Orissa

Jajapur

CC/27/2016

Saruot Nanehal. - Complainant(s)

Versus

Magma Fincorp Ltd. - Opp.Party(s)

Jyoti Patnaik & Associates

16 Jul 2018

ORDER

IN  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3. Miss Smita  Ray, Lady Member.                      

                                             Dated the 16th day of  July,2018.

                                                      C.C.Case No.27 of 2016

Sarat Nanehal, W/O SK. Abdul    

At/P.O. Bari-Binjharpur   P.S.Binjharpur    

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

                                                  (Versus)

 

1.Magma Fin.Crop Ltd, Having its Regd. office,At.Magma House,24-

   Park street, Kolkata ,West Bengal .  

      

2. Branch Manager,Jajpur branch,At. Babulal sherma complex, Nakua Road

     Jajpur Road, Dt. Jajpur.

3. Regional Transport officer, Chandikhole, At. Chandkhole, P.O. Sunguda

    Dist .Jajpur  .                                                                                                  ……………..Opp.Parties.                                                                                                                                            

                                                                                                                               

For the Complainant:                                  Sri J. Patnaik, Sri R. K. Sahu, Advocates.

For the Opp.Parties : No.1                          Sri D.N.Nath, Advocate

For the Opp.Parties No.1 & 2                     A. K.  Pahil, Advocate. 

For the Opp.Parties No.:3                          None.          

                                                                                                        Date of order:   16 .07.2018.

SHRI  JIBAN BALLAV DAS, PRESIDENT   .     

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

            The facts relevant as per complaint petitioner shortly are  that the petitioner availed financial assistance from the O.Ps  to the tune of Rs.16,32,000/- only and purchased one TATA LPT 3118TC  Truck bearing Regd No.OR-04L-0386 to maintain her livelihood.  The petitioner also executed Loan Agreement with the O.Ps financer bearing  No. HO/G/0163/09/000019, on 31.05.2010 and became liable to repay the sum of Rs.23,91,524/- only in 58 monthly installments commencing from 01.07.10 till expiry of contract tenure on 01.04.2015 . It is further stated that as the contract value was of Rs. 23,91,524/ only, the sum of rs.24,84,024/- only has been paid by her by 08.09.2015 thereby making excess payment of Rs.92,500/- only over and above the contract value as would be evident from the statement of Account (SOA) dt. 19.10.15. The petitioner however claimed no objection certificate (NOC) from the O.P -financer against the vehicle, which was not granted on the ground that there is remaining  substantial amount towards outstanding in the loan account. In order to settle the account for all times , the petitioner in her representation , dt.12.11.15 requested the o.p.no.2 for settlement of her loan account under OTS scheme and to grant NOC in her favour, which  though has been  received  but to no response. On the contrary the O.Ps- financer gave threating  to repossess the vehicle . Finding no other alternative, the petitioner has knocked the door of this Fora for Redressal of her grievance  and for issuance of direction to the O.P financer to pay compensation and litigation expenses amounting to Rs.1,00,000/-.

            After notice the O.P. No.3 did not chose to contest the dispute hence, he has been set     ex-party vide order dt. 01.03.17 the O.Ps  enter into appearance through their learned   advocate and filed the written version taking the  following stands :

That the complainant  is not a consumer within the meaning of the consumer as defined under section -2(I)d(i) & (ii) of C.P.Act 1986.

The petitioner using the vehicle only for commercial purpose for which it is  liable to be dismissed . The relationship of the parties is borrower and lender  for which the dispute is essentially a Civil dispute not a consumer dispute . So as to mention under the Arbitration Award dt.24.08.12 having been passed the borrower as per terms of the  agreement . The consumer complaint filed by the petitioner is misconceived  and as the Forum has no jurisdiction to decide the complaint  as Arbitration Award has already been passed against the complaint .Hence the Forum may be pleased to pass necessary order applying the provision of the CPC on preliminary issue  and dismiss the complaint against the O.Ps with cost . The O.ps also relied upon  the  citations :

1.2006 (3) CPR 339-N.C( The Installment Supply Ltd  Vrs.  Kangra Ex- serviceman  Transport co and others)

2.Civil  Appeal no 1650/2018  (Supreme Court  Sundaram  Finance Ltd Vrs Abdul Samad  and another )

3.R.P.No.1552/2011  ( M/S  Magma  Fincrop  Ltd  Vrs SH Subhankar Singh)

                        On the date of hearing we heard the argument from the  learned counsel of both the parties.             After perusal of the record and documents in   details the following issues are framed :

Whether the petitioner is a consumer on the point of commercial purpose ?  who is entitled to maintain the dispute before this Fora .whether this Fora  gets jurisdiction to adjudicate the dispute as per Arbitration clause ? Whether there is any  deficiency of service on the part of the o.ps ,  if so whether the petitioner is entitled for any relief ?

At the initial stage we make it clear that we are going to decide the dispute on the   facts  and circumstance of the present  dispute  as per observation of Hon’ble Supreme court  reported in 2001(2)CPR-108-S.C.

            It is un disputed fact that the complainant has availed the  loan from the O.Ps. As against such loan the petitioner  is paying interest which is consideration and  in the expression of service and the interest so paid by  the petitioner  in repayment of loan is consideration .As such the petitioner  is a consumer as per observation of Hon’ble Supreme court reported in 1995(2)SCC-150-S.C(Consumer unit and Trust society Vrs. Chairman M.D Bank of Boroda)  (2000)CPJ-115- Vimal ch. Grover Vrs. Bank of India)

            The next point  taken by the O.P and the written version regarding commercial  purpose . In this point it is our considered view  that the petitioner  mentioned in his complaint petition  he had purchase a vehicle to maintain her  livelihood.  So undoubtedly the petitioner is a consumer as per C..P.Act .

 The view taken by the O.ps that as per agreement the dispute shall be adjudicated by the Arbitrator but not in this Fora. The arbitrator award passed before filing of the present dispute . Hence this dispute  is not maintainable  before this fora,   which is also not sustainable  in view of Hon’bel Supreme court  reported in 2004- CTJ(1)  (Secretary, Co-operative Agriculture  Society  Thirunugam Vrs. M.lalitha)  wherein it is held that:

“Arbitration Clause is no bar for entertaining the dispute  by the  Consumer fora “.

            More over the petitioner also has  filed a citation of Hon’ble supreme court vide civil appeal No (S) 1991/2012 as well as  Hon’ble High of odisha   ARBP  No. 49/2009 wherein it is that :

“As the cause of action had taken place here  and  entered  into agreement at jajpur district for availing the  loan for the purpose of purchasing  a financed   commercial vehicle conferring jurisdiction by appointing an arbitrator at Mumbai  on the basis of the said clause, is void ab  initio in law . Arbitrator appointed must be a person of the State of Orissa particularly having regard to the cause of action which has taken place in entering into the loan agreement at Cuttack. Therefore , the appointment of arbitrator at Mumbai on basis of the arbitration clause and proceeding held  during pendency of this proceeding, is void ab initio in . The arbitration proceeding and the award passed is a nullity  in the eye of law for the reason that the arbitrator who has  been appointed to conduct the proceedings at Mumbai   when the cause of action took place at Cuttack on the basis the arbitration clause, which  we  have already held void for reason that the arbitration proceedings and award are void in law . Hence  the award is liable to be set aside in view of decision of the Allahabad High Court  in the case of Unive Construction (Supra) relied upon by Mr. Mukherji .Accordingly the award is set aside.” Accordingly in the present dispute the cause of action aries within the district of jajpur. But appointment of Arbitration by the O.ps at Kolkata obtaining exparty award against the petitioner which is nullity in the eye of law.

            However it is further seen that the Arbitration case was  initiated  against the petitioner way back in the year – 2012  when the contract tenure was to expire on   01.04.15 .  It is further revealed  that the O.P  financer have acknowledged the deposits  made by the petitioner during pendency and after passing  of arbitration award and the last receipt  of payment by the petitioner  was on  08.09.15 and the petitioner admittedly  has paid  excess  payment of Rs 92,500/-  .

            It is also a fact  that the Arbitration Award passed on 28.04.12  but the O.Ps  without initiating  any arbitration proceeding and obtaining    any order for repossession and interim measure U/S  17  A & C Act nor the  O.Ps obtained  any order for interim measure from  the court  U/S  9 of A. & C  Act.  But as per record the O.ps have  received the outstanding amount from the petitioner on his sweet will time to time during pendency of arbitration proceeding and after the arbitration award passed in such circumstance this fora has no hesitation to enter  into  the dispute . The petitioner has also alleged that  the O.Ps  received  of Rs 92,500/  over and above  the contract agreement  value .  In this point we relied upon the observation of Hon’ble Supreme  court  2001 AIR -3091 (SC)  and  Hon’ble Orissa High court vide WP© No .   17720/2008  ,where in it is held that :

 The financer can not demand DPC more than 9% .”

In view of the above observation from our side it is crystal clear that the O.Ps have committed gross negligence and patient deficiency of service as well as unfair trade practice by adopting  illegal procedure to recover the loan amount of the above vehicle without following the proper procedure of law  for which the petitioner suffered irreparable loss . Accordingly  the law is conclusively in the petitioner’s favour and consequently the dispute must succeed and hereby allowed.

            Hence this order

            The dispute is allowed against the O.P .no.1 and 2  and dismissed aginat op.3 .The op.1 and 2 are directed to settle  the loan amount  calculating the DPC on the outstanding amount  9% interest on the DPC  and intimate  the petitioner about   the outstanding amount if any within one month after receipt of this   order.

2.The petitioner also directed to clear the outstanding amount if any within 15 days  after  receipt  of the revised  calculation  sheet from the o.ps .

3.The op.1 and 2 also directed to issue  the NOC  in favour  of  the petitioner  bearing  vehicle  No.OR-04-L-0386  within 15 days after receipt of the balance amount if any .No cost.

                     This order is pronounced in the open Forum on this the 16th  day of  July,2018. under my hand and seal of the Forum.