BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 17th JUNE 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C. No.302/2014
(Admitted on 18.08.2014)
Mr. Pushpakara Shetty,
S/o Mr. Angara Shetty,
R/at House No.22/6/963,
Shetty Sadana,
Mangalore Thota, Gujjarakere,
Mangalore.
….........COMPLAINANT
(Advocate for the Complainant: Sri MRK)
VERSUS
1. Managing Director,
SREI Equipment Finance Pvt Ltd,
Head Office Block Y.10,
Ep Sector V, Salt Lake City,
Kolkata 700091.
2. The Regional Manager,
SREI Equipment Finance Pvt. Ltd,
1st Floor, SN Towers, M.G. Road,
Bangalore.
3. Branch Manager,
SREI Equipment Finance Pvt Ltd,
Door No.16.12.693/15PT,
Oberel Towers First Floor,
Balmatta, Mangalore 1.
…........OPPOSITE PARTIES
(Opposite Party No.1: Served)
(Advocate for the Opposite Party No.2: Sri SMR)
(Opposite Party No.3: Ex parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The Complainant alleges of availing a loan from opposite party No.1 of Rs.46,00,000 on 15.04.2011 under an agreement liability to repay in monthly instalment at Rs.1,60,000 and that he was regular in repaying the monthly instalment was reduced to Rs.1,43,100 by opposite parties and of payment of Rs.60,00,000 till 31.05.2014. He also alleges of offering for OTS to opposite party in March 2014 but opposite party responding of an outstanding of Rs.22,44,860/ interest at 24%. He alleges the claim is unheard and highlyexorbitant. Despitelegal notice opposite party has not settled hence seeks the reliefsclaimed in the complaint.
2. Opposite party No.2 objects in the version disputing the relationship of consumer and service provider between the parties. As such this Forum has no jurisdiction to entertain the complaint. It also claims in view of clause 9.11 of the agreement the differences on dispute between the parties as to consumer and service providerreferring to arbitration clause under the Arbitration and Conciliation Act 1996 and rules framed thereunder and arbitration proceedings at Kolkata. The facts involved mixedquestion of law and fact cannot be urged before this Forum having limited summary proceeding jurisdiction under C P Act. Theamount due for complainant as on 30.04.2015 is Rs.28,29,869/ towards instalment amount along with other charges.
3. At para 4 of the version opposite party No.2 as further mentions on 12.9.2014 opposite party No.1 sent a letter to complainantrequesting him to payment the unpaid instalment amount of Rs.9,23,039 and other charges in all a sum of Rs.13,72,698/.Hence seeks dismissal of the complaint.
4. In support of the above complaint Mr. Pushpakara Shetty filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite partyMr. B Malleshwara Rao (RW1) Authorized Representative of the opposite parties No.1, 2 & 3, also filed affidavit evidence and not answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R8 as detailed in the annexure here below.
5. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for complainant addressed oral argument. Opposite party has not filed notes of arguments.We have considered entire case file on record including evidence tendered by parties. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Negative
Point No.(iii): As per the final order.
REASONS
6. POINTS No. (i): It is to be noted that complainant has claimed borrowing loan from opposite parties under certain terms and conditions.He also claims subsequently the monthly repayment amount was reduced from Rs.1,60,000/ to Rs.1,43,100/. He also claims that certain paymentwere made and that excess interest and excess amount due claimedby opposite party. Thus one this it is certain that opposite party advanced loan to complainant and complainant was repayingit and thereby relationship of consumer and service provider is undisputed. The claim of complainant paymentof the amount infull and of opposite parties claiming exorbitant amounts is disputed by opposite parties. Hence thereis a lis between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
7.POINT NO. (ii):Without going into much details in to the case as mentioned earlier the advance of loan by opposite parties to complainant and of complainant repaying substantial amount, ofcourse opposite party disputing complainantclaim is not at all in dispute. Our attention was drawn by the learnedcounsel for complainant to Ex.R4 a letter sent by opposite party to complainant dated 12.9.2014 as per which opposite party mentions the total outstanding as on 31stAugust 2014 is mentioned as Rs.13,72,698. The learnedcounsel for complainant had submitted the opposite partiesagreed to the amount offeredby them and the complainant is willing to make this payment towards opposite parties claim.
8. Of course in this case a statement made at Ex.R4 has to be construed as unequivocal admission and binding on opposite parties. Of course opposite party did some mention other groundsincluding of jurisdiction to this Forum to try the case asit involvescomplicated question of law and fact. Consideringthere is an admission on the part of the opposite parties we need not look into those aspects.
9. In any case in the complaint the claim made by the complainant is for a direction to opposite party to pay compensation amount. But in view of the admission on the part of the opposite party at Ex.R4 an amount due to pay by complainant of Rs.13,72,698/ opposite party cannot go beyond onthat amount. In fact as seen from the submission of the learnedcounsel made before this Forum as recorded by us on 27.12.2016 amounts to admission of outstanding liability by complainant to opposite parties.
10. In fact in the order sheetthe admission made by the learned counsel for complainantrecorded on 27.12.16 it was submitted that complainant is willing to pay the amount of Rs.13,52,339 mentioned by opposite party. We can presume this statementis made in respect of opposite parties statement at Ex.R4. The relevant portion of statement of learned counsel on 27.12.16 made by us in the order
sheetreads:
27.12.16
Counsel for complainant prays time and submits that opposite party No.2 in the written version at para 5 page 8 mentioned demand made was in the legal notice as Rs.13,52,339/ at document no 3 filed with written version, if opposite party is willing to settle on this claim amount complainant is willing to settle the claim of opposite party and that it be referred to L/A. case referred to L/A.
Call on 07.1.2017
11. In fact at argument theonly submission made by learned counsel for complainant is based on to the submission recorded by us on 27.12.16. However it would be beyond the scopeofand the powers conferred under the C P Act on this Forum either to order in adisputeto pay admitted amountmentioned at Ex.R4 Rs.13,72,698 or directing opposite parties to accept this amount with interest or directing opposite parties to close the dispute by accepting this amount with interest.
12. It is to be noted eventhough opposite party raised so many other points in the version in view of the admission at Ex.R4 we need not look into those aspects. In any case as the prayer made in the complaint is for an order of compensation against opposite parties also cannot be orderedby this Forum for the simple reason that complainantadmitted amount due from him to opposite party as per Ex.R4. Hence the presentcase is devoid of merits as there is no deficiency in service on the part of the opposite parties and liable to be dismissed. Hence we answer point No.2 in the negative.
POINT NO. (iii):Wherefore the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 17th June 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Pushpakara Shetty
Documents marked on behalf of the Complainant:
Ex.C1:09.06.2014: Letter issued by the opposite party to to the complainant
Ex.C2: 13.06.2014: Letter issued by the complainant to the Opposite party
Ex.C3:13.06.2014: R.P.A.D Receipt 2 in No.s
Ex.C4:14.05.2014: Postal acknowledgement
Ex.C5: : Original 58 money receipt
Ex.C6: : RPAD receipts 2 in nos.
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. B Malleshwara Rao,Authorized Representative of the opposite parties No.1, 2 & 3,
Documents marked on behalf of the Opposite Parties:
Ex.R1: 18.09.2015: Copy of the power of attorney executed by Mr. Hemant Kanoria, Vice Chairman & Managing Director, Srei Equipment Finance Ltd, in favour of Sri BoddepalliMalleswara Rao
Ex.R2: 05.04.2012: Copy of the agreement entered into between the complainant and the opposite parties
Ex.R3: 09.06.2014: copy of the letter addressed by the opposite parties to the complainant
Ex.R4: 12.09.2014: Copy of the letter addressed by the opposite parties to the complainant
Ex.R5: : Copy of the statement of account for the period from 28.03.2012 to 30.11.2015
Ex.R6: : Copy of the repayment schedule
Ex.R7: 25.11.2014: Copy of the legal notice issued to the complainant
Ex.R8: 04.12.2014: Copy of the police complaint given by the opposite parties to Officer-in-Charge, Hare Street Police Station, Kolkata.
Dated: 17.06.2017: PRESIDENT
