For the Complainant - Mr. Saikat Mali, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of Consumer Complaint is that :
Complainant files Consumer Complaint U/s 12 of the CP. Act, 1986 pleaded herein that he purchased a Royal Enfield Motor Cycle bearing registration No.WB-24 AM 3622 (Chasis No. ME 3U3S – 5COHE 334433, Engine No. U8 5COHE 334433, Model No. BULLET No. 350 ES) from OP-2 The Country Motors at a total price of Rs.1,44,434.60. Out of total price, complainant had paid Rs.68,697/- from his own pocket and rest amount of Rs.75,737.60 was paid by OP-1, Hinduja Leyland Finance Ltd. as loan.OP-2 had taken signatures of the complainant in a bunch of papers without giving any opportunity to go through the terms & conditions of the loan agreement. Even copies of those documents were not supplied to him. OP-2 verbally stated to pay Rs.3,354/- as EMI against loan. The OP-1 did not register ECS mandate with the Bank Account of the complainant for deduction of regular EMIs but on the contrary, encashed two cheques deposited on the date of execution of loan agreement beyond his knowledge. Thereafter, the representative of OP-1 visited the residence of the complainant, collected blank cheque bearing No. 78 drawn on Bank of Baroda, Paikpara Branch for encashment of loan but such cheque was dishonored on account of ‘insufficient fund’. The OP-1 forcibly took away the subject Motor Cycle on 30.06.2018 at 2.00 P.M without due process of law. Complainant is ready and willing to pay the legitimate loan amount to the OP-1` but the OP-1 issued demand letter dated 31.01.2019 claiming a huge amount of Rs.93,161/- with interest @ 13% P.A i.d, they will sell the Motor Cycle. The OP-2 had already realized Rs.1,28,412/- as price of the Motor Cycle instead of Rs.1,21,992/-. OPs harassed the complainant by filing Criminal Case. The acts and attitude of the OPs tantamounts to deficiency in service and unfair trade practice. Aggrieved, the activities of the OPs, complainant has filed the instant consumer complaint before this Forum for acceptance consumer complaint sought.
OPs despite service of notice of the complaint failed to file Written Version within the limitation period provided U/s 13(2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of time for filing Written Version was made. Therefore, right of the OPs to file W.V was closed vide order dated 13.11.2019.
Complainant Suman Nandi has filed his evidence by way of affidavit in supporting the allegations made in the complaint.
Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of the Tax Invoice dated 27.07.2017, it is clear that complainant had purchased a Royal Enfield Bullet 350-ES Silver BS-IV at a total price of Rs.1,22,912.16 from the OP-2. From the annexure – E, it is also clear that OP-1 / financer issued a notice to the complainant to liquidate the loan amount within 07 days failing which they shall proceed with appropriate legal action against the complainant for recovery of balance amount after appropriating the sale proceeds in the loan account along with interest, costs and expenses. It is true that complainant has obtained financial assistance from the OP-1 against the subject Motor Cycle and two Criminal Case were initiated against the complainant by the OPs. There were exchanges of letters between the OP-1 and complainant regarding loan against subject Motor Cycle.
As discernible from entire material on record and the specificities of the evidence involved, in our considered view, this case, for apt adjudication on merit, to do justice to it, requires recording of extensive oral evidence and proving extensive documentary evidence as per the provisions of the Indian Evidence Act, 1872 and adherence to the substantive and procedural provisions of the Code of Civil procedure, 1908, that is best undertaken in a Civil Court.
In other words, we do not find the case, as discernible from the entire material on record, and from the specificities of the evidence involved, is to be such as can be aptly adjudicated in summary proceedings by Quasi-Judicial
Consumer Protection Fora established under the Consumer Protection Act, 1986.
‘ it is settled principal of law that procedure adopted by the Bank / Financial Institution in removing the vehicle from the possession of the borrower was not at all appreciated. The Hon’ble Apex Court in a decision reported in ( 2007 ) 2 SCC 711 (ICICI Bank Ltd. –Vs – Prakash Kaur has been pleased to observe that all are governed by rule of law in the country and the recovery of loan on seizure of vehicles could be done only through legal means. In the instant case two criminal cases were imitated against the complainant. The complainant alleged that the OP-1 forcibly possess the subject Motor Cycle illegally but there is no evidence on record that the OP-1 sold the subject Motor Cycle in public auction.’
In the light of the brief discussion made above :
- the Consumer Complaint is dismissed ex parte against the OPs without any cost;
- the complainant is granted liberty to seek remedy in a competent Civil Court as per law.
It goes without saying that the right of the complainant to agitate his case before any competent authority remains unaffected. Consumer Protection Fora established under the Act, 1986, to provide additional remedy to consumers, are not for it.
It also goes without saying that the complainant, if he chooses to bring action in a Civil Court, is free to file an application under Section 5 of the Limitation Act, 1963, and, in such contingency, the chronological proceedings in the Consumer Protection Fora would be material and relevant towards making such application.
We make it explicit that we have consciously refrained from entering into the merits of the case since the right of the complainant to seek remedy in a competent Civil Court or to agitate its case before the competent authority survives.
