Orissa

Cuttak

CC/43/2017

Surendra Swain - Complainant(s)

Versus

Kotak Mahindra Bank Ltd - Opp.Party(s)

R K Pattanaik

29 Jan 2018

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.43/2017

 

Surender Swain,

At:Muradabad,PO:Pithapada,

PS:Nischintakoili,Cuttack Nr Bhagabat House,

Cuttack-754207.                                                                                         … Complainant.

 

                Vrs.

 

Branch Manager,

Kotak Mahindra Bank Ltd.,

Tractor & Farm Equipment Loans,

181,Janpath,Ground Floor,Kedarson Building,

Bhubaneswar-751001.                                                                             … Opp. Party.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   05.04.2017

Date of Order: 29.01.2018

 

For the complainant:           Mr. R.K.Pattnaik,Adv. & Associates.

For Opp.Party:                      Mr. B.P.Sarangi,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

The complainant having attributed deficiency in service & unfair trade practice to the O.P, has filed this case against him seeking appropriate reliefs in terms of his prayer in the complaint petition.

1. The factual aspect of the case of the complainant in short is that the complainant purchased a tractor of MASSEY FERGUSON for his personal use with the financial help provided by the O.P pursuant to the loan agreement entered into by them.  The loan amount advanced by the O.P was Rs.4,78,169/ which was to be recovered in 47 installments @ Rs.14,080/- each commencing from 15.9.16 to 5.7.2020.  The complainant as such had entered into an agreement with the O.P vide loan agreement No.TFE-4511818 on 20.7.2017 for this purpose.  The copy of the loan agreement and the loan schedule have been filed and marked as Annexure-1.
2. The complainant had been paying E.M.Is regularly to the O.P. but because of his financial hardship, he could not pay 7 nos. of E.M.Is from October,16 to March,2017 amounting to Rs.84,480/-.  Thereafter the O.P suddenly seized the vehicle of the complainant on 3.4.17 without any prior notice by assaulting the driver of the said vehicle at Nischintakoili, Cuttack.  Thereafter the complainant approached the O.P to release the vehicle but to no avail.  It is specifically stated that the complainant reasonably apprehended that his seized vehicle might be sold to some other person by the O.P thereby causing substantial financial loss to him and in such an event he would be derived of earning his livelihood.  It is also stated that though the complainant has already paid the arrear loan installments to the O.P, the latter has not released the vehicle in his favour.  It has caused serious mental agony and harassment to him.  As such he seeks the indulgence of this Forum by filing the present consumer complaint with a prayer to declare the seizure of his vehicle by the O.P illegal, to direct the O.P to release the vehicle forthwith, to pay him Rs.90,000/- towards compensation and Rs.5000/- towards cost of litigation together with any other relief as deemed fit and proper in the interest of justice.
3. The O.P entered appearance, filed written version and contested the case.  It is stated that the present complaint is not maintainable both in fact and law and there is no deficiency in service or unfair trade practice on the part of the O.P.  The complainant is not coming under the definition of consumer under the C.P.Act.  That apart there is an arbitration clause in the agreement itself that all the dispute arising out of this agreement shall be referred to the sole arbitrator and the complainant has violated the terms and conditions of the contract by filing the present case before this Forum.  The dispute between the parties is essentially a civil dispute based on contract and as such it is not maintainable here.  Annexure-A/1 is the copy of the loan agreement filed by the O.P.
4. It is stated that the complainant is a chronic defaulter and has not approached the Forum with clean hands and as such the case is not maintainable.  The further case of the O.P as revealed from his written version is that the complainant with malafide intention has not paid a single EMI since the date he took possession of the tractor.  It is important to leave a mention here that all the cheques the complainant had issued to the O.Ps were disnohoured by the concerned bank due to insufficient fund.  The O.P was compelled to remind the complainant about the timely payment of E.M.Is but the latter did not respond to it.  The total outstanding amount against the complainant as on 10.4.2017 was Rs.5,50,821.45p as revealed from the statement of account,  copy of which has been filed and marked as Annexure-A/2.  The O.P has also sent the loan recall notice to the complainant on 4.11.16.  Copy of the said notice has been filed and marked as Annexure-A/3 but it did not evoke any response from the complainant.  The O.P was therefore constrained to seize and repossess the vehicle of the complainant in accordance with the terms of the agreement and provisions of law.  The O.P has filed copy of the post sale notice.  In this case which has been marked as Annexure-A/IV.
5. It is therefore prayed that the consumer complaint filed by the complainant is devoid of merit and may be dismissed in limini.
6. We have heard the learned counsel from both the sides and gone through the case records.
7. To begin with, the learned advocate for the O.P has raised serious objection to the maintainability of the present case mainly on the grounds that the complainant has violated the terms and conditions of the agreement by filing the present case before this Forum whereas there was clear and specific mention in the loan agreement entered into by the parties that in case of any dispute that arises between them concerning the present transaction, the matter shall be referred to the sole Arbitrator.  Further objection is also raised on the ground that the present dispute is essentially a civil dispute based on contract and this Forum lacks jurisdiction to entertain and deal with this case.  The learned advocate for the complainant has made counter submission on this point and stated that the case is maintainable before this Forum.  It is settled principle of law that the C.P.Act provides an additional remedy which is not in derogation of other laws for the time being in force.  In that view of the matter the objection raised by the learned counsel for the O.P is not acceptable.
8. With regard to the default made by the complainant in making payment of E.M.Is, it is submitted by the learned counsel for the O.P that the former has not paid a single E.M.I as yet and all the cheques issued by him in favour of the O.P. towards liquidation of his loan have been dishonoured by the bank due to insufficient funds.  The total E.M.Is outstanding against the complainant is Rs.5,50,821.45p as on 10^th April,2017.  It is apparent from the document i.e. statement of loan account filed by the O.P vide Annexure-A/2.  This has compelled the O.P.2 to take repossession of the alleged vehicle of the complainant in accordance with the terms and conditions of the agreement.  Annexure/A-IV is copy of the post sale notice issued by the O.P.2 to the complainant for this purpose.  There is absolutely no counter argument made on this point by the learned counsel for the complainant except that the complainant has already paid the outstanding against him to the O.P.  But not a single scrap of document has been filed to this effect.  Mere oral submission by the learned advocate for the complainant that outstanding dues have been paid is not acceptable in the face of oral and documentary evidence adduced by the O.P above.  It is settled principle of law that when a point raised by a party in a case is not called in question by the rival party, the material assertion of that point raised is held to have been accepted.
9. In that view of the matter and in absence of anything to the contrary, it is held that the complainant has violated the terms and conditions of the loan agreement entered into by both the parties by not making payment of E.M.Is in time.  Hence we are constrained to hold that the complainant has failed to prove deficiency in service or unfair trade practice on the part of the O.P. in any manner in this case.  Hence ordered;

 

                ORDER

The consumer complaint be and the same is dismissed on contest against the O.P.  No costl

                Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 29^th day of January,2018 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                           President.

                                                             

                                                                                                                 (Sri B.N.Tripathy )

                                                                                                                     Member.

                                                                                                            (Smt. Sarmistha Nath)

                     Member(W)