Orissa

Kendujhar

CC/50/2015

Sunanda Kumar Sahoo - Complainant(s)

Versus

1. Branch Manager, Kotak Mahindra Bank Ltd. - Opp.Party(s)

Sri R.R. Rout & D. Sahoo

22 Feb 2017

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 50 OF 2015

     Sunanda Kumar Sahoo,

     At- Sarabali, Ghasipura,

     P.S- Ghasipura,

     City/Dist- Keonjhar……………………………………………………......Complainant

                    Vrs.

1. Branch Manager,

    Kotak Mahindra Bank Ltd.

    At- Plot No. 184, Janapath, Ground Floor,

    Kedarson Building, Bhubaneswar,

    City/Dist- Khurda

2. Manager,

    Kotak Mahindra Bank Ltd.

    36-38 A, Nariman Bhavan, 227,

    Nariman Point, Mumbai - 400021………………………………………Op. Parties

PRESENT:

Shri Purushottam Samantara, President

Smt. B. Giri, Member (W)

Adv. for the Complainant - Sri R.R. Rout & D. Sahoo

Adv. for the OPs - Sri B.P. Sarangi & G.N. Jena

__________________________________________________________________________________________

Date of Filing - 16.11.2015                                                                                            Date of Order- 22.02.2017

SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

1.  In brief, the set out is that the complainant is the owner of the vehicle No.OR-09P-1345 Truck in      availing loan from KOTAK MAHINDRA BANK Limited in the year 2011, averred the loan maturity date 1^st November 2014.

2. The complainant averred, the each EMI worth of Rs.51,640/- and completed the EMI in the month 2014.

3. That it is also stated in complete payment of EMI approached the Op. Party to issue the NOC, even sent advocate notice. The OP killing time and not issued the document. The bank deliberately avoiding to issue the document.

4. The action of the OP is a default and deficiency of service within the meaning of the provision as defined in section 2(d) (f) and (o) of the Consumer Protection Act.

5. Praying direction be passed to supply the necessary NOC on completion of entire loan and pass order in the interest of law, Justice and equity, placed reliance on RC Book, Statement Account and Affidavit.

6. Upon notice, appeared and filed the version contending the complainant in outset has not come with clean hands, the complainant being devoid of merit is liable to be dismissed.

7. Further contending, the complainant pleadings is a misconceived allegation and based upon deliberates concealed truth. Not a consumer and the case is not coming under the jurisdiction of this forum.

8. And made a submission that the present complainant was a guarantor to the loan account one Satyabhama Jena, for non repayment EMI, the arbitrator has passed order on dt.31.08.2014 for a due amount of Rs.8,45,243/- along with 18% per annum interest from 29.05.2013.

9. Consequent an execution case bearing No.97/15 has filed before, District Judge, Keonjhar, so it is submitted when the party is guarantor to a loan account and recovery due, execution pending in such circumstance, the financer hold the power to close the account. Thus being devoid of merit is liable to be dismissed.

10. Placed reliance on statement of Account - 30 December 2015 and execution Case 97/2015 in photocopy.

11. We have heard arguments advanced at the bar and have perused the record.

12. On the outset no dispute prevails on the nature of finance, the contention persists on the issue repayment and subsequent entitled to “NOC”.

13. Perused the Statement Account, that revealed the complainant owes some overdue charges as per the statement note.

14. Further observed, the pleadings of the complainant is not exhaustive rather swept of facts in made out a case. It is not stated, the complainant owes under any contract further concealed as a guarantor to one named Satyabhama Jena.

15. The provision of section 128 of the Indian Contract Act- contemplates- “The liability of the surety is co-extensive with that of the Principal debtor, unless it is otherwise in the contract.

16. In a more step, in our considered opinion, the complainant is equally liable and the creditor has a right to obtain a decree against the Surety and the Principal debtor, we prefer to place reliance - Ram Kishan  VS  State of U.P & Ors, Civil Appeal No. 1204/2009 (SC) - Held - the Surety has no right to restrain execution of the decree against him until the creditor has exhausted his remedy against the Principal debtor has paid or not” so when both are liable dues “no pending” can’t be ascertained.

17. The learned counsel resisted vehemently that the case is not maintainable in views of the arbitration execution pending before, District Court, Keonjhar.

18. Further observation shows, the Arbitrator has passed award on 31.08.14, in suppression of same, this present case has been filed on 16.11.2015, when arbitration award has been passed which is binding on the parties.

19. We in otherwise to say, the award passed by the Arbitrator can only be set aside under section 34 of the Arbitration and conciliation Act 1996 before the competent court for setting aside the award passed by the Arbitrator, the award passed by the Arbitrator has attended finality and is binding on the complainant.

20. On this context, we prefer to place reliance on the catena of Hon’ble National Commission decision 5(i)-

The Installment Supply Ltd.  VS  Kangra Ex-Serviceman Transport Co. & Anr - Held - where award had been passed by the Arbitrator, in such a case no complaint could be filed before the District Forum and the District Forum could not entertain that complaint and should not pass the overlooking the terms of award.

(ii) And after award passed by Arbitrator, Consumer Forum cannot decide complaint - HDFC Bank Ltd. Vs. Yarlagadda Krishna Murty- 2013 (i) CPR 129 (A.P).

  From these points of views “the complainant is not entitled for NOC unless the financed amount is paid back” -

Ashish Financiers  Versus  Anuj Kumar Sharma - 2012 (i) CPR 317.

 For the reasons stated herein above as the liability of the surety is co-extensive with that of the principal debtor, he is not entitled to NOC and Arbitration order passed made it equally binding, so under the circumstances, the case does not hold merit and is hereby dismissed.

 

Copy of the Order be made available to the parties as per rule.

File be consigned to record room.

Pronounced, 22^nd February 2017.      

                                                                                                                                                                 

                  I agree                                                                       

             (Smt. B. Giri)                                                                                      (Shri Purushottam Samantara)

            Member (W)                                                                                                         President                    

         DCDRF, Keonjhar                                                                                             DCDRF, Keonjhar                                                   

          

                                                                                 Dictated & Corrected by me

                                                                               (Shri Purushottam Samantara)

                                                                                          (President)

                                                                                     DCDRF, Keonjhar