Orissa

Jajapur

CC/84/2015

Mrs.Saroj Nayak. - Complainant(s)

Versus

InCharge Magma Fincrop Ltd. - Opp.Party(s)

A.K.Sarangi

22 Mar 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.   

                                              Dated the 22th day of March,2017.

                                                      C.C.Case No.84 of 2015

Mrs Saroj Nayak   W/O Satwan Prasad Nayak

At/P.O. Neulapur ,P.S.Dharmasala

Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

1.In charge,Magma Fin corp Ltd,Sahoo Building ,First Floor

   Chorda Biapass, Jajpur Road, At/P.O. Jajpur Road,Dist.  Jajpur.

2.The Manager,Magma Fin Corp Ltd, First Floor,Family plaza

Forest park ,Bhubaneswar Dist. Khurda .

3.Magma Fin Corp Ltd, Magma House 24 park street,Kolkata.

                                                                                                                          ……………..Opp.Parties.                  

For the Complainant:                      Mr.B.N.Udgata,A.K.Sarangi,R.K.sahoo, A.K.Pani, Advocates.

For the Opp.Parties :                        Sri A.K.Pahi,Advocate.

                                                                                                     Date of order:   22.03.2017.

 

SHRI  JIBAN BALLAV DAS, PRESIDENT .

                        The petitioner has  filed the present dispute alleging deficiency in service on the part of the O.Ps due to non issuing N.D.C the  in favour of the petitioner.

                        The fact of the dispute in brief is that the petitioner in order to maintain his livelihood and her family approached the O.P for finance to purchase a truck from Tata Motors Ltd.

                        That the O.ps after considering the loan proposal sanctioned the amount Rs.17,96,000/- to  purchase  the same. After availing the aforesaid amount the petitioner purchased a Tata Truck model No.MPT 3118 vide Engine No.01K-82943647 chasis No.MT-466375A 2k2526 and Regd.No.0R-04L-7215 on dt.28.10.10  and repaid the EMI’s  regularly.

                        That a bare perusal of the statement of account provided by the O.P financer says that the petitioner  has repaid the entire loan outstanding before the due date that is an amount of Rs.21,76,752 by 27.09.14 much before the last date of due date i.e 01.10.14 and the said statement of account also shows that an amount on Rs.2,59,234/- is outstanding as on 05.11.2014 along with an amount of Rs.1000/- as CBP (Cheque bounce process) and Rs.57,323.00 towards legal expenses ,

though the complainant  has repaid the entire loan outstanding much prior to the due date as has been reflected in the statement of account but the O.P financer with  an illegal and arbitrary manner has shown the aforesaid amount of Rs.2,59,234.00  is  due towards OD interest violating the direction of Hon’ble Supreme Court and Hon’ble Odisha High Court Rs.1,000/- towards CBP and Rs.57,323.00 towards legal expenses to which they are not entitled to and inspite of the request of the complainant on 12.12.14 and on 04.02.15 , the financer/ O.Ps are not issuing No Due certificate in favour of the complainant or giving any reply and also demanding O.D.C at the rate of 36% interest per annum which is illegal  and  should be waive .

                        It is submitted here that though the complainant has already paid  the loan outstanding and has requested for issuance of No Due  certificate in her favour but the action of the O.P in not encouraging  .  No due certificate in one plea or other and demanding amount towards OD interest and imposition of  legal expenses etc is illegal and the demand is liable to be quashed.

                        That  bare perusal of the A/C statement supplied by the financer differs from time to time in respect of interest on OD. As on 07.08.14outstanding was Rs.2,37,251.00 and payment made on 29.08.14 amounting to Rs.46,500 and on 27.09.14 Rs.37,252.00 and as on 05.11.14 outstanding  shows Rs.2,59,234.00 which clearly shows illegal application of OD, interest ,imposition

of legal charges / expenses  and CBP as well as illegal preparation of the statement of account as per their sweet will in order to grab the money in illegal manner.

                        Accordingly the petitioner has filed the present dispute with a prayer to direct the O.ps to waive the demand of Rs.2,59,234/- as OD interest R.1,00,000/- as CBP and Rs.57,323/- towards legal expenses etc and issue NDC in favour of the petitioner and pay Rs,1,30,000/-towards mental agony ,compensation and litigation charges.

                        After notices the O.P filed their written version  and taken the following pleas:

1.That the complaint is not a consumer .

2.That the complaint is not maintainable as the loan agreement contents the clause for Arbitration where all the disputes differences, claims and questions what so ever arising out of the said agreement shall be referred to the sole Arbitrator. And in the mean time the learned arbitrator vide its order dt.23.07.12 awarded a sum of Rs.14,32,752/- in favour of the O.P. It is also submitted that in a recent judgment passed by the Hon’ble National Commission in R.P No.1936/2015 decided on

03.11.15 and  Hon’ble State Commission  Odisha in R.P 97/12 decided on 16.07.13 . It was held  that:

“ if the dispute has been decided by the Arbitrator subsequent complaint is not     maintainable. .

3.That the vehicle in question is a heavy commercial one as admitted by the complainant in the  complaint petition .

4.That when the complaint did not respond about the awarded amount by the sole arbitrator the O.P approached the Hon’ble  Kolkata High Court through E.P No. 62/2013 to execute the award.

5.That admittedly the complaint is a chronic defaulter in repaying the loan dues as has been evident from the complaint petition.

6.That only after clearance of the account NOC will be issued to the complainant and as the complaint  has not cleared up  the accounts as yet and asking for NOC which  clearly shows the malafide intention of the complainant to cheat the financer .The present C.C. Case is filed by the complainant dt.05.10,.15 i. after Arbitration Award was passed .Hence the Hon’ble Forum lacks jurisdiction to entertain the present C.C. Case in view of the appellant Forum .  Therefore the Hon’ble Forum may dismiss the complain as against the O.Ps with cost.

                        On the date of hearing we heard the arguments from both the counsels . The learned counsel from the petitioner argued that the petitioner has repaid the entire loan outstanding amount before the due date i.e an amount of  Rs.21,76,752/- by dt.27.09.14 much before the due date i.e 01.10.14 . But the O.Ps  illegally  demanding  Rs.2,59,234/- towards O.D interest violating the direction of Hon’le Supreme Court and Hon’le Odisha High Court and also demanding O.D.C charging interest at the rate of 36 % per annum which is illegal and liable to be waived . The learned counsel  for the O.P argued that Arbitration Award has been passed against the petitioner  on dt.23.07.12 by the Learned Arbitrator .Accordingly execution proceeding arising out of the above Arbitration Award pending before the Hon’ble High Court of Kolkata for disposal . The petitioner has filed the dispute on 05.10.15 after the award was passed by the learned arbitrator. Hence this  Fora lacks jurisdiction  to entertain the dispute  .       

                       Owing to the above narrated views of both the parties we are inclined to decide the present dispute as per our observation stated below:

1.The stand taken by the O.Ps. Regarding consumer is not acceptable on the ground that the petitioner is a hirer / loanee who has purchased the aforesaid vehicle by availing loan from the OPs. And for such loan the petitioner /hirer is paying interest which is consideration as per observation of Ho’ble Supreme Court reported In2001(1) CPR-7(SC) as has been indicated in 2005-CTJ-211 vide para-12 (A.H. Ramdas Vs. Indian Overseas Bank) .As such we are of the considered view that the petitioner is a consumer who has hired the service of the O.Ps.

2.The O.P taken the main plea in the written version that  the Arbitrator has passed this award on dt.23.07.12 after giving reasonable opportunity to all the parties. In this contest in absence of any documentary evidence from the side of the O.Ps we are unable to accept such contention of the O.Ps. As per observation of Hon’le National Commission reported in 2012(3)-CPR-511 (vide para-11)

Which indicates that Arbitration notice must be served on the other parties. But the O.Ps failed to produced any documentary  evidence that Arbitration Notice served to the petitioner.

3.Further it is stated by the petitioner that against loan of Rs.17,96,000/-  he has already paid Rs.21,76,752/- before the due date which was not challenged  by the O.Ps in the present case .Hence it is cristal clear that the petitioner has paid Rs.21,76,752/- as against the loan amount of Rs.17,96,000/-.

4.As regards the interest 36% per annum on over Dues amount as has been alleged by the petitioner is not judicially acceptable in view of the OBSERVATION OF Hon’ble Orissa High court vide writ petition (C.No.17720.2008) (Smt Sabita Chatoi Vrs.Officer Incharge) .Since its violates the guide line of constitution bench of Supreme  court reported in AIR-2001(SC)-3095. As such the agreement claiming 36% interest pr annum on over Due amount can be treated as void  U/S 20 of Indian Contract  Act 1872  as observed by the National Commission in a R.P bearing No.737/2005 (Citi Crop Maruti Finance Vr.Bijay Laxmi ) since such agreement is  basis of mis representation /mis understanding of  facts and law us it  violates  the guide of Hon’be Supreme court observation reported in AIR-2001-3095(SC) . Moreover there is no justification to change DPC during the period of repayment schedule as per observation of Hon’ble National Commission reported in 2015(2) CPR-584-NC –para-3 since the O.Ps have charged flat rate of interest on the loan advanced to petitioner .

In the conclusion this Fora gets no jurisdiction to deicide the dispute as per observation of Hon’ble National Commission reported in 2006(3)CPR-339 (NC) (The installment Supply Ltd Vrs. Kangra since the learned arbitrator has already passed the award on 23.07,12 which is prior to filing the present dispute .Accordingly we dispose of the dispute as per the order below:

                                   

O R D  E R   

In the net result the dispute is disposed of on contest  .While disposing the dispute we are in the opinion that  the O.Ps take into consideration the amount paid by the petitioner after and before  the date of Arbitration Award passed at the time of  issue the NDC / NOC of the vehicle  in favour  of the petitioner   .No cost .Accordingly the case stands disposed of .                       

This order is pronounced in the open Forum on this the 22th day of March,2017. under my hand and seal of the Forum.