Orissa

Jajapur

CC/98/2013

Ashok Kumar Behera - Complainant(s)

Versus

Authorised Signatory,Magma Fincorp Ltd. - Opp.Party(s)

Alok Kumar Pane

16 Jul 2015

ORDER

                   IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:  1.Shri Biraja Prasad Kar,President,

                                                                         2. Shri Pitabas Mohanty,Member,

                                                                         3.Miss Smita Ray, Lady Member.                                                                            

                                              Dated the 16th day of July,2015.

                                       C.C.Case No.98 of 2013

Ashok Kumar Behera S/O Late Fakir charan Behera

At/P.O. Charinangal (B.K.Mahal)

P.S.Balichandrapur , Dist .Jajpur.                                                                …… ……....Complainant .                                                                       .

                   (Versus).

1.Authorised Signatory, Magma Fin corp Ltd, formerly as Magma Sarchi

Finance Ltd,24-park street, Kolkata.

2.Authorised Signatory ,Magma Fin corp Ltd, formerly as Magma  Sarchi

Finance Ltd,At. Nirmal Plaza,A-1,foreset park ,Bhubaneswar.

3. Authorised Signatory, Magma Fin corp  Ltd, formerly known as Magma Sarchi

Finance Ltd  At. By-pass Road,  P.O.  Jajpur Road,  Dist.Jajpur.

 

                                                                                                                     …………………..Opp.Parties.

For the Complainant:                              Sri A.K. Pani, Advocate..

For the Opp.Parties .                              Sri A.K. Pahil, Advocate

.                                              

                                                                                               Date of order:   16.07. 2015.

SHRI  PITABAS  MOHANTY, MEMBER .

                        The petitioner has filed the present  dispute alleging not only deficiency in service but also unfair trade practice on the part of the O.Ps.

                        The facts relevant for this present dispute shortly as per complain petition are that the petitioner being an unemployed youth purchased a vehicle bearing Regd. No.0R-09K-5068 by availing loan from the O.Ps. and for availing such loan the petitioner has executed Loan-cum-Hypothecation Agreement with the O.Ps. As per hypothecation agreement the petitioner has paid Rs.13,50,708/- in between 01.08.2008 to 14.11.2012  as against the contact value Rs.12,56,267/- having the loan amount of Rs.9.10,000/- . After repayment of loan though it is the liability and mandatory duty of O.Ps. to issue NOC in favour of the petitioner against the above cited financed vehicle but insisted of several approach the O.Ps. without issuing the NOC at present charging additional interest 3% per month which is nothing but deficiency in service as well as unfair trade practice on the part of the O.Ps. since such charging of additional  3% interest per month is not sustainable  in the ye of law. Accordingly the petitioner finding no other way has come with this complain petition with his prayer to direct the O.Ps. to issue NOC against the financed vehicle as well as to give direction not to charge  3% interest per month and

to award Rs.50,000/- as compensation in favour of the petitioner for mental agony which has been  resulted due to deficiency in service and unfair trade practice  on the   O.Ps.

                        The O.Ps. after appearance have filed the written version denying the allegation of the petitioner . In the written version the O.Ps. have taken the following pleas:

1. The petitioner is not a consumer .
2. This dispute is not maintainable in this For a since as per Arbitration Clause  of the agreement the dispute shall be decided at Calcutta.
3. Similarly this dispute is liable to be dismissed since the O.Ps. have not violated the term and condition of the agreement.
4. More over as per term and condition of loan-cum-Hypothecation Agreement the petitioner is liable to pay 3% interest per month  on delayed payment installment for which the grievance of the petitioner is not sustainable in the eye of law.
5. Like wise the present dispute is also not maintainable since the claim of the O.ps. towards payment of D.P.C  amounting to Rs.1,24,403/- has already been finalized by the Learned Arbitrator on 25^th June-2012 and accordingly subsequent consumer complaint is not maintainable.

In view of the above narrated clarification the present dispute is liable to be dismissed with cost.

                        Owing to the above narrated views of both the parties we are inclined to decide the present dispute as per our observation stated below:

1. The stand taken by the O.Ps. in the written version  dt.30.1.2014 that the petitioner is not a consumer  is legally not acceptable on the ground that the petitioner is a higher / Loanee who has purchased the aforesaid vehicle by availing loan from the O.Ps. and for such availing of loan the petitioner/ hirer is paying interest which is consideration as per observation of Hon’ble Supreme Court reported in 2001(1)CPR-7(S.C)as has been indicated in 2005-CTJ-211vide para-12 (A.A.Ramadoss Vrs. Indian Overseas Bank)  As such we are in the considered view that the petitioner is a consumer who has hired the services of O.Ps.

2. The plea taken by O.P.s vide para-2 of the written version that this Fora gets no  jurisdiction to entertain the dispute since as per arbitration clause any dispute to this transaction lies  at Kolkata  is also not sustainable in the eye of law as per observation of Hon’ble Supreme Court reported in 2013(4)-CPR-345-para-29-SC (M/S National Seeds Corporation Vrs. M. Madhusudan reddy)

3.  The O.Ps also taken the pleas vide para-8 of the written version that the Arbitrator has passed this award on 25.06.2012 after giving reasonable opportunity to all the parties . In this context in absence of any documentary evidence from the side of the O.Ps, we are unable to accept such contention of the O.Ps. as per observation of the O.Ps. as per observation of Hon’ble National Commission reported in 2012(3)-CPR-511 vide para-II

                         “ Arbitration notice must be served on other party “.

M/S Magma leasing Ltd Vrs. Sri Bharat Singh) since the Xerox copy of the 3 postal receipts dt.27.07.2012 are not related to arbitration notice.

4.  Further it is stated by the petitioner that as against the loan amount of  Rs.9,10,000/- he has paid Rs.13,50,708/- having the contact value of Rs.12,56,267/- which is not challenged by the O.Ps. in the present case. Hence it is cristal clear that the petitioner has paid Rs.13,50,708/- as against the loan of Rs.9,10,000/- having the contact value of Rs.12,56,267/- .

5. As regards the monthly 3% interest on over due amount as has been claimed by O.P. vide para-4 of the written version is also judiciously not acceptable in view of the observation of Hon’ble Odisha High Court vide W.P (C) No.17720/2008 (Smt. Sabita Chatoii Vrs.Officer-in-charge) since it violates the guide line constitution Bench of Supreme Court  reported in  AIR-2001-Supreme Court-3095. As such the agreement claiming monthly interest 3% on over due amount can be treated as void under section-20 of the Indian Contract Act-1872 as observed by Hon’ble National Commission in a R.P bearing No.737/2005 (Citi crop Maruti Finance Vrs.S .Vijaylaxmi) since such agreement is totally on the basis of misrepresentation / mis understanding of facts and law since it violates the guide line of Hon’ble Supreme Court observation reported in AIR-2001-3095 (S.C)

                        In the conclusion, the reasons recorded above though we are constrained to hold that this Fora gets no jurisdiction to decide the dispute as per observation of Hon’ble National Commission reported in 2006(3) CPR-339(NC)  (the installment supply Ltd  Vrs.Kangra) since the Learned Arbitrator has already passed the award on 25.06.2012 which is prior to filing of the present dispute. Accordingly we dispose of the dispute as per order below.

                       

O R D E R

                        In the result the dispute is disposed of . While disposing the dispute we are in the opinion that the petitioner is at liberty to approach proper Forum in respect  of his grievance if he so likes. No cost.

      This order is pronounced in the open Forum on this the 16th day of July ,2015. under my hand and seal of the Forum.

 

                                                                                     (Shri Pitabas Mohanty)

(Shri Biraja Prasad Kar)                                                                          Member.

       President.                                                           

                                                                                     Typed to my dictation & Corrected by me.

 

(Miss Smita Ray)                                                                        (Shri Pitabas Mohanty)                                                         

  Lady Member.                                                                                       Member.