Orissa

Jagatsinghapur

CC/229/2021

Sri Bichitra Kumar Samantraya - Complainant(s)

Versus

B.M,Indusind Bank - Opp.Party(s)

Mr.S.K.Naik

19 Oct 2022

ORDER

                                                                                             JUDGMENT

 

            Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;

            “Direct the opposite parties not to repossess the vehicle bearing No.OD-05-AF-1477  supply a copy of the loan agreement and account statement and to adjust the rate of interest as per the old agreement after deducting the unutilized insurance premium and to deduct the penalty interest and to receive the installment for the loan without adjusting the same in any other unnecessary  charges and to exonerate the complainant from any other unnecessary charges  and not to misutilise the blank signed cheques and pay compensation of Rs.4,00,000/-”.

            The brief fact of the case is that the complainant is an educated and unemployed person had purchased one U-3118 BS IV in the year 2017 being financed by Indusind Bank Ltd. for his livelyhood and maintenance of his family from the earning of the vehicle.

            As the entire consideration money was not available with him, he approached the opposite parties for refinance of the existing loan at the existing rate of interest and accordingly the opposite parties refinanced the vehicle loan of Rs.12,10,000/- which was to be repaid in 48 installments and Rs.15,000/- for three installments and Rs.20,000/- for nine installments and the rest @ Rs.39,000/-. The vehicle got registered as OD-05-AF-1477 and vehicle was also insured through the financer at the cost of complainant. Finance charges and provision for future insurance included with the installment as per the discussion with opposite parties. The opposite parties did not provide the copy of the loan agreement and had taken blank signed cheques of Bank of India, Paradeep Branch for security purpose.

            The complainant used to pay the installments and paid all installments till October, 2021 and due to Covid-19 period the vehicle could not run and due to financial crisis the vehicle could not be engaged properly and not doing any business and due to prolonged illness of the complainant and excessive expenditure in repairing of the vehicle the complainant could not pay installments in time.

            The opposite parties again prayed the complainant to reschedule the loan in place of refinance the loan at the existing rate of interest and reschedule the loan and prepared the new agreement but the opposite parties did not provide the agreement copy in spite of several requests. On 08.12.2021 the opposite parties without serving any notice regarding outstanding with proper calculation and adjustment reached near the house of complainant to repossess the vehicle where it has been parked for repairing through anti social people but failed to do so as the vehicle could not move.

            On 11.12.2021 the complainant went to opposite parties finance office to know the current status of account statement and copy of loan agreement and other connected papers. But the opposite parties refused to provide the documents. The complainant paid more than Rs.26,05,200/- towards installment before restructure excluding D.P. but the opposite parties charged unnecessary charges which gives rise the loan amount.

            Notice was issued to opposite parties bank, in their written note of submission they have mentioned whether the complainant is a consumer or not but so far as concerned the complainant purchased the above vehicle by availing finance from  opposite parties to maintain  his livelyhood and gave his statement with affidavit. On perusal of the Para 10 of the written version it is noticed that one Bichitrananda Samantaray is Borrower and Co-Borrower/guarantor but in the present case the name of the petitioner is Bichitra Kumar Samantaray. The Opposite parties have not filed any document except the account statement. The Loan agreements has not seen the light of the day and never filed before the Commission in spite of the prayer of complainant before this Commission and such adament nature of the Opp. Parties and they have never substantiated their claim before this commission. 

            In written version  of the opposite parties mentioned that the loan contract is going to be classified under NPA category but the opposite parties did not give any description regarding classification of NPA whether it was in substandard, doubtful or loss assets category. The NPA cannot stand in this case.

            In spite of the interim order dated 13.4.2022 of this Commission directing the Opposite Parties & the petitioner which is quoted as fallows;  “Advocate for both the parties are present. Heard perused the materials found on record, it is cleared that an amount of Rs.55,000/- is pending against the complainant. Considering the facts and circumstances we direct to complainant to pay 30 % of unpaid EMIs i.e. Rs.55,000/- within three weeks from the date of order. Hence the opposite parties are directed not to repossess the asset (Vehicle) bearing Regd. No.OD-05-AF-1477 and not to misutilise the blank signed cheques of Bank of India, Paradeep Branch and not take any coercive action against the complainant in respect to the aforesaid vehicle till disposal of Consumer complaint” in spite of the order of this commission the opposite parties repossessed the vehicle of the complainant on 27.04.2022 in spite of the restrain of this Commission.

            The opposite parties mention that complaint is not maintainable as the loan agreement contains the clause for Arbitration & Territorial Jurisdiction. As per the decision of Hon’ble Supreme Court “Review Petition (c) Nos.2629-2630 of 2018 in Civil Appeal Nos-23512-23513 of 2017 Emaar MGF land Ltd. Vs Aftab Singh-1, (2015), CPJ (SC) in which it was laid down that Arbitration Clause on the Agreement does not bar the Jurisdiction of the Consumer Fora to   entertain the complainant” the complaint is maintainable in this Consumer Commission.

            It is clear from the opposite parties statement that the complainant duly executed an agreement of Rs.26,71,000/- vide loan agreement No.OCB00799D dt.01.11.2017 then the contract was rephrased/refinanced on 27.8.2021 vide loan contract No.OCE00923D a loan amount of Rs.12,10,000/- with 47 installments.

            It is crystal clear that the opposite parties did not give any notice to the complainant and try to repossess the vehicle and not given any fresh loan agreement or account statement to the complainant for which the complainant could not know the exact amount to be paid. From this it is understood that negligence was done by opposite parties and amounts to deficiency of service.

            Thus the complaint petition is allowed. It is ordered that the opposite parties shall supply the copy of the loan agreement, fresh account statement and to pay the financial loss and Rs.20,000/- for illegal detention  and stockyard charges paid by the complainant of the vehicle to be refunded/ not to be paid, as in spite of the order of this Commission, the vehicle was repossessed. The opposite parties are directed to pay compensation of Rs.20,000/- as mental agony and Rs.5,000/- as cost of litigation to the complainant within 30 days from the date of receipt of the order. The opposite parties shall not take any coercive action against the vehicle of the complainant till compliance of the order. With the aforesaid observation and direction, the consumer complaint is dispose of.