IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 99/S/2015.                              DATED : 10.04.2018

BEFORE     THE MEMBERS   : SMT. PRATITI BHATTACHARYYA,

                                                              SHRI. TAPAN KUMAR BARMAN

COMPLAINANT                       :  SRI, Raj Kumar Khaitan,
 

   S/O. Late Madan lal Khaitan,

   P.B. Road, Kurseong,

Dist- Darjeeling, PIN- 734203.

O.P.                                           : Indusind Bank Ltd.

                                                 Kapil centre, 02^nd mile

                                                 Sevok Rd, Siliguri- 734401

FOR THE COMPLAINANT         : Self.

J U D G E M E N T

Shri T.K. Barman, Member.

The case of the complainant is that he purchased in 2006 a Swaraj Mazda Vehicle from Khokan auto Pvt. Ltd., Siliguri and in 2009 took a loan of Rs. 3,00,000 from the O.P. Bank for its maintenance. The complainant could repay the loan up to Rs. 2,78,500 and due to his  health problem and financial crisis he could not pay further instalment(s) and verbally requested the Bank to allow some time.

But the O.P. surprisingly took away, i.e. re-possessed vehicle through their musclemen from Sakhambari Petrol Pump near Pintel village, Siliguri, and, that too, without any prior notice. In-spite of verbal request of the complainant to the OP. Bank for allowing some time for repayment, the manner the vehicle was lifted for default, i.e. forcibly and without any prior intimation to the complainant caused loss of livelihood and the loss of livelihood, in turn, caused mental agony of the complainant who is desirous of getting refund of Rs. 5,50,000 excluding cost for litigation/harassment. Hence is the case.

.

Contd…….P/2

-:2:-

The O.P contested the case by filing written version dated 17.08.16 wherein the material averments made in the complaint have been denied and it has been contended, inter alia, that the instant case is not maintainable. The complainant is not consumer as per the Consumer Protection Act and this Forum has no territorial jurisdiction to try the present case. It has been further contended by the O.P that the complainant is only a borrower and became a defaulter in repaying the loan to the lender. The vehicle is commercial one and not driven by the complainant. Due to default on the part of the complainant the vehicle was repossessed only by the receiver appointed by the City Civil Court (Court-II), Kolkata in a recovery case filed by the OP and not forcibly taken away. If any deviation has at all been made from the order of the Honourable City Civil Court, it is the court higher than the City Civil Court to try such deviation and not this Forum. Thus no question of deficiency in service of the O.P arises at all. Hence this case is liable to be dismissed.

The Complainant, to prove his case, filed the following:-

1. Written objection to the maintainability petition filed by the O.P,
2. Evidence,
3. Written notes on argument,
4. A.F.C. statement as on 28.06.11 issued by the bank.

On the basis of the respective submissions of the parties, the following points come up for determination:-

1. Whether this case is maintainable in its present form,
2. Whether there is any deficiency on the part of the O.P. or the O.P. has committed any unfair trade practice,
3. Whether the complainant is a consumer under the Consumer Protection Act and
4. Whether complainant is entitled to get the relief as prayed for.

Decision with reason

All the four points are taken up in seriatim for discussion.

Point No.:-1

Record reveals that a preliminary petition Dated 26.02.16 filed by the O.P. was rejected on 24.5.16 and the proceedings continued because  the O.P. was not able at that time to show the provision [which  is 11(2) (a) of the C.P Act. 1986] for why this  case is not maintainable  before this Ld. Forum. However, during the continuance of the proceeding, the O.P. along with the W/V dated 17.08.16 filed a copy of the letter dated 13.12.13 addressed to the O.C. Bhaktinagar P.S-(which is in Jalpaiguri district) intimating the re-possession of the vehicle, received by that P.S. on the same date. In the evidence filed by the O.P. on 19.04.17, the O.P

Contd…P/3

-:3:-

 stated further that re-possession was done in presence of the Bhaktinagar Police. On the other-hand, the complainant furnished address of the O.P. without any ref. to P.S and Dist. though with PIN Code indicating postal jurisdiction only.

The complainant argued that the vehicle was re-possessed from Sakhambari Petrol Pump near Pintal Village which is at Siliguri. Hence, the cause of action occurred within the jurisdiction of the Forum. But the complainant did not/ could not  furnish any documentary  proof in  support of the place of  such re-possession  as he himself  admitted that  no prior  intimation about  such re-possession  was given to him, nor was any re-possession list given  to him. Therefore, the provision of section 11(2)(a) Consumer Protection Act. is lacking in the complainant.

A further perusal of the allegation  made by the complainant reveals that the  central point of the complaint is this that the O.P. Bank forcefully took away  the vehicle  with the help of  musclemen and, that too, on the way  without  any prior notice to the complainant. This is not, however, believable, because the complainant has not lodged any FIR with the police station under whose jurisdiction such illegal taking away took place. If lodged, then the complainant could prove also the place of arising the cause of action. Such non-lodging of FIR appear to have the purpose identical with that of non-mentioning of P.S and Dist in the address of the O.P. Bank by the complainant.

Thus the point No. 1 is answered in the negative against the complainant.

Point No. 2

The complaint does not have any allegation that an unfair trade practice has been adopted by the seller or the vehicle he purchased suffers from any defect. Had it been so, then Khokan Auto Pvt. Ltd., Siliguri would have been made a party to the case. Nor does the complainant state that the O.P. the financing Bank has adopted any unfair trade practice or has any deficiency in sanctioning/disbursing the loan to him. The complainant loanee has rather admitted that he himself has failed to re-pay the balance loan. Hence, the complaint is not in accord with the provision of 2(c)(i) /(ii)/(iii) of the C.P Act.

The complainant did not furnish any terms and conditions or agreement governing the loan, except, an AFC statement only as on 28.06.11 instead of any

letter /order sanctioning the loan in 2009. The O.P. on the other hand, furnished an interim order no. 2 Dated 30.11.13 of the Ld. City Civil Court, Kolkata(court-II) in recovering case No. 2199 of 2013 appointing  Mrs. Sanjukta Shishu, a receiver of  the vehicle  during the pendency of the case/till  final order is passed. Mrs. Shishu, in turn, engaged one Agent, namely, shubhankar Bhaduri for safe-custody of the vehicle.

Contd….P/4

-:4:-

Thus the point No. 2 is answered in the negative in favour of O.P.

Point No. 3

          Since the complainant took loan from the O.P., the former is, no doubt, a customer to the latter. Though the vehicle is meant for commercial purpose, yet the complainant is a consumer in the sense that it is the source of his livelihood and not for re-sale. But nowhere in the complaint the complainant alleges that he has been a victim of unfair trade practice of the O.P. or the O.P. have showed any deficiency in service. The complainant is, rather, a defaulter and his allegation is about the mode of taking away the vehicle. Moreover, record shows that the vehicle was not taken away by the O.P. but repossessed by the court’s receiver under the order of Hon’ble City Civil Court (Court-II) Kolkata.

          This point is thus answered accordingly.

Point No. 4

          Since point Nos. 1, 2 and 3 are answered in the negative against the complainant/in favour of the O.P., the question of taking of this point for discussion does not arise at all.

Considering all the aspects, this Forum is of the view that the matter in question is of procedure of recovery where lender and the borrower relation is involved. It is not a matter in relation to consumer and trader/Service provider and hence not triable in this Forum. This Forum has no jurisdiction also to try the  cases of forceful taking away  with the help of muscleman specially in violation of a civil court’s order, as  alleged  by the  complainant. In the result, the case does not succeed on contest and hence it is

                                      O R D E R E D

That the case no. 99/S/15 be and the same is dismissed on contest against the O.P.

          Let a plain copy of this order be given to the parties and the O.P. free of cost.