyer

takes the assistance of one or two persons to assist /

help him in operating the vehicle or machinery, he does

not cease to be a consumer.) As against this a person

who purchases an auto-rickshaw, a car or a lathe

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 machine or other machine to be plied or operated

exclusively be another person would not be a consumer.

This is the necessary limitation flowing from the

expressions "used by him" and "by means of self-

employment" in the explanation. The ambiguity in the

meaning of the words "for the purpose of earning his

livelihood" is explained and clarified by the other two

sets of words.” In view of the above explanation

mandated by the Hon’ble Apex Court of the country and

statements made in the paragraph of the complaint

where it is clear that the complainant himself doesn’t ply

the vehicle purchased, rather has appointed a driver for

plying the same which necessarily excludes him from

the purview of the definition of consumer and in

extension from the purview of the Consumer Dispute

Redressal Mechanism. As such the present complaint is

liable to be dismissed in limine without further going

into the details. As such, the Complainant has no locus

standi to file any such Application before this Hon’ble

Forum.

A. That, it is pertinent to mention that, the complaint is

not maintainable as the loan agreement contains the

clause for Arbitration and Territorial Jurisdiction

where all the disputes, differences, claims and questions

whatsoever arising out of the said agreement shall be

referred to the sole arbitrator. The dispute was referred

by the answering OP to the arbitration Tribunal and as

per the judgement Instalment Supply Limited –Vs-

Kangra Ex-Serviceman Transport Co. & Anr. reported in

(2007) 1 CPJ 34, wherein the Hon’ble National

Commission held that “The issue involved in this case is

whether a complaint can be decided by the Consumer

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 Fora after an arbitration award is already passed. The

simple answer to this question is, No.”

B. However, it is to be noted that the answering respondent

repossessed the Vehicle on 12.09.22 as per Loan Recall

Notice dt. 09.02.22. Again, subsequent to Interim Order

dt. 14.09.22, the vehicle was released to the

complainant on 15.09.22 as has been admitted by the

complainant in Paragraph-8 of the Execution application

being Ex-04/22 filed before this Hon’ble forum. This

with the release of the vehicle, as admitted in the

Execution application, the Interim Order dt.14.09.22

has become infructuous. .

IV. That since the consumer complaint is not maintainable in the

eye of law in view of the aforesaid reasons; the instant Interim

Application is also not maintainable.

V. That it is further submitted that the complainant is a chronic

defaulter and repeated demands is not paying the Legal Debt

opposite parties.

VI. The complainant is a habitual defaulter and substantial

amount is due from the vehicle in question as under as per the
account statement dated 15.09.2022 which is annexed
herewith :-

Principle Interest
Vehicle No. Contract No.
Outstanding Outstanding
OD19R6447 5003254674 1,987,720.00/- 93,543.76/-

VII. In such circumstances the interim order passed by this

Hon’ble Forum on dated 14.09.2022 may kindly be vacated

and the complainant may kindly be directed to clear the

outstanding dues within a specific time period as per the

agreement failing which the opposite parties party may be

permitted to take appropriate action for recovery of their

legitimate dues in terms of the agreement.

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VIII. That the Complainant has filed the captioned Consumer

Complaint and has obtained the interim order in its favour by

misleading the Ld. Consumer Forum and not disclosing the

facts with an intention to avoid the legal liability, which the

Complainant owes to the Applicant/Opposite Party.

IX. That the Applicant/Opposite Party submits that the Complaint

filed by the Complainant is vague, collusive, misconceived,

misleading, suppression of material facts barred by law and is

filed with the sole object to deny the Applicant/Opposite Party

from recovering its legitimate dues.

X. Without prejudice to the objections raised herein above, the

Opposite Party beg to submit their paragraph wise reply to the

assertions and allegations contained in various paragraphs as

follows:-

a) That the contentions made in Para No. 1 misleading and thus

denied and disputed. It is to specify that the complainant is

running a Transport Business for Transportation and he has

suppressed this fact before the Ld. Forum and filed the instant

complaint for duping the legitimate dues. As admitted by the

complainant in Para-8 of CC 56/22 that the subject vehicle was

deployed under a coal transport contractor and thus was used for

commercial gain which is precluded by the legislation intent under

section 2(7) of The Consumer Protection Act,2019 and thus the

instant consumer complaint is not maintainable as the

complainant is not a Consumer under the Consumer Protection

Act. The OP herein relies to the landmark judgment of Laxmi

Engineering Work’s v PSG Industrial Institute’ cited in 1995-

AIR-SC –1428.

b) That, the contentions made in para 2 &3 are matters of record no

need to reply;

c) That the contentions made in Para No. 4 are all misleading,

baseless and thus denied and disputed. The complainant party is

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 avoiding payment of the installments with mal-intention and now

has taken the shelter of this Ld. Forum with malafide intention.

The complainant be put to strict proof of the contentions made in

Paragraph-4.

d) It is further submitted that the Opposite Party TMFL repossessed

the Vehicle on 12.09.22 as per Loan Recall Notice dt. 09.02.22

since customer was a chronic defaulter and the vehicle

repossessed after passing Interim Order U/s-17 of Arbitration

and Conciliation Act passed by the Learned Tribunal.

e) It is clear from the paragraph that the complaint has been

filed on mere apprehension without any base and therefore the

complaint lacks cause of action. The complainant is having a

Transportation business where he is reaping profits from the

vehicle. In fact the answering opposite party is suffering business

loss for the non-payment of the regular EMIs. There has been no

negligence or deficiency happened on the part of the answering

opposite parties. It is also to be submitted that the complainant

has filed the instant complaint to dupe the legitimate dues of the

opposite parties.

f) The complainant is trying to escape from paying the public money

and thus the balance of convenience and inconvenience is in

favour of the opposite parties. And the instant suit is liable to be

dismissed. It is also to be submitted that the complainant has

approached the Hon’ble forum with unclean hands and is now

trying to safeguard the vehicle by adopting unlawful means by not

disclosing the material facts to the Hon’ble forum. Thus it is

further submitted that the instant interim application may be

dismissed in limini with cost.

XI. That, therefore your Applicant humbly submits that this

Application on behalf of the Opposite party be allowed by this

Hon’ble Forum.

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XII. That the Applicant humbly submits that the interim order

dated 14/09/2022 passed by this Ld. Forum may kindly be

vacated and or discharged, or varied otherwise your Applicant

opposite parties will suffer irreparable loss and injury.

XIII. That the Applicant / opposite party crave leave to submit the

documents and relevant papers at the time of hearing of this

Application.

XIV. That unless the prayers as prayed for are granted the

Applicant will suffer irreparable loss and injury.

XV. That the instant Application is made bona fide and for the ends

of Justice.

PRAYER

In the Circumstances as stated above, it is most humbly prayed

that this Forum may be gracious enough to kindly allow this

Application on behalf of the Opposite Party and the interim order

dated 14/09/2022 passed by this Hon’ble Forum be vacated and

the complainant be directed to pay the dues of the opposite parties

regularly and it is also prayed that the instant Interim Application

being INTERIM APPLICATION NO. IA 15/2022 be dismissed with

exemplary cost or to pass such other order or orders as to Your

Honour may deem fit and proper.

And you’re Applicant/ Opposite Party as in duty bound shall ever

pray.

By the O.P.s through

Date:
Advocate

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 AFFIDAVIT

I, ARABINDA MOHAPATRA, aged about 41 years, S/o:

JANAKI BALLAVA MOHAPATRA, at present working for gain at

TATA MOTORS FINANCE LTD., having its ZONAL office at: Angul

do hereby solemnly affirm and state as follows-:

1. That I am looking after the instant case and I have been

authorized to file the instant application.

2. The facts stated above are true to the best of my

knowledge and belief.

Identified by

Advocate.

DEPONENT.