Orissa

Kendujhar

CC/53/2015

Dharanidhar Mohapatra - Complainant(s)

Versus

1. Jayashree Automobiles - Opp.Party(s)

Sri Chandrabhanu Mahanta

17 Mar 2017

ORDER

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

CONSUMER COMPLAINT CASE NO. 53 OF 2015

    Dharanidhar Mohapatra,

    S/o- Late Biswanath Mohapatra,

    At- Danguaposi, P.O- Manoharpur,

    Via- Dhenkikote, Pin- 758029,    

    Dist- Keonjhar……………………………………………………………...Complainant

                          Vrs.

1. Jayashree Automobiles,

    Authorized dealer of Mahindra &

    Mahindra Ltd. (Swaraj Division),

    At- Nihal Singh Chhak, Dhangarpada,

    P.O- Keonjhar Bazar, Pin- 758002

    Dist- Keonjhar

    Present Address

    Anjan Kumar Nayak,

    At- Jamuhota, P.O- Keonjhar Bazar,

    Pin- 758002, Dist- Keonjhar

2. Branch Manager,

    Union Bank of India,

    Jagannath Market Complex,

    Magurgadia, Ward No. 12,

    P.O/Dist- Keonjhar, Pin- 758001

3. Mahindra & Mahindra Ltd. (Swaraj Division),

    1^st Floor Plot No.13, Unit-6,

    Ganganagar, Bhubaneswar………………….……………………….Op. Parties

PRESENT:

Shri Purushottam Samantara, President

Smt. B. Giri, Member (W)

Adv. for the Complainant - Sri Chandrabhanu Mahanta & Jagatjita Das

Advocate for OP1 &3 - Sri Pratap Kumar Acharya

Advocate for OP2 - Sri D.K. Jena & K.K. Brahma

_________________________________________________________________________________________ 

Date of Filing - 17.11.2015                                                                                        Date of Order - 17.03.2017

_________________________________________________________________________________________

SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

1. In nutshell, the complainant obtained one Tractor being financed by Union Bank of India in earning his livelihood on dt.17.07.14. Averred the loaned amount is Rs.5,40,000/-, Margin money Rs.1,80,000/-

2. The petitioner complained although the complainant has repaid an amount of Rs.10,20,000/- towards loan schedule but the OPs demanding more money which is illegal, arbitrary and unfair trade practice.

3. The complainant stated, he received 35 HP Mahindra Swaraj Tractor bearing Model No.834XM, Hydraulic Trolley bearing Mode No.JA-11/AA/2014-15, Plougher and leveler in submission provision estimate whereas the Tractor costs Rs.5,80,000/-, Trolley Rs.1,25,000/-, Plougher Rs.25,000/- and Leveler Rs.16,000/- only non-issuing the proper estimate and changing more than the stipulated amount in EMI is illegal and arbitrary.      

4. Praying to refund the excess amount taken and respective EMI posted with statement Account and relicts that deemed fit under the Invoices, Certificate of road worthiness and passbook photocopy.    

5. In pursuant notice, the OPs appeared and made the version with admission and contention as of with their lines.

6. The OP1 appeared and not filed any version either in protest or admission.

7. The OP2 filed the written version in vehement contention that transaction between the parties is a commercial loan not an agricultural loan so the complaint is not tenable.

Also made admission that the complainant has availed the loan under “Road Transport Operator “Scheme”, the Loan Account No - 538006120005599. The quotation is about Rs.7,20,000/- after margin money and security amount, the sanctioned loan stands up to Rs.5,40,000/-.

8. Further contending the valuation of Tractor is not Rs.10,20,000/- which miscalculated one. The allegation is baseless, malafide and motivated. 

9. Also averred the loan is sanctioned under “Road Transport Operator Scheme” and the installment is Rs.12,000/-, the loan is sanctioned on dt.17.07.2014 in execution of documents with guarantor. The outstanding is Rs.4,36,786/- and asking to repay the over dues is within the procedure of law. Made reliance of Quotation copy, Statement Account, Loan agreement copy and Guarantee document. Praying the complainant has no case and liable to be dismissed with cost in the interest of justice.

10. The OP3 contended the case has no cause of action, the litigant has indulge in speculative litigation, further the case has been filed only to wriggle out of his financial liabilities.

11. Further it is added, there is no privity of contract between this OP and the petitioner, rather frivolous in nature that attracts section 26 of C.P. Act. In view of the facts and circumstance, the case be dismissed with exemplary costs.

12. Perusal of record, it is not in dispute an amount Rs.5,40,000/- has been sanctioned @15% interest per annum with monthly rests that the hypothecation agreement clause 5 persists to note.

13. On the other hand reading of statement Account of loan account says the petitioner has repaid total of Rs.2,18,067/- as on dt.24.12.2015 and outstanding comes to the date is 4,36,786/-, so the amount of paying Rs.10,20,000/- is miscalculated & misconceived proportion.

14. Admittedly interview cum appraisal form exhibits’ speaks, the loan is sanctioned “under Small Business Transport Operators’” Scheme.

15. The bare reading of the scheme says, the bank is a lending member institution - the scheme has been devised to assist transport operator (existing as well as new entrants) and to create employment opportunities for the borrowers, so when scheme of (CGTME) is of creation of self employment in earning for livelihoods plausibly embarks within the provision of law, so it is settled - A person who buys goods and use them himself exclusively for the purpose of earning his livelihood by means of self employment is within the definition of the expression “consumer”.

       Hence the complainant is a consumer on that score the case is maintainable. Again even if it constitutes the component of commercial same also gets the wind of tenability as adjudged under the authority LAXMI ENGINEERING WORKS Versus P.S.C Industrial Institute - 4^th April 1995 (SCC).

16. On the contrary, Being of Central Govt. Sponsored Scheme the stipulated guideline has been ransacked by the lending Institution as we ponder to consider some excerpts.

The stipulations are given below: -

Security - Vehicle purchased with the amount of the loan will remain hypothecated to the bank as security of the advance and shall be registered with the Motor Vehicles Authority in the joint name of borrower and the bank as “Hypothecator” and Hypothecatee respectively.

Collateral Security: -

For loan up to Rs.10,00 lakh - No collateral security by way of guarantee and mortgage of immovable property of covered under CGTME. 

No collateral security or Third party guarantee is required for loans up to 100 lakh covered under Credit Guarantee Scheme of CGTME.

Repayment - (For New Vehicles) - Maximum period of 60 months by monthly installments, starting from the date when the vehicle (purchased with the amount of the loan) is put on the road for commercial use or after completion of two months from the date of advance, whichever is earlier.

 

17. The lender can extend terms loan or working capital facility alone and still be eligible for a guarantee cover it meets other eligibility parameters. Needless to say, the credit facility extended to a borrower should be without any collateral security and/ or third party guarantee.

18. In the scheme small road and water transport loans are eligible for guarantee cover, which comes under priority sector.

19. Advance are given to the persons who are owning not more than six vehicles including the one which is proposed to be financed by the bank.

20.Further we found the interest can be charged ranging from 12.5% to upper limit up of 17.5%, although being an obligatory one but in the present case, charged with 15% interest and also the charged has been started/accrued from the date of 24.07.14 in violation of guidelines “that after completion of two months from the date of advance” not observed so the nature & manner of performance which is required to be maintained by” as provisioned within the term of section 2(g) has been not nurtured properly, thus deficient in non rendering service. 

 

        In view of the aforesaid discussion, we consider the loan agreement needs restructured in modification of monthly installment and overdue charges raised in default be waived off and recast be made with @12.5% per annum interest to be charged on the entire advance till complete of redemption.

 

O  R  D  E  R

1. The OP2 is hereby directed to restructured the loan agreement and charge 12.5% interest per

     annum within the 60 EMI framework as scheduled.

2.  And also charge the interest not from the date of advance, but allowing moratorium of 3 months

     being the petitioner a poor and small business operator under the scheme.

 3. The OP1 is liable to pay the petitioner a sum of Rs.1000/- (Rupees one thousand) only as penalty

      in omitting & failing to represent properly within the stipulated time before the forum.

4. The complainant henceforth pay the scheduled installment properly, failing the default will attract

     penalty as per the contract and law.

The above noted directions to be complied within 4 weeks of the order, failing Rs.20/- per day will accrued till realization.

No order as to compensation and cost.

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

File be consigned to record room.

Pronounced, 17^th March 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