Orissa

Jajapur

CC/84/2014

Mangul Khan - Complainant(s)

Versus

L & T Finance Ltd. - Opp.Party(s)

Badri Narayan Panda

13 Oct 2015

ORDER

                  IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:  1.Shri Biraja Prasad Kar, President,

                                                                        2.Sri Pitabas Mohanty, Member,

                                                                        3.Miss Smita Ray, Lady Member.

                                       Dated the 13th day of October,2015.

                                       C.C.Case No.84 of 2014

Mangul Khan  S/O Late Ramadan Khan

Vill. Goleipur, Korei

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

                   (Versus)

1.L & T Finance Ltd, City-3,Building,plot No.177,C.S.T Road,Vidyanagari Marg

     Kalina,Santacruz (East),Mumbai.

2 . L & T Finance Ltd, 1^st floor ,Nayak building,Chandikhole,Jajpur.                                                                                                                                                                                                                               3. Abdul Karim Khan,S/O Late Haji Abdul Latiff Khan,Vill.Khajuritikra Road,

    P.O/P.S/Dist.- Bargarh.                                                                               …………………..Opp.Parties.

 

For the Complainant:                         Sri B.N. Panda, Advocate.

For the Opp.Parties No.1 and 2:       Mr. Deepak Kumar, Sri B.K.Tripathy, Advocates.

For the Opp.Party No.3 :                   None.                                                                                                                 

                                                                                         Date of order:   13. 10. 2015.

MISS SMITA  RAY , LADY  MEMBER .

                        The petitioner has filed the present dispute  alleging deficiency in service on the part of the O.Ps.

                        Brief  facts as per complaint petition shortly are that the complainant initially has availed a loan from the O.Ps. for purchasing the vehicle bearing Regd. No.0R-04M-6421. After purchasing  the vehicle the complainant has paid the installments dues regularly till 04.12.11 . Thereafter make arrangement to transfer the ownership to Abdul Karim Khan respondent no.3 by virtue of an agreement dated  05.12.11 with consent of  the financer (O.P no.1) . As per agreement after 06.12.2011 the respondent no.3 has taken all responsibility  of O.P no.1( financer) . All on a sudden the complainant received a notice from O.P no.1for   payment of Rs.5,75.663/- on or before dt.09.12.2013 .

                        It is also stated by the petitioner  that on 6^th May-2014 a legal notice was received from the advocate for O.Ps.  regarding Arbitration Case.

                        It is also alleged by the petitioner  that once the vehicle is  transferred by virtue of an agreement with consent of the O.P(financer) ,it is illegal , arbitrary and malafide for issuance of  Arbitration notice to the complainant.

                        Accordingly finding no other way the complainant filed the present dispute with the prayer to quash the O.T.S dues of Rs.5,75,663/- and financing  charge   against respondent no.3.

                        After noticed the O.P no.1 and 2 filed their written version through their Learned advocate. The O.P no.3 refused to accept the Registered  notice as per postal remark . Hence ,the O.P no.3 is set-exparte vide order dt.10.03.15.

                        In the written version the O.P no.1 and 2 have  taken the following  plea that the complainant is not a consumer according to the definition as provided under the C.P.Act-1986 as per  section 2(1)(d).The petitioner in the complaint petition has categorically stated that he has purchased a truck by obtaining loan from the present O.Ps. and is  using the vehicle to earn his livelihood. In absence of specific pleading in the complaint petition with regard to the use of the vehicle for earning lively hood adverse inference has to be drawn against the complainant. Therefore the consumer complaint as presented by the complainant is not maintainable as he is not a consumer. It is apt to mention here that the Hon’ble Apex Court in laxmi Engineering Works Versus PSG Industries reported in ( AIR 1995 SC 1428) has clearly held that if any person obtains any goods for commercial purpose with a view to use such goods exclusively for earning profits such person has to be excluded from the purview of C.P.Act,1986.

                        The present petitioner approached this opposite parties  in the year 2011 to sanction and disburse the loan amount of Rs.13,50,000/- for purchasing a commercial vehicle (truck) under hypothecation to the present O.P. The present O.P after being satisfied with the credit ability of the present petitioner sanctioned and disbursed the  loan amounting to Rs.13,50,000/- and an agreement to that effect was executed  on 31.03.2011 vide agreement No.OCV017008 R1100347807. It was agreed between the parties that the loan amount shall be paid in forty five monthly installments and the rate of interest @ 6.50% will be charged. Further , it was also agreed between the parties that in case of delayed payment interest @36% per annum will be charged against defaulted amount. The petitioner grossly defaulted in repaying the loan amount for which the loan account was classified as NPA ( Non performing Asset) and for recovery of the dues, the case of the complainant was referred to the Sole Arbitrator  for recovery of the outstanding dues. The notices were issued to the present complainant to appear and participate in the arbitration proceedings but the present complainant never participated in the said proceedings. Therefore, the arbitration proceeding was concluded ex-parte and vide

award dt.18.12.2012 , the learned Arbitrator has passed an award directing the complainant and its guarantor to pay a sum of Rs.14,09,433/- along with accrued interest thereon.

                        The complainant did not pay the award amount within the stipulated period as per law, the O.P have initiated execution proceeding before the Hon’ble High Court of Bombay and the Hon’ble High Court has issued bailable warrant against the complainant after verifying the said execution proceedings.  However , in the instant case it is admitted by the complainant that by virtue of an agreement dt.05.12.2011 he has transferred the vehicle to one Abdul Kahim Khan is not only bad in the eye of law but also the same can not be acted upon as the agreement is itself  void agreement. In a hypothecation agreement although the ownership of the property remains with the borrower, the first charge over the vehicle remains with the financer. The borrower of the vehicle can never transferred the same during subsistence of the loan facility. If such transfer is undertaken by the borrower, such transfer has no sanctity in the eyes of law as because of the existence of the loan facility. The borrower in question has not acquired full ownership of the property. The legal intent behind a hypothecation agreement is that the borrower is willing and ready to possess the vehicle and enjoy the vehicle but does not have the right to transfer the vehicle before the closure of the loan facility.

                        The present C.C.Case  is filed by the complainant on 13.11.2014 , i.e after the Arbitration award was passed . Hence this Hon’ble Forum lacks jurisdiction  to entertain this present C.C.Case in view of the decision of the Hon’ble Natioanl Commission, New Delhi reported in 2007(1) CPC-p-411 (INSTALLMENT SUPPLY LTD – VERSUS-KANGRA EX-SERVICE MAN TRANSPORT CO. and Another)

 

                        On the date of hearing we heard the argument from both the learned counsels. The Learned counsel of the O.P No.1 and 2 argued that Arbitration Award has been passed against the petitioner on 18.12.2012  by the Learned Arbitrator. Accordingly Execution proceeding  arising out of the above  Arbitration Award is  pending before the Hon’ble High Court, Bombay for disposal. The petitioner has filed the dispute on 13.11.14 after the award is passed by the Learned Arbitrator. Hence, this Fora   lacks jurisdiction to entertain the dispute.

                        On the above pleading and arguments we have referred the judgment of Hon’ble National Commission reported in Installment Supply Ltd. Vrs.Kangra Ex-service man Transport Co & others , judgement of Hon’ble State Commission Odisha in Tata Finance Ltd. Vrs. Niranjan Pal Revision petition No.97/2012 wherein it is held that :

“ A complaint can not be decided by the Fora in case the arbitration award is already     passed .”

In the instant case it is revealed from the record and copy of the Arbitration Award that award has been passed on  18.12.2012 and thereafter the petitioner has filed the consumer complaint on 13.11.14.

                        Basing on the pleadings and documents available on record and circumstances of the case and decision cited above we are of the opinion that when the dispute having been decided and award was made by Sole Arbitrator the subsequent C.C. Case filed by the petitioner is not maintainable.

                                                            O R D E R

                                    In the net result the C.C. Case is dismissed . While dismissing the dispute we are in the opinion that the petitioner is at liberty to approach the proper Forum in respect of his grievance if he so likes . No cost.

                        This order is pronounced in the open Forum on this the 13th day of October ,2015. under my hand and seal of the Forum.

                                                                                              

 

                                                                                                             (Miss Smita  Ray)                                                         

 (Shri Biraja Prasad Kar )                                                                      Lady   Member.                                                                      

            President.                                                                Typed to my dictation & corrected by me

                                                                                    

                                                                                       

 (Shri Pitabas Mohanty)                                                                       (Miss Smita Ray)                                                         

            Member.                                                                                             Lady   Member.