DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Present 1. Shri Raghunath Kara, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Dated the 28th day of October, 2016
C.D.Case No.90 of 2014
Sri Motilal Puhana
S/O jaganath Puhana
Vill- Chakuasahi , Po- Padhani
Ps- Dhamnagar, Dist- Bhadrak ………….Complainant
VERSUS
- Branch Manager
Magma FINCORP Ltd.
- Tapan Sathpathy
-
Magma FINCORP Ltd.
- Pratap Panda
Monthly Collection Agent of Bhadrak
District Magma FINCORP Ltd.
- Jeetan Biswal
Office staff of Magma FINCORP Ltd.
In-charge of Bhadrak & Jajpur
All are servicing at Magma FINCORP Ltd.
At- Nirmal Plaza, Forest Park
Near AIR port square, Bhubaneswar-9
For the Complainant : Sasibhusan Panda & Otrhers
For the Opp.Parties : Sarat Chandra Mohapatra & Others
Date of hearing : 06.06.2016
Date of order : 28.10.2016
SHRI RAGHUNATH KAR, PRESIDENT:
The brief facts of the complaint filed by the complainant is as follows that the complainant has described that he purchased a vehicle namely Mahindra Bolero, Model No.OR-04-3434,EngineNo.GHB4B23092,Chassis No.MA1WEG2GHKB65947. Before the execution of said agreement the vehicle was registered in the name of Karunaditya Das, S/O Krushna Chandra Das who was the owner of original vehicle. The complainant purchased the said vehicle from original owner Karinaditya Das for the consideration of money was fixed amounting to Rs 5,00,000/- only. The complainant paid Rs 2,00,000/- to the owner & assured him to pay the rest Rs 3,00,000/- with a short time after receiving the loan from the OP No. 1. After obtaining the loan from the OP No. 1 the rest Rs 3,00,000/- by way of 36 monthly installments within the period of 3 years. The OP No. 1 delivered the RC Book to the complainant & latter used to run the vehicle for the commercial purpose. The complainant had already paid 17 monthly installments out of 21. He had paid from some installments amounting to Rs 10,000/- per month & paid some installments amounting to Rs 9600/- per month. The said amount had been paid by the complainant to the OP No. 3 namely Pratap Panda the monthly collection agent of Bhadrak District but it is a regretful matter that the OP No. 3 did not deposit two monthly installments. The OP No. 3 did not hand over the money receipt of subsequent installments to the complainant but assured him to hand over the same to the complainant latter on.
In the mean time said “FILINE” natural calamitie affected the complainants financial situation violently for which he could not deposit one installment & another installment he could not pay due to his son’s serious sleekness. So the complainant has defaulted to pay the afore said two monthly installments. The complainant has also intimated the facts regarding the default to the O.Ps, the OP No. 3 & 4 threatened him but the OP No. 1 & 2 advised the complainant to deposit two defaulting installments immediately. The complainant was prepared for depositing the installments but the O.Ps did not receive the same. On 01.09.2014 when the complainant went to S.C.B Medical Collage for treatment of his son the OP No. 3 & 4 under the instructions of OP No. 1 & 2 forcibly obstructed the complainant Bolero over NH- 5 at Dhamnager Chhak, along with some gundas dragged the said vehicle. The complainant, latter on requested the O.Ps No. 2 , 3 & 4 to return back him the said vehicle..But they replied him that the vehicle was already delivered for sale on 29.09.2004. The cause of action of this case arose on 10.09.2014 when the said vehicle was repossessed by the O.Ps. The complainant has valued this case as Rs 1,00,000/-
(Rupees one lakh only). The complainant has sought for the reliefs of monthly loss of Rs 65,000/- , Rs 30,000/- for mental agony & harassment, for cost of the litigation Rs 5,000/- total Rs 1,00,000/-. The complainant has paid Rs 100/- by means of an I.P.O.
The complainant had submitted Xerox copy of an agreement executed between him & Karunaditya Das for sale, Xerox copy of discharge certificate issued by D.H.H, Jajpur, xerox copy of the prescription issued by Dr Suprakash Sathpathi M.D Perediatrics, Xerox copy of diagnostics report issued from Diagnostics Center, Jajpur, of Dr S.K. Sathpathy M.D, Xerox copy of blood report, stool report issued from Life line Micro lab, Xerox copy of pathological report issued by Dr S.K. Sathpathy through diagnosis & research, Jajpur , Xerox copy of Regd. Certificate particular from R.T.O, Jajpur, Xerox copy of inventory of items in vehicle report issued by OP No. 1, complain No. P/0064/13/00392 on dt. 29.10.2014 which was repudiated by the O.Ps, Xerox copies of money receipt 16 sheets, Xerox copy of certificate of registration.
On the other hand the OP No. 1 , 2 , 3 & 4 had described in their written version admitting that the complainant has executed a Hire-Purchase-Finance Agreement on 09.01.2014 for purchasing of the vehicle. He has also admitted that the finance amount is Rs 2,90,000/-, total receivable amount is Rs 4,61,520/- payable in 48 monthly installments, he has paid Rs 9,615/- commencing from 01.02.2013 & there after first day of every month, the complainant has to repay the loan amount with interest & other charges as per terms & conditions of the loan agreement he has marked as an Annexure- A. The O.Ps have further averred that as per Arbitration clause of the agreement if any dispute arises, that should be referred to the Arbitrator for decision and all the parties are bound to obey the decision of the arbitrator. The copy of reference letter is attached marked as Annexure- B. Due to nonpayment of monthly installments in time said vehicle was taken into possession by the O.Ps on 10.09.2014, the possession was taken with proper seizure list & as per term & conditions which has been marked as Annexure- C, the O.Ps have intimated to the police before & after the seizure, the said letter is marked as Annexure- D & E. The O.Ps have further averred that after taking into possession of the financed vehicle which is the sole security against the loan, a fore closer-compare sale notice dt. 13.09.2014 with register post was issued to complainant on 16.09.2014, of which the copy has been marked as Annexure- F. The acknowledgement card of the demand notice address to the complainant has been not returned back to the O.Ps, the said registered envelope containing Pre-sale-Demand notice was properly addressed. But in spite of receiving the notice the complainant did not send any positive response to repay the dues, he has to pay the loan amount till 13.09.2014 Rs 2,86,639/-. As the complainant has not been turned of within stipulated period as mentioned in the said notice, the vehicle was valued by authorized person, the copy of the valuation report has been marked as Annexure- G. The O.Ps have further admitted that after valuation the vehicle was auctioned & there after sold to Highest bided namely Rajesh Kumar Narayani for Rs 2,90,000/- as the agreement which has been marked as Annexure- H. The purchaser Mr Narayani deposited the sale consideration on 24.10.2014 & there after the vehicle was released in his favor on 07.11.2014. The money receipt & letter of release are enclosed here with marked as Annexure- I & J. After the sale proceed is adjusted with the overdue amount. The O.Ps have denied all other allegations made against them by the complainant in the complaint.
The O.Ps have challenged the maintainability of this case & submitted some decisions pssed by the Apex Court such as Honble Suprim Court & State Commission as follows such as Annexure- K, L, M, N & O & prayed for dismissal of the complaint cost.
We have already perused the averments made by the complainant & the O.Ps in their complaint & written version respectively. We have already examined the documents filed by the both the parties. Hence we have reached at the following findings.
FINDINGS
In order to reach at the findings of this case we do here by frame 3 Nos. of issues as follows- (1) is the complainant entitled to the relief of cost of vehicle? (2) Is the complainant entitled to the reliefs of what he has prayed for? (3) Are the O.Ps punishable for violation of the interim order passed by the Forum U/S- 27 of the CP Act on 03.11.2014. Hence we are going to answer of this issues.
The complainant has not come to the Court with clean hands. Although the complainant has described the tragic story of his case but he has not sought for any relief in respect of his vehicle. The complainant has further described in the para No. 9 of the complainant “is that the value of the case is worth Rs 1,00,000/-“. We have observed the contents of the complaint & found that the complainant is not entitled either for the cost of the vehicle which he had purchased & subsequently it was repossessed & sold away by the O.Ps it is further evident that he has submitted the I.P.O which is cost Rs 100/- only. So we are not inclined to grant the cost of the vehicle as well as not granting to return back the repossessed vehicle, as the complainant has neither sought for such relief nor he has valued the C.D Case accordingly.
Answering the issue No. 2 it is held that, after perusing of the documents which has been filed on behalf of the complainant revel that he has filed a series of documents with regard to treatment of his son which are not at all related & relevant of this case. It is admitted fact that he has paid some installments to the O.Ps. It is also admitted that the OP No. 3 has misappropriated to in the money of two installments. He has collected two installments from the complainant but he has deposited the same amount in the treasury of the O.Ps. There is dissention between the complainants & the O.Ps regarding the no’s of installments that according to the complaint 36 installments has to be paid within the period of 3 years for repayment of Rs 3,00,000/- loan amount but on the other hand the complainant had to pay the loan amount in 48 monthly installments Rs 9615/- commencing from 1st Feb 2013 & there after 1st day of every month. According to the complainant when he was going to Cuttack by the said vehicle, the O.Ps had deployed some hired gundas those who had shown some deadly weapons to the complainant, threatened him to kill & snatched away the said vehicle. They had not issued any prior notice from repossession after that, they had also not issued any prior notice to the complainant before selling away the vehicle. But on the other hand the O.Ps have filed a No. of documents marking as different Annexures denying the allegations made by against them. Those documents reveal that there was prior notice issued to the complainant for repossession as well as prior to the reselling the vehicle . The word “repossession” is not synonymous to the word “snatching”. The word snatching is equal to the meaning of “forceful possession”. The complainant has not lodged any written report with regard to the criminal Intimidations & Forceful Possession in the concerned police station. The police would have registered a case & framed the F.I.R against the O.Ps. Further it is held that the O.Ps could not substantiate their case submitting the duplicate copies of money receipts which the complainant has defaulted for the payment of two installments. The complainant has filed the different sheets of medical certificates & prescriptions, & reports to prove his son illness, but no where it has been mentioned that the complainant the complaint would have been exempted from paying the installments for the sleekness of him or for his family members. So the said documents are not relevant to this case. The complainant was a regular payee of the installments which reveal from the money receipt filed by him. Further it is held that the complainants & his family members were depending upon the said vehicle for their lively hood but the O.Ps has stopped the monthly income of two months which is cost of Rs 50,000/-. The complainant is further awarded Rs 20,000/- for mental agony & Rs 3,000/- for cost of the litigation.
Answering the issue No. 3 It is further held that the OP has repossessed the vehicle having complied all the para Phernelias such as Annexure- C, D & E. The O.Ps had repossessed the said vehicle on 10.09.2014 at about 11.45 AM but the interim order was passed by the learned Forum on 03.11.2014. The documents filed by the O.Ps reveal that the said vehicle was repossessed a long before approximately one month & 22 days of filing of this case, the interim order on 03.11.2014. The complainant has neither informed about the said matter to the police nor to this Forum. This is a prima facie case that the repossession was made before one month & 22 days of passing of the interim stay order. The complainant has suppressed the truth & filed the petition not to repossess the vehicle transfers & resell the vehicle. The interim order have been passed by the Forum after repossession & transfer of the vehicle so the provision of Sec 27 (1) of CP Act is not applicable in this case. Hence the O.Ps are here by acquitted from the civil jail because of disobedience & cotempting of the interim order .
ORDER
The complainant is & the same be allowed on contest. The O.Ps are directed to pay Rs 73,000/- (Seventy three thousand only ) to the complaint within 30 days on receipt of this order failing which the complainant has got the liberty to take further recourse of law against the O.Ps.
This order is pronounced in the open Forum on 28th day of October, 2016 under my hand and seal of the Forum.
