IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION , JAJPUR.
Present: 1.Sri Pitabas Mohanty, Member,
2.Miss Smita Ray, Lady Member.
Dated the 31st day of August,2020.
C.C.Case No. 57 of 2018
Tapan kumar Swain , S/O Brahmananda Swain
Vill . Nachhipur P.O. Fatepur , P.S.Binjharpur
Dist. Jajpur
……....Complainant .
(Versus)
Branch Manager, City Finance ( India) Ltd,
At.Plot No.A/83,saheed Nagar ,Bhubaneswar ,Dist. Khurda .
……………..Opp.Parties.
For the Complainant: Sri Srikant Mohapatra, H.Ch. Das,S. Das, Advocates .
For the Opp.Parties : Sri T.Ku. Harichandan, D.P.Das, N.Patra, Advocates.
Date of order: 31.08 .2020.
MISS SMITA RAY , LADY MEMBER .
Deficiency in financial service is the grievance of the petitioner .
The fact as per complain petition as stated by the petitioner is that the petitioner is an unemployed youth for maintaining his livelihood who had purchased a truck bearing Regd No. OR-09-K-8527 by the financial help of O.P on the strength of a hypothecation agreement vide loan No.LKI-303-3515162 . As per agreement the entire loan with interest is required to be repaid within 46 installment at the rate of Rs 26,605/- per EMI . Accordingly the petitioner has started for repayment his monthly EMI from 13.9.2008 and by December 2012 he has already paid the total amount of Rs 15,74,465/- though he had to pay 12,22,830/- as per agreement .
That on 27.03. 2017 the petitioner asked the O.P to issue NOC against the vehicle since he has already repaid the entire loan amount along with interest .But the O.P became causal and remained silent for which the innocent poor petitioner suffered from mental agony and harassment . The petitioner tried again and again for NOC and on March,18, the O.P further demanded one lakh for DPC which has caused serious financial and mental torture for the petitioner . As such the O.P has caused serious deficiency in service due to not issuing NOC particularly after receipt of Rs. 15,74,465/- . The cause of action arose on 30th March,2018 when the O.P denied to give NOC and further demanded Rs one lakh towards DPC . The O.P has arbitrarily calculated DPC without following the guide line of the Hon’ble court and apex court , for which the petitioner has suffered a lot causing financial loss and unable to maintain his family. Accordingly finding no other alternative the petitioner knocked the door of this commission to direct the o.p to issue NOC in favour of the petitioner without charging any further DPC.
After receipt of notice the op appeared though their learned advocate and subsequently filed the written version taking the following stands :
That the present complaint is not maintainable either in law or in facts as the complainant is not a consumer under section 2(d)(ii) of C,P.Act 1986 as amended .That the petitioner stated that he has paid Rs. 15,74,465/- to the O.P but he has failed to submit necessary cogent evidence to this averments and the petitioner has filed certain modified documents that should not be taken into consideration.
That the petitioner has purchased a commercial vehicle by obtaining financial assistance from the o.p for business purpose for which this petition is not maintainable .
The petitioner in this instant case has been a chronic defaulter on repayment of the installments dues . Further the petitioner has also guilty of late payment of installment . Hence he can not lodge any complaint of the deficiency of service against the O.P. TAs per the agreement when any type of dispute will arise the matter should referred to arbitrator, for which the case may be dismissed . The O.P also stated that the petitioner is liable to pay a sum of Rs. 103351/- as DPC charges because he did not pay EMI by way of installment on the stipulated due date and it is submitted that as per receipt information , the complaint has been a defaulter and irregular in repayment of loan for which he is liable to pay the DPC amount .
As alleged by the complainant he has paid last payment of the monthly installment in December-2012 both the complainant has failed to show any cogent evidence that to show for last almost 4 years the petitioner is asking the NOC from the O.P. Rather the petitioner did not come to the O.P in the past years for claiming NOC has file the present dispute in 2018 . Hence , the present complaint come under barred by limitation . That on the above circumstance the complaint petition filed by the complainant should be dismissed being not maintainable and the complt is not entitled to get any relief as he has not approached this Commission with clean hand and the petitioner being aware about the Arbitration Award has filed the present dispute stating false and irregular . The petitioner is a chronic defaulter and the agreement period is already over but the petitioner has not clear the dues.
On the date of hearing we heard the argument from the side of the petitioner.
Adv. for the petitioner is present. No step is taken from the side of the O.P.
After Perusal of the record and documents in details and we are inclined to frame the following issues so as to come to our conclusion .
Issue no.1
Whether the petitioner is a consumer who is entitled to maintain the dispute in this commission as raised by the O.P regarding commercial purpose ?
Issue No.2
whether the dispute is barred by limitation ?
Issue No.3.
Whether this Commission gets jurisdiction to adjudicate the present dispute since as per arbitration clause in the agreement .
Issue No.4
Whether there is deficiency in service/ unfair trade practice so far as non providing of NOC
Issue No.5
whether the petitioner is entitled for the relief as prayed for in the complaint petition.
In the intial stage we make it clear that we are going to decide the present dispute basing on the fact and circumstances of the present dispute in view of the observation of Hon’ble Apex court reported in 2001(11) -CPR-108-SC .
Answer to issue no.1
It is undisputed fact that the petitioner has availed the loan from the O.P for purchasing the above cited vehicle as against such loan the petitioner is paying interest which is covered under the expression in the service and the interest so paid by the petitioner in repayment of loan is consideration . As such the petitioner is a consumer in view of the observation of Hon’ble Supreme court reported in in 1995-11-SCC-150 ( consumer unit Trust society vrs chairman and M.D and Bank of Baroda)
As regards commercial purpose as raised by the O.P the same is also not sustainable in the eye of law as per observation of Hon’ble Supreme court 2009(4)-113- SC (Madan ku,.Singh Vrs District magistrate and other) since the petitioner in the complaint petition has stated that he has purchased the vehicle for self employment to maintain her livelihood.
Answer to issue no. 2
As regards question of limitation as raised by the O.P , we are inclined to clarify that the O.P is claiming the arrear DPC of the above vehicle vide their Account statement dt. 27 th March 2017 and the present dispute filed on 01.08.18 . In this contest we have relied on the observation of Hon’ble M.P state commission reported in 2004(11) CLD-568 wherein it is held that
“in case of any genuine claim the limitation is a technical point .
Accordingly we hold that the present dispute has been filed within the limitation period as per C.P.Act .
Answer to issue No. 3
The stand taken by the O.P in the written version owing to arbitration clause in the agreement , this commission gets no jurisdiction to entertain the dispute is also judiciously not sustainable as per observation of Hon’ble Supreme court reported in 2004 CTJ -1-SC ( Secretary Tirumurugan Co-operative society vrs M.Lalitha )
“wherein it is held that arbitration clause is no bar for entertaining the dispute by this commission accordingly this commission has no hesitation to decide the present dispute “
Answer to issue no 4 and 5
These are the vital issues where in we have to verify whether there is any deficiency of service on the part of the O.P and if so whether the petitioner is entitled for any relief as prayed in the complaint petition .
- It is alleged by the petitioner that the agreement value of the hypothecation agreement of the above vehicle as Rs.12,23,830/ but the petitioner has already paid Rs 15,74,465/ but the O.P illegally charges DPC one lakh for providing of NOC . on the other hand the O.P taken the stand that the petitioner is a chronic defaulter and the petitioner is also regular defaulter for repaying the EMI of the above vehicle . As such the petitioner is bound to pay the DPC charges at Rs.103359/-.
On this point we are inclined to hold that the O.P is entitled to charge DPC as per agreement if the petitioner became defaulter for repaying the EMI on the other hand such charging of DPC should not be more than 9% interest as per observation of Hon’ble High court vide W.P(c) No. 17720/2008 constitution bench of supreme court reported in Air 2000(1) -3095-SC
In view of above observation from our side to dispose of the dispute as per order below:-
O R D E R
The O.Ps are directed to recalculate the DPC of the above vehicle at the rate of 9% per annum .The revised copy of the statement of account will be sent to the petitioner by the O.P within one month after receipt of this order. The petitioner is also directed to pay the arrear amount (if any) after recalculation within 15 days after receipt of this order. The O.P also further directed to issue NOC after receipt of the arrear amount (if any) within 15 days .No cost.
This order is pronounced in the open Commission on this the 31st day of August,2020. under my hand and seal of the Commission.
