Orissa

Cuttak

CC/30/2021

Sradhanjali Sethy - Complainant(s)

Versus

Bajaj Fin Service Ltd - Opp.Party(s)

P K Ray

15 Oct 2022

ORDER

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

C.C.No.30/2021

 

Sradhanjali Sethy,

W/O:Subash Chandra Nayak,

At:Jagannath Sahi,Chandinichouk,

P.O: Chandinichouk,P.S:Lalbag,Dist:Cuttack,

Odisha.                                                                                     ... Complainant.

 

                                                Vrs.

1.        Bajaj Fin service Ltd., having its Corporate Office

6^th floor,Bajaj Fin service Ltd., Corporate Office

Pune-Ahmednagar road,Viman Nagar,

Pune-411014 represented through its

Managing Director.

 

2.        Branch Manager,                                                     

Bajaj Fin Service Ltd.,

(Below Akash Institute),NH-16,Naya Chowk,

Madhupatna,PO/PS:Madhupatna,Dist:Cuttack.

 

3.        The State Bank of India

Collectorate Compound Branch,Cuttack

Representd through its Branch Manager,

At/PO/Dist:Cuttack.

 

4.        The State Bank of India

Tulashipur Branch

Represented through its Branch Manager,

At/PO:Gulshipur,Distg:Cuttack.

 

5.        Patra Electronics,

At/PO/PS:Badambadi,Dist:Cuttack

Represented through its Proprietor.

 

6.        Mobile and Mobile,

At/PO:Deulasahi,Tulsipur,

Dist:Cuttack-753008.

Represented through its Proprietor.                                         .. Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    22.02.2021

Date of Order:  15.10.2022

 

For the complainant:          Mr. P.K.Ray,Adv. & Associates.

For the O.P s  1 & 2:             Mr. R.C Panigrahi,Adv. & Associates.

For the O.P No.3,4 & 6:                           None.

For the O.P No.5:                Mr. B.B.Bhol,Advcate.

 

Sri Debasish Nayak,President.                                                                          

            Case of the complainant as made out from the complaint petition in nutshell is that she had purchased a mobile set on 22.4.17 from the O.P No.5 of a Samsung G-610F Gold model by obtaining finance from O.Ps no.1 & 2 and after executing the required documents.  She had paid a sum of Rs.2817/- per month thrice to the O.Ps.  Thereafter the complainant had preferred to purchase another mobile set from O.P No.6 and had taken a VIVO 1555 model worth of Rs.12,500/- by obtaining finance from O.Ps no.1 & 2.  As because the complainant had Rs.5000/- only with her, the balance amount of Rs.7,500/- was financed to her by O.Ps no.1 & 2.  From the account statement of the complainant she could know that O.Ps no.1 & 2 had shown the second loan wherein a sum of Rs.4164/- was paid as down payment and a sum of Rs.8328/- is shown as the loan amount.  The statement of account of the loan bearing no.4C1DPF42174465 revealed that the loan amount is of Rs.12,490/- which was required to be paid in 12 number of instalments.  She was required to pay 4 instalments @ Rs.4164/- and the rest 8 instalments @ Rs.1041/- per month.  According to the complainant, she had cleared both the loans but the O.Ps no.1 & 2 have misappropriated her money more than the amount financed by them.  From the account statement she could further know that a sum of Rs.1550/- was outstanding towards the first loan account bearing no.4C1CDD39199554 out of which, a sum of  Rs.1350/- has been shown towards bounce charges, and further, a sum of Rs.200/- is shown late payment penalty.  Similarly, for the second loan account no. 4C1DPF42174465 outstanding amount of Rs.2450/- is shown  out of which a sum of Rs.2250/- is towards the bounce charges and a sum of Rs.200/- is towards the late payment charges.  She is charged for an amount of Rs.450/- on each occasion of dishonour of cheque irrespective of the amount of the cheque.  She further alleges that the O.Ps had not presented the cheques on exact due dates nor had they intimated the complainant for which there was dishonour in seven occasions.  When the complainant approached for NOCs, O.P no.2 did not issue the same rather, she was informed about the huge loan amount pending to be repaid by her.  The complainant has further alleged that even after repaying all the dues, the O.Ps are still continuing taking Rs.300/- per month from her.  She had paid her loan instalment as due on 16.2.18.  She had issued a pleader’s notice to the O.Ps on 8.1.21 and ultimately had to file this case claiming to get back  the excess payment amount of Rs.1738/- from the O.Ps, illegal deduction from the bank of Rs.9145/- , a sum of Rs.1,00,000/- towards her mental agony and harassment and a sum of Rs.30,000/- towards cost of her litigation.

            She has filed copies of several documents in order to prove her case.

2.         Out of the six O.Ps as arrayed in this case, O.Ps no.3,4 & 6 having not contested this case, have been set exparte.  However O.Ps no.1,2 & 5 have contested this case.  Out of whom O.Ps no.1 & 2 have conjointly filed their written version whereas O.P no.5 has filed his written version separately.

            In the written version, O.Ps no.1 & 2 have urged that the case of the complainant is devoid of any merit which is liable to be dismissed being not maintainable.  They admit to have financed for the mobile sets of the complainant but allege that the complainant had defaulted in paying the E.M.Is as per the due dates for which bounce charges and late payment penalty was levied in accordance with the terms and conditions of the loan documentation as executed by the complainant with them.  In that score they have relied upon a decision of Hon’ble National Court in the case of Ram Deshlahara Vs. Magma Leasing Ltd. reported in III(2006) CPJ 247(NC) and Ashok Leyland Finance Limited Vs. Himanshu S.Thumar, reported in II(2005) CPJ 491 that the dispute pertaining to accounts is not maintainable before the Consumer Disputes Redressal Forum.  They have also relied upon a decision of Hon’ble State Consumer Commission, Cuttack in Consumer Complaint no.81/2008 decided on 30.11.2009(Deepak Kumar Sahoo Vs. Branch in Charge,Indusind Bank Ltd.,Bhubanesdwar: (ii) Sheela Kumari Vs. Tata Engineering & Locomotive Company & others, 2007 NCJ 570, (iii) Kerala State Consumer Disputes Redressal Court in the case of Sreeja Finance Vs. Saumini and Another,2008 (1) CPR 128,(iv) Hon’ble National Court in Manager, St. Ary’s Hire Purchase (p) Ltd. Vs. N.A.Jose, III 1995 CPJ 58 (NC) wherein it was observed that, the financier does not render any service within the meaning of Consumer Protection Act.  They have also relied upon Hon’ble State Consumer Commission, Cuttack in Consumer Complaint no.43/2010 in Susanta Kumar Acharya Vs. Magma Finance Corporation Ltd., in the case of Gurmeet Kaur Vs. The Regional Officer reported in III CPJ 1650 of Hon’ble Punjab State Court and in the case of Rashpal Singh Bahia & Others Vs. Surinder Kaur and Others 2008(2) Civil Forum Cases 778(P & H) wherein it is held that one who comes to Court must come with clean hands.  The O.Ps no.1 & 2 have reflected in their written version in a tabular manner the loans as incurred by the complainant and the details thereto.  Therefore the O.Ps no.1 & 2 have prayed for dismissal of the complaint petition.

            They have filed xerox copies of the statement of accounts relating to the finance as obtained by the complainant in order to prove their case.

            O.P no.5 through his written version has also stated that the case of the complainant is not maintainable which is liable to be dismissed.  O.P no.5 admits to be the dealer of Samsung mobile phone.  But as regards to the finance of the complainant, O.P no.5 has no role to play, for which according to O.P no.5 the case of the complainant being not maintainable is liable to be dismissed with cost.

3.         Keeping in mind the averments as made in the complaint petition and the contentions of both the written versions, this Commission is of a view to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable ?

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

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

Issue no.ii.

            Out of the three issues as levelled here in this case issue no.ii being the pertinent one is taken up first for consideration.

            Admittedly, the complainant has purchased two mobile phones by getting finance from O.Ps no.1 & 2.  She also admits to have executed the documentations for obtaining finance from O.Ps no.1 & 2.  Her allegation is that the O.Ps no.1 & 2 had taken more money than which she had received from them towards finance and that the O.Ps no.1 & 2 have also deducted bounce charges of the cheques and late payment charges also.  The complainant as it appears had defaulted in paying the timely E.M.Is for which the cheques were bounced and late payment charges were levied.  The financed document as executed by the complainant with the O.Ps no.1 & 2 as available in the case record, goes to show that by executing those the complainant was bound by the terms and conditions therein and she was supposed to pay the monthly instalments as due from her in due time without delay.  But she became defaulter as because her cheques were bounced and late payment charge was levied.  When the cheques were bounced, bounce charges were also levied.  From these discussions and relying on the cited decisions as mentioned above, this Commission feels that there is no deficiency noticed as alleged by the complainant against the O.Ps here in this case.  Accordingly, this issue is answered.

Issues no.i & iii.

            When the complainant had obtained finance and had defaulted in paying the monthly instalments regularly as per proper time and when penalty was levied, she has filed this case which cannot be said to be maintainable and that accordingly she is not entitled to any of the reliefs as claimed by her.  Hence it is so ordered;

                                                            ORDER

            The case is dismissed on contest against O.P no.1,2 & 5 & exparte against O.P no.3,4 & 5 and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 15^th day of   October,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                           Sri Sibananda Mohanty

                                                                                                                                                  Member