MR. PRABODHA KUMAR DASH, PRESIDENT:-
The present C.C.Case No. 46/2019 is taken up today for order. Complainant for maintaining his livelihood arranged Finance from the Ops and subsequently the Ops sanctioned Rs. 3,73,000/- for which the Ops taken Rs. 5900/- for sanction of loan, and finally disbursed to the Complainant Rs. 3,70,000/-. Thereafter as per terms & conditions of the loan, paid 3 installments of Rs. 20,349/- each wherein Kulamani Das was the guarantor, In exchanger of which the Ops kept in their custody the documents of Complainant such as blank cheques, sale deeds and other documents of the Complainant when the Complainant gone to the OpNo.1 for payment of outstanding on dt. 28.8.2019 found the same office was closed. On querry about the Ops, called OpNo.2 to deposit his installment, knew all the branches of Ops have closed throughout the Odisha and advised to pay by sending cheque. The Complainant not believed the version of Op No.2 and not dare to deposit to an unknown A/C of Ops. The Complainant has no alternative A/C No. could not pay the loan amount after payment of 3 installments. Due to non-availability of alternative remedy the Complainant filed the present C.C.Case on 6.9.2019 with a prayer let the Ops be directed to take their money and return the relevant documents of the Complainant which are in their custody. This Commission admitted C.C.Case and issue notice and notice has been duly sent on 10.09.2019. But the Ops filed written version on dt. 13.2.2020. During the proceeding the Complainant made this prayer.
“ Therefore the Complainant humbly prayers that your honour may graciously be pleased to consider this petition & pass necessary order directing the Ops to provide loan account calculation sheet in respect of loan amount in favour of the Complainant and after calculation to receive credited amount from the Complainant and direction may be given to the Ops to return the black cheques, documents etc. to the Complainant which were submitted by the Guarantor at the time of sanction of loan in favour of the Complainant and further direction may be given to the Ops to pay Rs. 40,000/- to the Complainant towards deficiency in service and mentally torture cause by them”.
The Complainant availed loan as a borrower & the Ops are leader & the transaction was financing which was a “services” as defined in Sec-2(42) of C.P.Act. Not only financing but banking and other services included in C.P.Act,2019. When there was a allegation of deficiency in service and unfair contract and unfair trade practice between the Complainant and the branch office of Ops from which loan disbursed within the territorial jurisdiction of District of Kendrapara. The DCDRC is the competent quasi-judicial authority empowered by C.P.Act to adjudicated the issues. The Ops without waiting to result of DCDRC pending C.C.Case unilaterally proceeded under Arbitration Act, 2016. Arbitration outside the State of Odisha wherein the Complainant had no chances to participated was void. There cannot be an arbitration between two unequal parties. One is Corporate Company and other poor Complainant who on account of scarcity of fund availed loan with higher interest. This Commission being a quasi-judicial body not accepted the arbitration proceeding order/award being a executive appointed only by the Corporate Ops who always decide at 2000 Km. away from Complainant and no possibility to participate in a proceeding presided by a person employed by the Ops. We are having quasi judicial power to adjudicated a issue within territorial jurisdiction not bound to accept any award passed against policy and against principle of natural justice. The award passed by Ld. Arbitrator outside Odissa jurisdiction devoid of merit if passed such award it is liable to be quased. During pending the Complainant further prayed on dt. 30.09.2020 that Honbl’e Commission if direct the Complainant to deposit the amount in this Commission and then the Ops shall return all the documents kept in their custody. On dt. 23.09.2020 Ops issued a letter to Complainant to deposited by RTGS/NEFT to Ops account No. 12920200001537, IFSC 0BARBONARIMA Bank of Baroda, Nariman Point, after receiving full and final amount we shall issue NOC within 8 working days. All legal cases shall be withdrawn against you on receipt of full & final amount of all loan amount. We will return all your original documents on receipt of all your loan amount. We would like to inform you that this offer is valid upto 30th Sep-2020. The Ops admitted they kept original valuable documents as per letter dt. 23.09.2020 if such was the admission of Ops then they were estoped to say they are not in custody of Complainant’s as well as Guarantor valuable documents. Further the Ld. Advocate for Complainant submitted every time during proceeding he is willing to pay the amount to the Commission and this Commission handed over the documents to Complainant and also pay ready to the amount to Ops on proper verification but the Ops demanded to receive in their own account first for which the dispute could not materialized.
Further the Ops filed petition on dt. 25.11.2020 that the outstanding on dt.23.09.2020 was Rs. 3,10,000/- which was Rs. 12,04,526/- on dt. 25.11.20220 with calculation sheet. This Commission not able to understand the reasoning, calculation how 4 times within 3 months not known to this Commission by applying all its intelligence. The Ops again issued letter for settlement on dt. 13.01.2022 to settle the issue to pay Rs. 3,10,000/- to settle the account finally as (annexed).
During pendency of C.C.Case, the Ops presented. Complainant & guarantor cheque in their custody by filing themselves one Rs. 6,00,000/- vide cheque No. 254641 of guarantor Kulamani Das and cheque No. 000011 amount Rs. 3,81,931/- on dt. 30.11.2020 in Yes Bank Account, Sri Nagar Branch on 15th Dec-2020 with an ulterior motive when there was a outstanding of only Rs.3,10,000/- as they admitted on various dates as per their letters filed to this record. The Ops illegally, knowingly with evil intent only to harass the Complainant filed case U/S-38 N.I.Act against the Complainant in Sri Nagar MM Court bearing No. 186/2021 & 210/2021 and warrant has been issued by such Court against Complainant & guarantor. When a C.C.Case is pending having Jurisdiction to decide the issues involved in the disputes then such proceeding has no legal bar on such issues, all are not sustainable in the eye of law. If any warrant pending for execution in district of Kendrapara Court or Police Station the same are not acted upon for interest of Justice. The warrants if executed then there will be miscarriage of justice. Further the warrants were issued by practising of fraud by the Ops.
Further the Ops submitted loan sanction letter the jurisdiction is Mumbai and jurisdiction of Courts in Orissa ousted, such contention of Ops coming under 2(46) C.P.Act, 2019 as unfair contract and the trade practice is unfair U/S-2(47) of C.P.Act. The service rendered by Ops are financial service U/s-2(42) of C.P.Act 2019, the acts of Ops are deficiency in service U/S-2(II) of the said Act. The question arises whether the contract of loan entered into by way of unfair means not adjudicated by quasi judicial body established by Central legislation and have special provisions to adjudicate then where will the innocent, poor people will redress their grievances.The Corporate bodies rampantly cheating people of Odisha in the name of contract, agreement and coercing weaker section people, terrorising poor people financially for which the section 2 of C.P.Act, defined well all the legal defination under different sub section to adjudicate all the issues fairly. The Complainant availed loan to start a small business for maintaining his livelihood being an unemployed person is a consumer. Neither the arbitration proceeding nor the cheque bounce case instituted by Ops are sustainable in eye of law and if done the proceedings will be miscarriage of justice, so also devoid of merit. The arbitrations, N.I Act case both are not bar the jurisdiction of DCDRC so also both having no legal sanctity during pendency of C.C.Case.
The Ops not tried to solve amicably before this DCDRC, every time wanted to get his amount first and also not agreed to accepted from DCDRC, therefore the Ops are in fault throughout the proceeding. The Ops cited cases of years 2013, 2007,2017, 1993 when the C.P.Act,2019 not enacted. The present C.P.Act 2019 have all such provision, power, jurisdiction to decide Complainant’s case. The cited cases are not applicable partly or squarely to present facts & circumstances involved in this case. All the issues raised by Ops are devoid of any merit. The Ops are liable to pay for mental agony and harassment under gone of Rs. 10,000/- with litigation cost Rs. 5,000/- to the Complainant and deduct such amount from the amount Rs. 3,10,000/- as per letter dt. 23.09.2020 & 13.01.2022 issued to the Complainant (copy annexed).
ORDER
It si directed that the Ops shall deposit all the cheques, saledeeds and other relevant documents of Complainant & guarantor before this DCDRC within a period of 45 days from the date of receipt of this order the Complainant shall deposit after deducting Rs. 15,000/- from Rs. 3,10,000/- i.e, Rs. 2,95,000/- in this DCDRC and all these shall be handed over to them after proper identification and procedure deem just & proper to this Commission. The Ops shall deposit all the documents first which shall be kept by this Commission till payment of Rs. 2,95,000/- by the Complainant, failing which both are liable to fine and penalty as per provision of C.P.Act, 2019.On the above terms & conditions the C.C.Case alongwith IA are accordingly disposed off. Issue extract of the order to the parties for compliance.
Pronounced in the open Commission, this the 14th day of March,2023.
I agree
Sd/- Sd/-
MEMBER PRESIDENT
