| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM CACHAR :: SILCHAR Con. Case No. 14 of 2016 Rehan Uddin Barbhuiya, C/O. Late Yakub Ali Barbhuiya Vill- Nutanpur, P.O- Kalain. P.S-Katigorha Dist. Cachar, Pin- 788815 …………………………… Complainant. -V/S- 1. Chief Executive, Tata Motor Finance, Surana Motor Meherpur, N.S. Avenue, Silchar …………………….. O.P No.1. 2. Chief Executive, Tata Motor Finance, Ltd., Think Techno Campus Bldg, Near TCS Yantra Park A-Wing,2nd Floor, Pokhran Road 2, Thane West, Maharastra. …………………………………………… O.P No.2. Present: - Sri Bishnu Debnath, President, District Consumer Forum, Cachar, Silchar. Sri Kamal Kumar Sarda, Member, District Consumer Forum, Cachar, Silchar. Appeared: - Mr. Taher Islam Talukder Advocate for the complainant. Mr. Mithu Deb, Advocate for the O.Ps. Date of Evidence 23-11-2016, 15-06-2017 Date of written argument 21-03-2018, 01-11-2018 Date of oral argument 11-10-2018, 21-11-2018 Date of judgment 13-12-2018 JUDGMENT AND ORDER Sri Bishnu Debnath, - This complaint case has been brought by Rehan Uddin Barbhuiya under the provision of the Consumer Protection Act 1986 against Tata Motor Finance Ltd. represented by its Chief Executive for award of Rs. 16,76,508/- as paid up total monthly installment, compensation of Rs.2,00,000/- and cost of the proceeding.
- Brief facts:-
The complainant purchased a Tata vehicle vide Registration No. AS-01-DD1015 on 19-09-2011 on hire purchase agreement with O.P. The complainant paid Rs.2,80,000/- as margin money and took delivery of the vehicle from the O.Ps. The vehicle was used for commercial plying and paying monthly installment to the O.P. In that way he paid Rs.16,76,508/- out of total loan amount of Rs. 21,38,400/-. But on 17-12-2013 the O.P repossessed the vehicle due to minor delay of payment of a installment. However, after payment of RS.65,500/- to the O.P took the vehicle in his possession. But again on 18-02-2014 the O.P repossessed the vehicle and the complainant again paid Rs.80,000/- to the O.P and took back the possession of the vehicle. Subsequently, on 17-02-2015 the O.P repossessed the vehicle. Finding no alternative the complainant sent a legal notice on 20-02-2015. The O.P received the letter on 04-03-2015 but no reply is given to that notice. However, the complainant got information subsequently that the said vehicle has been sold out by the O.P without any intimation to the complainant. - The O.P No.1 Chief Executive, Tata Finance, Surana Motor, Silchar and O.P No.2, Chief Executive, Tata Motor Finance Ltd. Maharastra in their joint W/S stated inter-alia
- The complainant took financial aid of Rs.17,25,000/- from the O.P for purchase of TATA LPT3118TC Truck bearing Registration No. AS01-DD1015, Engine No. B591803111H63166812 and chasis No. MAT466386B3H21627 on agreement vide contract No. 5000790398 dated 19-09-2011. The said financial assistance is to be repaid in 47 equated monthly installments of RS.56,250/- each except first EMI RS.57,150/-. The complainant has further agreed to pay the delayed payment/other charges as per the terms and conditions of the agreement. The O.P have performed their part of obligation by sanctioning loan to the complainant and now it is the turn of the complainant to perform his part of obligation by repaying the loan as per the agreement.
- They further stated that the complainant was very irregular in making payment of his monthly installments and as such as on date an amount of Rs.6,30,642/- accrues as overdue in his loan account. The complainant was informed on several occasions by the O.Ps about outstanding overdue amount in his loan account, even the collection executives of the answering O.Ps visited the complainant’s house on several occasions but inspite of repeated demand and requests the complainant refused to pay the outstanding overdue amount.
- Thereafter, upon due intimation to the complainant the authorized repossession agent of the O.Ps repossessed the vehicle to secure the loan amount as per direction of Arbitral Award and with due intimation to the police station before and after repossession.
- The O.Ps further stated that the complainant committed default for not making regular payment of EMI, so, the vehicle was repossessed by invoking clause 18.1 of the loan agreement as per direction of the Arbitrator in view of Arbitral Award dated 28-06-2014 passed by LD. Arbitrator Mr. P.C phalgunan. As per the O.Ps Ld. Arbitrator vide his Award dated 28-06-2014 awarded a sum of Rs.12,43,560.29 only together with interest @ 18% Per annum on the awarded amount in favour of the answering O.Ps. The said award is very much in the knowledge of the complainant. So, this District Forum has no jurisdiction to entertain the present complaint.
- During hearing the complainant Rehan Uddin Barbhuiya submitted his deposition and exhibited some documents. The O.Ps also submitted deposition of Sri Sabyasachi Dutta and exhibited relevant document including loan agreement dated 19-09-2011 interim order dated 18-03-2014 of Arbitrator and Arbitrator award dated 28-06-2014. After closing evidence both sides’ counsels submitted their written argument.
- I have heard both sides’ counsels. Perused the evidence including written argument. In this case it is admitted fact that the complainant took loan from the O.P to purchase a vehicle on hire purchase system. It is also admitted fact that the O.P is financial institution. As such in view of definition U/S 2 (o) of the Consumer Protection Act 1986 “service” includes the loan advanced by financial institutions because the Supreme Court of India in M.D. Maharastra State Vs. Sanjay Shankarsa Mamarde Civil Appeal No. 7189 of 2002 while interpreting the word “service” U/S 2 (o) of the Consumer Protection Act 1986 held-“The use of words “any” and “potential” in the context these have been used in clause (o) indicates that the width of the clause is very wide and extends to any or all actual or potential users. The legislature has expanded the meaning of the word further by extending it to every such facilities as are available to a Consumer in connection with banking, financing etc. Undoubtly, when the bank or financial institution advance loan, they do render “service” within the meaning of the clause.In that behalf, there is no dispute.
- Therefore, this District Forum has jurisdiction to entertain complaint to see as whether the O.P committed any disservice by repossessing the vehicle on 17-02-2015 for the ground of defaulter of the complainant to deposit EMI.
- In this case in view of Ext-3 and B statement of loan account, Rs.6,30,642/- was accrued overdue charges. Subsequently, a proceeding initiated with sole Arbitrator for award against the complainat vide Arbitrator proceeding No.TMFL/53595/2014. With the Arbitrator proceeding the O.P prayed to recover Rs.12,43,560/- and further interest. Accordingly, the sold Arbitrator passed an interim order on 18-03-2014 to ask the complainant to handover possession of the vehicle bearing TATA LPT3118TC bearing Registration No. AS01-DD1015 it was also directed that if the complainant fails to handover the vehicle the O.Ps are allowed to take possession, seize and recover the vehicle with the help of police if necessary and until further order the O.P shall keep the vehicle in safe custody without causing loss or damages. Subsequently, on 28-06-2014 the sole Arbitrator passed the award exparte with the following direction that the complainant and one Nazrul Haque Laskar are jointly and severally liable to pay a sum of Rs.12,43,560/- together with further interest @ 18% per annum from 07-03-2014 to the O.Ps. It was also directed that if the complainant and Nazrul Haque Laskar fail to pay the awarded amount aforesaid the O.P if repossess the vehicle may sell the vehicle in pursuance of interim order on public auction or private treaty and sale proceed may be adjusted with outstanding dues and if remain excess sale proceed after adjustment, the said excess amount shall be refunded to the complainant vide Ext-D and Ext-E.
- As per evidence the vehicle has been repossessed on 17-02-2015 i.e one year after passing the interim order by sole Arbitrator on 18-03-2014 and about six months after passing of the final award. Thus, it is crystal clear that vehicle has been repossessed as per interim order as well as final award of the sole Arbitrator. So, from evidence on record I do not find any established fact to conclude that the O.P repossessed the vehicle by engaged any anti-social agency or the O.P has illegally repossessed the vehicle by taking law in its hand. Rather the O.Ps are stating that they have recovered the vehicle by employing the authorized recovery agency. Thus, in my considered view repossessing of the vehicle is not illegal.
- Moreover, as per Arbitrator’s award, notice issued to the complainant prior to the passing award but he did not participate in the final hearing. Thus, it is presumed that he has knowledge about the Arbitrator proceeding as well as Arbitrator’s award. In that situation, National Commission in Revision petition No. 1936 of 2015 held that the jurisdiction of District Forum is ousted as soon as Arbitrator award passed first in time within the knowledge of the complainant.
- Therefore, in this case it is opined that the repossessing of the vehicle is not illegal rather repossessed as per procedure established by law in view of clause 18.1 of the agreement vide Ext-C, Ext-D and Ext-E and on the basis of Arbitrator’s award on 18-03-2014 in Arbitrator proceeding No. TMFL/5359/2014. Thus, the jurisdiction of this District Forum is ousted.
- Therefore, this case is dismissed on contest without any cost. Supply free certified copy of Judgment to the parties. Given under my hand and seal of this District Forum on this the 13th day of December 2018.
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