IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION , JAJPUR.
Present: 1.Shri Jiban ballav Das, President.
2.Sri Pitabas Mohanty, I/C President,
3.Miss Smita Ray, Lady Member.
Dated the 25th day of September,2020
C.C.Case No. 15 of 2018
Mohan Sahoo, S/O Sudarsan Sahoo
Vill/P.O. Bhotaka /P.S. Kuakhia
Dt.Jajpur
……....Complainant .
(Versus)
- Branch Manager, Cholamandalam Investment and Finance Co.Ltd,
At.Chandikhole chhak ( Rout market complex) P.O.Sunguda P.S.Badachana , Dt. Jajpur
- Manager, Head office,Cholamandalam Investment and Finance Co.Ltd,
Bhubaneswar.
……………..Opp.Parties.
For the Complainant: Sri H.K.Pradhan, Advocate .
For the Opp.Parties : Sri A.K.Pahil, Advocate.
Date of order: 25 .09. 2020.
MISS SMITA RAY , L A D Y MEMBER .
The petitioner has filed the present dispute against the O.Ps alleging deficiency in service .
The facts as stated by the petitioner in the complaint petition shortly are that the petitioner has purchased one BOLERO PLUS bearing Regd No.OD-04-G-3413 with the financial assistance of O.ps on dt.15.07.2015 . As per terms and condition of the loan agreement the petitioner deposited Rs.1,62,000/- as down payment and the rest amount of Rs.5,96,000/- was financed by the O.Ps. The petitioner would have to pay the financial amount along with interest by 58 installments to the tune of Rs.14,665/- was fixed per Emi. In course of payment the petitioner paid 26 nos of installment out of 58 nos of installments . In this way he paid total Rs.3,82,165/- as on 30.11.2017. The petitioner engaged the above vehicle in M/S Ajay Ku.Mohanty Tour & Travels Agency Barbil from May2017 and due to GST problem and other defect though the petitioner has not received any payment for the above vehicle still then he paid the installments but he became defaulter in 2 nos of installments. The last payment though was on dt. 30.11.17 he requested the O.P in the month of January 2018 to regularize his pending installments but without giving any chance or prior notice the O.P seized the vehicle at Barbil on 21.12.2017 . the petitioner received the notice of the O.P on 26.12.17 and he came to know from the notice that the O.p send the notice on 21.12.2017 and seven days time was given to the petitioner to full settle of the agreement as per para-4 and 5 of the notice. The O.p seized the vehicle before the petitioner received the notice. Before 30 days of last payment without giving prior notice the O.p seized the vehicle . The petitioner might confirm it to the Travel agency where he engaged the Bolero as per term and condition of the Travel Agency that is why the Travel Agency could have made an alternate arrangement .That unexpected seizure hampered the service of the hiring agency make problem for my pending rent.
That the O.p trickily took Rs.1,62,000/- (D.P) + Rs.3,82,165/- ( 26 installments) =Rs.5,44,165/- but seized the vehicle from the petitioner . Accordingly finding no other alternative the petitioner knocked the door of this commission with the prayer that taking into consideration of the illegal seizure of the vehicle ,the O.P may be directed to settle the claim of O.P against the vehicle as well as directed the O.ps to release the vehicle and award compensation for deficiency in service owing to illegal seizure of the vehicle .
After receipt of notice the O.Ps appeared through their learned advocate and filed their written version taking following stands:
The complaint petition as laid down is not maintainable in the eye of law. The claiming a sum of Rs.3,50,000/- towards compensation and mental agony and with further direction to the financer (O.P) for releasing the vehicle is not justified . At the outset the O.P would like to submit that the prayer made by the complainant in the complaint petition can not be granted since the complaint is a defaulter of payment of loan EMI and as on the date of seizure i.e 21.12.2017 the complainant has defaulted installment for a sum of Rs.43,120/- and other overdue of Rs.9,630/-
Therefore the O.p had taken repossession of the vehicle and after repossession of the vehicle the O.P had issued notice to the complainant to pay the balance dues amounting to Rs.4,35,337/- by their letter dt. 21.12.17 or else they shall sale the vehicle on auction. Despite intimation to the complainant about the sale of the vehicle through issuance of the sale letter the complaint did not turned up for which the vehicle has been put to sale in favour of one Brajakishopre Jena who has purchased the aforesaid Bolero by paying a sum of Rs.3,15,000/- .Therefore the O.P has adopted due process of law as enumerated in the agreement and there being no deficiency in service the complaint petition is liable to be dismissed. The complainant has no locus standi to file such complaint petition before this Hon’ble commission enumerated I in the agreement and there being no deficiency in service the complaint petition is liable to dismissed
The complainant has no locus standi to file such complaint petition before this Hon’ble Commission. As per the agreement, any disputes arising between the parties shall be referred to the sole Arbitrator at Chennai for Arbitration. As per jurisdiction clause, courts situated at Chennai shall have exclusive jurisdiction to try disputes between the parties. The O.p would humbly like to submit that the complaint had approached the O.P for availing of a loan for purchase of a BOLERO PLUS in the year 2015. The total loan amount sanctioned by the O.P Rs.5,96,303/- which has to be repaid by the complaint in 59 monthly installments as per loan agreement bearing no.XVFPCHK00001450865 .That after the sanctioning the loan the complainant did not adhere to the terms and conditions of the agreement while making payment of the EMi which has resulted in huge default of loan amount . Therefore the O.P has issued various letters calling upon the borrower to repay the loan or else the O.P shall be constraint to take repossession of the hypothecated assets. For better appreciation of fact one of the demand letter dt. 12.09.17 .
Despite issuance of letter and reminder the complainant did not pay the Emi on the stipulated date thereby living an outstanding of Rs.43,120/- and other overdue of Rs.9,630/- .Therefore the O.P finding no other alternative has seized the vehicle of the complainant on 21.12.17 .The said seizure of the O.P is giving prior intimation to the complainant and duly informing to the local police station which can never been termed as illegal rather the seizure of the vehicle is in accordance with the terms and conditions of the agreement. For better appreciation of fact the pre-post seizure intimations by the O.P to the police station dt.21.12.2017.
After the seizure of the vehicle the O.P has issued a pre-sale letter to the complainant on dt.21.12.2017 requesting the complainant to pay the arrear outstanding amounting to Rs.4,35,337/- within 7 days or else the O.P shall be constrained to put the vehicle to auction and the sale proceed shall be adjusted towards the loan accounts.
That despite receipt of the pre-sale letter the complainant did not turned up to participate in the sale proceeding or to pay the outstanding amount as a result of which the O.P has sold the vehicle to a 3rd party namely Brajakishore Jena and the sale proceed received out of the sale is Rs.3,15,000/-.
In view of the above facts stated in the preceding the complain petition is devoid of any merit and deserves dismissal.
On the date of hearing the matter was posted as last chance for hearing. Advocate for the petitioner filed time petition which was rejected. No step taken from the side of the O.p. After perusal of the record and documents in details we observed that it is undisputed fact that the petitioner purchased the BOLERO ( vehicle) with the financial assistance of the O.P. It is also undisputed fact that the petitioner became defaulter for repayment of the EMI within the stipulated period . The petitioner took the stand that the O.p seized the vehicle at Barbil from the driver on 21.12.17 without serving any pre-seizure notice . The petitioner received a notice from the O.P.no.1 on 26.12.17 and come to know from the notice that the O.P sent the notice on 21.12.17 on the date of seizure of the above vehicle but the vehicle was seized by the O.P prior to receipt of the notice by the petitioner . On the other hand the O.P filed a notice dt.12th September-2017 regarding recovery of the defaulted amount. Thereafter the O.P also filed a documents after pre-seizure intimation to police station on 21.12.17, post seizure intimation to the police station dt.21.12.17 and pre-sale notice dt. 21.12.17. Thereafter sale acceptance letter dt. 31.01.18 .
In this contest after perusal of the observation of Hon’ble Supreme court reported in 2006-CTJ-209(S.C) ( M.D Orix Auto Vrs. Josbinder Singh) wherein we are inclined to hold that though the O.P is empowered as per terms and condition of the agreement to seize and sale the financed vehicle in case of default in monthly installments of the loan . of Hon’ble National Commission reported in 2016(11) –CLT-31(N.C) ( A.V Finance India Pvt. Ltd Vrs. Ramdas Raghunath patil) wherein it is held that :-
In view of the above observation we are inclined to hold that the petitioner failed to establish his case.
Hence this order
The dispute is dismissed on contest without any cost.
This order is pronounced in the open Forum on this the 25th day of September,2020. under my hand and seal of the Commission .
