Orissa

Jajapur

CC/87/2019

Pradeep Kumar Samal. - Complainant(s)

Versus

Branch Manager,Shriram Transport Finance Co.Ltd. - Opp.Party(s)

Prashanta Ku. Das.

30 Dec 2020

ORDER

 IN  THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                             Present:      1. Shri Pitabas Mohanty, I/C President.

                                                                                 2. Miss Smita  Ray, Lady Member                                                     

                                             Dated the 30th day of  December,2020.

                                                      C.C.Case No. 87  of 2019.

Pradeep ku.Samal   , S/O Indramani Samal     

At. Khardipur,  ,P.O. Tina   ,

P.S.Binjharpur,  

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

                                                  (Versus)

 

1. Branch Manager,Shrima Transport .Finance Co.Ltd, Chandikhole ,1^st floor

NAYAK BUILDING ,P.O.Sunguda,Chandikhle Chook ,Jajpur.

2. Chief Manager, Shriram Transport ,Finance Co.Ltd, floor-111

Lady DesikacheryRoad,Mylapore ,Chennai

                                                                                                                              ……………..Opp.Parties.                                                                                                                                              

For the Complainant:                                 Sri P.K.Dash, Advocates

For the Opp.Parties :                                  Mr.           P.K. RAY, Mr. A.R.Sethy,  Advocate.

                                                                                                     Date of order:    30. 12.2020.

MISS SMITA RAY, LADY MEMBER   .

            Deficiency in finance service is the grievance of the petitioner.

            The fact of the complaint petition  shortly  is that the petitioner is a unemployed person to  maintain his livelihood who purchased a  JCB machine with the financial assistance of O.ps . On dt.30.6.14 . The financial amount of Rs 4,56,000/-  which had  to pay in  35  monthly installment starting from  dt.5.8.14 and the last installment  was fixed on 5.07.17.  The petitioner     has already paid Rs 3,63,200/-  during the period of payment of  installments  but he requested the O.P  to provide account statement regarding  payment details . The O.P.no. 1 avoided to supply the same . On  3.8.19 the O.P.no.1 sent a letter to the petitioner and demanding Rs 9.32,418.98p/  for the arrear outstanding dues . That the demand of O.P no.1  is completely illegal, baseless , out of which a sum of Rs 6,78.581.98 p/  has been demanded as delayed payment interest having  the rate of interest 36% additional interest  per annum. That the delayed payment  interest of  Rs.6,78,581.98p/   which has been added as an arrear amount of Rs. 2,52,837/- is not acceptable according to law. So also the rate   of interest of  36% is also  illegal according to law.

            Thereafter the petitioner requested the O.P. no1 to exempt  the delayed payment interest for which  he will   pay the outstanding arrear dues of Rs. 2,52,837/-  but the O.P.no.1  never turned up . Rather he threatened to repossess the vehicle by hooligans forcibly .  The petitioner  family members  completely depend upon the vehicle for their livelihood  . The petitioner has no other source of income  except  the said vehicle. Finding no other alternative the petitioner knocked the door of this commission with the prayer that  the O.P  may be directed to  exempt such illegal delayed payment interest Rs. 6,78,581.98p /- and pay Rs 50,000/-  as compensation for negligence  and mental agony .

            After receipt of notice  the O.Ps appeared  through their learned advocate  subsequently filed their written version  taking the following stands :

            That this complaint is not maintainable as this learned forum has got no jurisdiction in respect of the subject matter of the alleged dispute in view of the facts that there is one “ Arbitration clause” and one territorial jurisdiction clause in the Loan Agreement no.SEF036406260001 dt.30.06.2014 executed between the complainant and the O.Ps in which both the parties including the complainant have agreed that all dispute differences and / or claims arising out of these presents or as to  the  said agreement shall be settled by Arbitration to be held in Bhubaneswar in accordance with the provisions of the Arbitration and conciliation Act 1996. Similarly in clause No.16 of the loan Agreement both the parties have agreed that “ Bhubaneswar courts alone shall have exclusive jurisdiction in respect of any matter, claims or disputes arising out of or in any way…….. Therefore the dispute raised in this consumer complaint has to be referred to the learned Arbitrator in terms of the aforesaid loan Agreement in consonance with the provisions, particularly section 5 and 8 of the Arbitration and Conciliation Act,1996. Thus the instant consumer complaint is not maintainable in the eyes of law and on this score alone the consumer complaint is liable to be dismissed.

            It is further submitted the dispute raised in this instant consumer complaint  and the reliefs sought for are also not tenable in the eyes of law. Therefore the instant consumer complaint is not sustainable in the eyes of law and accordingly the  same is liable to be dismissed.

It is also submitted that the dispute of the instant consumer complaint is also an Account disputes as the complainant claims that he is liable to pay rs.2,52,837/- where as the SOA reveals that the amount payable in this loan account is more than ten lakhs. Law in this regard is well settled that the consumer Fora lacks the jurisdiction to decides such disputes. The Hon’ble State Consumer Disputes Redressal Commission Odisha have been pleased to hold so in number of decisions and one of such is C.D.Case No.53 of 2004 ( Bhabani sankar Acharya & Another VS- M/S Gold Mohur Foods and Feeds ltd and others) reported in 2007 OLR(CSR) 38 and in another case C.C.No.43 of 2010 in the case of Sushant Ku.Acharys –Vs-M/S Magma Finance Corporation ltd decided on dt. 19.05.2010.

            It is also submitted that the complaint does not possess a valid driving license to drive the financial vehicle and therefore he can not claim that he is  employed himself in the said vehicle for earning livelihood. Thus in view of the law laid by the Hon’ble Supreme Court in the case of Laxmi Engineering Works- Vrs- PSG Industrial Institute reported in 1995 AIR SC 1428, the complainant is not a “ consumer “ and on this score also the instant consumer complaint is liable to be dismissed.

            On the date of hearing we heard the argument from the learned advocate of  both the sides. After perusal of the record and documents in detail it is undisputed fact  that the petitioner availed the loan to  purchase of the above vehicle . it is also undisputed  fact the petitioner became defaulter for  repayment of Emi .In this contest after perusal of the observation  of Hon’ble  Supreme court  reported in 2006(CTJ-209-SC (MD orxi Auto Vrs Joginder Singh) where in  it is held that the O.P is  empowered as per term and condition of the agreement  to seize  and  

sale the finance vehicle,  in case of default in repayment of monthly Emi of loan amount but the such seizer and sale must be as per law .  In view of the observation  of Hon’ble  National Commission  reported in 2016(11) CLT-31-(N.C) ( A.V finance pvt  Ltd  Vrs Ramdas Ragunath Patil_)

            On the other hand the petitioner has taken  the stand that the O.P  charging 36% of DPC against the defaulted amount . Accordingly we  are inclined to hold that the O.P  entitled to charge DPC as per hypothecation agreement if the petitioner became defaulter for payment of Emi  in stipulated time but such charging of DPC should not be more than 9% as per observation of Hon’ble Orissa High  court vide W.P(C) no. 17720/2008   as well as  the constitution bench of  supreme  court reported  in Air 2000(1) -3095-SC .

            The stand taken by the O.P regarding arbitration clause 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-2-SC ( Secretary Tirumuruga  co-operative society Vrs. M.Lalita)

Wherein it is held that:

“ Arbitration clause is no bar for entertaining the dispute by the commission accordingly the commission has jurisdiction to decide the present dispute “.

            In view of the above observation  from our side we dispose of the dispute as per order below :-

            The dispute is partly allowed against the O.Ps .  The  O.Ps  are  directed to recalculate the DPC at the rate of 9% per annum.  The revise copy of statement  of account  will be sent by the O.Ps  to the petitioner through  R.P within one month  after receipt of this order .  The petitioner is also directed to pay the arrear amount (if any) as per the time fixed by the O.Ps  after receipt of the recalculation statement . No cost.

 

            This order is pronounced in the open Forum on this the 30th  day of  December,2020. under my hand and seal of the commission ..