Orissa

Jajapur

CC/108/2015

Sri Arun Kumar Behera - Complainant(s)

Versus

Branch Manager,Orissa State Financial Corporation Paradeep Branch - Opp.Party(s)

Badri Narayan Panda,D.K.Nath

28 Mar 2016

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                      Present:  1.Shri Biraja Prasad Kar, President,

                                                                                      2.Sri Pitabas Mohanty, Member,

                                                                                      3.Miss Smita Ray, Lady Member.

Dated the 28^th day of March,2016.

C. C. Case No.108 of 2015

Sri Arun Kumar Behera, S/O Sri Golakha Behera

Vill- Maheswarpur, P.O-Kabirpur

Dist.- Jajpur                                                                      ……………..Complainant .                                                                                              

                        (Versus)

1. Branch Manager,Orissa State Financial Corporation Paradeep Branch

    Mdhupatna, Cuttack-10

2. Branch Manager, Orissa State Financial Corporation Chandikhole Branch

   At/P.O. Chandikhole ,Dist.Jajpur.

                                                                                                            …………………………Opp.Parties.

For the Complainant:                                Sri B.N.Panda, Sri D.K.Natha, Advocates.

For the Opp. Party No.1 and 2 :                Sri B. B.Sahoo,Advocate.  

                                                                             Date of order    :   28.03.2016.

SHRI  BIRAJA  PRASAD KAR, PRESIDENT.

Deficiency in service is the grievance of the complainant.

                        Brief facts, of the complainant’s case are that the complainant to eke out his livelihood purchased one Tractor Trolley bearing Regd. No.0R-4C-0915  and 0916 under the financial assistance of the O.Ps. by executing an agreement. As per the agreement the complainant was paying the EMIs. But due to some unavoidable circumstances the complainant could not clear the loan amount in time. In the year 2011 the O.Ps. introduced OTS scheme and the complainant applied for the same OTS scheme. The OTS scheme was allowed by the O.Ps with the condition that the balance settlement amount of Rs.2,13,000/- shall either be paid in one lump sum by dt 30.09.12 ’or’ to be paid within 01.08.2013 in 12 monthly installments. The complainant paid Rs.31,000/- in three different dates but could not pay the other installment dues due to some unavoidable circumstances. The complainant thereafter requested the O.Ps. to allow one year time to clear up the loan but the O.Ps. turned a deaf ear  to it . It is alleged by the complainant that the O.Ps. without giving any prior notice seized the Tractor and Trolley. The O.Ps. with malafide intention demand more money to release the Tractor and Trolley. The O.Ps. gave sale notice through daily news paper “ Samaj “ which is illegal and contrary to law. Alleging deficiency in service the complainant has filed this dispute with the prayer to direct the O.Ps. to release the seized Tractor & Trolley by re-availing OTS amount fixed by the O.Ps.

                        On being noticed the O.Ps. have appeared through their advocate and filed their written version denying the allegations  made in the complainant petition and interalia pleaded that  the petitioner applied for sanction of Tractor loan for his commercial business in the year of 2001, accordingly the same was sanctioned vide order No.438 dt.12.07.2001. The petitioner executed the legal agreement on dt.12.09.2001 and an amount of Rs.02,45,000/- was disbursed in favour of the petitioner on dt.29.11.2001 in order to purchase HMT Tractor with Trolley.

                        The petitioner also had offered collateral security and mortgaged residential land and building in order to secure loan during execution of legal agreement. As per terms of loan agreement the petitioner has to pay quarterly interest @ 16.5% Per annum and 2% penalty on defaulted amount of principal and interest. The repayment period of loan was over since 12.09.2006 . As the petitioner had not paid the loan amount as per terms and condition of the agreement the O.Ps. had given demand notice on dt.26.07.2012 ,10.10.2002 ,22.10.2003 ,15.07.2005 and on dt.18.11.2010 , but the petitioner failed to liquidate the loan outstanding. The petitioner had applied to settle the loan under OTS-2011 Scheme on dt. 20.03.2012 .  Till the date of OTS application the petitioner has paid Rs.01.56 lakhs only against the outstanding dues of Rs.09.10 lakhs.

                        It is further stated  by the O.Ps. that the OSFC settle the loan under OTS-2011 scheme at Rs.02,37,000/- vide settlement order bearing No.971 dt.02.01.2012 and the petitioner was supposed to pay the entire settlement amount on or before dt.01.08.2013 ,where as the petitioner has paid Rs.55,000/- only. So the OSFC was forced to cancel the OTS due to non payment of settlement amount by the petitioner and accordingly the same is informed to the petitioner vide letter no .816 dt.08.01.2014 ,. Subsequently loan recall notice was also issued to the petitioner. The petitioner has neither replied nor paid the outstanding loan amount. Hence finding no alternative the O.Ps. seized the vehicle on dt.29.09.2015 U/S 29 of SFC Act and intimated the petitioner vide letter no.352 dt.30.09.2015 to liquidate the loan outstanding of Rs.15.70 lakhs (Prin Rs.2.36 lakh) within 30 days from issue of this letter failing which the vehicle will be sold through public auction. The petitioner appeared before DDCA on dt.29.12.2015 ,wherein the DDCA asked to the petitioner to pay Rs.01,40,000/- (Off set price of the vehicle advertised for sale) immediately by the auction committee but he did not agreed to pay.

                        As per law the OSFC is the absolute owner of the Tractor in question and he has every right to seize  and sale the same as per provisions contained in section 29 of the SFC Act. The petitioner was given ample opportunity but he did not like to avail the same. Rather sometimes issued cheques having no sufficient funds in his account. The petitioner harassed the O.Ps. like anything .When the petitioner has not approached the Hon’ble Forum in clean hand he has no right to claim equity as prayed for, rather great loss will be caused to the O.Ps. The loan agreement of the petitioner with the OSFC has never whispered that the petitioner is making loan for his livelihood. The vehicle in question is commercial vehicle and the petitioner has good Tent business and other vehicle business and having good status. So the plea of the petitioner U/S 2(d) of the C.P. Act is not tenable. As per decision of the Hon’ble Court the Civil Courts have no jurisdiction to issue injunction order against the OSFC, when the OSFC is the original owner of the property. In this case the OSFC is the absolute owner of the vehicle in question. So the order of stay to sale against the true owner is not tenable. This Hon’ble Forum also has no jurisdiction to examine and to decide the agreement between the petitioner and OSFC. Hence, there is no deficiency in service on the part of the O.Ps and the C.C. Case is liable to be dismissed.

                        On the date of hearing we have heard the advocates of the respective parties. We have perused the complaint petition, written version and documents available on record.

                        From the record it is revealed that the complainant availed loan from the O.Ps. to purchase a Tractor & Trolley. The complainant is a defaulter in paying the EMIs. The complainant also could not avail the OTS scheme and did not pay the installments as per the OTS scheme. The O.Ps. seized the Tractor and Trolley and gave pre-sale notice to sale the seized vehicle if the dues of Rs.15,70,043/- is not paid within 30 days of issue of the notice i.e. 30.09.2015 . Hence, we observe that there is no deficiency in service on the part of the O.Ps.

                        On 01.02.16 the complainant filed a petition stating that the complainant may kindly be permitted to file one application for O.T.S Scheme and he is ready and willing to pay the O.T.S amount settled by the authorities of the O.Ps.

                        The O.Ps. file objection to the petition stating that keeping in view of the merit of the case of the parties the matter may be resolved on the OTS principle. Accordingly the petitioner may be directed .

                        In view of the above facts and circumstances of the  case, we are inclined to dispose of the case on the following directions;-

 

i)The complainant is directed to file a petition before the O.Ps. afresh  to settle the arrear dues by way of O.T.S within 7 days of receipt of this order.

ii).The O.Ps. after receipt of the O.T.S application from the complainant ,dispose of the application within 7 days and intimate the same to the complainant forthwith by  Regd. Post.

iii).The complainant is directed to pay the arrear dues of the O.Ps. as per the terms and conditions of O.T.S, failing which the O.Ps. are at liberty to take steps for realization of their dues as per law.

                       

O R D E R

                        In the result the C. C. Case is disposed of as per the above directions on contest but without any costs.                         

                        This order is pronounced in the open Forum on this the 28th day of March ,2016. under my hand and seal of the Forum.