Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 366/2019

The complainant has filed this complaint case against the OPs for gross deficiency of service  on the part of the OPs with regard to re-possession  of the vehicle being No. WB IID 2017 on payment of dues EMI amount .

Fact of this case – The case of the complainant which is deciphered from the petition  of complaint in bird’s eye view is that the Proforma OP No. 2 is a selling agent of Ashok Leyland  goods carrier  vehicle  & OP No. 1 is a financer,  from whom the  complainant took loan  for purchasing  Ashok Leyland Dost  goods carrier vehicle at the total price of Rs. 5,46,800/- being Model No. Ashok Leyland Dost LS Strong BS-IV, Engine No. VGH036488P, Chasis No. MB I AAE 1GRV46651.

It is the case of the complainant side that the complainant is an educated youth  but did not get any job either  from Government / Semi-Government/ Private Sector and accordingly being an unemployed  youth decided to run his own profession by engaging  himself in the Transport Business  for maintaining his livelihood by way of self-employment  and the complainant decided to purchase Goods Carrier Vehicle for delivery of goods  in terms of consideration  and on 16.11.2016 the complainant  purchased the above noted vehicle from Proforma OP No. 2.  According to  the case of the of complainant side as the complainant was unemployed and  had not sufficient  fund at the time of purchase of the vehicle,  the complainant decided  to purchase the vehicle by taking  loan / financial assistance and  accordingly  the complainant  paid Rs. 1,46,800/-  from his own fund and Rs. 4,46,000/- was financed by OP No. 1 and at the time of making  finance by the OP No. 1 loan   agreement  was reduced to  writing  in between the complainant and OP No. 1 wherein  value of the loan  was described as Rs. 6,28,204/- out of which 4,46,000/- is financed  amount  and Rs. 1,22,204/- is interest  and Rs. 60,000/-  is insurance deposit.  It is submitted that  according to loan agreement  the complainant is liable to make payment of Rs. 13,650-/- for 46 EMI it would continue  on and from 21.12.2016 to 01.09.2020.  It is alleged  that on and from 21.12.2016 the complainant  used to make payment of regular EMI to the OP No. 1 and the complainant paid Rs. 3,57,900/- in 26 EMI out of 46 EMI but since  the month of June 2019 the financial condition of the complainant  detoriated as  there was no regular  booking  of delivery of goods and complainant was busy with the  family related problems  and accordingly  the complainant  did not  make payment  of EMI in due time.  It is further alleged that on 04.09.2019 when the complainant was  going to deliver  of goods to Dhulogar  without any  prior intimation the muscle man  of OP No. 1 forcibly  took possession of the above noted  vehicle of complainant and after taking  over possession of the said vehicle  by OP No. 1. the complainant  went to the bank of the OP No. 1 and requested them  to hand over  Account  of dues  and to give the complainant a chance  for 2-3 days for making  further payment  and then the OP No. 1  informed the complainant  that unless and until  the complainant  make payment of rest 20 EMI, they would not hand over the said vehicle.   It is also stated by the complainant that on 12.09.2019 upon arranging  a sum of Rs. 1,00,000/- from near relatives.  The complainant again  approached  to the bank of OP No. 1 for making  payment of dues and to get hand over  of the vehicle  but OP No. 1 was not  interested  to take  the said amount of Rs. 1,00,000/- but OP No. 1 demanded Rs. 3,60,000/- from the complainant  and the complainant  became  astonish and asked the OP to furnish Account Statement in detail but they did not furnish any such Account Statement.  As per case of the complainant on several occasions  the complainant requested  the OP No. 1 to receive the dues amount and to hand over the said vehicle  but OP No. 1 neither returned  the said vehicle nor had taken  the dues amount from the complainant.    It is alleged  that ultimately the complainant  went to Officer-in-Charge Sankrail P.S. to agitate  grievance  but the Police Authority  did not entertain the complainant and finally the complainant  has filed this case before this District Commission with the prayer which has been described in the prayer  portion of the complaint petition.

Defense Case

The OP No. 1 after entering appearance  contested  this case by filing W/V and denied  all the material  allegations leveled  against the OP No. 1.  The case of the OP No. 1 in a nutshell is that the complainant  approached  to OP No. 1 for financial assistance for purchasing  Ashok Leyland Carrier  Vehicle  for  commercial purpose and after having understanding the terms and conditions of the loan agreement,  the complainant executed the loan agreement with the OP No. 1.    According to the  case of the OP No. 1  the said higher purchase cum hypothecation   agreement  dt. 16.11.2016 executed  between the complainant and OP.  The loan was  granted Rs. 4,46,000/- alongwith  charged interest  and the loan  was fixed for a period  of 46 installments  starting from 21.12.2016 to 21.09.2020 and the complainant was  to pay total amount of Rs. 6,28,000/- and the installment was to be paid  within 21 st day of every calendar month.

As per case of the OP No. 1 the complainant  failed to pay the EMI amount within time and as a result  of which the OP sent notice on August 2019 to the complainant  and asked him to pay Rs. 3,08,967/-.71  but unfortunately the complainant in spite of  receiving the  said demand notice  had not paid any attention  to pay the said amount.  It is submitted by the OP No. 1 that no other alternative  the OP on 04.09.2019 took possession of the hypothecated  vehicle  and on 16^th September, 2019. The OP No. 1 again had sent another letter to the complainant to pay defaulted amount as soon as possible  otherwise  vehicle  will be sold by them and in spite of receiving  the said letter the complainant  had not  paid any amount.  According to the case of the OP No. 1  the OP No. 1  deals with public money and so  they have legal right  to recover  the amount and further reason on 28^th October 2019   they sold the hypothecated   vehicle  of the complainant  for recovery of the loan amount.  It is also  pointed out  the OP No. 1  that this case is not maintainable  and there is no relationship of consumer.  So, this case is liable to be dismissed.

The OP No. 2 in spite of receiving  notice  has not appeared and also has not  filed any W/V for which this case is running exparte  against Op No. 2.

Points of consideration

On the basis of pleadings of the parties  this District Commission for the interest  of  arriving at just and proper  decision  and also for the purpose of proper  and complete adjudication of this complaint case has framed  the following points of consideration :-

1.  Is this case maintainable  in its present form and in the eye of law?
2. Has this District Commission jurisdiction to try this case ?
3. Has the complainant  any cause of action for filing this case?
4. Whether  the complainant  is entitled to get the decree directing  the OP for handing over the hypothecated  vehicle  on payment  of remaining  due EMI amount  or not ?
5. To what other relief / reliefs the complainant is entitled to get in this case?

Evidence on record

The complainant  in this case has filed evidence on affidavit and against the  said evidence on affidavit the OP has filed questionnaire  and the complainant side has given reply in respect of the said questionnaire filed by OP No. 1.

On the other hand  to disprove  the case of the complainant side the Op No. 1 has filed evidence on affidavit and against the said evidence on affidavit the complainant has filed interrogatories and the OP No. 1 also have given reply of those interrogatories.

Argument  highlighted  by complainant side and OP No. 1

At this stage  of argument  Ld. Advocate of the complainant side  and OPs have filed Brief Notes on Argument .  In addition to the said Brief Notes on Argument  Ld. Advocates of both sides also have highlighted  their verbal submission / argument.  In support of the case  of the complainant  Ld. Advocate of the complainant side referred the case laws  (2019)5 WBLR (SC)562 and II (2017) CPJ 561 (NC).  On the other hand  the Ld. Advocate of the OP No. 1 referred the decision  BALMUKAND JOSHI VERSUS SURESH RATHI SECURITIES PVT. LTD. NCDRC RP/1178/2021.

Decision with reason

The questions  involved in the points of consideration No. 1 to 5 which have been adopted in this case by this District Commission for deciding  the fate  of this case, are interlinked  / interconnected with one another.  For that reason  and for the convenience of discussion all the points of consideration are  clubbed together and taken for  discussion jointly.  For the purpose  of arriving at just and proper decision  in respect of the above noted  points of consideration this  District Commission finds that there is urgent necessity  of making scrutiny  of the evidence on affidavit submitted by both parties and also there is urgent necessity of making scrutiny of the documents  which have been filed by both parties .

After going  through the evidence on record  this District Commission finds that the  OP No. 1 has filed one Misc. Case being No. 358/2019 u/s 9 of the Arbitration and Conciliation  Act, 1996 before the Ld. 3^rd Bench, City Civil Court, Calcutta against the  complainant  as the complainant  was / is chronic defaulter .  It is also revealed after hearing the said application  Ld. 3^rd. Bench, City Civil Court, Calcutta has been  pleased to pass the order of appointing  receiver  to take possession of the hypothecated  vehicle .  This  copy of the order  has been filed by the OP No. 1 alongwith the W/V which has been preferred as annexure ”A”.  This matter is clearly indicating  that Arbitral Award has been passed in favour of OP No. 1 Bank on 24^th January, 2020 which is  after filing of this case and it is submitted that Arbitration Proceedings  has started  according  to the terms and conditions  of the loan agreement  due to failure of payment of monthly installments  by the complainant.  In view of such position  the only relief  available to the complainant is to challenge  the said Arbitral Award before the Appellate Authority  but the complainant has not adopted the said procedure.  The complainant has also suppressed the said fact of Arbitration Award  before this District Commission.  This matter is clearly reflecting  that the complainant  has not come before  this District Commission in clean hand and so the complainant  is not entitled  to get  any equitable  relief.

Moreover, it is also reflected from the evidence on record the complainant was to pay Rs. 6,28,204/- in 46 equal installments of Rs. 13,650/-   and the  said installment  was required to be paid within 21 st day of every English calendar  month but the complainant after the payment of 26 installments  has failed to pay the remaining EMI installments.  It is also revealed  from the case record  that on 8^th August, 2019 the OP No. 1 had sent one demand notice to the complainant  and asked to pay Rs. 3,08,967/- but the complainant has not paid the said amount .  In view of such position  it cannot be said that OP had not given any notice to the complainant  before taking possession of the said  vehicle.  After sending notice the OP No. 1 had taken  possession on 04.09.2019 and thereafter  the complainant also had not taken any step to pay the remaining  20 installments of EMI and thereafter the OP No. 1 had sold the said hypothecated  vehicle  on 28^th October, 2019.

Now, the question is whether the Complaint Case No. 366/2019 is maintainable  particularly  when there is Arbitration Clause  in the loan agreement ?   In this regard, the decision of the Hon’ble Apex Court which has been observed  in the case of M/s Asian Avenues Pvt. Ltd. Vs. Syed Shakut Hussain which is reported in AIR 23 Supreme Court Page 2128 is very important and in the said judgment  Hon’ble Apex Court  has been pleased to observe that under Order 7 Rule 11 of Civil Procedure Code rejection of plaint  on the ground of existence of the Arbitration Clause  in agreement   if the issue concerning cancellation  is not  mutually  resolved the same  must be referred to arbitration.   In view of such position  it is crystal clear that the CC Case No. 366/2019 is not maintainable when there is an Arbitration Clause  in the loan agreement  and Arbitration Award has been passed by a competent Court of Law.

As this Complaint Case is found not maintainable, this District Commission has no jurisdiction to try this case  and for all these reasons  this District Commission is of the view that this Complaint Case is liable to be dismissed.

In the result, it is accordingly,

ORDER

That this Complaint Case being No. 366/2019 be and the same is dismissed on contest.  No order is passed as to cost.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment and / or final order be uploaded in the official website  of this District Commission, Howrah.

Dictated & corrected by me

  President