C.F. CASE No. : CC/09/86
COMPLAINANT : Pran Krishna Ghosh
S/o. Late Ganesh Ch. Ghosh
Vill & P.O. Putia, P.S. Ashokenagar,
Dist. 24 Parganas (North)
OPPOSITE PARTIES/OPs: 1) Mahindra Finance,
Mihindra & Mahindra Financial Services Ltd.,
represented by its Director,
2nd Floor, Sadhana House,
570, P.B. Marg, Worli, Mumbai – 400018
2) Branch Manager
Having its office at 16/1, 2nd Floor, D.L. Roy Road,
Bowbazar, P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
PRESENT : KANAILAL CHAKRABORTY PRESIDENT
: KUMAR MUKHOPADHYAY MEMBER
DATE OF DELIVERY
OF JUDGMENT : 13th July, 2010
: J U D G M E N T :
In brief, the case of the complainant is that he purchased a tractor under the name & style Mahindra Arjun Tractor from the OP having its office at D.L. Roy Road, Krishnagar on 24.10.05 and on the self same date a loan agreement was executed between the complainant and the OP vide agreement No. 373028. It is his further case that from the very outset the vehicle was found defective and the oil consumption was too much as a result of which he could not earn any money from the vehicle. Rather due to this defect he incurred a loss of Rs. 1,40,000/- for repairing the said vehicle at his own cost. Due to this loss he could not pay 2/3 instalments in due time and in the meantime the guarantor who was his father expired on 12.11.05. As it was impossible for the complainant to ply the vehicle, so the OP assured him that if the petitioner surrendered the said vehicle in favour of the Finance Co. the petitioner would not face any liability. So in good faith he surrendered the vehicle to this OP. But the OP without giving him any intimation disposed of the said vehicle at a price of Rs. 270,000/- which was very much low. Moreover, the OP demanded a sum of Rs. 1,98,266/- from this petitioner claiming as due and payable by the petitioner to the OP. This demand is an unlawful one and there is strong deficiency in service on the part of this OP. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
The OP has contested this case by filing a written version, inter alia, stating that this petition of complaint is not maintainable at all. He has denied all the allegations of the complainant also. It is his specific contention that this complainant purchased a vehicle from him after taking a loan and executing a loan agreement on 24.10.05. He initially paid some instalments and subsequently he became a defaulter in payment of instalments. This OP issued notice but the complainant did not pay the instalment amount. Rather on 09.02.08 he voluntarily surrendered the vehicle in his favour by offering a surrender letter, inter alia, stating that he was unable to continue his business anymore and so he surrendered the tractor before the OP and made a proposal to indemnify the dues by selling the same as he was unable to pay the instalments as per provisions of contract. The OP took the opinion of a registered valuer and as per the report of the valuer he sold the tractor at a high price but the same was not sufficient to indemnify the total loss of the company. Hence, as per the terms of the contract the OP placed the matter before the arbitrator and after hearing the arbitrator passed the award with a direction to the petitioner to pay Rs. 1,98,266/- with a 18% interest along with a cost of Rs. 10,000/-. In order to avoid this payment the complainant has filed this case with false allegation. So he has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Is the case maintainable in its present form and nature?
Point No.2: Has the complainant become able to prove his case?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written version along with annexed documents filed by the parties and after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that this complainant purchased a tractor from the OP at his office at Krishnagar on 24.10.05 and on the selfsame date a loan agreement was executed by and between the parties. Copy of the loan agreement is filed by the OP from which it is available that total amount of Rs. 4,58,643/- was the product price which is to be paid by the complainant and the loan amount Rs. 4,00,000/- and the complainant made down payment of Rs. 58,643/-. The total period of repayment of loan 48 months’ instalments. From the petition of complaint as well as the documents filed by the complainant we find that the complainant paid Rs. 1,26,700/- out of loan amount of Rs. 4,00,000/-. In total he had to pay Rs. 5,36,000/- by 16 instalments @ Rs. 33,500/- per instalment, but he failed to pay the instalment amount. So he surrendered the vehicle to this OP on 09.02.08 by issuing a surrender letter. So no question of giving assurance on the part of the OP in surrendering the vehicle in his favour does arise. Besides this the complainant alleges that the vehicle had mechanical defect since inception, as a result of which he failed to ply it and got no earning from it also. But in support of his complaint no report of any expert mechanic is filed by him to substantiate that the vehicle had inherent mechanical defect. Regarding this mechanical defect he sent a letter to the OP on 31.07.07 i.e., about 2 years after purchasing the vehicle. In that letter even he did not ventilate regarding the mechanical defect of the vehicle, rather he prayed for extension of a period of 4 months for arrear dues and to continue paying the next instalments regularly. So this plea of the complainant is not substantiated by any cogent documentary evidence that the vehicle had the inherent defect which gave him trouble and he had to spend Rs. 1,40,000/- for its repairing and incurred a loss also. Besides this there is an Arbitration Clause in the agreement and as per that the OP referred the matter before the arbitrator. At the time of hearing the complainant did not appear before the arbitrator though notice was issued upon him on several times. The OP claimed the amount as per decision of the arbitrator which is binding upon the complainant also. Considering all these we hold that this complainant has miserably failed to establish and prove his case against the OP.
Ld. lawyer for the OP agitates that the case is not maintainable in its present form and nature as there is no consumer relationship between the parties. Rather he submits that the complainant is the borrower and the OP is the creditor. In this connection he has cited a ruling from (2008) 1 WBLR (CPC) 455 where the Hon'ble State Commission has decided that, “In case of hire purchase agreement the disputes cannot be decided in consumer Forum and the matter must be referred to the civil court”. The Hon'ble State Commission has relied on a decision of the Hon'ble National Commission in case of M/S Agarwal Dying Industries Vs. Rajasthan Financial Corporation & Others in which it was decided by the Hon'ble National Commission that “In a relation between the complainant and the OP being that of borrower and creditor complainant cannot be said to be a consumer in respect of loan transactions and cannot maintain complaint before the consumer Forum.” Considering both these decisions we find that these are applicable in the instant case also as from the loan agreement we find it is stated that the complainant is a borrower and the OP is described as a lender. So we have no hesitation to hold that the complainant is not at all a consumer under the OP and at the same time the allegation of deficiency in service cannot be sustained in this case. In result the case fails.
Hence,
Ordered,
That the case, CC/09/86 be and the same is dismissed on contest against the OP without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
