IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
Case No.-CC/05/2014
Date of Filing: 03/01/2014 Date of Final Order: 28/11/2018
Complainant: Miras Mondal,
S/O Asiruddin Mondal, Vill. Khamarpara,
P.O. Doulatabad.
Dist. Murshidabad.
-Vs-
Opposite Party: 1. Bappaditya Sarkar,
Authorized Agent of Magma Fincorp,
168, R.N. Tagore Road, P.O. Berhampore,
Dist. Murshidabad, Pin 742101.
2. Mr. Mayanak Poddar(Chairman), MAGMA FIN CORP.
3. Mr. Sanjay Chamria, Vice-chairman & Managing Director.
4. Mr. Sanjay Nayar, Non-Independent Director,
5. Mr. K. N. Bhaduri , Director
of MAGMA FIN CORP, 24, Park Street, Kolkata-700016.
Present: Sri Asish Senapati.............................. President.
Smt. Aloka Bandyopadhyay……………….Member.
FINAL ORDER
The instant complaint has been filed by the complainant U/s 12 of C. P. Act, 1986 praying for return of the tractor, trolley and cost of loaded bricks or payment of Rs.5.14.
The complainant’s case, in brief, is that the complainant , being an agriculturist purchased a tractor bearing No. WB-57A/9400 for Rs. 5.47 lakh on 12.9.2011 making cash down payment of Rs.2.20 lakh and the balance amount of Rs.3.27 lakh on loan from MAGMA FIN CORP on condition to repay the loan @ Rs.10,700/- P.M. and also purchased a trolley for Rs.70,000/- with his own money. Since, 01.4.2011 up to 26.11.12 he paid total installments of Rs.2.14 lakh @10,700/-per month against proper receipts and he spent spent Rs.5.04 lakh for the truck with trolley. On 11.5.13 the Op No.1 with his men seized the tractor-trolley loaded with bricks while the same was going to
Berhampore Radharghat loaded with bricks for default in payment of two EMIs of Rs.10,700/- x2=Rs.21,400/- without serving any notice and they had no authority to seize the same. On 04.06.13 when the complainant went to take back the seized vehicle loaded with bricks, the OP member declared that the same had been sold out due to default of monthly payment. The OP has no authority to sale the bricks of Rs.10, 000/- and the trolley purchased by the complainant without any loan . The entire seizure is illegal. The Ops have adopted unfair trade practice. The complainant has claimed Rs.5.14 lakh towards value of tractor, trolley and bricks. Hence, the instant complaint case.
The written version filed by the OPs, in brief, is that the complainant is not a consumer, as there was no transaction between the complainant and the Magma Fincorp Ltd. So, the case is not maintainable. The complainant took a loan of Rs.3, 30,000/- from Magma ITL Finance Ltd for purchasing a Tractor. An agreement was executed on 28.02.2011 at Kolkata but due to non-payment of installment amount, the complainant became defaulter. Several Demand Notices were served upon the complainant but he did not turn up and failed to pay the dues. As per agreement, if the complainant became a defaulter, then the Magma ITL Finance Ltd. Has the right to take the possession of vehicle and to sell and/or caused to be sold or otherwise dispose of all or any part of the said vehicle. The OP took the possession of the vehicle being Registration No. WB-57A-9400(Tractor) through Magma Fincorp Ltd who acts as an agent of the Finance Company. There was no illegality in taking over the possession of the vehicle. List of inventory was prepared in presence of Samim Mondal on 11.05.2013 and there were no bricks or any goods with the Tractor. Again Trisha Parking Agency prepared an Inventory List in present of Samin Mondal . Thereafter, a notice was sent to the Complainant on 14.05.2013 requesting him to pay the dues with interest within 7 days from the date of receipt of notice otherwise the Authority will sell the vehicle without any further intimation. So, the vehicle was sold to the Third party and recovered a part of the total dues and some amount remained due. The case C.R. No. 647/2013 filed before the C.J.M , Murshidabad at Berhampore on 20.08.2013 was dismissed for default on 04.08.2014. As per agreement dt. 28.02.2011 the Magma ITL Finance Ltd referred the dispute to the Arbitrator on 30.10.2013 with a prior intimation notice dt. 25.10.2013 . The Arbitrator after service of notices to the complainant passed an award on 10.3.2014 in favour of Magma ITL Finance Ltd. The complainant is a debtor and the Opposite party is a creditor and the relationship between them is debtor and creditor, which is outside of the scope and purview of the Consumer Protection Act. The dispute and difference between the debtor and the credit cannot be decided by the Consumer Disputes Redressal Forum, as such the dispute does not fall within the scope and ambit of Consumer Protection Act. In a
reported decision in Mandal Plastic Industries Vs. Bihar State Financial Corporation (1998)(2)CRP 254 it is decided that the borrower , after taking loan from any Financial Institution , is not a consumer under the Act. Again in a reported decision in The Installment Supply Ltd. Vs. Kangra Ex Serviceman Transport Co.& Anr. 2006(3) CPR 339 NC it is held that the case is not maintainable when the award has been passed by the Arbitrator. So, the case of the complainant is not maintainable in its present form and it is liable to be dismissed. The Ops have no negligence in rendering service.
Considering above versions, the following points have been framed for proper adjudication of the case :
Points for Decision.
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OPs, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons.
Point No. 1
The Ld. Adv. for the Complainant submits that the Complainant is a consumer in terms of the Consumer Protection Act as the Complainant hired the services of Magma Finance Corporation and the Magma Finance Corporation has deficiency in service. Perused the written complaint, written versions, evidence adduced by both parties and the xerox copies of the documents. On a careful consideration, we find that the Complainant is consumer in terms of section 2(1) (d)(ii) of the CP Act, 1986.
Point No.2
The Ld. Adv. for the Complainant submits that this Forum has jurisdiction to entertain the complaint as the cause of action arose within the territorial limit of this Forum and the claimed amount is also within pecuniary limit of the District Forum. Having gone through the documents and on a careful consideration over the materials on record, we are of the view that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos. 3& 4
The Ld. Adv. for the Complainant submits that the Complainant purchased a tractor on taking financial assistance of Magma Finance Corporation amounting Rs.3,27,000/-. It is argued that the Complainant used to pay EMI at the agreed rate but the OPs seized the vehicle along with a trolley loaded with bricks on 11.05.13 when the vehicle was on its way to Berhampore without any notice to the Complainant. It is argued that the Complainant failed to repay two installments totaling Rs.21,400 on the date of seizure of the tractor and the trolley. It is contended that the Complainant went to take back the tractor and the trolley on 04.06.13 and the OPs informed him that the tractor and the trolley had been sold out. It is contended that the trolley of worth Rs.70,000/- purchased from one Mahur Mondal was not hypothecated to the Finance Company and the loaded bricks of worth Rs.10,000/- was taken away by the OPs without any intimation to the Complainant. It is further contended that one SI of Police submits a report on 21.10.13 in connection with CR Case No.647 of 2013 stating that in spite of seizure of tractor and trolley with bricks there was no mention of trolley and bricks in the seizure list. It has been argued that the Complainant has not received any communication from any Arbitrator and so the Complainant is not binding by any order of Arbitrator. He contends that the OPs are liable to return back the tractor and trolley with bricks to the Complainant.
The Ld. Adv. for the OPs has not taken part in hearing of argument.
We have gone through the written complaint, written version, the xerox copies of documents submitted by both sides and evidence adduced by both parties.
It is the version of the Complainant that he made down payment of Rs.2,20,000/- on 12.09.11 at the time of purchase of the tractor and took financial assistance from Magma Finance Corporation amounting Rs.3,27,000/- and he used to pay EMI @ 10,700/- per month and paid a total amount of Rs.2,14,000/- up to 26.11.12. It is also the contention of the Complainant that he purchased a trolley on payment of Rs.70,000/- and the OPs took possession of the trolley loaded with bricks of worth Rs.10,000/-.
On the other hand, the OPs claimed that the Complainant was not regular in payment of EMI and the OPs repossessed the vehicle on 11.05.13 from Trisha Parking Agency and inventory list of repossessed vehicle was handed over to the driver one Samim Mondal. It is the specific case of the OPs that the OPs repossessed the vehicle
without any trolley and the tractor was empty and without any paper. It is also the case of the OPs that the matter of taking repossession of the vehicle was informed to the OC,
Berhampore PS on 13.05.13 (Annexture-F) and the Complainant was requested to make payment of the dues by seven days vide notice dated 14.05.13 which was sent by post (Annex. H). The OPs also asserted that the vehicle was sold out on 27.06.15 (Annexture-I) to one Susanta Nath at a consideration of Rs.1,50,000/- and the matter was referred to the arbitrator vide its award dated 10th March,2014 (Annexture-M) after deducting the sale proceeds of the vehicle.
The Complainant filed affidavit in chief of 3 witnesses including him. Witness Sainul Mondal and Complainant himself were cross-examined but witness Samim Mondal has not been cross-examined. On the other hand, the OPs filed the evidence of one Biru Seikh and his cross-examination was not completed.
The Ld. Adv. for the Complainant has argued that the OPs took possession of the tractor along with trolley loaded with bricks and the price of the trolley was Rs.70,000/- and the price of the bricks was Rs. 10,000/-. According to the xerox copy of sale agreement dated 23.09.10, the Complainant purchased a trolley from one Mahur Mondal at a consideration of Rs.65,000/- and the tractor was purchased on 12.09.11 i.e. after one year from the date of purchase of the alleged trolley. The Ld. Adv. for the Complainant has relied on a report submitted by one Rahesh Kr. Gupta, SI of Police, Berhampore P.S. in connection with CR Case No. 647 of 2013 before the Ld. JM ,2nd Court, Berhampore, Murshidabad. In the said report, the SI reported that the company repossessed the said tractor along with trolley with bricks without mentioning the trolley and bricks in the seizure list, as claimed by the Petitioner.
We have gone through the hire purchase agreement dated 28.02.11 between the parties in which terms and conditions of the payment and other factors have clearly been mentioned. As per the said agreement (Annexture-N), the loan amount was to be paid by 48 installments @ 10,700/- per month. The Complainant has filed a number of receipts/acknowledgements showing payment of EMI but it does not support the claim of the Complainant that the Complainant used to pay monthly installments regularly. It appears from the Arbitration award that notice of the Arbitration case was duly served upon the Complainant but the Complainant did not turn up. It is also clear from Annexture-E and Annexture-H that the fact of taking possession of the vehicle was
intimated to the Complainant. The Complainant is duty bound to obey the terms and conditions to hire purchase agreement dated 28.02.11. It appears from the materials on record that the Complainant failed and neglected to pay EMI in terms of hired purchase agreement dated 28.02.11 and there is provision for taking possession of the vehicle in
case of default of EMI. It is very strange to note that the Complainant did not respond to the notice dated 14.05.13 (Annexture-H) sent to the Complainant by speed post.
Now the question is whether the OPs took possession of a trolley loaded with bricks or not? The inventory list of repossessed vehicle dated 11.05.13 duly signed by a representative of Magma Finance Corporation and one Samim Mondal, driver of the vehicle dated 11.05.13 goes to show that the vehicle was repossessed from Trisha Parking Agency and the vehicle was empty and had no paper. It also appears from the vehicle inventry relist on the pad of Trisha Parking Agency dated 11.05.13 that one Ratan Sarkar put his signature on behalf of Trisha Parking Agency and the vehicle was empty at that time. The report submitted by one Rahesh Kr. Gupta, SI of Police in connection with CR Case No. 647 of 2013 cannot be taken as gospel truth. We find no justification to rely on the report submitted by Rahesh Kr. Gupta, SI of Police.
On a careful consideration over the entire materials on record, we find that the Complainant took certain amount of loan from Magma Finance Corporation but failed to repay the loan amount in terms of hire purchase agreement dated 28.02.11, as a result, the company repossessed the vehicle on 11.05.13 in terms of the hire purchase agreement. The Magma Finance Corporation issued notice upon the Complainant after taking possession of the vehicle with request to make payment of the dues but the Complainant did not respond to the notice ,resulting sale of the vehicle .The Magma Finance Corp initiated arbitration proceedings for realisation of the due amount from the Complainant and Arbitration Award was passed on 10.03.14 after service of notice upon the Complainant. We find no deficiency in service on the part of the OPs. Hence, we hold that the OPs have no deficiency in service and the Complainant is not entitled to get any relief in this case.
Reasons for delay
The case was filed on 03.01.14 and admitted on 22.01.14. The OPs contested the case by filing written version. This Forum has tired its best to dispose of the case as expeditiously as possible in terms of section 13 (3A) of the CP Act, 1986 and the delay has been explained in day to day orders.
In the result, the complaint case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint case No. 05/2014 be and the same is hereby dismissed on contest against the OPs but without any order as to cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President.
Member President
