Orissa

Cuttak

CC/18/2016

Fakir Charan Pradhan - Complainant(s)

Versus

Cholomandalam Investment and Finance Ltd - Opp.Party(s)

D K Swain

21 Apr 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.18/2016

Fakir Charan Pradhan,

At:Bagalpur,P.O:Sundergram,

P.S:Olatpur,Dist:Cuttack.                                                      … Complainant.

 

                Vrs.

 

1.         CholaMandalam Investment & Finance Co. Ltd.,

At:N.S.C.Bose Road,Chennai.

 

2.        CholaMandalam Investment & Finance Co. Ltd.,

At:Mahanadi Vihar,Plot No.1089,Biswal Complex,

2^nd Floor,Cuttack.                                                                     … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     18.2.2016

Date of Order:  21.4.2017

 

For the complainant:      Sri D.K.Swain,Adv. & Associates.

For Opp.Parties 1 & 2:     Sri R.K.Pattnaik,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

                The complainant has filed this case against the O.Ps alleging therein deficiency in service and unfair trade practice on their part and seeking appropriate relief against them in terms of his prayer in the complaint petition.

1. The factual aspect of the case of the complainant’s reveals that the complainant had purchased a truck bearing Regd. No.OR-05-Z-9593 being financed by O.P.2 in the year 2014 to earn his livelihood.  To that effect both the parties entered into the loan-cum-hypothecation agreement No.SXHUBNR 00001178455 and accordingly the O.P.2 disbursed the loan amount of Rs.4,30,000/- in favour of the complainant.  Thereafter the complainant has been paying E.M.Is in time. Annexure-1 is the computer generated deposit slips filed by him.  All of a sudden on 22.11.15 O.P.2 forcibly took possession of the said truck.  The complainant thereafter approached O.P.2 and paid Rs.71,260/- and got the said vehicle released from the custody of O.P.2.
2. On 8.12.15 O.P.1 issued a letter of realization of Rs.3,17,643/- to the complainant.  A computer generated notice dt.8.12.15 sent to the complainant has been filed and marked as Annexure-2.  The latter was taken aback and ran to the office of O.P.2 and then paid Rs.25,800/- towards the installment.  Despite that O.P.1 & 2 are trying to take repossession of the vehicle from the custody of the complainant.
3. It is specifically stated that even after the complainant has paid the entire amount of E.M.I as per the agreement, O.Ps are not inclined to issue no due certificate to him in spite of repeated requests.  Rather they have engaged some antisocial elements to forcibly take possession of the vehicle without just cause.  It has caused serious mental tension and undue hardship to the him and is tantamount to deficiency in service and unfair trade practice on their part.  As such the O.Ps are jointly and severally liable to pay compensation to him for the mental agony and harassment caused by them.
4. It is therefore prayed that the O.Ps may be directed to pay compensation of Rs.1.00 lakh as well as to issue no due certificate to him forth with.  They may be further directed not to take any coercive steps to take repossession of the vehicle bearing No. OR-05Z-9593 from the custody of the complainant in the interest of justice.
5. Both the O.Ps entered appearance and filed written version of their case jointly.  They have denied the material averments of the complaint petition.  Inter-alia it is stated that there is no cause of action to file this case and there is also no deficiency in service or/and unfair trade practice on their part in any manner.
6. It is further revealed from the written version of their case that as per the agreement, the complainant had to repay the loan along with interest in 34 number of E.M.Is commencing from 1.5.14 to 1.2.17.  The payment of E.M.I should be made on due dates as per the repayment schedule vide Annexure-1 but the complainant defaulted in making payment of E.M.Is and as such  an amount of Rs.1,18,842/- together with over dues of Rs.46,842/-, all total Rs.1,65,824/- was outstanding against him as on 27.4.16.  The complainant has deliberately suppressed this material fact and is requesting for issuance of no dues certificate which was rightly rejected by the O.Ps.  It is important to leave a mention here that while the vehicle of the complainant was released on 27.11.15 he has given an undertaking in writing that he shall not make any further default in payment of E.M.Is.  Despite such undertaking having been given by the complainant he still defaulted in payment of E.M.Is for which Rs.1,65,824/- together with overdue charges amounting to Rs.46,842/- is still outstanding.  The copy of his statement of account dt.27.4.16 has been filed and marked as Annexure-B.  Annexure-C series are copies of some letters made by the O.Ps with the complainant for realization of the arrear amount.
7. It is therefore prayed that the complainant has not approached this Forum with clean hand and  is guilty of suppression of material fact as stated above.  That apart it is also stated that as per the agreement any dispute arising out of it between the parties shall be referred to the sole Arbitrator at Chennai for adjudication.  As such this Forum has no jurisdiction to deal with the matter.  Hence it is prayed that the case may be dismissed in the interest of justice.
8. We have heard the learned counsels from both the sides at length and gone through the annexures produced as evidence by them respectively.  The bone of contention between the parties is that while the complainant  has stated that he has paid full dues towards E.M.Is in time the O.Ps are taking a contrary stand that the complainant  is a chronic defaulter in payment of E.M.Is for which his request to issue no dues certificate has not been accepted.  The complainant has filed the computer generated deposit slips which have been marked as Annexure-1.  At the same time he has also filed a copy of the demand notice dt.8.12.15 issued by the O.P claiming realization of the outstanding dues of Rs.3,17,643/- from him.  It is also important to leave a mention here that the parties to a contract or agreement are bound by the terms and conditions of the said contract or agreement entered into by them.  The said agreement or contract between the parties in this case has not been filed by the complainant nor has he whispered a single word for the reasons for non-production of the same.  It is a vital piece of document for determination of the rights and liability of the parties according to the terms and conditions of the said agreement.  Non-production of the same by the complainant would lead the court to take adverse inference against the complainant.  It is crystal clear from the written version filed by the O.Ps and submitted by the learned counsel for them that the complainant I s chronic defaulter in payment of E.M.I for which demand notice was issued to him vide Annexure-2.  The statement of loan account of the complainant has also been filed in this case and marked as Annexure-B.  Annexure-C series are a number of documents which would make the stand of the O.P clear that the complainant is a defaulter who grossly violated the terms and conditions of the agreement particularly in payment of E.M.Is.  It is pertinent to state that on 27.11.15 the complainant has given an undertaking in writing to the O.Ps at the time of release of the vehicle from the custody of the O.Ps.  In the said undertaking he has clearly admitted in writing that he would never default in making payment of E.M.Is in future.  Another document under Annexure-C series is the final call letter dt.12.11.15 sent by the O.P. to the complainant claiming realization of total amount of Rs.1.52,169/- under different heads i.e. overdue installment value, and additional finance charge.   Although the complainant has received the said call letter he has never assailed the contents of the same as well as other documents under Annexure-C series and the document under Annexure-2.  In absence of anything to the contrary it cannot but be held that the complainant is a defaulter in payment of E.M.Is to the O.P. in accordance with the terms and conditions of the agreement entered into by them.  It is therefore found that the complainant has suppressed the material fact and has not approached this Forum in clean hands.  Under the circumstances, the relief prayed for by the complainant cannot be allowed.  Hence ordered;

                                                                             ORDER              

   The complaint case filed by the complainant is dismissed on contest against the O.Ps.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 21^st    day of April, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                    President.

                                                             

                                                                                                                  (Sri B.N.Tripathy )

                                                                                                                       Member.

                                                                                                               (Smt. Sarmistha Nath)

                           Member(W)