Orissa

Jajapur

CC/19/2015

Sri Nikunja Behari Sahu - Complainant(s)

Versus

Mahendra & Mahendra Financial Services Ltd. - Opp.Party(s)

Pratap Kumar Roy

01 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 1st day of October,2015.

                                        C.C.Case No.19 of 2015

 

Sri Nikunja Behari Sahu,  S/O Sri Bhima charan Sahu

Vill . Purusottamapur, P.O.Kabirpur,

P.S. Jajpur Sadar, Dist.Jajpur.

                                                                                                                             …… ……....Complainant .                                        .                                     (Versus)

1. Mahindra & Mahindra ,Finance services Limited,Plot No.511,Rasulgarh,

    Bhubaneswar.

2. Mahindra & Mahindra  Financial Services  Ltd Panikoili Branch

    At/P.O/P.S/ Panikoili,  Dist. Jajpur.                                                               ……………..Opp.Parties.                                                                                                                                                                                                                                                                                                                                          

                                                                                                                            

For the Complainant:                                 Sri Pratap Kumar Ray, Advocate.

For the Opp.Parties No.1 and 2:               Sri  Biplab Kumar Tripathy, Advocate.                                                                              

                                                                                                 Date of order:   01. 10. 2015.

SHRI  PITABAS  MOHANTY, MEMBER .

                        The petitioner has come with this complain petition alleging unfair trade practice against the O.Ps.

                        The fact as stated by the petitioner in the complain petition shortly are that the petitioner is an unemployed youth and in order to maintain his livelihood obtained a loan from the O.Ps. for purchasing a Bolero plus vehicle bearing Regd. No.oR-02-BV-8307 and has repaid the installment of loan dues regularly since 2012.

                        The petitioner has been  served a demand notice i.e on 01.03.2013 from O.P.no.1 which indicates that an amount of Rs.47,704/-  is outstanding against him. It is pertinent to mention here that in the mean time on dt.20.03.2013 the O.P.no.2 seized the vehicle and after payment of Rs.57,540/- the O.P no.2 released the vehicle.

                        That it is a matter of great regret that the monthly installment of the vehicle was Rs.19,000/- . The petitioner paid the monthly installment regularly. The petitioner lastly paid Rs.19,000/- in the month of December,2012 and  subsequently paid Rs.10,000/- on 02.02.2013 . 

The installment of January-2013 and the installment of February,2013 had not been paid by the petitioner and the installment of March-2013 was to be paid on 25.03.2013  as per repayment schedule . So the outstanding dues up to  the date of seizer of the vehicle was of Rs.28,000/- only. But the O.P demanded  Rs.47,704/- vide letter dt.01.03.2013 and after taking Rs.57,540/-vide money receipt No.918480469 on 20.03.2013  released the vehicle on the same day. That the said amount of Rs.57,540/- was arranged   by the petitioner from different persons as personal loan .

                        Accordingly the petitioner filed the dispute in this Forum which  has been dismissed for default on 03.11.2014 due to absent of the petitioner on the ground the petitioner’s brother suffering from gull bludder problem and admitted into  S.C.B Medical College and subsequently discharged on 02.12.2014. The advocate for complainant received the copy of  dismissal order  on 27.01.2015 and after information the petitioner again filed this dispute on 28.02.2015 with the prayer to direct the O.Ps to pay compensation of Rs.50,000/- towards mental agony and financial loss.

                        After notice the O.Ps appeared through their learned advocate and filed their written version taking the following pleas:

1. The petitioner is not a consumer according to the definition as provided under the C.P.Act.1986.
2. This Fora gets no jurisdiction to adjudicate the present dispute since as per Arbitration dues in the agreement any dispute to this transaction lies at Mumbai.
3. The petitioner is not a consumer since the petitioner has purchased the vehicle for commercial purpose .Accordingly the petitioner is not a consumer as per observation of Hon’ble Supreme Court reported in AIR-1995-SC-1428 (Laxmi Engineering Vrs.PSG)
4. The previous C.C. Case No.59/2013 is dismissed for default at the stage of hearing  on 03.11.2014 . Hence the present complaint is not maintainable in the eye of law being barred by the principle of res judicata .  As such the O.Ps. also admitted that during the pendency of the previous dispute bearing C.C. Case No.59/2013 the complainant had cleared the total 30 nos. of EMIs and now the loan account of the complainant has Zero balance but still a sum of Rs.4,540/-  is outstanding against the complainant as A.F.C.
5. The allegation of the complainant regarding receipt of  Rs.57,540/- on dt.20.03.2013  is for the appreciation of the break up  as given under:

Total EMIs payable by the complainant Rs.47,000/-.

Repossession chargesRs.7500/-

Travelling chargesRs.2,000/-

6. The complainant was defaulter in payment of periodical  installments for which it  can not be treated as on act of deficiency in service in view of the decision of Hon’ble National Commission in case of Shella Kumari Vrs.Tata Engineering-2007 N.C.J-570 wherein it is held that:

“The vehicle repossessed for default can not be construed as deficiency in          service  .”  

Further as per citation of Hon’ble S.C.D.R.C, Odisha Cuttack Bhabani Sankar Acharya Vrs.Goldma   Foods and Feeds limited and others -2007(1) OLR-p-38 wherein it is held that:

“disputes between parties over settlement of accounts is not cognizable under the C.P. Act.”

7. That the present O.Ps. issued a demand notice to the borrower on 07.03.2013 by registered post calling upon him to pay Rs.47,704/- towards up to date installments as on March-2013.
8. In addition to it  was agreed between the parties that in case of delayed payment interest @ 3% per month shall be charged against the defaulted amount.

As such the present dispute is liable to be dismissed with cost as vexatious U/S 26 of C.P .Act 1986 since there is no deficiency in service on the part of the O.Ps.

                        After hearing we have perused the record and along with the documents in detail and inclined to frame the following issues so as to come to our conclusion:

1. Whether the petitioner is a consumer who is entitled to maintain the dispute in this Fora ?
2. Whether this Fora gets jurisdiction to adjudicate the present dispute since as per arbitration clause in the agreement any dispute to this transaction lies at Chennai ?
3. Whether there is deficiency in service / unfair trade practice  on the part of the O.Ps so far as seizure  of the alleged vehicle is concerned ?
4. Whether the petitioner is entitled for the relief as prayed in the complain petition ?

“At the initial stage we make it clear that we are going to decide the dispute as per facts and circumstances of the present dispute as per observation of Hon’ble Supreme Court reported in 2001(2)CPR-108-SC.”

Answer to issue no.1(a)- It is undisputed facts that the petitioner has availed the loan from the O.Ps. for purchasing the above cited vehicle. As against such loan of Rs.4,50,000/- of the petitioner  is paying interest which is covered 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 in view of  the  observation of Hon’ble Supreme Court reported in 1995-2-SCC-150  (Consumer Unit & Trust society Vrs. Chairman and M.D Bank of Borada), II(2000)CPJ-IISC( Vimal Chandra Grover Vrs. Bank of India) . As regards second complaint it is maintainable as per observation of Hon’ble national Commission reported in 2015 (2)CLT-p-325 R.P No.4850/2013 M/S ABEE Associates Vrs Paradise Heights Chs Ltd & othrs, wherein it is held that :

“Dismissed in default-second complaint-same cause of action –There is no bar provided in the Act or the rules framed there under for filing the second complaint after dismissal of complaint in default-provided it is within limitation and is not barred by the principal or res judicata.”

b. As regards commercial  purpose as raised by O.Ps. the same is also not sustainable in the eye of law as per observation of Hon’ble Supreme Court reported in –2009(4)-113-SC( Madan Kumar Singh Vrs. Dist. Magistrate   & Others) since the petitioner vide para-2 of the complain petition has stated that  he has purchased the vehicle to maintain her livelihood.

Answer to issue no.2- The stand taken by O.Ps vide para-2 of the written version that owing to Arbitration Clause in the agreement this For a gets no jurisdiction to entertain the present dispute  is also judiciously  not sustainable as per observation of Hon’ble Supreme court reported in 2004-CTJ-1-S.C- ( Secretary Thirumurugan co-operative Agriculture society- Vrs. M.Lalitha, wherein it is held that

“ arbitration clause is no bar for entertaining the dispute by the Fora. Accordingly  this Fora  has no hesitation to decide the present dispute .”

Answer to issue No.3 and 4 – These  are the vital issues wherein we have to verify whether there is any deficiency in service on the part of the O.Ps. and if so whether the petitioner is entitled  for  the relief  as prayed in his complain petition.

1.It is alleged by the petitioner that as per statement of account when the defaulted amount shown Rs.28,000/- till dt.01.03.2013. The O.Ps. issued demand notice indicating  that total outstanding including penal interest is Rs.47,704/- including Rs.19,000/- towards the installment of March,2013 to be paid  on 25^th March,2013. On the other hand the O.Ps. seized the vehicle before the due date i.e on 20.03.2013 and released  the vehicle on the same day after taking Rs.57,540/-  ( as EMIs 47,000/- A.F.C-1040/-,repossession charges.7500/-,travelling expenses ,2,000/-) vide money receipt no.918480469 dt.20.03.2013 which amounts to illegal trade practice.

                        In this context after perusal of the observation of Hon’ble supreme court reported in 2006-CTJ-209-SC(M.D Orix Auto Vrs. Joginder Singh) we are inclined to hold that though the O.Ps are empowered as per term and condition of the agreement to seize and sale the financed vehicle in case of default of monthly installments towards the loan but such seizure and sale must be as per law in view of the  observation of Hon’ble Supreme Court reported in 2007(36) OCRCSC-815(Manager ICICI Bank Ltd, Vrs .prakash Kaur & Otrs) In this context we make it clear no where the hypothecation agreement of the alleged vehicle empowers the O.Ps. to take such action  violating the  guide line of Hon’ble Supreme Court ,National Commission and State Commission Delhi reported in 2012 (2) CLT-72 Sc,2007(3)-CPR-191,2005-CTJ-522 respectively   ( Citi crop Maruti Finance Ltd  Vrs. S.Vijay Laxmi) wherein it is held that

                        “ seizuring of the vehicle must be through court .”

                        Accordingly we are inclined to hold that the O.ps seized the vehicle on 20.03.13 and released the vehicle on the same day after taking Rs.57,540/- towards  Rs.28,000/- as defaulted EMIs on such date and Rs.19,000/-  as  EMI which is dued on 25.03.2013 and Rs.10,540/- (other charges) as specified above. On the other hand we observed from the written version that the O.Ps have  admitted that the petitioner has already cleared up the EMIs in stipulated time and sum of Rs.4,540/- as A.F.C is outstanding  against the petitioner .And the A.F.C charge @ 3% per month shall be charged if the borrower makes any default in payment of periodical installments on such due date .In such situation we are in the view that if the O.Ps empowered to charge A.F.C . But  if the borrower makes any payment of periodical installments in due date as per agreement in which way the O.Ps are demanding periodical installment before the due date and subsequently repossess the vehicle before due date without any repossession notice and released the vehicle on the same day after taking defaulted amount along with future EMIs and repo charges + A.F.C + Travelling expenses.

                        In view of the above observation from our side it is cristal clear that the O.Ps have committed patent deficiency in service as well as unfair trade practice by demanding future installment and repossessing the vehicle and released the vehicle on the same day after taking more than demand amount  without following  the proper procedure of law, for which the law consiclusively in the complainant’s favour and consequently the dispute must succeed and hereby allowed against the O.Ps.

O R D E R

                        In the result the dispute is allowed against the O.Ps and  the O.Ps. are directed to pay compensation of Rs. 20,000/- (twenty thousand )to the petitioner  within one month after receipt of the order , failing which the O.Ps. shall  liable to pay 12% interest on the awarded amount from the date of filing the present dispute till its realization. No cost..                

                        This order is pronounced in the open Forum on this the 1st day of October ,2015. under my hand and seal of the Forum.                                                                                          

                  

 

 

(Shri Biraja Prasad Kar )                                                                   (Shri Pitabas Mohanty)                                                         

            President.                                                                                              Member.                                                                      

                                                                                             Typed to my dictation & corrected by me                                                                                                                                                           

 

 

 (Miss Smita Ray)                                                                             (Shri Pitabas Mohanty)                                                         

         Member.                                                                                               Member.