SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal seizure of the complainant’s vehicle are the allegations arrayed against the Opp.Parties.
2. Complaint, in brief reveals that complainant being a driver and to maintain his family availed a loan to the tune of Rs.3,40,000/- from OP-finance company purchased a Maximo mini van VI after executing an agreement and on payment of Rs.44,780/- as margin money. As per the terms and conditions of the loan the loan amounts are to be closed within 4 years from the date of execution of the agreement i.e. on dtd.11.02.2013. The terms and conditions further reveals that the loan amounts are to be paid on 47 monthly installments with a monthly EMI’s of Rs.10,200/- and OP-financer will born 3years insurance premium cost of the vehicle. Accordingly, complainant was paying regular monthly EMIs up to August,2014. Due to self illness complainant could not pay the EMIs from dtd.31.08.2014 to dtd.20.10.2014. Complaint petition further reveals that on dtd.25.10.2014 at about 7.30 PM at Garapur chhak,Kendrapara, Ops without intimating or serving any legal notice seized the vehicle of the complainant forcibly by using muscle power engaging the local goondas took away the vehicle and kept it in the stockyard of Ops. When complainant requested the OP No.2 to take a liberal approach and to release the vehicle as the complainant without plying the vehicle is facing difficulties to maintain his family. But the request of the complainant was turned by Ops. It is further revealed that Ops violating the decision of the Hon’ble Supreme Court reported in 2007, Vol-1,pgv-472 and guidelines of Reserve Bank of India illegally seized the vehicle for which complainant sustained mental agony and constrained to file the present complaint with prayer that the seizure of the vehicle by Ops ondtd.25.10.2014 be declare as void and illegal and prayed for release of complainant’s Maximo mini van bearing Regd. No.OD-29-3359 and cost of litigation.
3. Being noticed OP-Finance Company appeared through their Ld. Counsel Mr. P.K.Roy and filed written statement into the dispute challenging the maintainability of the complaint and denying the allegations the facts of the written statement reveals that complainant by executing an agreement with OP-finance company on dtd.21.02.2013 availed a loan to the tune of Rs.3,40,000/- whereas the agreement value to be repaid by the complainant is Rs.4,76,000/-. The agreement value is to be repaid by the complainant on 47 periodical installments, within the time limit of 20.01.2017. It is also revealed from the written statement that on the date of repossession of the vehicle i.e. dtd.25.10.2014 as per the terms and condition of the agreement, complainant-borrower has to pay 20 nos. of installments, whereas complainant has paid only 16 nos. of installments. Accordingly, the complainant was default in paying the periodical installments which comes to the tune of Rs.40,480/- excluding the late payment surcharges and cheque balance charges to the tune of Rs.9248/-. Written statement of Ops further reveals that as per the terms and conditions of the agreement(Annexure A-1). The Ops are entitled to repossess the vehicle in case of default of periodical installment. In the para wise reply Ops deny the allegations and submitting the facts in a nutshell it is stated that as per statement of account(Annexure A/2). The complainant-borrower has to pay Rs.70,740/- towards EMI and Rs.13,880/- towards other penal charges as on dtd.31.01.2015. It is further reveals from the para wise reply that on event of default of paying EMI complainant was asked to surrender the vehicle ,accordingly, complainant surrender the vehicle and Ops have never forcibly seized, the vehicle of the complainant. The statement of account till the date of repossession(Annexure A-3) and notice to complaint before taking over the possession are (Annexure A-4). Ops further denies the allegations of taking away of six numbers of blank cheques as false and baseless. In the above facts and circumstances the Ops submits that no deficiency in service has been committed by them and as per the decision of the Hon’ble Apex Court of the Country, and decision of the Hon’ble National CDR Commission OPs have taken lawful possession of the vehicle, accordingly the complaint devoid of merit and is liable to be dismissed with exemplary cost.
4. Heard the Ld. Counsels for the complainant and case of the Ops on merit as the petition for time as sought by OPs is rejected by this Forum considering the age of the complaint. The admitted facts of case are that complainant availed a loan to the tune of Rs.3,40,000/- from the OP-finance company by executing an agreement purchased a Maximo Mini van. As per the terms and conditions of the agreement the loan has to be repaid on 47 monthly installment starting from February,2013 which ends on in the year 2017. It is also admitted that complainant-borrower was a defaulter in respect of payment of EMIs prior to the repossession of the vehicle by the OP-finance company.
In the written statement filed by Ops where the maintainability of the complaint is challenged on grounds that complainant can not be treated as a ‘consumer’ rather the relationship between the complainant and OP-finance company is ‘lender’ and ‘borrower’ which oust the jurisdiction of the Fora to adjudicate the same. It is further raised that as per the clause of the agreement if any dispute arises between the parties same to be agitated under the ‘Arbitration and Conciliation Act’ which seizes the power of the Forum and as the office of the Ops are not located within the local jurisdiction of the Forum and no cause of action arises, hence the complaint lacks territorial jurisdiction to entertain the complaint.
On deciding the maintainability of the complaint, Ops challenges the status of the complainant. According to Ops as per the agreement the relationship between Ops and complainant is lender and borrower relationship, hence complainant can not be treated as ‘consumer’ as per the definition of C.P.Act,1986. On admitted facts of the dispute it is clear that till date there is a valid agreement existed between the parties. Sec.2(d)(ii) of C.P.Act defines the word ‘consumer’. It does not require to elaborate the definition. The gist of the definition is who ‘hires or avails of ‘ any service for a consideration. Then what is ‘service’ as per the provisions of c.P.Act,1986. Sec.2(o) of the Act defines ‘service’ and includes financial institution, banking and insurance, transport etc. are within the definition of ‘service’ or can be treated as a ‘service provider’.
The next point raised by the OP-Company in the written statement that as per the agreement, the parties are bound to approach the Arbitrator if any dispute arises. Countering the same Ld. Counsel for complainant attracted our attention to Sec.3 of the C.P.Act,1986, which clarifies that “Act in addition to but not in derogation to any other law”. Ld. Counsel for complainant cited a decision of Hon’ble Supreme Court reported in Fair AIR Engineers Pvt. Ltd.-Vrs- N.K.Modi reported in 1996 III CPJ 1(SC), where Hon’ble Supreme Court clearly opines that Under sec.3 of C.P.Act. The Foras and Commissions are competent enough to adjudicate the dispute which is an alternative remedy available to a consumer for the purpose of Sec.34 of Arbitration and Conciliation Act. Ops lastly challenged the maintainability of the complaint on grounds of ‘territorial jurisdiction’. As per the written statement of Ops no office or branch office is located and no cause of action arose within the local jurisdiction of this Forum. Ld. Counsel for complainant vehemently opposed and attracted our attention to the Sec.11(c) of the Act, and submitted that the local gooms of Ops seized the vehicle on dtd.25.10.2014 at about 7.30 PM at Garapur chhak, near Collectorate, Kendrapara. Ld. Counsel further submits that the seizure of the vehicle which is the cause of action or part of the cause of action arose within the local jurisdiction of the Forum. On the other hand, we go into the details of the written statement filed by Ops, where the Ops admit the repossession of the vehicle, but technically avoid the place of surrender or repossession of the vehicle. On observation made above, the complaint is maintainable in all angles and we reject plea of non-maintainability as raised by the OP-finance-company.
5. Considering the allegation of deficiency in service as alleged by the complainant, it is the case of the complainant that Ops without serving any prior ‘notice’ illegally seized the vehicle of the complainant by using muscle power. In support complainant filed attested Xerox copy of Inventory list and at about 16 nos. of EMI payment receipts. Countering the allegations Ops stand is that as per the statement of loan account(Annexure A-2/3) of complainant an arrear outstanding are pending on the complainant and as per the terms and conditions of the agreement(Annexure A-1) executed between the parties. The complainant surrender the vehicle and before surrender/repossession of the vehicle Ops have issued Notice (Annexure A-4). It is to be mentioned here that this Forum finds no annexure attached by the Ops on the written statement filed by them, hence it is difficult to ascertain and appreciation of the facts for just decision of the case. However, when complainant himself admits that he was a defaulter in paying monthly EMI’s from dtd.31.08.2014 to dtd. 20.10.2014 due to illness against the finance of the disputed vehicle, we can not hold that the repossession of the vehicle is illegal. However, considering the allegation of using of muscle power to seize the vehicle complainant does not produce sufficient evidence to substantiate the case, further if there is any illegal seizure complainant-borrower has to take proper legal action against Ops through criminal proceeding, but same can not be treated as a deficiency in service. When the allegation of submission of 8 nos. Of blank cheques are denied by the OPs, nothing more is presented on behalf of the complainant before this Forum to believe the version of the complainant.
6. By an interim order of this Forum dtd. 19.11.2014 Ops was directed to release the vehicle of the complainant subject to payment of Rs.20,400/- when the order was not complied by the Ops this Forum initiating a proceeding U/S-25 of C.P.Act, fine Rs.25,000/- to the Ops. Being aggrieved on the order OPs preferred a Revision before the Hon’ble State CDR Commission bearing R.P.No.73 of 2015, where Hon’ble State CDR Commission set aside the order of the Forum regarding imposition of fine of Rs.35,000/- and further observed that the payment of ordered amount of Rs.20,400/- vide Order No.19.11.2014 of this Forum will be dealt at the time of final hearing of the case. During course of hearing Ld. Counsel for complainant submitted that the Ld. Counsel for OPs have received Demand Draft amounting of Rs.20,400/- from this Forum on dtd.07.09.2015 during pendency of the proceeding and the submission is a fact as revealed from the case record. It is further submitted that the vehicle has been released in the meantime. Considering the grievance of non-compliance of order, we are of the opinion that when Hon’ble State CDR Commission has set aside the order the allegations of non-compliance in relation to release of the vehicle is closed and any orders related to release of the vehicle lacks legal entity.
7. During pendency of the present proceeding complainant filed 3 nos. of Demand Draft amounting of Rs.10,200/- each on different dates bearing Demand Draft No.000154 dtd. 28.12.2015, D/D No.00071 dtd. 20.02.2016 and D.D.No.78212 dtd. 30.05.2016. The demand drafts deposited before this Forum may be received by the OP-finance company with proper receipt and if the said Demand Draft are invalid due to lapse of time limit the complainant is directed to revalidated through the concerned bank and to hand over those Demand Drafts in the office of the OPs with proper acknowledgement.
Considering the factual aspect and position of law involved in the dispute, we are of the unanimous view that when admittedly the complainant was a defaulter in respect of payment of EMIs, the vehicle was repossessed and later released by order. In addition to that when Ops did not file any document(Annexures) related to the dispute though in the written statement, It is mentioned that the documents are annexed into the written statement. In the absence of such documents it is difficult to ascertain the terms and conditions of the agreement, the statement of loan accounts of the complainant etc.. Hence, we direct the Ops not to impose any penal interest or other surcharges etc. on the loan account of the complainant except the fixed EMI’s calculating from one date from dtd.10.11.2014 i.e. the date of filing of the complaint till the date of communication of this order.
Accordingly, the complaint is disposed of without cost.
Pronounced in the open Court, this the 16th day of August,2016.
