MR. PRAVAT KUMAR PADHI, PRESIDENT :-
Complainant has filed C.C.Case No.166/2023 U/s-35 of C.P.Act, 2019 seeking following relief:
It is humbly prayed that your honour would be kind and gracious enough to admit the C.C.Case and after hearing direct the Ops not to seize the vehicle bearing Regd. No. OD-29G-3049 till disposal of the case & to final calculation of loan amount & given to the Complainant, who will paid the amount at a time. Then NOC of the vehicle supplied and give compensation of Rs.1,00,000/- for mental agony and Rs.10,000/- towards litigation cost in favour of the Complainant. And for which act for your honour kindness the complainant shall as in duty bound everpray.
Brief fact of the case of the Complainant is that:-
The complainant being an educated and unemployed person & had purchased one AL 3718 BSIV (Tipper) vide bearing Regd. No. OD-29G-3049,Chasis No. MBINACHD6KPFJ4596 & Engine No. KFPZ115525 from Rashmi Motors, Manguli Chhak, Cuttack in the month of July-2019 i.e 01.07.2019 being financed from Indusind Bank Ltd. for his livelyhood & maintenance and improvement of his financial condition of his family from the earning of the vehicle.
The Complainant being financed from Op No.1, Indusind Bank, Paradeep stated the schedule is Rs. 43,54,360.57 (Annexure-1). But in repayment schedule of the same bank is Rs. 42,73,363.57(annexure-2), which are irregular and injustice. The finance amount of Rs. 31,21,000.00 on date 01.07.2019 not given to the Complainant through Draft/cheque, but direct to the Dealer Rasmi Motors. The Complainant failed several times to get the invoice of loan neither from OP-1, Bank or from the Dealer Op No.2. It is surprise that same dealer has sold the same Model of Tipper No. AL-3818-IL to Manorama Khatua, Ostapur, Kendrapara at a rate of Rs. 30,90,136.00 i.e (Finance amount is Rs. 27,93,885.00 & Down payment is Rs. 2,96,251.00, the total amount is Rs. 30,90,136.00). Which is quite irregular & injustice.
The Complainant had paid loan installment on Rs. 73,060/- from Sept-2019 to Oct-2023 i.e 50 installments regularly. Now no outstanding dues except future installments pending against the Complainant as 50 months and 50 installments paid along with ( the Annexure-1, Page-5) yearly insurance Rs. 81,000.00 for 1st year and Rs. 30,000/- for rest 4 years. Further the Complainant alleges against Ops during payment, so many irregularity found by the Bank i.e, three(3) months March, April & May-2020. In the time of Covid-19(Moratorium) declared by Govt. of India that, in the March-2020 installment Rs. 73,060/- paid in time. But charges of Rs. 500/- & Rs. 90/- for reject/return of cheque and Rs. 18/- for collection/GST of charge debit from the Complainant. In the month of April & May-2020, Complainant paid Rs. 1,46,200(Anex-4) through cheque, but it is not counted by Op-Bank (mentioned unpaid) (Anex-1, Para-2).
Complainant had paid regularly EMIs & Insurance amount of Ops through cheques in time. But the Op-Bank intentionally have made cheque bounce of Rs. 12,15,900/- and debit nearly Rs. 10,000/- from the Complainant.
The Ops have filed their written version stating as:-
The vehicle on question is a commercial one. Therefore, the Complainants cannot be treated to be a “consumer” as defined in Section 2(7) of the Consumer Protection Act, 2019. Hence, the complaint is liable to be dismissed. It is well settled that the special law overrides the general law. The Arbitration act is subsequent enactment to the consumer act and hence would have overriding effect is so far as Sec. 8 of the Arbitration and Conciliation Act is concerned and therefore it would outer the jurisdiction of consumer Commission when there is valid arbitration agreement for resolving disputes between the parties. In the instant case as per the agreement between the complainant and the Ops, Arbitration clause provides for Arbitration and any party aggrieved with action of other party may invoke said clause. Hence this Commission may please to dismiss the complaint on such score. It is pertinent to mention that, the complaint is not maintainable as the loan agreement contains the clause for Arbitration and Territorial Jurisdiction The present Complainant is a registered owner of the commercial vehicle, and tactfully obtained an ex-parte interim order on dt. 08.11.23 “ Not to repossess the asset (Vehicle) bearing Regd. No. OD-29-G-3049 (Tipper) of the Complainant”.
The said part of the order is obtained by making concocted stories of apprehension of repossession and by stating a miss leading fact that the Complainant has already paid entire loan amount which can be clarified form the annexed statement of the loan account. The present complainant has taken the governmental benefits like Covid-19 moratorium in the loan contact No. OCE00722D loan contact from the period of 07.03.2020 to 07.05.2020. Hence the loan service of the Op Bank can be well considered towards the governmental compliances. Even after exhausting the maximum financial assistances and moratorium the complaint being not a consumer in the C.P.Act has obtained the interim order due to miss-leading the Hon’ble Commission which is not maintainable in the eyes of law as against the natural justice and liable to be dismissed. Unless the total due loan i.e sum of Rs. 5,66,801/- (calculated as of 20.12.23) is paid by the borrower as per the settlement proposal annexed herewith this written version, there is no scope of issuance of NOC.
The main contentions of the Ops is that the Complainant has not deposited the EMIs fromdt.07.03.20 to dt. 07.06.20 for which as per guideline issued by RBI it was treated that the Complainant has availed moratorium for the said period and accordingly the interest increased which affected the Complainant for which the applicant vehemently opposed the action of the Ops. In order to ascertain the truth we have directed vide our order dt. 7.5.2024, wherein we directed as under :-
“It is submitted by the Counsel for Complainant that he has paid his installments during 07.03.2020 to 07.05.2020 for which 1st moratorium is not applicable. It is further submitted on 09.12.2022 the Complainant has paid Rs. 60,000/- through Bank of Baroda but it is strongly objected by the Ops. There are also many other disputed installments which are not proved by Complainant. It is further submitted by Complainant that in the statement it is shown as paid in some installments but the Ops are claiming for the same. Taking into consideration the submissions of both parties though it is settled principle of law that this Commission should not entered into Accounting process, keeping in view the interest of justice of both sides and disputed payment, we direct the complainant to submit the payment receipts regarding payment of installments from 07.03.2020 to 07.05.2020, payment of Rs. 60,000/- on 09.12.2022 and on any other day regarding payment of installments as claimed within 14 days, failing which the C.C shall be decided on its own merit. In pursuance of our order cited above, the Complainant filed the money receipts dt. 07.03.2020 regarding payment of installments for March, 2020 as such the contention of the Ops that the Complainant has not deposited the installment from March, 2020 to June, 2020 is found to be not correct. So also the contention regarding automatic application of moratorium for non-payment of installments is found to be unjustified. The Counsel for Ops, Mr. R.K.Sahoo was given opportunity to give his clarification with regard to payment of installment by the Complainant on dt. 07.03.2020. Since the Complainant has paid the said installment on dt. 07.03.2020 and given on dt. 08.06.2020. The application of automatic moratorium and claiming higher interest amounts to non-application of mind, deficiency in service and Unfair Trade Practice as stipulated U/s-2(11) and 2(47) of C.P.Act, 2019. From the aforesaid fact we are satisfied that Ops have not acted fairly and there is dispute in accounting for which we are not empowered to interference.
The Complainant submitted that as per the statement of Ops he has already paid Rs. 41,24,079.53 against agreement value of Rs. 40,18,288/- as per statement of Jan-2024 of Head Office Chennai on the basis of moratorium as such the complainant has already paid more amount than the agreement amount, which we accept and direct the Ops to return the excess amount and issue NOC.
We therefore held the action of Ops as illegal, unjustified and arbitrary and directing the Ops to accept interest as per the original agreement. Ops have taken excess amount, than agreement amount, which the Ops shall refund the same to the Complainant within 30 days. After settlement of loan the Ops shall issue No Objection Certificate (NOC)with RTO authentication in respect of the vehicle bearing Regd. No. OD-29G-3049 within a period of 30 days thereafter or within 60 days after receipt of this order, whichever is earlier. We also award cost of Rs. 5,000/- for mental agony and Rs. 5000/- for cost of this litigation to be paid by the Ops to the Complainant within 45 days from date of receipt of this order.
With the aforesaid observation and direction the C.C.Case No.166/2023 is allowed and accordingly disposed off.
Issue extract of the order to the parties for compliance.
Pronounced in the open Commission, on this the 4th day of June ,2024
I, agree,
Sd/- Sd/-
MEMBER PRESIDENT
