IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/176/2016.
Date of Filing: Date of Admission: Date of Disposal:
06.12.2016 14.12.2016 01.03.2019
Complainant: Nurjaman Biswas
S/O- Enamul Biswas,
Baidpur, PO- Gankar,
PS- Raghunathganj,
Pin- 742227
-Vs-
Opposite Party: 1.Branch Manager,
Indusind Bank
Kadbeltala, Jalangi Road,
PO- Cossimbazar Raj,
PS- Berhampore,
Pin- 742102
2.The Manager,
Mahindra & Company,
S.N. Motors Pvt. Ltd.
NH-34, Mankara,
PO- Balarampur,
PS- Berhampore,
Pin- 742101
Agent/Advocate for the Complainant : Sri. Subhransu Singha.
Agent/Advocate for the Opposite Party No.1 : Sri. Kapil Deb Ghosh.
Agent/Advocate for the Opposite Party No.2 : Sri. Debraj Mukherjee.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
Contd ….2
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Nurjaman Biswas (here in after referred to as the Complainant) filed the case against the Branch Manager, IndusInd Bank Ltd. and Another (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant purchased a Maxxim Mum Van White B8-3 Engine No. MCE6C13099; chasis No. MAIFB2MCRE6C39443 and the vehicle was financed by the OP No.1 in terms of an agreement dated 09.10.14. As per terms of agreement, the Complainant agreed to repay the loan with interest in forty-eight monthly instalments @ Rs.64,663/-. The Complainant paid regular monthly installments up to 19th month but due his fault he could not make payment, as a result the OP No.1 sent a letter directing him to pay Rs.64,660/- with other charges within seven days and ultimately the vehicle was seized on 11.05.16. The Complainant made a representation on 13.05.16 by post stating that he took loan of Rs.3,10,000/- with interest to be paid in forty-eight installments and interest of the said amount was Rs.1,47,700/- with GPF premium of Rs.966/- totaling Rs.4,25,664/- and instalment was Rs. 8,868/- and the age of the vehicle was 19th month. The Complainant also stated that he paid Rs.1,34,500/- out of Rs.1,68,492/-. The Complainant also requested the OP No.1 to allow him to repay the dues in three instalments but the OP No.1 did not agree. The Complainant was always ready to repay the amount in two instalments for taking delivery of his seized vehicle. Thereafter, the Complainant filed writ petition before the Hon’ble High Court vide WP No. 1471(W) of 2016 and the Hon’ble High Court directed the OP No.1 to consider the representation filed by the Complainant. In spite of the order passed by the Hon’ble High Court, the OP No.1 terminated the contract and initiated arbitration proceedings on 06.09.16 which amounts to deficiency in service and comes under purview of unfair trade practice. The Complainant prayed
Contd ….3
for a direction upon the OP No.1 to deliver the seized vehicle as per observation of the Hon’ble High Court and for compensation of Rs.1,05,000/-.
The OP No.1 contested the case by filing written version on 17.02.17 contending that the case is not maintainable and the case is barred by law of limitation. It is the specific case of the OP No.1 that the agreement duly executed by and between the Complainant and the OP No.1 is subject to the Arbitration Act,1996 and as such the complaint is not maintainable. The Complainant deliberately concealed the material facts and approached the Ld. Forum with a view to harass the OP No.1. The Complaint is not maintainable as the Complainant purchased the vehicle for commercial necessity and entered into a hypothecated loan agreement with the OP No.1 on 29.09.2014 to avail a loan of Rs.3,10,000/- for commercial purpose. The Complainant paid only Rs.2,20,514/- but failed to repay the loan amount in terms of agreement resulting a loss of Rs.2,80,606/- as on 22.06.16. The OP No.1 informed the Complainant to repay the instalment vide letter dated 09.05.16 but the Complainant deliberately failed to take necessary steps. As a result, the OP No.1 compelled to sold out the said vehicle in auction sale on 22.06.16 at a fair and highest consideration of Rs.1,40,000/- after due intimation to the Complainant after observing all disciplinary measurement. The OP No.1 was running at a loss of Rs.1,48,158/- in dealing with the Complainant and arbitration proceeding was initiated against the Complainant which was informed to the Complainant on 06.09.16 through registered post. That simply to avoid legal and disciplinary action on the part of the OP No.1, the Complainant filed writ petition before the Hon’ble High Court vide WP No. 4471 of 2016 and the Hon’ble Court observed that it will be open to the Respondent Bank to consider the representation of the petitioner in view of the policy of the Bank and in accordance with law. But the OP No.1 at no way to reconsider the matter as the vehicle was sold out in auction sale on 22.06.16 after due notice to the Complainant and after compliance of all necessary formalities. The OP No.1 prayed for dismissal of the complaint with cost.
Contd ….4
The OP No.2 contested the case by filing written version on 18.05.17, contending that the case is not maintainable and there is not cause of action against the OP No.2. It is the case of the OP No.2 that the Complainant purchased a vehicle from his showroom and the vehicle was financed by the OP No.1.The OP No.2 has no knowledge about any dispute between the Complainant and the OP No.1. The OP No.2 prayed for dismissal of the complaint with cost.
On the basis of the above versions following points are 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 OP No.1, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Point no.1
The Ld. Advocate for the Complainant submits that the complainant is a consumer under the O.P.no.1 and the O.P.No. No. 1 has deficiency in service as the o.P. No. 1 did not consider the representation of the Complainant in view of direction of the Hon”ble High Court passed in the Writ Petition.
The Ld. Advocate for the O.P. no.1 submits that the Complainant is not a consumer as he purchased the vehicle for commercial purpose.
It is the specific case of the Complainant that he purchased a Maxxim Mum Van White from the OP No.2 by taking financial loan of Rs.3,10,000/- from the OP No.1.
The OP No.1 has asserted that the Complainant purchased a Maxximo Mini Van white for commercial purpose. It is not the case of the Complainant that he availed the services of the OP No.1 exclusively for the purpose of earning his
Contd ….5
livelihood by means of self-employment. The Ld. Advocate for the OP No.2 submits that the case is not maintainable against the OP No.2.
We have gone through the materials on record and the written argument filed by the OP No.1. We have also considered the submission of the Ld. Advocated for the OPs.
Admittedly, the Complainant purchased a van from the OP No.2 on taking loan of Rs.3,10,000/- from the OP No.1 by executing an agreement dated 09.10.14.
The OP No.1 has asserted that the Complainant purchased the vehicle for commercial purpose and it has not been denied by the Complainant by way of evidence. It is not the case of the Complainant that he purchased the vehicle exclusively for the purpose of earning his livelihood by means of self-employment.
Considering the facts and circumstances, we have no hesitation to hold that the Complainant is not a consumer as he purchased the vehicle for commercial purpose.
Point No.2
The Ld. Advocate for the Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint. Both the points are thus disposed of.
Point Nos. 3&4
The Ld. Advocate for the Complainant submits that the O.P. has not complied the direction of the Hon’ble High Court passed in the writ Petition which amounts to deficiency in service. He prays for compensation and a direction upon the O.P. No.1 for return of vehicle of the Complainant.
The Ld. Advocate for the OP No.1 submits that the Complainant filed the case by suppressing materials facts. It is argued that the Complainant was requested vide letter dated 09.05.16 to pay the dues within seven days but the Complainant did not pay any heed to the notice of the OP No.1, as a result, the OP No.1 got possession of the vehicle on 10.05.16 and sold out the vehicle in auction on 22.06.16 at a fair and
Contd ….6
highest consideration of Rs.1,40,000/- after due intimation to the Complainant. He also argues that the OP No.1 had no scope to reconsider the representation of the Complainant in view of order of the Hon’ble High Court dated 19.08.16, as the vehicle was sold out on 22.06.16. He further argues that arbitration proceeding was initiated against the Complainant in terms of arbitration clause of the agreement dated 09.10.14 and the present case is not maintainable. He prays for dismissal of the complaint with cost.
The Ld. Advocate for the OP No.2 has submitted that the Complainant has no cause of action against the OP No.2 and the OP No.2 is an unnecessary party.
On a careful consideration over the materials on record, we find that the Complainant took a loan of Rs. 3,10,000/- from the OP No.1 on executing an agreement dated 09.10.14 but he failed to repay the loan amount with interest in terms of the agreement, as a result, the OP No.1 issued a notice dated 09.05.16 requesting him to repay the dues within seven days from the date of receipt of the notice, in spite of that the Complainant did not repay the amount and the OP No.1 sold out the vehicle on auction on 22.06.18 at the highest consideration of Rs.1,40,000/-.
We find that the Complainant has failed to establish that he is a consumer in terms of the C.P. Act,1986 and the OP No.1 has any deficiency in service. Therefore, the Complainant is not entitled to get any relief.
Reasons for delay
The Case was filed on 06.12.2016 and admitted on 14.12.2016. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails
Fees paid are correct. Hence, it is
Contd ….7
ORDERED
that the Complaint Case No. CC/176/2016 be and the same is hereby dismissed on contest against the OPs without 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.
