OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANGUL
PRESENT:- SRI DURGA CHARAN MISHRA.
PRESIDENT
A N D
Smt.Sunanda Mallick &Sri K.K.Mohanty,
MEMBERS .
Consumer Complaint No. 30 of 2016
Date of Filling : -30.06.2016.
Date of Order :- 26.10.2018.
Sudhakara Sahu,S/O.Late Biswanath Sahu,
of Vill- Nua Odapada,Hindol Road,At Present
residing,At-Conservator Office,Colony,P.O/
P.S/Dist.Angul.
…................................................................Complainant.
Vrs.
01.Branch-cum-Arear manager,Citi Crop Finance
(India) Ltd.,At-10 & 11,3rd Floor,Janapath
Tower,Plot No. 971/1415,Ashok Nagar,
Bhubaneswar- 751009.
02. Regional Officer/Regional Manager,
M/S.Citicrop Finance (India) Ltd.,
At-23,R.N. Mukherjee Road,Kolkata-700001.
….............................................................Opp. Parties
For the complainant :- Sri Md.Azad & associates(Advs.).
For the opp.parties :- Sri B.Panda & associates (Advs).
: J U D G E M E N T :
Sri K.K.Mohanty,Member.
The complainant has filed this case with prayer to direct the opp.parties to receive the arrear outstanding of his loan till November, 2012 with interest and to give him no dues certificate and costs towards damage sustained by him due to whimsical selling of his truck in very less price with compensation for mental agony, harassment and cost of litigation on the grounds stated there in.
2. Briefly stated the complainant’s case runs thus:-
That, the complainant took loan of Rs.19,68,000.00 only on 21.6.2011 from the opp.parties vide loan A/c. No. LKIYB43575722 and purchased one TATA LPT 2518 truck subsequently Regd. as OR06J-4475 and the said loan amount along with interest was to be repaid in 47nos. of EMIs each installment being Rs.55,142.00 only commending from 15.7.2011 to May,2015. It is averred that the complainant has successfully repaid about 11 nos. of EMIs (Rs.6,00,000.00 only) out of the above said loan amount but due to unavoidable circumstances and strong financial hardship he could not repay the EMIs regularly for which in November,2012 the opp.parties repossessed the vehicle forcefully and after repossessing the vehicle they sold it whimsically and fraudulently with ulterior motive in a very less price and remained silent but after a long period demanded more than .7,70,000.00 as arrear towards the loan dues. According to the complainant he is ready to repay the arrear loan amount and interest upto November,2012 i.e till repossession and sale of the vehicle by the opp.parties but the opp.parties are threatening him in many ways. Therefore, the complainant has filed this case seeking the reliefs as already stated above in para-1.
3. The opp.parties have contested the case by filing joint written version in very late with prayer to dismiss the case on the grounds that the case is not maintainable, there is no cause of action to file the case, the complainant has given false information to the forum and suppressed material facts.The opp.parties have specifically pleaded that they have not repossessed the vehicle from the complainant, but the complainant voluntarily surrendered it for his convenience and after selling the vehicle by maintaining all legal paraphernalias they adjusted the sale proceeds towards the loan dues and for recovery of the rest dues they preferred arbitration proceeding No. SRV/CFIA/030/13 for recovery of the arrear amount and the Learned Arbitrator has passed award on 25.4.2014 for recovery of the arrear amount and this fact was within the knowledge of the complainant.
4. In view of the rival pleadings of the parties the following issues arise for consideration :-
Issues:-
- Whether there is consumer and service provider relationship between the complainant and the opp.parties?
- Whether the complainant has any cause of action to file this case or not ?
- Whether this forum has jurisdiction to enquire into the matter or not i.e whether the case is maintainable or not in view of the Arbitration award ?
- Whether the opp.parties have made any deficit in rendering service to the complainant ?
- To what reliefs the parties are entitled to ?
Issues (i):- The complainant had availed the loan from the opp.parties and paying EMIs to them and they were receiving it. Therefore the consumer and service provider relationship between them exists till total clearance of loan amount and issuing of NDC by opp.parties against the loan (complainant).
Issue No.(ii):- After regular repayment of eleven EMIs, the complainant surrendered the vehicle anticipating total free from the loan liability but it is alleged that the opp.parties sold the vehicle arbitrarily and whimsically in a very less price and instead of demanding loan and interest upto the date of sale of the vehicle, they are demanding interest for 47 EMIs which was previously fixed. After adjustment of the sale proceeds of the truck and recalculation of interest , the out standing might be very less but the opp.parties have demanded interest for 47 EMIs and very high amount. Thus, the complainant has cause of action to file the case.
Issue No.(iii):-The opp.parties have vehemently argued that as because for this matter Arbitration No. SRV/CFIL/030/13 was preferred and award has been passed after giving sufficient opportunity to the complainant to protect his cause, therefore this case is not maintainable at all. In support of their claim the opp.parties have filed a decisions of the Hon’ble National Commission reported in (2007) 1 CPJ 34,Instalment Supply Ltd, Appellant Vrs. Kangra Ex-serviceman Transport Co., Respondent where in it has been held that :-
“ Where any matter has been decided in arbitration proceeding, the Consumer Fora has no jurisdiction to sit over the matter”.
But the circumstances of this case are very peculiar .In this case the opp.parties sold the truck in November,2012 and after a very long time they preferred the arbitration award claiming full repayment of the EMIs. Natural Justice, Equity and Fair play demands that, on the date of sale of the vehicle the interest in the loan was to be recalculated. Therefore on that date ( the date of sale) the opp.parties should have recalculated the entire loan amount with interest upto that date (i.e the date of sale of the vehicle) and after deducting the EMIs already paid by the petitioner, the margin money deposited by him and the sale proceeds of the truck, the arrear outstanding should have been calculated but the opp.parties have not done so. They have clearly violated the principle of natural justice and fair play.It seems that the Learned Arbitrator has not taken into consideration these basic things but has passed the award only as per demand of the opp.parties .
The opp.parties counsel vehemently argued that the complainant was given opportunity to contest in the arbitration proceeding but why he did not appear and point out all those facts there. But it cannot be expected from a very poor consumer who was forced to surrender his vehicle for strong financial difficulties to go to Calcutta or Mumbai with lawyers to contest the case by incurring huge expenses.
In the other hand as per CPC or C.P.Act, the case can be filed where the defendants or any one of the defendant resides or where the cause of action arose. Though the above facts are not binding on the opp.parties but for natural justice, equity and fair play they could have done the arbitration proceeding at Angul area or at best within Odisha. Thus, the above stand of the opp.parties cannot be accepted. Since recalculation of interest and selling the vehicle in less price has not been considered by the learned arbitrator, those facts can be agitated here and the complainant being a very poor consumer cannot be denied natural justice. So this case as regards deficit in rendering service which has not been considered and decided by the arbitrator is maintainable here specially as considering deficit in service is the exclusive jurisdiction of Consumer Forum. Thus, this issue is answered in favour of the complainant and the facts and circumstances of the case relied on by the opp.parties is not applicable to the facts and circumstances of the present case.
The opp.parties have taken the stand and produced paper that the complainant surrendered the truck suo moto but the arbitration award reveals that they repossessed the truck .Thus it can be presumed that the opp.parties have kept blank and signed papers from the complainant and converting it to writing as per their benefit.
Issue No.(iv):- The opp.parties have taken the stand that they sold the truck by complying all the legal and required para paraphernalias to the highest bidder and they have not committed any deficit in service or irregularity .According to the complainant he availed loan of Rs. 19,68,000.00 and deposited margin money of about Rs.3,48,000.00 Thus, the value of the new truck was Rs.23,16,000.00 only which tallies with the EMI schedule of the opp.parties (Annexure-1).Annexure- 1 reveals that the value of the hypothecated material (truck in question) is Rs.23,16,000.00 .It was surrendered or repossessed and sold in November,2012. The truck was purchased in July,2011 .Thus after about one and half year of purchase the truck has ben sold for Rs.,10,35,000.00 only as against Rs. 23,16,000.00 valued truck i.e with 55% depreciation.
The complainant vehemently argued that his truck would be not less than 19,00,000.00 when sold. The truck has been sold which is a contract. As per Contract Act, though inadequacy of consideration is not fatal but it must be substantial , real, reasonable and equivalent to the thing sold. Whenever any case U/S. 411 IPC is tried by Judicial Courts, generally they take into account the value of the thing purchased alleged to be stolen one .Though not for movable properly but for immovable property, the T.P.Act provides for equivalent or good consideration. Thus the consideration amount in a sale plays an important role. In the present case the opp.parties have sold the truck for Rs. 10,35,000.00 only when the value was Rs. 23,16,000.00 .At best in one year and six months time there may be 30% depreciation. After granting 30% depreciation the considered value of the truck on the date of sale would be Rs. 16,20,000.00 only approximately but the opp.parties have sold it for Rs.10,35,000.00 only .The opp.parties could not be able to convince the forum as to why the truck could not be sold in higher real price. The manager of the opp.parties company was directed to come with all the documents like auction sale papers and other relevant papers and convince this forum as to why they are demanding such high amount and to show that they have not committed any deficit in rendering service but they failed to appear before this forum though reasonable opportunity was granted. Thus, this forum has no other option than to conclude that the opp.parties being 2nd party owner (Hypothecated owner) have knowingly ,fraudulently , illegally and carelessly sold the truck in less price by violating the principles of natural justice. So they have committed deficit in rendering proper service to the complainant and protect his interest and he is entitled to be compensated properly . After granting 30% depreciation the value of the truck would be about 16,20,000.00 only but it has been sold for Rs. 10,35,000.00, so the opp.parties shall pay Rs. 5,85,000.00 to the complainant towards selling his truck in less price and shall pay Rs.45,000.00 to the complainant for mental agony and Rs.5,000.00 for cost of litigation. The opp.parties shall pay interest at the rate of 13% monthly compoundable on 5,85,000.00 from the date of sale of the truck till actual adjustment is made as because they were taking interest in that rate. The awarded amount will be adjusted in the principle of claim and counter claim provided in the Civil Procedure Code.
5. Hence the ordered :-
: O R D E R :
The case is disposed of on contest against the opp.parties. The opp.parties are directed to pay Rs. 5,85,000.00 (Rupees Five Lakh Eighty-Five Thousand) with 13% monthly compoundable interest ( at the same rate they have taken from the complainant) from the date of sale of the truck till real adjustment is made to the complainant within 60 (sixty) days of this order. They shall also give Rs.5,000.00 (Rupees Five Thousand) to the complainant towards cost of litigation and Rs.45,000.00 (Rupees Forty-Five Thousand) towards mental agony within the above period. It is made clear that the opp.parties are not required to actually pay the above amount to the complainant but they shall adjust it towards the arrear outstanding loan of the complainant. If after adjustment there will be any surplus the opp.parties shall pay it to the complainant and in case of short fall the complainant shall pay the same to the opp.parties within 30days of getting intimation from the opp.parties by Registered Post. It is made clear that the award of the arbitrator is in force. After calculation and adjustment the opp.parties shall intimate the complainant about excess demand if any by registered post within 60(Sixty) days of this order. After getting the excess arrear if any the opp.parties shall issue NOC in favour of the complainant within fifteen days.
delivered in the open forum today the 26th October,2018 with hand and seal of this Forum.
Typed to my dictation
and corrected by me Sd/-
(Sri D. C. Mishra)
Sd/- President.
(Sri K.K.Mohanty )
Member. Sd/-
(Smt.S.Mallick),
Member.
