In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad.
Case No. C.C/58 /2015
Date of filing: 13/05/2015. Date of Final Order: 29/09/2016
Anarul Islam.
S/O-Lt. Abdul Rahaman Sk.
Vill.- Bhatsala. P.S.- Domkal.
Dist- Murshidabad, PIN-742303. ……………………………... Complainant
- Vs-
1). Branch Manager.
Shriram Transport Finance Co. Ltd.
Nirmala Bhavan.( 1st Floor)Jalangi Road, Kadbeltala.
P.O. & P.S. - Berhampore.Dist.- Murshidabad.
PIN-742101.
2). Branch Manager
Shriram Transport Finance Co. Ltd.
101-105, Shiv Chambers (1st Floor) B- Wing,
Sector-II, C.B.D. Belapur,
Navi Mumbai-400614, Maharastra .…………….…………………. Opposite Party
Mr. Arunava Roy. Ld. Adv. ....………………………….………. for the complainant.
Mr.Nilabja Datta. Ld. Advocate…………………………………….for the Opposite Party.
Present: Hon’ble President,Anupam Bhattacharjyya.
Hon’ble Member, Samaresh Kumar Mitra.
Hon’ble Member, Pranati Ali.
FINAL ORDER
Samaresh Kumar Mitra, Member.
This complaint has been filed by the complainant u/s 12 of C. P. Act. 1986 praying for an order upon the OP to pay a sum of Rs.3,31,500/- to the complainant along with N.O.C and return the blank post dated cheques deposited with the OP as security deposit.
The case of the complainant in brief is that he wished to purchase a Truck with the financial assistance of OP and a Deed of Agreement No. BAHRM0211270002 dt. 28.11.2012 was signed in between the complainant and the OPs. The cost of the vehicle was fixed at Rs.9, 00,000/- . The complainant purchased the said Truck being No. WB-57A/0373 with loan. It was settled that the monthly EMI is fixed of Rs.29, 340/- initially and afterwards Rs.26,270/- would be paid as regular EMI to the loan account . After receiving the Truck the complainant paid Rs. 24000/- on 4.1.13, Rs. 5360/- on 9.1.13, Rs. 10,000/- on 11.2.13, Rs.26270/- on 7.3.13 and subsequently Rs. 16,500/- on 16.2.13 totaling to Rs.81, 500/- to the OP. The OP delivered a vehicle in favour of the complainant along with NOC of the previous owner and influenced the complainant that the vehicle though manufactured in 2007 but is functioning perfectly in good condition. After getting the Truck the complainant came to know that the vehicle is in damaged condition and was not functioning properly. At the time of agreement the OP took deposit of 8 Nos. of blank post dated cheques as security deposit in respect to account of the complainant lies with SBI, Juginda Domkal Branch. The complainant incurred huge expenditure of Rs. 2 lacs for repairing of the vehicle and informed the OP to adjust the amount of cost of repair with the loan amount but the OP did not pay heed to his request. The vehicle is not functioning properly. Inspite of repeated requests the OP did not take any steps to return the vehicle or the expenditure so incurred by the complainant and he was compelled to stop payment of EMI. The OP forcibly took away the vehicle from the possession of the complainant on 08.06.2013. Thereafter, he met the OP and demanded the return of post dated cheque and the money so deposited by the complainant as EMI but the OP did not pay any heed to the request. Hence, the instant complaint.
The OP No.1 denies all the allegations as have been leveled against it. The specific case of the OP No.1, in brief, is that the agreement value was Rs.9,26,068/-. and the 1st EMI was Rs.29,340, subsequent 12 EMI was Rs. 26,270/- , subsequently 16 EMI was Rs.21,334 and last 16 EMI was Rs.14,999/-. The complainant took loan from this OP Finance Company for purchasing a vehicle being Regd. No. WB 57A/0373 on 28.11.2012 by executing a deed of agreement. As per agreement the complainant uses to pay the whole loan amount by 45 EMI which were filed with consent of the complainant. But after getting loan the complainant did not care to repay the loan amount within the stipulated time by EMI. After persistent tagid, the complainant issued a cheque being No. 821064 dated 20.6.13 drawn on SBI Juginda Branch for sum of Rs.1,10,000/- to liquidate his debt but the said cheque was dishonored. Thereafter, this OP filed a criminal case being No.CR-673/13 for cheque bounces which is still pending. As per agreement the parties are agreed that the courts under Kolkata Jurisdiction is alone shall have exclusive jurisdiction in respect of any matter. In the agreement there is Arbitration Clauses so the complainant had no right to initiate this case and the Forum has no jurisdiction to try this case. The instant complaint filed by the complainant is liable to be rejected with cost.
Despite receiving notice OP No.2 did not turn up so the proceedings run ex-parte against him.
The complainant filed evidence on affidavit in which he wanted to purchase a truck with the financial assistance of the OP and a deed of agreement was signed in between the parties and as per agreement the complainant was paying after getting the old vehicle and he paid Rs.81,500/- in total and deposited 8 post dated cheques. The complainant when came to know that the vehicle is old one then he demanded to replace or repair the vehicle but the OP failed to do so then he repaired the impugned vehicle that costs amounting to Rs.2,00,000/- and demanded to adjust the repairing cost with the principal amount of the loan. The OP repossessed the vehicle without giving any information to this complainant. The manner of transaction of business of OP is unfair and he is deficient in providing service in delivery of vehicle and taking away the same forcibly so the complainant is entitled to get relief as prayed in the prayer portion of the complaint.
Argument as advanced by the agents of the parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
- Whether the Complainants Anarul Islam is a ‘Consumer’ of the opposite party?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Anarul Islam is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein is the consumer of the OP, as he purchased the impugned vehicle with the financial assistance of the OP No.1 and he was paying installments of loan to the OP No.1.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainants and opposite parties are residents/carrying on business within the district of Murshidabad. The complaint valued Rs.3,31,500/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
It appears from the case record and the documents as produced by the parties in dispute that the complainant took loan from the OP No.1 after executing an agreement to purchase a vehicle costing Rs.9,00,000/- and by plying the vehicle he was paying installments to the OP No.1. The payment details as produced by the complainant clearly depicts that the complainant was not paying the installments in accordance with the agreement but he paid a sum of Rs 81,500/- as installments to the OP No.1 which is a matter of record and admitted by the OP No.1. The complainant got a vehicle along with NOC of the previous owner and subsequently registered in favour of the complainant but after getting the said vehicle the complainant came to know that it is not working properly and he expensed a sum of Rs.2,00,000/- for repairing and he informed the OP No.1 to adjust the said amount with the principal loan amount. The OP No.1 took no measure at the request of the complainant then the complainant stopped the installments, it is the case of the complainant.
The OP No.1 by filling written version and producing documents assailed that the complainant took loan from the OP No.1 Finance Company for purchasing a vehicle being Regd. No.WB 57A/0373 on 28th November,2012 by executing a deed of agreement and as per agreement he was paying installments and when he defaulted to repay the installments then the OP No.1 served a default notice dated 28.4.2013 upon Borrower No.1 & Guarantor no.1 for collection of arrear dues amounting to Rs.74,666 /- +ODC as outstanding arrear against the borrower within 7 days of receipt of this notice to the branch office of the company. The complainant did not respond after getting notice the OP No.1 repossessed the vehicle on 08.06.2013 and served after repossession letter dated 10.06.2013 in which he stated that due to chronic default in the repayment track on nonpayment in the monthly installments by addressee no.1 they took possession of the hypothecated vehicle no. WB 57 A 0373 on 08.06.2013 under the course of law. The OP No.1 further assailed that the total dues outstanding as on date Rs.1,30,788/- +ODC must be cleared within 7 days to the concerned branch office of the company from the receipt of this notice in order to obtain release of the vehicle. If they do not respond to this notice and clear the dues within 7 days the company shall deem it has their consent for disposing of the vehicle towards clearing their liability and the sale process shall commence at the company’s convenience and discretion and the payment received by the company through the sale procedure shall be applied towards whole of their outstanding under the said loan extended and both of borrower no.1 & as well guarantor No.1 shall still be liable for any remaining dues and be obliged to clear the balance if any. Then the OP No.1 served Pre-sale notice dated 30.08.2013 stating the total outstanding dues Rs.7,38,234/- must be cleared within 7 days to the concerned branch office of the company from the receipt of this notice in order to obtain release of the vehicle. Then the OP No.1 served short fall notice upon the Hirer & the Guarantor dated 19.12.2014 to inform that a sum of Rs.8,62,216/- is due as on 19.12.2014 towards the settlement of the above said agreement after adjusting the sale price of the vehicle. So the act and attitude of the OP No.1 is at par with the agreement in between the parties. In the written version the OP No.1 stated that after persistent tagid, the complainant issued a cheque being No. 821064 dated 20.6.13 drawn on SBI Juginda Branch for sum of Rs.1,10,000/- to liquidate his debt but the said cheque was dishonored. Thereafter, this OP filed a criminal case being No.CR-673/13 for cheque bounces which is still pending before the Ld. J.M. 3rd Court, Berhampore for proper adjudication.
From the above discussion we may confer that the complainant took loan from the financer i.e. OP No.1 to purchase the impugned vehicle following the execution of agreement but the mode of payment of installments was not at par with the agreement and subsequently defaulted after paying Rs.81,500/-. Then the OP No.1 served notices regarding the intimation of paying arrear dues and also informed the consequences of default. But the complainant took no steps to avert the repossession but issued a cheque of Rs.1,10,000/- that was bounced due to insufficient fund which is a criminal offence. The act & attitude of the complainant is not satisfactory.
The agent of the OP No.1 referred a case reference of Hon’ble Supreme Court, in Suryapal Singh Vs. Siddha Vinayak Motors & Anr.II (2012) CPJ 8 (SC) held: under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and he person who takes the loan retain the vehicle only as a bailey/trustee, therefore taking possession of the vehicle on the ground of nonpayment of installment has always been upheld to be a legal right of the financier. He further assailed that it is not disputed that as per Hire Purchase Agreement the financier was authorized to repossess the vehicle in case of default in repayment of loan installments. Supreme Court of India, in managing Director Orix Auto Finance ( India) Limited case has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of the financed vehicle. There is nothing to show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be ground to contend that the hirer is prejudiced. After the repossession the OP No.1 offered the complainant to take delivery of the vehicle paying the outstanding dues but the complainant took no measure to return back the vehicle apart from availing of the recourse of this Forum for redressal.
It is the maxim of equity that he who seeks equity must come with clean hands.
From the above discussion we are in a considered opinion that the OP No.1 followed the terms & conditions as envisaged in the agreement and acted properly as a financier so he not deficient in providing service towards this complainant for which the payer of complainant is not tenable. 4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove his case, so the Opposite Party is not liable to pay the compensation.
ORDER
Hence, it is ordered that the complaint case being No.58/2015 be and the same is dismissed on contest against the Opposite Parties.
No other reliefs are awarded to the complainant for harassment and mental agony.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and corrected by me.
Member, Member, President.
