MISS PERWIN SULTANA,MEMBER-

                          Complaint of deficiency in service and unfair trade practice alleged against the opp.Party in this present case.

2                     Brief facts of the case is that the complainant in order to maintain his livelihood purchased a Ashok Leyland truck bearing  Regd.No.OR-29-5979 by availing finance from the Opp.Party. It was agreed between the parties on dtd.12.03.11 that the complainant shall repay the principal of Rs.18,50,000/- alongwith finance charges of Rs.5,62,400/- totaling Rs.24,12,400/- in 45 monthly instalment @ Rs.57,609/- commencing from dtd.07.05.11 to dtd.12.03.15. He was paying his monthly instalment to the OP regularly but unfortunately due to imposition of restriction by the State Govt. transport business suffered a lot  by the state Govt. and complainant sustained  loss in his business and default in making payment of EMI which was not intentional. He has paid instalments in a sum ofRs.3,45,654/- from May,2011 to October,2011. He has also requested the Opp.party to reschedule the payment duration and the OP on dtd.29.02.12 rephased the agreement. As per the said agreement finance amount was Rs.16,90,494/- and finance charges was Rs.6,11,958/- total Rs.23,02,452/- repayable in 41 instalments.The 1^st two instalments of Rs.28,787/- each and rest of the instalments was Rs.51,166/- each commencing from Feb.2012 to June,2015. It is also the case of the complainant that he made a representation to the OP on dtd.20.8.12 for resettlement of EMI at Rs.30,000/- per month. The OP agreed on it and made an endorsement on his application. Complainant in support of his claim of repayment mentioned details of repayments including the date, receipt no. cheque no. and it is also stated that as per the ‘repayment   table’  mentioned in the complaint and  as per the agreement(rephased) dated 29.02.12 and subsequent arrangement dtd.20.08.12 he has to pay Rs.9,17,810/- till May,2014 on the contrary he has already paid Rs.14,77,209/- till date. Inspite of such fact, the OP illegally demanded EMI and threatened him to repossess the vehicle through their agent by issuing notice dtd.28.05.14. Such act of the OP amounts to deficiency in service and unfair trade practice. The cause of action of the instant case arose on dtd.30.05.14 when the OP through their agent attempted to seize the vehicle. Hence, the present complainant prays this Forum to issue a direction to the Opp.party for reschedule of EMI of Rs.30,000/- per month from Sept.2012 as per the representation. It is further prayed that a direction may be given not to seize the vehicle and to pay Rs.10,000/- as cost of litigation.

3.                   Being noticed the OP appeared through their Ld. Counsel Mr. R.K.Sahoo and Associates filed written version into the dispute raising the question of maintainability on the grounds defining the provisions of C.P.Act,1986 regarding ‘consumer ‘’service’’deficiency in service’ which are not applicable in case of the complainant and clause of Arbitration and power of For a’s to adjudicate the present dispute. In the fact of the case it is stated that initially in the year 2011, the vehicle was financed to the Petitioner vide loan Agreement No.ORBUBH01575 to the tune of Rs.16,90,494/- and the Petitioner has to repay the loan amount of Rs.23,02,453/- with interest in 45 nos. of EMIs in due date without fail. Complainant being default in repayment as per the agreement advised to refinance his free vehicle bearing No.OR-09-G-5369 which stands in the name of one Annapurna Nayak by executing an agreement. In the effect of said agreement and refinance Rs.3,50,000/- was adjusted from the default amount. It is averred that complainant-borrower has to pay Rs.23,02,453/- in 45 instalments starting from dtd.01.10.2011 to dtd.01.06.2015. complainant till date June,2014 defaulted 4 nos. of EMI’s including the delay payment surcharges and the pending outstanding till June,2014 on complainant is Rs.1,51,121/-. Besides this amount towards delay payment charges and other expenses which accrues to the tune of Rs.2,97,920/-(The copy of the repayment schedule and statement of Account is annexed herewith as Annexure-A). In the parawise reply denied the complaint, it is categorically stated that on the request of the complainant the OPrefinance the  vehicle on the month of dtd.30.09.11 not on dtd.29.02.11 and after a detailed calculation submits that complainant  has to pay Rs.4,50,042/- till 9^th June,2014 including the defaulted EMIs and ‘delay payment pending’ which comes around Rs.4,50,042/- in toto. It is further averred that the said vehicle was refinanced on dtd.30.09.11 not on dt.29.02.11 for default in payment of EMIs on part of the complainant forced the OP to issue notice to repossess the vehicle as the complainant has violated the terms and conditions of the agreement. OP states that on the aforesaid circumstances the complaint is liable to be dismissed.

 4.                       Heard the submissions of Mr. D.K. Kar, Ld. Counsel for the complainant and the case of the Opp.party on merit as at the time of hearing of arguments Ld. Counsel for OP remained absent on repeated calls, further the case was posted for peremptory hearing as the Hon’ble StateCDRCommission directed this Forum to dispose the case within three weeks of receipt of the order on the Revision Petition bearing No.165 of 2014 filed by the present Opp.party.

                              Before going to the facts and merits of the case we must discuss the maintainability of the dispute as much emphasis have been given by OP-Finance Company.

Maintainablity

1.    Arbitration and ouster of jurisdiction

              In  paragraph ‘A’’G’ and ‘O’ of written version OP states that as the relationship between OP and complainant is that of borrower and lender same can not be adjudicated in a consumer Forum as there is a provision in the agreement executed between the OP and complainant that if any dispute arises between the parties same is to be referred to a sole arbitrator at Chennai. The OP also raised the point of jurisdiction . Ld. Counsel for the complainant countering the same submitted that as the ‘foras’ are ‘judicial authorities and as per Sec. 34 of the Arbitration and Conciliation Act, there is no bar to raise before the issue in a For a. There are two options open before the aggrieved persons to make their grievances. One is to go for the Arbitration Act and another is consumer Protection Act,1986. Complainant’s submission is supported by a decision of Hon’ble Apex Court of the country in M’s.FairAir Engineers Pvt. Ltd.-Vrs- N.K.Mali on 28^th August,1996. In the cited case Hon’ble Supreme Court opines that “ xxxxxxxxxxxx the C.P.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 Act. The Hon’ble Apex Court further opines that “if an arbitration is pending before the Arbitrator appointed by a Civil Court, theConsumer Forums will not entertain the adjudication of the matter”. In the instant dispute, the written version did not disclose a single sentence regarding refer  the dispute to the Arbitrator prior to filing of present complaint.

2.  Complainant as a ‘Consumer’

                        Opp.party challenging the status of complainant as a ‘consumer’ states in para ‘B’ and ‘N’ of the written version that complainant is not a consumer as per Sec.2(d) of C.P.Act rather the complainant was/is using the financed vehicle for ‘commercial’ purpose which is excluded from the benefits derives from the C.P/Act. It is further stated that the provisions of commercial category of consumer are excluded in case of self-employment and earning for his livelihood. In support OP cited a decision of Hon’ble Supreme Court in ‘Laxmi Engineering works –Vrs- PSG Industrial Institute cited in 1995 AIR-SC-1428. It is further stated in the para ‘B’ of written version that “ in para -4 of the complaint where it is clear that the the complainant himself does not ply the truck purchased, rather has appointed a driver for plying the same which necessarily excludes him from the purview of the definition of the consumer xxxxxxx”.  Ld. Counsel Mr. Kar appearing for the complainant has drawn our attention to the para-4  of the complaint where not a single word has been averred about engaging of driver to ply the vehicle as raised by the Opp.Party. He also submitted that OP has submitted falsely and misguided the Forum by a wrong submission rather  Mr. Kar submitted that in the complaint as well as in the interim application this complainant has categorically submitted that complainant has availed the finance to purchase the truck for maintaining his livelihood (para 1 of complaint and Interim  application). In the present dispute the OP has failed to bring into the notice of the Forum that complainant was/is driving his vehicle by engaging a driver, which can  debar the complainant from the definition of’consumer’ as per Section-2(d)(ii) of the C.P.Act,1986. Hence, according to us the complainant is well within the purview of definition of ‘consumer’.                                                                                      

 (c )  Law of Equity-

         In para ‘c’ of written version OP raised the law of equity as the complainant has not approached this Forum in a cleand and suppressed material informations and malicious misrepresentation by not informing this Forum that he has defaulted in payment of dues as per the agreement, hence the complainant is ‘estopped’ from any such of relief claimed by him defnying in  the principles on the Halsbury’s Laws of England(Fourth Edition,Vol.16,pages 874-876). Ld. Counsel for the complainant  resisted the version by submitting that in para-4 and 5 of the complaint petition clearly reveals that due to imposition of restriction on transport of iron ore by the Govt.of Odisha, he alongwith other fleet owners sustained huge financial loss as the vehicles remained idle for which he defaulted in paying the instalment dues. So, this pleas of the OP does not create any impression upon the Forum.

(D)Dispute on settlement of Accounts-

        OP  citing a decision of Hon’ble State CDR Commission,Odisha, cited in 2007(I) OLR(CSR) 38, present that as per the said decision when there is a dispute between the parties regarding settlement of accounts same can not be adjudicated on consumer Forums/Commissions. On the otherside Ld. Counsel for complainant submits that the complaint is based on deviation of the agreement or contract, on part of the OP by charging extra dues which the OP is not entitled to, hence the decision cited by the OP as raising the present complaint to a dispute of settlement of Accounts can not be accepted.

(E) Repossession-

                           OP on repossession of the vehicle citing the decision of Hon’ble State Commission,Odisha in case of Deepak Sahoo-Vrs- Indusind Bank alongwith decision of Hon’ble National Commission in Sheela Kumari-Vrs- TE   and  LC reported  in ( 2007NCJ 570)  and the decision of Ram Deslahara—Vrs-Magma Leasing Corpn.Ltd.(III 2006 CPJ 247) which has also declared the relation between hirer and financer is beyond the purview of consumer laws. On the otherhand, Ld. Counsel Mr. Kar countering these position of law submits that the present facts of the case are different from the cases cited by the OP. The cases cited by Ops are related to the matter of hire-purchase agreement and the present complaint is outcome of a hypothecation agreement. Further, the complaint is against excess charge of OP by deviating the hypothecation agreement unilaterally. In this position of law, we, are of the unanimous view that on existence of a valid contract agreement between the parties on a hire-purchase agreement, the OP-financer has every right to repossess the vehicle and the dispute is beyond the purview of Consumer Forum, as per the decision cited in the dispute. But, the case in hand is different from the cases cited earlier. It is an allegation of the unilateral deviation of the agreement and when the agreement is a hypothecated agreement and when the vehicle has not been repossessed. According to us, this complaint is maintainable before this Forum.

(F) Deficiency in service-

                    OP further raised that no deficiency in service as defined on the Section-2(g) of C.P.Act have been committed by the OP. In the present case there can not be any such imperfection and inadequacy in the quality and delivery of service and any act which is done against the law” as the vehicle has been repossessed as per the terms and conditions. Mr. Kar, Ld.Counsel for complainant submitted that, the definition has been misquoted and incomplete in practical. The complete definition is “ deficiency” means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person  in pursuance  of a contract or otherwise in relation to any service”.Ld. Counsel for complainant submitted that in the instant dispute there is an agreement or contract which still in force and the OP-financer by violating the provisions of the contract/agreement is threatening and issued ‘Notice’ to repossess the vehicle, hence the action of OP is well within the defination of ‘deficiency’. Defining the provisions of ‘service’ Mr. Kar appraised us that the definition in the Act itself includes ‘OP-financer’ as a service provider and to substantiate his plea Mr. Kar cited a decision in case of R.Singh Bagga-Vrs-K.L.M. Royal Dutch Airlines(2000) SCC 66 ( 72-73), wherein his lordship has held that “ The rendering of deficience in  service has to be considered and decided in each case according to the facts of the case for which no hard and fast rule can be laid down. Inefficiency, lack of due case, absence of bonafides,, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service”. Mr. Kar Ld. Counsel in connection to the above position of law argued that the OP-financer has committed deficiency in service.

          On discussion on the position of law on point of maintainability, we are convinced that the case in hand is maintainable as per the provisions ofC.P.Act,1986 and the complaint is maintainable well within the  purview of the Consumer Foras.

  F A C T S -

                             It is an admitted fact of the dispute that complainant purchased an Ashok Leyland Truck of Model 3116 bearing Regd. No.OR-29-5979 being financed by OP-financer in the year 2011. It is also an admitted fact that the sanctioned amount alongwith interest is to be paid in 45 nos. of instalments. It is further admitted that complainant-loanee was a defaulter for which the OP-financer issued a Notice for repossession of the vehicle. The dispute between the parties centered around on date of execution of the agreement, the nos. of EMIs including the penal charges,delayed  adjustment  of insurance premium and illegal repossession notice served to the complainant-loanee by the OP-financer. It is the case of the complainant that, it was agreed between the parties on dtd.12.03.11 that the complainant will repay the principal of Rs.18,50,000/- with finance charges of Rs.5,62,400/- in total Rs.24,12,400/- in 45 monthly instalments of aRs.57,609/- commencing from dtd.07.05.11 within the prescribed date of dtd.12.03.15. Due to loss in transport business he could not repay the instalments  in time for which complainant requested the Ops to rephase the agreement, accordingly the OP on dtd.29.02.12 rephased the agreement, as per the rephrased agreement complainant has to pay in total Rs.23,02,452/- ( Rs.16,90,494 + Rs.6,11,958/-) repayable on 41 instalments, the monthly EMIs will start from February,2012 to June,2015. The first two monthly instalments will be Rs.28,787/- and the rest instalments shall be Rs.57,661/-. The complainant further made a representation to OP for reduce of monthly EMIs to the tune of Rs.30,000/- because, the complainant-loanee was not capable to repay monthly EMI’s as aper the rephrased agreement dt.29.02.12 due to dull transport business.  Complainant also states that he has repaid a total amount of Rs.14,77,209/- upto April,2012 including the previous adjustment of Rs.60,109/-. It is also stated that complainant has repaid Rs.14,77,209/- and as per the rephrased agreement dtd.29.02.12 and on representation dtd.20.08.12 complainant has to pay only Rs.9,17,810/- upto May,2014, according to complainant the repayments made by the complainant upto May,2014 is excess than the agreed amount. On the otherhand OP-financer states that in the year 2011 the vehicle was financed to the complainant vide loan agreement No.ORBUBH01575 and it was agreed between the parties that complainant will preya the entire dues to the tune ofRs.23,02,453/- in 45 nos. of EMIs without fail starting from 09.10.2011 to 01.06.2015. complainant being default in repayment of EMIs refinancing another b loan  free  vehicle of one Annapurna Nayak adjusted   an amount of Rs.3,50,000/- from the default amount of the complainant. As per the OP till 9^th June,2015, Rs.1,52,121/- is pending on the complainant as an outstanding dues excluding the delayed payment charges and other expenses if the said charges are added an amount of Rs.4,50,042/- is pending as total outstanding dues against finance of the vehicle which is to be paid by the complainant-loanee. A detail calculation is presented in Para 1(ii)(iii) of the parawise reply by further adding that on request of the complainant OP-refinance the vehicle on the month of 30^th September,2011 not in dtd.29.02.2011.

 A G R E E M E N T -

                   It  is the settle principle of law that Agreement is essence of the contract. Parties entered into a contract knowingly, willfully can not act unilaterally. Courts/Foras/Judicial Authorities are to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves. These are the cardinal principles of a contract or agreement.

           In the instant case complaint reveals that he has executed the First agreement on dtd.12.03.11 and the second agreement on dtd.29.02.12. On the otherhand OP’s contention is that the vehicle was financed in the year 2011 vide Loan Agreement No.ORBUBHO1575 and further the vehicle was refinanced on dtd.30.09.11. OP filed statement of account alongwith schedule of repayment in Contract No.ORBUBHO1575 dtd.30.09.11 into the dispute marked as Annexure-A & B. Further OP filed attested photo copies of loan agreement bearing No.ORBOBHO1575 dtd.29.02.12 alongwith First schedule andSecond schedule(schedule of repayment). Parties to the instant dispute neither filed any copy of detail loan agreement of dt.12.03.11 or dtd.30.09.11 as averred in their respective complaint and written version. OP in their written version categorically submitted that the refinance of the vehicle was on dtd.30.09.11 not on dtd.29.02.12 as stated by the complainant. The documents filed before us specially the loan agreement filed by the OP being phto copies and attested by Ld.Counsel for OP bearing No. ORBUBHO1575 reflects that the said agreement is executed between the parties on dtd.29.02.12, wherein repayment schedule(second schedule) commenced from dtd.01.02.12 to dtd.01.06.15 and the first schedule of the loan agreement disclose that

Date of Agreement -dtd.29.02.12

Agreement No.       – ORBUBHO1575

Make                     - Ashok Leyland

  Model                      -  3116

Engine No.                – YBP 107959

Chasis No.                 – BPYA 9469

Cost of Asset             - Rs.16,90,494/-

Loan Amount           - Rs.16,90,494/-

Margin Money          -          0

Rate of interest         -  9.05 %

Period                        -  48 

Interest charges        - Rs.6,11,958.83

  Total No. of instalments    - 45

Value of EMI’s              - Rs.51,166/-

 Other charges including

Insurance,permit advance security – Nil

                               Now it is crystal clear that there is a valid and bonafide agreement executed between the OP-financer and complainant-loanee on dtd.29.02.12 which is in force till-date. OP categorically stated that the non-existance of any agreement on dtd.29.02.12, rather the complainant states that on his request the finance was rephrased and agreement was executed between   him  and  the  OP  on  dtd.29.02.12. This  plea  of  non-existance of agreement on dtd.29.02.12 by the OP according to the Forum is  suppression of material information, which not only misleads the Forum but abuse of the process.

              On perusal of  loan agreement clause 2.9.(e) on repayment of loan it is mentioned that in case of default on payment of outstanding dues, interest or any other charges, the lender shall be entitled to charge an additional interest as described in the First schedule. The first schedule of the said loan agreement on column (D) other charges is completely silent and nothing is mentioned regarding the amount of charges in case of default in EMIs, outstandings, interests and on dishonouring of cheques.

                      As we, have discussed earlier at a length regarding legal position of an agreement where the parties entered and consented, hence no penal charges for any default will be charged on the complainant-loanee after dtd.29.02.12 till dtd.01.06.15 as per the said agreement.

 F I N D I N G S -

   During  pending of the proceeding complainant filed an amendment petition stating that the EMIs mentioned in the complaint is of Rs.57,561/- but in fact as per the First schedule of the loan agreement the monthly EMI’s are Rs.51,166/- and sought amendment of the complaint petition which was rejected on the grounds of filing in belated stage, however, it was ordered that the Forum will consider the matter on the time of argument of the dispute. The complainant during course of hearing prayed that the monthly EMI’s may be calculated to the tune of Rs.30,000/- per month as per his representation to OP on dtd.20.08.12.

               In this point we are of the considered view that no such direction can be given to reduce the monthly EMI’s which is neither reflected in the First and Second schedule of the loan agreement. So far the repayments and outstanding dues are concerned we are of the considered view that OP is entitled to receive only Rs.23,02,452.83 ( Rs.16,90,494 + Rs.6,11,958.83) as per the First schedule of loan agreement dtd.29.02.12. During pendency of the proceeding complainant deposited 3 nos. of cheque bearing No.383055,383058 and 383062 of Rs.30,000/- of State Bank of India, Marsaghai Branch for its onward transmission to OP. But the OP did not prefer to accept the said cheque. That apart complainant has paid certain amounts in different dates before the OP. Complainant is directed to receive the cheques from the Forum by substituting a photo copy of the same.

          As we have discussed earlier the entitlement of OP to receive the total amount against the finance of complainant’s vehicle by deducting/taking into account the repauments made by complainant-loanee as per Agreement dtd.29.02.12. We do not want to poke our nose in the repayments made by the complainant-loanee. It will be lawful and pragmatic on part of the parties to settle the accounts basing on the amount fixed in the First schedule of loan agreement dated 29.02.12. Parties are at liberty to take the assistance of Account Experts. The Interim Order passed by this Forum bearing No.12  dt.21.11.14 is hereby vacated.

                                                      O R D E R

                      Having observations reflected the complaint is allowed in part on merit. It is directed that complainant will pay an amount of Rs.23,02,452,83 till dtd.01.06.15 deducting the repayments made earlier. It is also directed that both the parties will settle the loan accounts within one month of receipt of this order. It is further directed any after settlement of account and  if any monthly EMI’s are pending till dtd.01.02.15 on the complainant will clear such dues within one month of settlement of accountand the balance outstanding if  remains pending against the loan account of the complainant same to be cleared up within dt..01.06.15. Further the Op will not repossess the vehicle till. Dtd.01.06.15 if, the payments are complied by the complainant as per this order.

                        No order as to cost.  

                    Pronounced in the open Court, this the 4^th day of March,2015.