Orissa

Jajapur

CC/75/2016

Sayed Kurban Ali - Complainant(s)

Versus

B.M,Magma Fincrop Ltd - Opp.Party(s)

Srikanta Mohapatra,Seetikanta Das

08 Sep 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 8th day of  September,2017.

                                                      C.C.Case No.75 of 2016

Sayed Kurban Ali  S/O Sayed Munsaf Ali

Vill. Bari-Darga, P.O.Bari-kalamatia

P.S.  Bari-Ramchandrapur , Dist.-Jajpur.                                                    …… ……....Complainant .                                                                       .

                   (Versus)

1.B.M,Magma Fin Crop ltd,Nirmala plaza,2^nd floor,Forest park

     Bhubaneswar.

2.Chief Executive ,Magma Fin. crop ltd, 24-park street ,Kolkata.    

3.B.M.,Magma Fin crop Ltd,At.Chorda Chhak,Jajpur Road,Dist.Jajpur.  

                                                                                                                             ……………..Opp.Parties.                  

For the Complainant:                              Sri S. Mohapatra, Sri S.Das, Advocates.

For the Opp.Parties :                               Sri  A. Ku, Pahil, Advocate .                                                                                                   

                                                                                                                Date of order:  08.09.2017.

SHRI  PITABAS MOHANTY, MEMBER .

Deficiency in financial service is the grievance of the petitioner .

            The facts as stated by the petitioner in the complaint petition is that the petitioner being an unemployed youth  in order to maintain himself and his family purchase a truck bearing No. 0R-09-J-5486 taking financial assistance  from O.P.1 through O.P.3 by an hypothecation agreement bearing No. PG/00116/V 06/000297 and code No. HO/9/0016/06/001101 .

            It is stated by the petitioner that he has repaid the EMI without any default and finally  has cleared up all the outstanding amount against the vehicle on dt.20.11.12 and the statement  of account clearly shows that the petitioner has already cleared up all the loan dues against the above vehicle .

            That after clearing the outstanding dues the petitioner requested  the O. P to issue NOC against the vehicle but the O.Ps playing hide and seek game since  last four years  have slept over the matter as well as not issuing the NOC. Thereafter the petitioner  issued a letter as well as pleader notice requesting the O.P for issuance of  NOC but the O.Ps  remained  silent over the matter. Accordingly  finding no other alternative   the petitioner knocked the door of this Fora with the prayer to direct the O.Ps to  issue   NOC against  the vehicle in favour of the petitioner and direct the O.Ps to pay compensation of Rs .2 lakh for harassment ,mental agony and financial loss.

            After  appearance the O.Ps. field the written version  taking following plea that the petitioner does not fall within the definition of consumer and the relationship between the petitioner  and O.Ps  is that of borrower and lender . As such no consumer dispute  arises  and it is essentiality  a civil dispute.

2.Further it is stated by the O.ps. that the complaint  is not maintainable as the petitioner entered into an agreement  (Hire Purchase) with the O.P  and the said agreement contains  the clause for  Arbitration where all the disputes, differences, claims  and questions whatsoever arising  out of the said agreement shall be referred to the sole Arbitrator.

3.Similarly  though the O.P already has closed  the account  bearing  No, PG/0016/V/06/000297  and  not issuing the  NOC due to reason  that the transaction between the parties is a contract where both parties  have to perform their part  of obligation . As per clause-8 of the agreement the O.P  can hold NOC of the complainant if the petitioner has signed in any other agreement with the O.P as Hirer/ Co-hierr  and /or as a guarantor  and if that  account  has been  defaulted    the NOC of the present account  can  not issued to the petitioner till the defaulted account is closed .  The relevant  clause of the agreement is ,mentioned below:

* Not withstanding ‘ anything contained herewith the hirer/s agrees that the said  Asset (s) shall also stands as security for any  other agreement(s)  the  hirer/s  has executed with Magma                  in the capacity of hirer/borrower , co-hirer/co-borrower  or as guarantor and Magma shall have the right to refuse no due certificate to the hier /s in respect of the said asset (s) ever after the hirer/s has paid  all the dues under the agreement  provided that here is current and future  dues in other agreement  executed  by the hirer/s with Magma as aforesaid. In this regard  it is submitted              the observation of  Learned State Commission in  Karnataka ,State Financial Corporation  vrs. Mrs. Sheela S. Kotecha ,R.P. No.488/2005 , wherein  it is held that:

            “When there has been a contract between the parties  that being a bilateral action , both parties are bound by the terms  and conditions as  stipulated therein .  Hence under the  such circumstance the complaint case should be dismissed with cost.

            On the date hearing we heard the argument from the learned  advocate of both the parties. After perusal  of the record along with documents in details  as well as in view of the assertion and counter assertions we are inclined to decide the dispute as per our observations  below:-

a.At the initial stage we make it clear that we are going  to decide the dispute on the fact and circumstances of the present dispute as per observation of Hon’ble Supreme  court reported in 2001(2)CPR-108-S.C

b. It is undisputed fact that the petitioner availed  the loan from the O.P . As against such loan the petitioner is paying with interest which is covered under the  expression of  service  and the interest so paid by the petitioner in repayment of loan is consideration .As such the complaint is a consumer as per observation of Hon’ble Supreme court reported in 1995(2) SCC-150-S.C “ Consumer unit and Trust society Chairman , M.D Bank of Boroda) and 2000 (p)-115-(Bimal ch.Grover)  Vrs .Bank of India)

            Similarly the plea taken by the O.P in the written version that owing to the arbitration clause in the agreement this Fora gets no jurisdiction  to entertain  the dispute. it is also not sustainable as per observation of Hon’bel Supreme  court reported in 2004-CPJ-1-S.C (Secretary Thromurugn Co-operative  Agriculture  Society Vrs. M.Lalita , wherein it is held that:

            “Arbitration clause is no bar for entertaining the dispute by consumer Fora”.

As such this Fora has jurisdiction to decide the present dispute.

            The next  point arises  regarding NOC it is  stated by the petitioner that  the loan outstanding  of the above vehicle has already cleared up . But the petitioner filed the present dispute against the O.P regarding non issuance of  NOC of  the above  vehicle and alleges  that the O.P playing hide and seek game and such contention of the petitioner is also supported by M.R No.10053020120000002371 dt.30.11.12 issued by the O.P  as remarks /0R-09-J-5486 SDRS closer. In this contest we make it clear that the petitioner has availed the Truck loan on the strength of loan-cum-hypothecation agreement .However the O.P taken the plea that the O.Ps have not issued  the NOC of the petitioner since the petitioner has  signed another  agreement with the O.P as hirer /co-hirer as a guarantor and the said  account has been  defaulted  . In this respect it is our considered view that the O.Ps are not entitled to stop the  NOC against the above vehicle as per observation of Hon’ble  National Commission  reported in-  2012(3)-CPR-314-N.C , Kotak Mahindra  Ltd. Vrs. Zooma Khan) wherein it is held that :

            One can not stop  NOC in respect of one vehicle even if other agreement is still continue and 2011(10) CPR-223 - (N.C) wherein it is held that finance company can not refuse  to issue NOC even after clearance of the loan amount .

            In view of the above narrated observation we are in the considered view that the interest of justice will be best served in case we direct the O.Ps to issue NOC against the above vehicle without any delay .

Hence this order

            The dispute is allowed against the O.Ps  . The O.Ps  are directed to issue NOC against the above vehicle within 7 days after receipt of  this order, failing which the O.Ps shall liable to pay compensation of Rs.20,000/- .No cost.

This order is pronounced in the open Forum on this the 8th day of September,2017. under my hand and seal of the Forum.