Orissa

Kendujhar

53/2010

Mataram Munda - Complainant(s)

Versus

Magma Srachi Finance Ltd. - Opp.Party(s)

Sri B.P. Mishra

16 Jan 2012

ORDER

IN THE COURT OF THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KEONJHAR

C.C. Case No.53/2010

Mataram Munda, 57 years,

S/o: Late Mangal Munda,

Vill./P.O: Kainta, P.S: Champua,

Dist: Keonjhar                                                . . .            Complainant

                    Vrs.

Magma Srachi Finance Ltd.

Represented by its Branch Manager, Keonjhar Branch,     

At: Sirajuddin Chhak,

P.O: Keonjhar garh, P.S: Town,

Dist: Keonjhar                                                . . .            Opp. Party

Advocate for the Complainant: Sri B.P. Mishra                                    

Advocate for the O.P: Sri A.K. Pattnaik & Associates

Present: Sri G.N. Jena, President

       And Smt. Bijayalaxmi Giri, Member

_________________________________________________________________________________________

Date of Hearing: 13.12.2011                                    Date of Order: 16.01.2012

___________________________________________________________________________________ _____ 

Sri G.N. Jena, President: The brief facts of the case are that the complainant to supplement the livelihood and requirements of his large family and accepting the offer of OPs Finance Company proposed to purchase a Tipper on hire purchase basis. The Ops Company agreed to finance Rs.8,30,000/- which is repayable on 47 monthly installments @ Rs.24,800/- each per month. The complainant made down payment of Rs.3,01,317/- and after payment of total consideration about of Rs.11,31,317/- the Tipper was purchased from the authorized dealer Samal Auto India, Keonjhar. Then the complainant spent about 2 lakhs for other accessories and registration and insurance to make it roadworthy. Then the vehicle was regd. at local registering authority and registration no. of the vehicle is OR-09K-7135. It is alleged by the complainant that after that while the complainant was paying the monthly installments regularly without any reasons and with the help of some antisocial at the behest of Ops finance company (demanding to be recovery agent of the company) forcibly took away the vehicle while it was standing in front of his house on 9.6.10, seized the vehicle, then on approach to the O.P he refused to release the vehicle and demanded total financed amount for its release, which was kept at Mitrabhanu Stockyard, Bhadrasahi, Barbil, The demand being excessive, unjust and illegal, the complainant refused to pay the same. This action of O.P is unfair trade practice and deficiency in service and has caused mental agony and financial loss to the complainant. So this complaint is filed for compensation for Rs.99,000/- against the O.P who are liable to pay the same to the complainant and release of the vehicle. To prove facts the complainant filed the payment receipts, registration certificate and certain letter of O.Ps company.

    Along with the complaint petition a separate petition was filed for a direction to release the vehicle OR-09K-7135 by the complainant and after hearing and perusal of documents direction was made to the O.P to release the said vehicle to the complainant on receipt of Rs.50,000/-

    After service of notice the O.P filed written version and in version challenged the maintainability of the petition on the reasons that there is existence of Arbitration clause in the agreement of the parties and the dispute be decided through Arbitration proceeding and further alleged that the complainant suppressed the real facts and prayed to drop the proceeding and also challenged the interim order passed by this forum.

    Heard the learned counsel of the respective parties and perused the case record and material available.

    The admitted facts are that the complainant is the owner of the Tipper (vehicle) OR-09K-7135. To purchase Tipper on a consideration of Rs.11,31,317/- the O.P provided finance of Rs.8,30,000/-. The finance amount of Rs.8,30,000/- is repayable for 47 monthly installments @ Rs.24,800/- per month and the vehicle was repossessed by the O.P on dt.9.6.10 and subsequently released the same on receipt of Rs.50,000/- from the complainant on 23.9.10 and again took away the vehicle and O.P claimed to have sold the vehicle to another man for a total consideration of Rs.5,32,000/-.

   On the above facts, the points for consideration are that:

1. Whether the petition is maintainable
2. Whether the action of the O.P for repossession and sale of the vehicle are proper
3. Whether the O.P is deficient in rendering proper service to the complainant, if so, whether the complainant is entitled for compensation from the O.P and what will be the actual quantum under the circumstances.

    Regarding maintainability of the petition, the learned counsel for the complainant submitted that, even if there is an arbitration clause in the agreement, there is no bar to decide the dispute of such a nature by the consumer forum, and relied on case law reported in (2004) 7CLD 268 (SC), Secy, Thirumurugan Co-operative Agricultural Credit Society Vrs M. Lalitha. The Hon’ble Appex Court in this case observed that “we are of the considered view that it would be appropriate that these forum created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceeding pursuant to a contract entered in to between the parties”. And further also relied on the case reported in 2006 (1) CPR 55 (C) M/S Shriram Transport finance Co. Ltd. Vrs Surakha Khanoji Khemnar. The Hon’ble National Commission of the view that “If a Financer by using Muscle power takes away the vehicle and does not want to return it even on deposit of claimed unpaid amount it would just mean exploitation of the poor consumer an interim direction of consumer forum to return the vehicle is just and equitable.”

     The view taken in the above case laws are that even there is an arbitration clause in the contract the dispute of this nature can be decided in the consumer forum and this forum under the circumstances decide the dispute and pass interim order. In agreement with views taken we are of the opinion that the petition is maintainable and interim order passed is just and proper.

   The complainant alleged that without his knowledge and consent the vehicle was forcibly taken by the O.P and the Complaint petition supported with affidavit. The O.P has remained silent and neither deny such fact either in version or any other evidence. So there is no occasion to disbelieve such a fact that the O.P without the knowledge of the complainant took away the vehicle of the complainant.

     The O.P claimed to have sold the vehicle to another man and filed memorandum of sale. On bare perusal of the so called document it will be evident that it is not only properly made because of the fact that there is no signature of the purchaser of the stamp and there is no signature of the seller or the proposed purchaser somebody else has put his signature on his behalf. Under these circumstances it can’t be accepted that the vehicle was actually sold, further before this valuation of the vehicle was not taken from a competent valuation officer and the O.P even did not care to inform and take necessary orders from this forum before such alleged sale when the matter is subjudice in this forum. It is observed that the amount of such a sale is grossly low. On these fact we have come to the conclusion that the memorandum of sale as filed by the O.P is not a proper document but only made to deceive the complainant and also to this forum.

  The learned counsel for the complainant further submitted that the financer should resort to the procedure required by law and also cannot take possession of the security/ vehicle without intervention of the civil court, on default in payment of installments, and cannot resort to strong arm tactice with help of muscleman which constitute deficiency in service. To support the contention relied on the case laws reported in 2009 (3) CPR 201, HDFC Bank Ltd. Vrs Balwinder Singh, 2009 (3) CPR 205 (NC) M/S Capital Trust Ltd. Vrs. Sanjay Dutt and another and 2007 (3) 36 OCR (SC) 815, Manager ICICI, Bank Ltd. Vrs. Prakash Kaur and others.                     

     The views taken in these case-laws by the Hon’ble Apex Court and the Hon’ble National Commission are that the Financer cannot resort to strong arm tactice with the help of muscleman to take possession even if the borrower may have committed default in payment.

   In the present case it reveals from the records that not only the financer took away the vehicle of the complainant, even in spite of this forum’s order but also tried to avoid the release of the vehicle with some pretext or other and after about 2 months released the vehicle. All these facts that taking away the vehicle without the knowledge of the complainant and releasing the vehicle after a long  delay and subsequent repossession without intimation or seeking any permission from the court or knowledge of the complainant and claiming to have sold the vehicle without proper valuation and procedure and will go to show that the O.P is oppressive from the beginning and all these tantamount to arrogance and carelessness. We are of the opinion that these action of the O.P is unjust and illegal and the O.P is deficient in rendering proper service to the complainant. This unjust and illegal act of the O.P obviously would have caused mental agony and heavy financial loss to the complainant as the vehicle was purchased to meet family needs and livelihood. But it is difficult to calculate the actual financial loss and there is no evidence led or available on records. Even on the statement of account submitted in this forum by the O.P, the debit amount and receipt amount are same till 28.2.11 and which goes to show that just before the so called sale the O.P received payment from the complainant and the O.P charges some unjust overdue/ late payment, and further it shows that the O.P charged Rs.5,967/- as other charges and Rs.1000/- as contingency deposit with other unnecessary exaggerated amount.   

    It is evident from the statement of account that the complainant has already paid Rs.8,61,567/- and as down payment Rs.3,01,317.00 in total Rs.11,62,884/- and spent about 2 lakhs for other accessories, registration and insurance of the vehicle.

      So under the above circumstances, we are inclined to allow the petition and directed the O.P to return the vehicle of the complainant bearing No. OR-09K-7135 to the complainant and to pay a consolidated a sum of amount of Rs.10,000/- (Rupees Ten thousands) only as compensation for mental agony and financial loss and costs of litigation within 30 days of receipt of this order. In case it will not be possible to return the vehicle then to pay the costs of the vehicle of the complainant i.e. Rs.11,31,317.00 (Rupees Eleven lakhs thirty one thousand three hundred seventeen) only and the compensation amount within that period, failing the entire amount will carry 10% interest per annum till final payment.

                       Accordingly the case is disposed of.

                                                                                                            I agree

                                                                                                       (Mrs. B. Giri)                                                                           (Sri G.N. Jena)

                                                                                                           Member                                                                                    President

                                                                                                    DCDRF, Keonjhar                                                                   DCDRF, Keonjhar

 

                                                                                                                                                                    Dictated & Corrected by me

                                                                                                                                                                                     Sri G.N. Jena

                                                                                                                                                                                      (President)

                                                                                                                                                                                 DCDRF, Keonjhar

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, ODISHA, CUTTACK

REVISION PETITION NO. 71 OF 2013

(From an Order dated 18.6.2013 passed by the District Consumer Disputes Redressal Forum, Kendujhar in Execution Case no. 10 of 2012 arising out of C.C.  No. 53 of 2010)

Mataram Munda, Aged about 59 years,

S/o: Late Mangal Munda,

Vill./P.O: Kainta, P.S: Champua,

Dist: Keonjhar                                               

                                                                             . . .         Petitioner

                                        Vrs.

Magma Srachi Finance Ltd.

Represented by its Branch Manager,

Keonjhar Branch,    

At: Sirajuddin Chhak,

P.O: Keonjhar garh, P.S: Town,

Dist: Keonjhar                                                

                                                                              . . .        Opposite Party

  For the Petitioner: M/s. R.K. Pattnaik & Associates

  For the Opp. Party: M/s. N.K. Dash & Associates

P R E S E N T:

                    The Honorable Shri Justice R.N. Biswal, President,

                                          Shri G.P. Sahoo, Member

                                                          And

                                          Smt. Smarita Mohanty, Member

Dated The 30^th November, 2015

O R D E R

Justice R.N. Biswal, President

       This  revision is against the order dated 18.6.2013 passed by the District Forum, Keonjhar in Execution Case no. 10 of 2012 arising out of C.C no. 53 of 2010.

        The facts giving to filing of this revision stated in brief is that the petitioner filed C.C no. 53 of 2010 before the District Forum, Keonjhar and it was disposed of on 16.1.2012, the ordering portion of which reads as follows: -

         “So under the above circumstances, we are inclined to allow the petition and directed the OP to return the vehicle of the complainant bearing no. OR-09K-7135 to the complainant and to pay a consolidated a sum of amount of Rs.10,000/- (Rupees Ten Thousand) only as compensation for mental agony and financial loss and costs of litigation within 30 days of receipt of this order. In case it will not be possible to return the vehicle then to pay the costs of the vehicle of the complainant i.e. Rs.11,31,317/- (Rupees eleven lakh thirty one thousand three hundred seventeen) only and the compensation amount within that period failing the entire amount will carry 10% interest per annum till final payment.”   

        Being dissatisfied with the order, the opposite party preferred First Appeal No. 336/2012 before this Commission along with a petition to condone the delay in preferring the appeal. As the petition for condonation of delay was rejected on 14.8.2012, consequently, First Appeal no. 336 of 2012 was also dismissed on the same date.

       Being aggrieved with the said order, the opposite party herein preferred Revision petition no.4180 of 2012 before the Hon’ble National Commission, New Delhi which was dismissed on 7.1.2013. The petitioner filed Execution Case no. 10 of 2012 before the District Forum on 30.5.2012 for execution of the order dated 16.1.2012 passed in C.C no. 53 of 2010. It is found from the order sheet of the Execution Case that on 14.12.2012, the counsel for judgment debtor (present opposite party) deposited a sum of Rs.150/- towards cost. He also filed a petition to execute the alternative order passed in Consumer Complaint. On 1.3.2013, learned counsel for the judgment debtor (opposite party) handed over a Bank Draft of Rs.11,121/- towards compliance of the order passed in C.C. no. 53 of 2010 in part.

    Learned counsel for the judgment debtor (opposite party) further filed a memo stating that the vehicle in question would be delivered at the earliest. On 4.4.2013, the judgment debtor produced the vehicle before the District Forum, but the decree holder was not there and order was passed to issue notice to the decree holder (petitioner) to take possession of the vehicle bearing Registration no. OR-09K-7135 along with Demand Draft towards compensation from the District Forum. The judgment debtor was directed to keep the vehicle in his custody and to produce it before the District Forum on the next date fixed for giving possession to the decree holder. Learned counsel for the decree holder filed a petition on the next date i.e. 2.5.2013 with prayer to direct the judgment debtor to pay Rs.11,41,317/- with interest as per the alternative direction passed in the Consumer Complaint on the ground that the judgment debtor intentionally keep the matter pending and did not comply the first part of the order within the stipulated time and in the meantime, the vehicle was got damaged and a huge amount is required to get it repaired.

      After hearing the learned counsel for the parties in the Execution Case filed by the decree holder to execute the alternative order passed in C.C. no. 53 of 2010, the District Forum held that the first part of the said order was direction to the judgment debtor to return the vehicle with compensation within 30 days and if it would not be possible to pay the cost of the vehicle with compensation within that period or else the entire amount will carry 10% interest per annum. When the judgment debtor is ready to comply the first part of the order, without receiving the vehicle and the Bank Draft an alternative relief cannot be granted. Accordingly the District Forum rejected the petition to execute the second part of the order passed in C.C. no. 53 of 2010 and directed the decree holder to receive the vehicle from the custody of the judgment debtor within 7 days of receipt of the order with compensation amount of Rs.11,121/- in cash which include interest till depositing the Bank Draft before the District Forum. The judgment debtor was also directed to handover the vehicle to the decree holder on his demand with compensation amount in cash and take back the Bank Draft from the District Forum. It was further ordered that in case the decree holder failed or avoided to receive the vehicle within 7 days of receipt of the present order by any pretext, then the vehicle shall be kept in the custody of judgment debtor and the decree holder will be liable for charges for the purpose till receipt of the vehicle and in that case the judgment debtor will not be responsible for any depreciation or damage of the vehicle. Accordingly, the Execution Case was dropped.

     Being aggrieved with the said order, the decree holder has preferred the present revision as stated earlier.

     Learned counsel for the petitioner submits that the order dated 18.6.2013 passed in the Execution Case by the District Forum is opposed to the spirit of the Consumer Protection Act inasmuch as before the decree was satisfied the Execution proceeding was dropped. He further submits that the order of the learned District Forum i.e., 16.1.2012 passed in C.C. no. 53 of 2010 was that the opposite party shall handover the vehicle within 30 days of receipt of the order. But he did not handover the vehicle within the stipulated time nor paid the amount of Rs.11,120/-. In that way he violated the order passed by the District Forum. After passage of more than one year and three months, the opposite party produced the vehicle before the District Forum with compensation amount by which time the vehicle had already been damaged. So the District Forum ought to have directed the opposite party to pay an amount of Rs.11,31,370/- and should not have dropped the Execution Proceeding.

     Learned counsel for the opposite party, on the other hand contends that the order passed in Consumer Complaint consists of two parts. It was ordered that the opposite party shall deliver possession of the vehicle with compensation of Rs.10,000/- within 30 days and if it is not possible to pay him Rs.11,31,317/- with compensation of Rs.11,121/-.

The opposite party deposited a Bank Draft of Rs. 11,121/- towards compensation and also produced the vehicle in running condition before the District Forum, but the petitioner refused to accept the same. The order was not complied within the time fixed, in the Consumer Complainant as the opposite party preferred appeal against the said order and as the appeal was dismissed on the ground of limitation, he preferred Revision Petition before the Hon’ble National Commission. So when the first order is complied with by the opposite party by producing the vehicle and depositing the Bank Draft and the petitioner did not accept the same, there was no alternative on the part of the District Forum other than to pass the impugned order.

     As the order passed by the District Forum was not complied with within 30 days from the date of order as directed, Execution Proceeding was initiated by the petitioner to execute the said order. If it had been complied with within the period fixed then there was no question of filing any execution proceeding. No doubt there was some delay in producing the vehicle before the District Forum in the execution proceeding, but for that the opposite party cannot be punished because he has statutory right to prefer appeal against the order of the District Forum before the State Commission and has also right to challenge the order passed by this Commission before the Hon’ble National Commission and it cannot be said that the opposite party delayed the matter in complying with the order of the District Forum with an ulterior motive.

     When the opposite party produced the vehicle before the District Forum in running condition and deposited a Bank Draft of Rs.11,121/- towards compensation and interest and the petitioner refused to accept the vehicle and draft, the District Forum directed the petitioner to receive the same from the custody of the opposite party within 7 days of receipt of the order with compensation and interest of Rs.11,121/- in cash and the opposite party was directed to deliver the vehicle and make payment of the cash to him. It was further ordered that in case, the petitioner fails to receive the vehicle within the time fixed, then the vehicle would be kept in the custody of opposite party and the petitioner shall be liable for charges for the purpose, till receipt of the vehicle and the opposite party shall not be held responsible for any depreciation/ damage to the vehicle. In view of this order, there remains nothing to be executed. Of course in our view the District Forum should not have ordered that the petitioner would be liable to pay charge to the opposite party for keeping the vehicle in custody. Accordingly, it deserves to be set aside.

     Under such premises, the revision petition stands dismissed with modification of the impugned order to the extent that the petitioner shall not be liable to pay any charge for keeping the vehicle in the custody of the opposite party. The opposite party is directed to deliver the vehicle within one month of receipt of this order. They are also directed to pay Rs.11,121/- towards compensation and interest as ordered by the District Forum. The petitioner shall approach the opposite party for receiving the vehicle and cash within the aforementioned period of one month.                      

           Records received from the District Forum be sent back forthwith.

                    Sd/-                                                                                                         Sd/-                                                                                                          Sd/-    

(Smt. Smarita Mohanty)                                                                          (Shri G.P. Sahoo)                                                                                (Justice R.N. Biswal)

              Member                                                                                                 Member                                                                                                    President