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.35 of 2018
Prativa Nayak , W/O Niranjan Nayak
Vill. Badajalahara P.O. Adanga ,Purusottampur
P.S. Jajpur Sadar Dt.Jajpur
……....Complainant .
(Versus)
- Branch Manager, Shriram Transport Finance Ltd,
At/P.O/P.S.Jajpur Road, Dt.Jajpur. Near Brahmani Hotel
Bye pass ,Dt.Jajpur .
……………..Opp.Parties.
For the Complainant: Sri Amar Ku.Routray, Advocate .
For the Opp.Parties : Sri Prasanta Samanta , Chinmayee Jena , Advocates.
Date of order: 25 .09. 2020.
MISS SMITA RAY , L A D Y MEMBER .
Deficiency in financial service is the grievance of the petitioner.
The facts as stated by the petitioner in the complaint petition shortly are that the husband of the petitioner is an unemployed youth and to maintain her livelihood she purchased a TATA LPT-2515 Truck bearing Regd. No. OR-09-H-1780 backed by a hypothecation agreement with the financial assistance of O.P by availing loan of Rs.5,00,000/- . That as per the terms and conditions the loan amount along with interest shall be cleared up within the stipulated period in toto amounting to Rs.9,50,337/- . The petitioner already paid Rs.7,12,389/- but due to accident of the vehicle and financial stringency as well as stooping of mining business and rainy season the petitioner has became defaulter and liable to make payment of Rs.2,47,631/- towards defaulted amount.
That owing to the above situation at present the O.P is trying to sale the above vehicle after repossession as well as claiming of Rs.11,97,968.18/- as outstanding amount charging 36% as D.P.C instead of 9% which violates the guide line of Hon’ble High court of Orissa and decision of constitution bench of Supreme court . That the present dispute is within the period of limitation since the O.p has issued the statement of accounts on 19.02.18 claiming Rs.11,97,968.68/- towards outstanding amount against the above vehicle. That due to above arbitrary action of the O.P the petioner suffered mental agony for which finding no other alternative the petitioner filed this dispute before this commission with the prayer that the O.P may be directed not to sale / repossession the vehicle till finalization of the present dispute and to charge DPC 9% interest per annum instead of 36% as per observation of Hon’ble High court of Orissa and Supreme court.
After receipt of notice the O.P appeared through their learned advocate and subsequently filed the written version / objection taking following stands:
The petitioner entered into an agreement on dt.15.06.12 vide agreement loan No.JJPUR0206140003 with the O.P for finance a heavy goods vehicle bearing Regd. No.OR-09-H-1780 of Rs.5,00,000/- only and finance charge of Rs.197113/- which was to be paid by the petitioner in 35 installments and its commencing from 20.07.12 till expiry of contract on 20.05.15 and as per repayment schedule the 1st installment was of Rs.31764/- and 2nd to 35 installments were of Rs.19870/- only each respectively. Besides the aforesaid vehicle loan the complaint also incurred several other loan i.e WCL ( tire and insurance loan) during subsistence of principal loan and became liable to repay the sum thereof vide agreement loan No.JJPUR0306130003 on dt. 14.06.13 of Rs.29,198/- and its finance charge of Rs.4498/- which to be paid by the petitioner in 12 installments and JJPUR0406270007 on dt.27.06.14 of Rs.29883/- which is to be paid by the complainant in 12 installments and its finance charge is of Rs3237/- and JJPUR0506230007 dt.23.06.15 of Rs.32203/- and its finance charge of Rs.3581/- in 12 installments and JJPUR0606230002 on dt.23.06.16 of Rs.36330/- and its finance charge of Rs.4050/- in 12 installments and its finance charge of Rs.4050/- and JJPUR0706230002 on dt. 23.06.17 of Rs.43,074/- and its finance charge of Rs.5708/- in toto the petitioner availed the loan of Rs.670688/- +Rs.218187/- (finance charge) =Rs.888875/- . In addition to this the complainant also became liable to pay the delay payment interest (DPI) and expenses etc. for which his total liability up to 19.05.18 comes to Rs.1975611/- out of said amount the petitioner has paid of Rs.712389/- and balance sum of rs.1290139/- only remained outstanding as would be seen from the statement of account (SAQ). Since 04.08.17 the petitioner has never paid a single pie to the O.p though the
O.P made several request and communication to the petitioner including over phone, but he has never turn up to pay the loan amount. The petitioner continued to commit defaults for consecutive months even after expiry of contract tenure, but the complainant or his guarantor did not comply the aforesaid notice. It is submitted that the complainant has suppressed the demand notice and amount of outstanding as well as tenure of contract etc are not brought of the notice of the Hon’ble Forum when the interim order was passed. It is further submitted that the petitioner has filed this case only to harass and to cheat the O.P
In this fact and circumstances the interim petition of the petitioner is liable to be rejected and the Hon’ble commission to direct the petitioner to pay the outstanding amount of the O.P.
On the date of hearing advocate for the petitioner was absent. Advocate for the O.p is present. We heard the argument from the side of the O.P.
After perusal of the record and documents in details it is undisputed fact that the petitioner availed the loan from the above alleged vehicle with the financial assistance of the O.P. It is also undisputed fact that the petitioner became defaulter in payment of EMI of the alleged vehicle . 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 of monthly installments of the loan but such seizure 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 India Pvt. Ltd Vrs. Ramdas Raghunath patil)
And
“observation of Hon’ble Supreme court reported in 2007(36) –OCRCSC( Manager ICICI Bank Ltd. Vrs Prakash Kour and Others) ,2016(1) –CLT-310_N.C ( Kotak Mahindra Ltd Vrs M.D Sarif Ansori) wherein it is held that
“ vehicle repossessed and sold by the financer without notice is illegal. “
On the other hand the petitioner taken the stand that the O.P charges 36% of DPC against the defaulted amount. In 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 we dispose of the dispute as per order below:-
O R D E R
The dispute is partly allowed against the O.P . 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 through R.P within one month after receipt of this order. The petitioner is also directed to pay the arrear amount (if any) after receipt of recalculation statement of account within 15 days after receipt of revised statement of account . No 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 .
