Orissa

Cuttak

CC/234/2022

Director,Sourendra Mohapatra,Viable Infrastructure & Logistics Pvt Ltd - Complainant(s)

Versus

Authorised Officer,Srei Equipment Finance Ltd - Opp.Party(s)

R Sahu & associates

01 Mar 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.234/2022

 

           Viable Infrastructure and Logistics Pvt. Ltd.

           Represented by Director Sourendra Mohapatra,

           S/O:Subhransu Mohapatra,

           At:4^th Floor OSL Tower-II,

           Link Road,Cuttack,Odisha-753012.                                                                ... Complainant.

          Vrs.

 

1.       SREI Equipment Finance Limited,

Represented through Authorised Officer,

At: ‘Viswakarma’, 86C,Topsia Road(South),

Kolkata-700046,State:West Bengal.

 

2.      Punjab National Bank,At:44,Park Street,

Kolkata-700016, represented by SREI

Equipment Finance Limited.                                                                                  ...Opp. Parties..

 

Present:            Sri Debasish Nayak,President.

                             Sri SibanandaMohanty,Member.

 

 

Date of filing:    18.11.2022

Date of Order:  01.03.2023

 

For the complainant:            Mr. Rakesh Sahu,Adv.& Associates.

For the O.Ps              :            None.

 

Sri Debasish Nayak,President.

Case of the complainant as made out from the complaint petition in short is that he had availed financial assistance to the tune of Rs.42,67,024/- for purchasing one Liu Gong Excavator CLG 921 machine bearing engine no.71F 84394315 from the O.P no.1 by executing an agreement bearing no.159166 dt.15.5.18.  The complainant had not received copies of the said agreement from O.P no.1 but O.P no.1 had obtained signature of the complainant in blank form while granting the said loan.  The said Excavator machine was hypothecated to O.P no.1.  The total amount alongwith interest of Rs.48,83,080/- was to be repaid by the complainant in 34 number of E.M.Is @ Rs.1,43,620/-.  Subsequently, the monthly instalments were changed from 34 number of instalments to 35 number of instalments and thereby the 35^th instalment was fixed to be of Rs.1,06,292/- vide letter dt.30.3.19 to the complainant. But the same was again revised to be of Rs.1,24,909/- vide letter dt.21.2.20 and again on revision it was changed to be of Rs.1,43,620/- and the 36^th instalment was fixed for a sum of Rs.1,24,443/-.  The complainant had paid the instalmentsup to 21^st number without being defaulter but he had paid a sum of Rs.33,601/- as part payment for the 22^nd instalment.  Thereby the complainant had repaid a sum of Rs.30,49,621/-.

By virtue of a Deed of Assignment executed  between O.Ps no.1 & 2 on 28.1.20, the O.P no.1 assigned all receivables, with all rights, benefits, power, risk and guarantees and also indemnities corresponding to underline securities in the assets to O.P no.2 and through the servicer agreement dt.28.1.20 in between the O.Ps no.1 & 2, O.P no.1 was appointed as the “servicer” in order to manage, collect, process and receive payment on behalf of O.P no.2.

 Due to the pandemic situation it was impossible on the part of the complainant to repay the instalments with effect from the 22^nd instalment onwards for which he had manage to pay only a sum of Rs.33,601/- towards the 22^nd instalment as a part thereof.  The complainant had apprised O.P no.1 about the loss in his business with effect from March,2020 to December,2021 and assured to clear the outstanding instalments thereby requesting him to exclude the interest charges and other expenses but O.P no.1 had illegally and arbitrarily terminated the agreement.  Thus, the complainant has come up with this case seeking direction to the O.Ps for reconsideration of his representation and to restructure the loan amount thereby making repayment of the offered amount in easy instalments and also for any other reliefs as deemed fit and proper.

2.         Out of the two O.Ps as arrayed in this case, having not contested  this case O.P no.1 has been set exparte vide order dt.7.1.23 whereas O.P no.2 has been deleted vide orderdt.12.1.23.

3.         The points for determination in this case are as follows:

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Point No.ii.

Out of the three points, point no. ii being the pertinent one is taken up first for consideration here in this case.

Admittedly, the complainant had availed financial assistance from the O.P no.1 to the tune of Rs.42,67,024/- for purchasing one Liu Gong Excavator CLG 921 machine bearing engine no.71F 84394315 by executing an agreement bearing no.159166 dt.15.5.18.  The complainant had not received copies of the said agreement from O.P no.1 but the O.P no.1 had obtained signature of the complainant in blank form while granting the said loan.  The said Excavator machine was hypothecated to O.P no.1 and the total amount alongwith interest was of Rs.48,83,080/-  which was to be repaid by the complainant in 34 number of E.M.Is @ Rs.1,43,620/-.   Subsequently, the monthly instalment was changed from 34 number of instalments to 35 number of instalments and thereby the 35^th instalment was fixed to be of Rs.1,06,292/- vide letter dt.30.3.19 to the complainant which was again revised to be of Rs.1,24,909/- vide letter dt.21.2.20 and again on revision it changed to be of Rs.1,43,620/- and the 36^th instalment was fixed for a sum of Rs.1,24,443/-.  The complainant had paid the instalments up to 21^st number without being a defaulter but, he had paid a sum of Rs.33,601/- towards part payment for the 22^nd instalment.  The complainant had repaid a sum of Rs.30,49,621/-. By virtue of theDeed of Assignment executed  between O.Ps no.1 & 2 on 28.1.20, the O.P no.1 was assigned all receivables, with all rights, benefits, power, risk and guarantees and also indemnities corresponding to underline securities in the assets to O.P no.2 and through the Servicer Agreement dt.28.1.20 in between the O.Ps no.1 & 2, O.P no.1 was appointed as the “servicer” in order to manage, collect, process and receive payment on behalf of O.P no.2.  Due to the pandemic situation, it was impossible on the part of the complainant to repay the instalment with effect from the 22^nd instalments onwards for which he had manage to pay only a sum of Rs.33,601/- towards the part payment for the 22^nd instalment.  The complainant had apprised O.P no.1 about the loss in his business with effect from March,2020 to December,2021 and had assured him to clear the outstanding instalments thereby requesting him to exclude the interest charges and other expenses but the O.P no.1 had illegally, arbitrarily terminated the agreement as executed in-between the complainant and the said O.P no.1.  As per the rules both the parties are bound to abide by the terms and conditions of the agreement and deviation of the same by either side isnot sustainable as per law and in this matter arbitration order has already been passed.  Moreso, there is no provision under the C.P. Act to restructure the E.M.Is as prayed by the complainant.  Therefore, this Commission is of the opinion that there is no deficiency in service on the part of the O.Ps and accordingly this point goes in favour of the O.Ps.

 

Pointsno.i& iii.

From the discussions as made above, it can never be said here in this case that the case of the complainant is maintainable and thus the complainant is not entitled to any of the reliefs as claimed by him.

ORDER

Case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 1^st day of March,2023 under the seal and signature of this Commission.             

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                      Sri Sibananda Mohanty

                                                         Member