Orissa

Rayagada

CC/233/2016

Sri Ravi Kesava - Complainant(s)

Versus

Credit Information Burea Ltd - Opp.Party(s)

Self

10 Sep 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.233 / 2016.                                            Date.     10   .     9  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri  Gadadhara  Sahu,                                           Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Ravi  Kesava Rali, S/O: Late: Adi Acharilu Rali, Gandhi Nagar,3rd.lane       Po/Dist:Rayagada  (Odisha),                                                      …. Complainant.

Versus.

1.The Manager, Credit Information Bureau (India) Ltd., Hoechst House, 6^th.floor,193, Backbay Reclamation,Nariman point, Mumbai-400 021.

2. The  Branch Manager, Credit Information Bureau (India) Ltd., Hoechst House, 7^th.floor,193, Backbay Reclamation,Nariman point, Mumbai-400 021.

3.The  Branch Manager, TATA Motors Finance Ltd., I-Think  Techno Campus, Building-A, 2^nd. Floor, off pokhran Road No.2, Thane(West)-400 601.                                                                                                                                                                           .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Sri R.K.Senapati, Advocate,Rayagada(Odisha).

For the O.Ps1 & 2:- Mr. Gauri Shankar Patnaik, Advocate.

For the O.P. No.3:- Set Exparte.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non remove the name of the complainant as  a defaulter score/rating in CIBIL  for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.Ps No.1 & 2 put in their appearance and filed joint written version through their learned counsel in which  they refuting allegation made against them.  The O.P No.1 & 2 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P  No. 1 & 2. Hence the O.P No.  1 & 2 prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed  the O.P  No.3   neither entering in to appear before the forum nor filed their  written version inspite of more than  12 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.3.  Observing lapses of around 2 years  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  from the complainant set the case  exparte against the O.P. No.3. The action of the O.P No.3  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.3  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

Heard arguments from the learned counsel for the    O.P  No. 1 & 2 and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a  TATA Indica Car bearing regisgtration No. OR-18-B/2233 having borrowed finance  a sum of Rs. 3,94,033/- vide loan contract   No.5000340259 Dt.27.12.2008 from the O.P. No.3 under hypothecation, and  and in pursuance of the terms and conditions of the said hire purchase agreement (copies of the repayment schedule  issued by the O.P. No.3 is  in the file which is marked as Annexure-I).  Again there is no dispute the complainant  has repaid the whole loan amount  as per the loan agreement  to the O.P. No.3  during  year 2013.  In turn   the O.P. No.3  had  issued the contract termination letter  in favour of the complainant  (copies of the same is in the file which is marked as Annexure-II). Further  after payment of the total loan amount the  O.P. No.3  had issued the N.O.C. for cancellation of Hypothecation and issued  form No. 35 in favour  of the  complainant to cause transfer in the name of the complainant(copies of the same is in the file which is marked as Annexure-III).  The complainant approached the bank  for further loan for development of  his status but due to lack of  CIBIL score/rating the complainant was rejected to approve  the loan in his favour.  Hence this C.C. case filed by the complainant  against the O.Ps.

The O.Ps No.1 & 2 In their  written version  challenging the maintainability of the case filed by the complainant. The O.P. No.1 & 2 contended that  as per Secttion-18 of the  Credit Information Companies(Regulation)Act, 2005 not withstanding anything contained in any law for the time being in force, if any dispute arises among credit information companies, credit institutions, borrowers and clients  on matter relating to business of credit information and for which no remedy  has been provide under this Act. Such disputes shall be  settled by conciliation or arbitration as provide in the Arbitration and Conciliation Act, 1996.  The present dispute relates to the  dispute  among the  complainant/borrower, and  O.Ps. Moreover, as  with  in  the ambit under    Section-   31 of the Credit Information Companies(Reglation)Act, 2005 no court or authority shall have, or be entitled to exercise, any jurisdiction, powers or authority except the Supreme Court and a High Court exercising jurisdiction  under articles32, 226 & 227 of the Constitution in relation to matters referred to in sections 4,5,6,7 and 18. The alleged dispute  referred to  in the  instant complaints falls under Section-18 of the aforesaid Act, hence this forum  has no jurisdiction to entertain  the  instant  complaint.

During the course of hearing the learned counsel  for the complainant  relied  citation  it is held and reported  in C.P.R. 2014(3) page No. 574 the Hon’ble Supreme Court  wherein  observed  in para-29  “ The remedy of arbitration is not the only remedy available to a borrower. Rather it  is  an optional remedy. He can either seek  reference to an arbitrator or file a complaint under the Consumer Act.  If the borrower   opts for the remedy of arbitration, then it may be possible to say that he cannot,  subsequently, file complaint under the Consumer Act. However, he  chooses  to file a complaint in the first instance before the competent Consumer Forum, then he can not be denied  relief by invoking  Section -8 of the Arbitration and Conciliation Act, 1996.  More over, the plain language of Section-3 of the Consumer Protection Act, 1986  makes it clear that the  remedy available in that Act is in addition to and not in derogation of the provisions of  any other law for the time being in force.

 In Fair Air Engineers (P) Ltd. Vrs.  N.K.Modi the two  judge Bench of Apex Court  interpreted that section and held as under:  “The provisions of the Act are  to be construed  widely to give effect to  the  object and purpose  of the Act.  It is seen that Section-3 envisages that the provisions of the Act are in addition to and are not in derogation  of  any other law in force.  That the words “In derogation of the provisions of any  other law for the time being  in force” would be given proper meaning and effect and if the complaint is not stayed and the parties  are not relegated to the arbitration, the Act purports to operate in derogation  of the provision of the Arbitration Act.  Prima facie,  the contention appears to be plausible but on construction and  conspectus of the provisions of the Act  we  think that the contention is not well founded. Parliament   is aware of the provisions of the Arbitration Act and the  Contract Act, 1872 and the consequential remedy  available under section-9  of the  Code of Civil procedure, i.e. to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

It would, therefore. Be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could  be enforced  under the Arbitration  Act or the Civil action in a suit under the  provisions of the Code of Civil   Procedure. Thereby, as seen, Section -34 of Arbitration   Act does not confer an automatic  right nor create an automatic embargo on the exercise of the powerby the judicial authority  under the Act.  It is a matter of discretion.  Considered  from this prespective, we hold that though the District Fourm, State Commission  and National Commission are judicial authorities, for the purpose of  Section-34 of the Arbitration Act, in view of the object of the Act and by operation of the object of the Act  and by operation of the Section – 3 thereof, we are of the  considered view that if would be appropriate that these  forums created  under the Act are at  liberty to proceed with the matters in accordance with the provisions of the Act  rather  than relegating  the parties to an arbitration proceedings pursuant to a  contract entered  into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome  arbitration proceedings or civil  action unless the forums on their own and on the peculiar facts and  circumstances of a particular case, came to the conclusion  that the appropriate  forum for adjudication of the disputes  would be otherwise those given in the Act.

Again in Skypay Couriers Ltd Vrs. Tata Chemicals Ltd  the Hon’ble Supreme Court  where in observed  “Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency  of service,  then the existence of an arbitration clause  will not be a bar to   the  entertainment of the complaint  by the Redressal  Agency, constituted  under the Consumer protection Act, 1986, since  the remedy provided under the Act  is an addition to the provisions of any other law for the time being in force”.

Further  in  Trnas Mediterranean Airways Vrs. Universal Exports  the Hon’ble Supreme Court  where in observed  “In our view, the protection provided under the C.P. Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy”.

Again  this forum  relied  citation It is held and reported in Current Consumer Case 2004 page No.27 where in  the Hon’ble  Supreme Court  observed  the redressal mechanism  established  under the Act is “not supposed to supplant but to supplement the existing judicial system”. It is well settled  principle of law that the statutory authority   should act under the provisions of the relevant statue and if they do  not   act accordingly, the Consumer Forum  have the jurisdiction because  not acting under the provisions of the statute/Act it amounts to deficiency   of service.

By virtue of Article-300, if a competent legislation  enacts a law for compensation  or damage  for  an act done by it  or its officers in discharge of their statutory  duties.  Thus  a suit for it  would be maintainable.  No civilized  system  can prorupt    on executives  to play  with people  of  its country  and claim that it is entitled to act  in any manner   as it  is sovereign needs  of the state, duty of  officials  and right  of the citizens are to be reconciled.  So that  the role of law   in a welfare state  is not shaken  (N.Nagendra Rao & Co.  Vrs. State of Andhra Pradesh ( 1994) 6 SCC-205 /AIR 1994 SC  2663.     

Again  the O.Ps in  their written version  contended that  this forum has no jurisdiction to entertain  the complaint  for a consumer dispute.  However Section 2(1)© (iii) of the C.P. Act lays down  that  complaint means any allegation in writing  made by a complainant   that the services hired or availed of or agreed to be hired  or availed  of by  him suffer from  deficiency in any respect.  In the instant case  the complainant  has agreed to hire and avail  of the services  of the  O.P. No.3 TATA Finance on payment of  consideration , viz   rate of   interest  on the amount  loaned to him.  This is corollary  to Section 2(1) (o) of the Act  which  defines “ Service” of any  description  which is  made available to potential users and includes  the provision  of  facilities  in  connection with banking, financing, insurance, transport, processing,  supply of  electrical or other energy and  so on and so  forth.  So according to the  provisions of section 2(i) © (iii) and section  2(1) (o) of the C.P. Act the right of  the complainant  as a consumer can not be  ignored. Hence complaint admitted.

Further  the  O.P. No.3  agencies have been constituted     with a view to rendering financial assistance to deserving  applicants  for purchase of car  for  his  livelihood.  It has been observed by the Hon’ble  Odisha State Commission, Cuttack in the case of Ravindra Kumar Das  Vrs.  M.D., O.S.F.C., reported in CPJ 1991 (2) page No.  344 that financial  assistance  is a service  rendered  for which a borrower  pays interest.  Thus within the broad meaning  of consumer and service, such service is for  hire.  Any deficiency in service  comes within the scope of the C.P. Act.  Although special forums  have been created under the  Act  to render assistance to the  Corporation, no forum  under the Act has been created  to mitigate the grievances of a borrower or intending borrower.  In such circumstances, the  Odisha State Commission is of the view that  the beneficial  provisions under the Act  gives the Commission   wide power to examine   deficiency in service  in respect of a legitmate grievance  of a consumer who  has complained before the Forum. 

The O.Ps 1 & 2  in their written version  contended that the above case is lack of territorial jurisdiction.  On  a plain reading of Section 11 (2) (b) of the C.P. Act, 1986 it is clear that a complaint can be filed before a forum with in territorial jurisdiction of the forum the O.P. has a branch office.  In the  present case  in hand there is a branch of the O.P No.3  is functioning  at Rayagada Town  in Odisha State. Hence this forum has territorial jurisdiction  to entertain this  case.

The  O.Ps  1 & 2  further  contended  in their written version   that this hon’ble forum lacks the territorial  jurisdiction   as admittedly the office of the  O.Ps are  located at Mumbai, yet  it can not over ride statutary  provision under section-3 of the C.P. Act,1986.

On perusal of the record this forum found  the complainant had complied the loan amount as per the loan agreement in whole to the O.P. No.3 during the year 2013 and the  O.P.  No.3  in turn had issued  the contract termination letter in favour of the complainant intimating regarding the termination of the loan contract. The complainant  had  never been defaulted or never been  escaped for payment of the loan amount.

The O.P.No. 1 & 2  in their written version  para-11 clearly  mentioned that to confirm the account details of the complainant’s account No. 5000340259 with the O.P. No.3 and issue necessary direction for updation, if any.  By an  E-Mail  Dtd. 27^th. October, 2016 the O.P. No.1  also sent a reminder E-mail with respect  to the said complainant’s account No.  5000340259 to the O.P. No.3. The O.P. No.3 reverted to  O.P. No.1 by an E-mail dtd. 4^th. November, 2016  confirming a change in the complainant’s account status by removing  the status of “WRITTEN –OFF”  and replacing  the same  by “BLANK”    and changing the amount over due from Rs.1,08,716/- to  Rs. 0 (Zero). The copies  of the   Data correction request form  correspondence between  O.P. No.1 and  O.P. No.3  is in the file which is marked  as Annexure-4.

On perusal of the written version filed by the O.P.No.1 & 2  it  is observed  that  the O.P. No.1 &2  admitted in  their written version  that the complainant  has not outstanding/defaulted  in the  loan  account No. 5000340259  and cleared all the  dues against the  above loan account. Hence this forum feel to remove the name of the  complainant  from the list as  a  defaulter score/rating in CIBIL  which   are not  so difficult  in the present case in hand  on the part of the O.P. No.1 & 2  as the loan  had repaid by the  complainant to the O.P. No.3 who had issued copies of the repayment schedule  in favour of  him as well as  issued necessary direction  for updation. 

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps  1 & 2  to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.

 

ORDER.

In resultent the  petition of the complainant stands  allowed  in part against the O.Ps.

The  O.P. No.3  is directed to find  the copies  of  repayment schedule of the complainant   and take necessary action  to erase  the   name of the complainant from the list  as a defaulter score/rating in CIBIL by referring the matter to the O.P.No. 1 & 2  for early compliance of the above order with immediate effect.     In the given  circumstances, the parties to bear their own costs.

                The O.Ps. are ordered to comply the above direction within 60 days from the date of receipt of this order .

Dictated and corrected by me,  Pronounced on this   10^th.  Day of    September, 2018.

 

MEMBER.                                            MEMBER.                                                            President