Orissa

Jharsuguda

CC/98/2020

Bikash Chandra Naik S/P- Late Hemanta Kumar Naik - Complainant(s)

Versus

Anil Mohanand S/O- S. Mohanand - Opp.Party(s)

Sunil Dash

15 Dec 2021

ORDER

IN THE COURT OF DISTRICT   CONSUMER DISPUTES REDRESSAL COMMISSION, JHARSUGUDA.

                                                          

C.C.NO-98/2020

 

Bikash Chandra Naik, Aged about 52 years

 S/O-Late Hemanta Kumar Naik,

Resident of AT- Gandhi Chowk,

PO. Gandghora, PS. Brajrajnagar,

Dist. Jharsuguda (Odisha).                                                       ..……Complainants.

     

Versus

 

1.  Anil Mohanand, Aged about 40 years,

S/O- S. Mohanand,

R/O-AT- Nuapada Back side of Hari Om Vihar,

P.O/PS- Brajrajnagar Dist. Jharsuguda, Pin-768216.   ……….Opposite Party

 

2.  Santosh Kumar Jena, aged about 38 years,

S/O- Ramchandra Jena,

R/O-At- Abhaypur, PO/PS. Brajrajnagar,

Dist. Jharsuguda ( Odisha) Pin-768216.                          ………..Proforma O.P

 

            Counsel for the Parties:-

For the Complainant                       :-         Sri S.K.Dash, Advocate.                 

For the Opp. Party No-1                 :-         Sri S.P.Rai,Advocate.

 

             Present:-     1. Shri  Dipak Kumar Mahapatra, President.

                                     2. Smt. Anamika Nanda, Member (W).

 

Date of Hearing:- 09.11.2021, Date of Order: 15.12.2021

SRI DIPAK KUMAR MAHAPATRA, PRESIDENT:- Brief facts of the case is that, the Complainant  is registered owner of 2 nos. of TATA LPT 2515 TC/48 Trucks one bearing Regd. No. OR-09-K-6933, having its Chassis No.426021CRZ208993, Engine No.80C62664040 and the other bearing Regd. No. OR-09K-6233, having its Chassis No. 426031CRZ207282 Engine No. 80C6258415 (herein after called vehicles).  The complainant has purchased both the vehicles to earn his livelihood by means of self- employment.  He had been maintaining his family out of the income from the vehicles.

 

That, the complainant faced financial crises during June,2019.  The Proforma OP (herein after called as the O.P-2) has acquaintance with the complainant and also a close friend.  Both the complainant and O.P-2 have visiting terms with each other.  The complainant reluctantly requested the O.P-2 to accommodate him financially for an amount of Rs.2,00,000/- and he would repay it on installment basis.  The O.P-2 extended such financial help and paid the complainant Rs.2,00,000/-.  The complainant repaid an amount of Rs.1,70,000/- to the O.P-2 out of borrowed amount of Rs.2,00,000/- and assured to pay the rest amount of Rs.30,000/- if he is allowed some times, as he was unable to arrange the rest amount instantly, the O.P-2 gave him one month time to repay the same.  That, when  the complainant could not arrange the rest amount of Rs.30,000/- from his own source, the O.P-2 started pressuring him to pay the rest amount and if unable to pay it he could obtain loan from O.P-1 and pay him.  When the complainant approached the O.P-1 he agreed to pay him Rs.30,000/- with the condition that the complainant had to mortgage both his vehicle to the O.P-1 with a meager amount of Rs.30,000/- which he received on dt.22.10.2019 and delivered physical possession of the vehicles to him.  That, at the time of mortgaging the vehicles and receiving Rs.30,000/- there was an oral contract between the complainant and O.P-1 that the complainant would repay Rs.30,000/- within 3 months to him and get back both the vehicles.  The complainant also offered a proposal to the O.P-1 that if he could arrange the amount before completion of 3 months he would pay the same and restore the possession of the vehicles to which contract the O.P.-1 is agreed. On dt. 26.12.2019 the complainant went to the O.P.-1 to pay him Rs.30,000/- and get back the vehicles but the O.P-1 is now reluctant to return the possession of the vehicles to the complainant thus committed deficiency as he is not performing his part of oral contract and committed negligence and/or omission or commission which causes loss as well as injury to the complainant. The O.P-1 has committed deficiency of service as per Sec 2(11)(i) of C.P Act,2019.  The O.P-1 is also adopting unfair contract as he is refusing to accept early repayment of debts obtained by the complainant who asked the O.P-1 to take some extra amount Rs.10,000/-as penalty from him.  The O.P-1 without any reasonable cause terminated the contract unilaterally and threatened the complainant that he would not return the vehicles him even if he pays extra amount of Rs.10,000/-.  On dt.01.08.2020 the O.P-1 told the complainant to pay Rs. 1,00,000/- against borrowed amount of Rs.30,000/- if he wanted to get back the vehicles.  The O.P-1 is imposing unreasonable charge, obligation and condition which is putting the complainant to disadvantage. Thus the compliant has adopted unfair contract as per Sec.2 (46XiIi,iv and vi) of CP Act,2019.  That, the cause of action of this case arose on dt.22.10.2019 when the complainant received an amount of Rs. 30,000/- from the O.P-1 and delivered physical possession of the vehicles on dt. 26.12.2019 when the complainant offered to pay Rs.40,000/- to the O.P-1 and on dt. 01.08.2019 when the O.p-1 asked an amount of Rs.1,00,000/- from the complainant and other

subsequent dates, hence this case is within limitation period U/s.69 of C.P,Act,2019.

The O.P-1 & 2 despite of service of notice from this commission, they did not bother to file written statements to their defense before this Commission thus challenging the allegations made by the complainant.  So taking it in to consideration as “IT IS A YEAR OLD CASE” this commission has rightly decided to dispose off the case on merit basis considering the complaint petition filed by the complainant.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

 

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has paid the outstanding dues pending with the O.P-1 to get back the possession of his vehicles.  The O.P-1 has violated the terms and condition of the contract though it is a ORAL CONTRACT.  In the case of Sheela Gehlot Vs. Sonu Kochar & Ors. 2006(92) DRJ 498 Delhi High Court observed that oral agreements are valid and enforceable and there could be no dispute about it.  Until there is anything which needed to be written, an oral agreement will enforce.  Further for a contract, there has to be some proposal and acceptance.  And for the oral agreement, there should be some circumstances surrounding the alleged oral agreement.  No one can question the oral agreement as invalid.  As we see in the case of Alka Bose Vs. Parmatma Devi & Ors. (Civil Appeal No(s) 6197 of 2000), the Supreme Court by coming to the conclusion of the case observed that how oral agreements are valid.  A Sale agreement can be oral also and valid.  It is not necessary that agreement should be written, what is more important is that it should be within the ambit of Section 10 of the Indian Contact Act.  All oral and written agreements will be valid if they fulfil the conditions specified in section 10.  In the case of Y V  Narasimha Sarma Vs. Soormapalli Appalaraju 1988 Civil (A.P) Court Appeal No.887 of 1982 held that it is not necessary that a contract should be written only, an oral contract is also valid.  Under section 54 of Transfer of Property, Act, an oral sale of a contract is true and valid. It is upon the plaintiff who has filed the case to prove that oral agreement is true.  He has to show a true evidence in support of his contention.  It is true that written contract has some valid authenticity, but if there is some oral agreement of sale, one has to 0prove it with sufficient evidence. So from the above it is seen that the O.P.-1 has not complied with the assurance given to the complainant regarding giving back the possession of the vehicle on repayment of money borrowed by the complainant and adopted an unfair means while observing the oral agreement in the said contract. Hence we order as under:-                             

                                    

ORDER

The Complaint petition is allowed. The O.P-1 is directed to return the vehicles to the possession of the complainant by receiving an amount of Rs.30000/-.  Further the O.P-1 is directed to pay an amount of Rs.50,000/- for financial loss and for mental agony, pain  and harassment along with cost of litigation to the complainant.  All the above orders are to be carried out within 60 (Sixty) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.      

Order pronounced in the open court today i.e, on 15^th day of December-2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,                                                                                             

MEMBER(W)                                                                                                            PRESIDENT.

                                                        Dictated and Corrected

                                                                      By me.   

 

   PRESIDENT