The complainant’s case in short is that he purchased a tractor for his livelihood from National Sales, authorized dealer of Swaraj tractor at Raiganj valued Rs.8,60,000/- (including registration charges). At the time of purchase marketing Executive of Magma Fincrop Ltd(hereinafter referred to as Company) stated that they would arrange all assistance of finance & insurance of tractor. Complainant made a down payment of Rs.1,50,000/- and Company financed Rs.5,69,374/-, to be paid within 01.10.2019 in 48 installments and complainant have to pay Rs.8,32,000/- and he started paying installments.
Thereafter, complainant’s tractor bearing No:-W.B-59B/3709 met with an accident on 15.07.2016 and the vehicle was badly damaged and he repaired the tractor by spending Rs.2,27,389.85. During that tenure complainant did not able to pay installment in proper time but subsequently he regularized by paying extra amount and he has paid the entire amount due to O.P/Company.
That in the last part of June, 2019 marketing Executive of O.P/Company came to complainant and demand huge amount as due. Complainant on 04.07.2019 went to office of O.P.No-1 and obtained statement of his loan account on paying fees of Rs.550/- & noticed that within 04.07.2019 he had already paid Rs.8,32,388/- instead of Rs.8,32,000/- payable by 01.10.2019. He was told that if he want to close the loan account he had to pay further amount of Rs.42,000/- and the complainant without any hesitation paid it for closure of loan account. Besides Company’s Agent took Rs.35,000/- from complainant without any cause so Company had taken extra amount of Rs.35,000/- + Rs.42,000/-=Rs.77,000/- from complainant, in spite O.P/Company did not issue NOC but he was told to pay Rs.1,00,000/-, failing which Company will repossess the vehicle. Complainant sent Advocate’s notice dated 26.08.2019 but O.Ps neither pay extra amount realized and nor issue NOC. Complainant prays for getting NOC for the said tractor, return of Rs.77,000/- realized in excess, compensation of Rs.50,000/- for mental pain and agony and litigation cost of Rs.10,000/-.
O.Ps contested the case by filing written version stating that the complainant is not a consumer of O.P/Company within the meaning of C.P.Act as the tractor used as in commercial purpose only and relationship of debtor and creditor does not and cannot apply and the case is not maintainable rather it is a civil dispute. When there is an Arbitration clause the complainant is not entitled to get any relief from this Commission which has no jurisdiction to entertain the claim.
That after taking loan complainant paid some installments but subsequently started to make delayed payment, lastly he paid Rs.42,000/- on 01.10.2019 and after calculation Rs.62,812/- was outstanding and as per agreement over due interest Rs.1,64,514/-, cheque bounce charges Rs.2,000/- & collection charges Rs.5,922/- total Rs.2,35,248/- payable as on date 18.04.2022. As per agreement NOC can only be issued after clearance of the entire outstanding amount. The complainant is bound by the terms and conditions of the loan agreement but he defaulted in payment in time and has come up with baseless concocted and frivolous allegations just to wriggle out his legal liability and the claim is liable to be dismissed.
Points for consideration is/are:-
- Whether there was any unfair trade practice on the part of O.Ps?
- Whether the complainant is entitled to get relief as prayed for?
DECISION WITH REASONS
Both the points are taken up together being interlinked.
Admittedly, Mohah Israil S/o-Hasimuddin Ahammed, as hirer entered into higher purchase finance agreement dated 14 OCT 2015 with O.P Company/Magma Fincrop Limited, wherein Sarifan Bibi, W/o-Mohammed Israil was the Guaranter, prepared and notarized on 28 SEP 2015. Schedule-I depicts description of asset(s)-vehicle/s Swaraj Tractor-M&M Ltd (FES) SW855-XMTXR(PS)-Qty-1 rate 7,56,000/-, Engine No:-473030SUF 07071, Chassis No:-WVCF61910908969, delivered by seller/supplier National Sales. Schedule II. depicts total amount financed Rs.5,69,374/- payable in 48 installment of Rs.42,000/- each and he has to pay Rs.8,32,000/- in total, after down payment of Rs.1,50,000/-, First Due date 01.11.2015 and last due date 01.10.2019. They also signed demand promissory note of Rs.8,32,000/-.
Complainant’s case is that thereafter his tractor bearing No:-W.B-59B/3709 met with an accident on 15.07.2016 and the vehicle was badly damaged and he repaired the tractor by spending Rs.2,27,389.85. During that tenure complainant did not able to pay installment in proper time but subsequently he regularized by paying extra amount and he has paid entire dues.
No documentary evidence is produced by the complainant regarding accident of his tractor on 15.07.2016 as alleged and/or regarding damage or repair of the tractor. He admits that he was not able to pay installment in proper time. Though he stated that he has paid the entire dues by paying extra amount and regularized the loan account but same has not been proved from statement of loan account. Complainant’s claim of extra payment Rs.42,000/- + Rs.35,000/-=Rs.77,000/- to the collection Agent of O.P/Company has also not been proved by cogent documentary evidence.
On the other hand it is proved that as per said loan agreement the borrower complainant paid installments for some period in proper time but subsequently he started to make delayed payment and lastly paid Rs.42,000/- on 01.10.2019 and after calculation Rs.62,812/- was outstanding at that point of time as installment money and Overdue Interest Rs.1,64,514/-, Cheque bouncing charges Rs.2,000/- and Collection charges Rs.5,922/- total payable Rs.2,35,248/- as on 18.04.2022. Therefore, NOC was not issued to the complainant, which can only be issued after clearance of outstanding amount. In the case of Monohar Singh Vs Mahindra Finance & Ors it was held by N.C.D.R.C that it is justified on the part of O.P not to issue NOC if any due is pending.
In the case of Bharat Knitting Vs DHL Worldwide Express (1996) 4SCC 704 the Hon’ble Apex Court held that when the borrower and guarantor sign contract documents, they are bound by its terms and conditions and the onus would be on them to prove the circumstances under which they have sign the contract.
It appears that the complainant has come up with baseless concocted and frivolous allegation just to wriggle out his legal liability and contractual dues towards the O.P. As held in the case of Rashpal Singh Bahia & Ors Vs Surender Kaur & Ors 2008 (2) Civil Forum Cases 778 (P&H) the said complaint deserves to be dismissed.
Point No:22 mandated Arbitration Clause in the said loan agreement. Without complying/availing said arbitration process the complainant is debarred from lodging such a complaint also.
Under the above facts and discussion, we are of considered view that there was no deficiency in service or unfair trade practice on the part of O.Ps, in not issuing NOC, consequently there was no cause of action to file the complaint and the petitioner is not entitled to get any relief as prayed for.
In the result the case fails.
Hence, it is
ORDERED,
that the petition U/s 35 of Consumer Protection Act, 2019 registered as C.C-36/2020 be and the same is dismissed on contest but without any cost.
Let a copy of this order be given to the parties free of cost.
