Orissa

Cuttak

CC/163/2022

Bijay Kumar Swain - Complainant(s)

Versus

Cholomandalam Investment & Finance Co Ltd - Opp.Party(s)

J Pattanaik & associates

10 May 2024

ORDER

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

C.C.No.163/2022

 

Bijay Kumar Swain,

S/o: Late Gopinath Swain,

Resident of Village:Kadhamal,

                   P.O:Thanapalli,P.S : Baideswar,

                   Dist:Cuttack.                                                              ...Complainant

 

          Vrs.

 

1.        CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LTD.,

Regd. Office at “Dare House”, No.2,

N.S.C Bose Road,Parrys,Chennai-600001,

                        Tamilnadu.

 

2.        Regional Manager,

Cholamandalam Investment and Finance Company Ltd.,

At Plot No.559,Annapurna Complex,1^st Floor,

Lewis Road,Bhubaneswar,Dist:Khurda.

 

3.        Branch Manager,

Cholamandalam Investment and Finance Company Ltd.,

Nayagarh Branch,At:Sinduria(Durga Prasad),

P.O/Dist: Nayagarh.                                                                        ….Opp. Parties.

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    16.08.2022

Date of Order:  10.05.2024

 

For the complainant:          Mr. J.Pattnaik,Adv. & Associates.

For the O.Ps              :           Mr. R.K.Pattnaik,Adv. & Associates.

 

Sri Debasish Nayak,President       

Case of the complainant as made out from the complaint petition bereft unnecessary details in short is that in order to maintain his livelihood, the complainant had purchased a Tipper truck by obtaining financial assistance from O.P No.3 in the month of May,2017 to the tune of Rs.28,00,000/-.  Accordingly, Loan Agreement was executed vide number XVFPNAY 00001976858.  He had purchased one Ashok Leyland Tipper (Model no.U2518 IL FBV)  having chassis number MB1HTLHD 6 HRGP 7477, engine number  GAEZ 413783 bearing Registration number OD-02-AF-4505.  It was agreed in  the Loan Agreement that  the complainant is  to repay the loan alongwith interest to the tune of Rs.37,61,000/- in 60 number of monthly instalments @ Rs.62,350/-.  The complainant thereafter started repaying the said loan but he was not provided with the Agreement copy. Due to recession in the transport business, the earning as expected was not made for which the complainant became a defaulter for non-payment of certain number of instalments.  The O.Ps thereafter had seized the vehicle from the possession of the complainant during the month of February,2019 without serving any notice to him. The complainant had moved before the Hon’ble State CDR Commission, Cuttack through C.C.No.21 of 2019 against the O.Ps with a prayer for interim release of his vehicle and for direction not to sell the said vehicle. There was a settlement mutually made where the complainant had agreed to pay the entire defaulted amount to the tune of Rs.1,82,460/- as on 4.2.2019 and had promised to make regular payment of the future instalments.  The said memorandum of understanding was filed in the Hon’ble Court of State CDR Commission, Odisha and accordingly on 19.3.2019 the complainant had deposited the defaulted amount of Rs. 1,82,500/-.  But subsequently, the complainant was unable to run the vehicle due to the recession in the transport sector for which after negotiation with the O.P no.3 in the month of November,2019, the complainant had surrendered his vehicle to O.P no.3.  The complainant could know that one Hemant Kumar Mohapatra had agreed to take over his loan and vehicle and the complainant need not pay any further instalments.  The complainant could know that the subsequent purchaser Hemant Kumar Mohapatra had deposited more than Rs.3,00,000/- which was to be paid to the complainant but the O.Ps had not paid the same to him.  The vehicle in question was engaged somewhere in the district of Anugul for transportation work where it was involved in Chendipada P.S Case no.462/2021 pending before the learned JMFC,Chendipada,Anugul on the allegation of illegal transportation of sand for which the vehicle was seized on 4.10.21 by the police.  However, the vehicle was released pursuant to the order of the learned JMFC,Chendipada in favour of the complainant on execution of indemnity bond to the tune of Rs.35,00,000/-.  The complainant further alleges that the O.Ps had repossessed his vehicle without observing due procedure of law and also contravening to the terms and conditions of the loan agreement.  As because the complainant could not ply the vehicle for more than 10 months, his earning was squeezed but the representatives of the O.Ps had taken away his vehicle on 22.7.22 without issuing any prior notice to him.  It is for the said reason, the complainant has come up with his case before this Commission seeking a sum of Rs.3,00,000/- from the O.Ps towards the loss in his income in 10 months as assessed by him.  He has further prayed for a sum of Rs.2,00,000/- from the O.Ps towards compensation for his mental agony and harassment.  He has also prayed for a sum of Rs.45,000/- from the O.Ps towards his litigation expenses.

          Alongwith his complaint petition, the complainant has annexed copies of several documents in order to prove his case.

2.       All the three O.Ps have contested this case and have filed their written version jointly wherein they have stated that there was a Loan Agreement executed  and either parties were bound by the terms and conditions of such Loan Agreement.  They admit about such loan agreement as executed in-between themselves and the complainant bearing number XVFPNAY 00001976858 but the complainant had committed breach of the said agreement by becoming a defaulter by not paying the regular EMIs for which they had levied upon the complainant a charge of Rs.6,42,312/- towards instalment overdue alongwith a sum of Rs.2,27,261/- towards other over dues.  Thus, according to them, the complainant was liable to pay towards the defaulted instalment, an amount of Rs.8,69,573/-.  When the complainant could not pay the said amount, they had revoked the arbitration clause and the learned Arbitrator had issued notice to the complainant and to his guarantor and ultimately had passed his order on 21.3.22 in the interim application bearing no.1 of 2022.  By virtue of the said order, the O.Ps had repossessed the financed vehicle i.e. the Ashok Leyland Tipper truck and thus according to the O.Ps, there is no deficiency in their service nor practise of unfair trade as alleged for which they have prayed through their written version to dismiss the complaint petition as filed.

          The complainant has filed evidence affidavit in this case also but the same when perused, it appears to be a reiteration of the contents as made by the complainant in his complaint petition.

3.         Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps and if they have practised any unfair trade ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.II.

Out of the three issues, issue no. ii being the pertinent issue here in this case is taken up first for consideration.

After perusing the complaint petition, written version, written notes of submissions as filed from both the sides, evidence affidavit as filed by the complainant as well as the copies of documents available in the case record, it is noticed that admittedly the complainant had purchased a Ashok Leyland Tipper truck bearing Registration number OD-02-AF-4505 but the same was repossessed subsequently.  It is also admitted that the O.Ps had sanctioned a loan amounting to Rs.28,00,000/- to the complainant in order to enable him to purchase the said vehicle for which they had executed Loan Agreement bearing number XVFPNAY 00001976858  on 30.4.2017 with the complainant.  It was agreed therein that the complainant is to repay the loan alongwith interest thereon in 60 number of monthly instalments @ Rs.62,350/- per month.  The complainant has alleged that the henchmen of the O.Ps  had repossessed his truck during February,2019 without giving him any prior notice.  The complainant is silent about the cause of such repossession by the O.Ps.  However, he admits about the Arbitration proceeding and award which according to him was an exparte order.  Per contra, the O.Ps have urged that since when the complainant became a defaulter and was not paying the EMIs they were constrained to revoke the arbitration clause as per the Loan Agreement and had preferred arbitration where notice was sent therein to the complainant.  As per the order of the learned Arbitrator so appointed U/S-17 of the Arbitration & Conciliation Act which was passed on 21.3.22, the O.Ps were authorised to repossess the truck from the possession of the complainant since because the complainant was a defaulter in making payment of the said loan.  As per Annexure-A, which is copy of the order of the learned Arbitrator passed on 21.3.22 it is noticed that since because the complainant had not repaid the loan amount or had not surrendered the truck, the O.Ps were authorised to take possession of the truck as because  they had advanced loan in favour of the complainant thereby enabling him to purchase the truck and to sell the said truck in order to get back the advanced money thereof.  Accordingly, the O.Ps had proceeded in this case and had repossessed the truck from the possession of the complainant through their agents in the month of February,2019.  Keeping such facts and circumstances of this case in mind, this Commission finds no deficiency in service of the O.Ps and also do not find practice of any unfair trade by the O.Ps here in this case.   Accordingly, this issue goes against the complainant.

Issues no.i & iii.

          From the discussions as made above, the case of the complainant is not maintainable and the complainant is not entitled to any relief as made by him.  Hence it is so ordered;

                                              ORDER

The case is dismissed on contest against O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 10^th day of May,2024 under the seal and signature of this Commission.                     

                                                                                 

                                                                                        Sri Debasish Nayak

                                                                                              President

                                                                                                   

 

                                                                                  Sri Sibananda Mohanty

                                                                                                             Member