West Bengal

Paschim Midnapore

CC/116/2011

Ataur Rahaman Khan - Complainant(s)

Versus

Magma Fincorp Ltd - Opp.Party(s)

31 Jan 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

Complaint case No. 116/2011                                              Date of disposal: 31/01/2012

BEFORE : THE HON’BLE PRESIDENT :  Mr. P. K. Sarkar.

                                                     MEMBER :  Mr. G. B. Bandyopadhyay.                                                                         

                                                     

For the Complainant/Petitioner/Plaintiff: Mrs. K. Chatterjee.

For the Defendant/O.P.S.                          : Mr. S. Guin.

      Ataur Rahaman Khan, S/o-Sadiruddin Khan, Vill-Murakata P.O.-Maheshpur, P.S.-

      Chandrakona, Dist Paschim Medinipur………….Complainants.

                                                              Vs.

1. Magma Fincorp Ltd., at OT Road, Inda, P.O. & P.S.-Kharagpur,  Dist-Paschim Medinipur
2. The Manager, Magma Fincorp Ltd., 24, Park Street, Kolkata-700016;….……Ops.

                    The complainant’s case, in brief, is as follows

                 The  complainant purchased  the truck registered as WB-33A/4115 after taking a loan of Rs.6,36,000/- from the Op-Financing Company under a hire purchase agreement on condition to repay the loan by 46 installments. Though the complainant paid Rs.1,11,300/- to the Op by paying installments upto 09-07-11, but he failed to pay the subsequent installments due to loss of business and mechanical fault of the vehicle. As such the musclemen of the OP attempted to take custody of the vehicle forcibly from the Midnapur-Chandrokona road on 31-10-11 but could not succeed. As the musclemen of the OP are still threatening to repossess the vehicle in question forcibly, the complainant is unable to ply the vehicle to earn his livelihood. As such the complainant filed the instant complaint praying for issuance of direction upon the Op-financing company not to seize the vehicle in question from the complainant, to pay compensation of Rs.50,000/- for his losses, and for passing order permitting him to pay the arrear dues in easy installments.

                    The Op-Financing Co. contested the case by filing their written objection contending, interalia, that the relation between the borrower and the Ops. being that of a debtor and a creditor, there is no scope for adjudication of the disputes between the parties by this

Contd………….P/2

 

- ( 2 ) -

forum; that, as per  agreement entered by the complainant, the complainant was to repay the loan of Rs.6,36,000/- with interest in 46 monthly installments, but due to non-payment of the installments the Op-financing co. is entitled to take possession of the vehicle  which was hypothecated to the OP to secure repayment of the loan; and the there is an outstanding dues of Rs.1,97,315/- payable by the complainant towards the loan; and that the complainant filed the complaint on frivolous grounds suppressing the material facts. Accordingly, the Op-financing Co. sought for dismissal of the complaint filed by the complainant.

       The points for decisions are :

1. Whether the complainant is consumer within the meaning of the section   2 (i) (d) (ii) of the C.P. Act, 1986 ?
2. Whether the Ops. are deficient in service within  the meaning of section 2 (1)(g) read with section 2(1)(0) of the C. P. Act, 1986 ?  
3. Whether the complainants is entitled to get the reliefs as sought for ? 

Decisions with reasons :  

           Point No. 1.

 Admittedly the  complainant purchased  the truck registered as WB-33A/4115 after taking a loan of Rs.6,36,000/- from the Op-Financing Company under a hire purchase agreement on condition to repay the loan by 46 installments, and as the complainant failed to pay the some installments due to loss of business and mechanical fault of the vehicle, the musclemen of the OP attempted to take custody of the vehicle forcibly from the Midnapur-Chandrokona road on 31-10-11 but could not succeed; and that the musclemen of the OP are still threatening to repossess the vehicle in question forcibly, and as such the complainant is unable to ply the vehicle to earn his livelihood;              

              It has been contended on behalf of the Ops. that the relationship between the borrower and the Ops. was that of a debtor and a creditor and the Ops. having not agreed  to render any services to the borrower, the complainants cannot be said to the consumers as defined in the C.P.Act, 1986.   But in view of the decisions reported in 2005(2) CPR-55(NC) and 2009(2) CPR, 238(NC) the instant complaint against the Op-financing Company is very much maintainable before this Forum in view of the provisions of section 2(1) (d) (ii) of the C.P.Act, 1986 read with sections 2(1)(g) and 2(1)(o) of the Act. It may also be noted that the Hon’ble NCDRC took similar view in the case reported in 2009 CTJ, p 992 HDFC Bank Ltd. Vs. Balwinder Singh.

Point Nos.2 & 3.

              Admittedly the complainant purchased  the truck registered as WB-33A/4115 after

Contd………….P/3

 

- ( 3 ) -

taking a loan of Rs.6,36,000/- from the Op-Financing Company and he paid Rs.1,11,300/- only to the Op by paying installments upto 09-07-11, but failed to pay the subsequent installments towards the loan , due to loss of business and mechanical fault of the vehicle. The statement of account dt.22-11-11 submitted by the Op-financing co. disclosed that the complainant paid Rs.1,38,400/- only out of Rs.2,19,000/- payable by him till the month of November 2011. So the Op-financing co. was/is at liberty to initiate appropriate proceeding to realize the outstanding dues payable by the complainant towards the loan taken by him, but they can not take possession of the vehicle in question forcibly as alleged, in exercise of their purported right under the loan agreement entered by the complainant, in view of the principle laid down by the Hon’ble Supreme court in the decisions reported in AIR, 1996, S.C.C.1178, (2006)2 S.C. 598, and (2007)2 S.C.C., 711 and  by the Hon’ble National commission in  its decision in Citi Crop Maruti Finance Ltd. reported in 111(2007)CPJ1-61(NC) as well as in the decisions reported in 2009 CPR 205(NC),2005(2) CPR326, 2009(2) CPR238(NC), 2009 CTJ(CP), Page-992 and 2010(4) CPR 193 (NC).  Since the complainant specifically asserted that the musclemen of the OP attempted to take custody of the vehicle in question forcibly from the Midnapur-Chandrokona road on 31-10-11 but could not succeed; and that, as the musclemen of the OP are still threatening to repossess the vehicle in question forcibly, the complainant is unable to ply the vehicle to earn his livelihood, so we propose to dispose of the complaint with direction upon the Op-financing co. not to take possession of the vehicle in question  without taking recourse of law.

                                Hence,

                                              Ordered,

                                                             that the complaint be disposed with direction upon the Op-financing co. not to take possession of the truck of the complainant registered as WB-33A/4115, without taking recourse of law. The parties do bear their respective costs.

               The case is, thus, disposed of.       

               Let the copies of the judgement be supplied to the parties free of cost.           

Dic. & Corrected by me.

                                                                    I agree.                          

              

         President                                           Member                                  President

                                                                                                              District Forum

                                                                                                          Paschim Medinipur.