( Passed on dated 27th November, 2015 )
Per Shri Atul D. Alsi – Hon’ble President.
The complainant no. 1 & 2 have purchased the Tractor of Swaraj 724 Tractor bearing its registration No. MH-35/G-2502, Engine No. 38-1333/SHM 2531 & Chasis No. CYPN117050114854 worth Rs.2,80,000/- (Two Lakh Eighty Thousand only). The complainant no. 1 & 2 have deposited Rs.80,000/- (Eighty Thousand) towards the down payment and the said vehicle was hypothecated with the opposite party. The loan agreement came to be executed on 30.06.2007 vide loan agreement no. 651929. The O.P. advance of loan of Rs.2,00,000/- (Two Lakh).
2. The opposite party seized the said vehicle in the month of October 2010 and it was sold without obtaining the consent of the complainants.
3. The O. P. s issued demand notice upon the complainant calling upon them to make payment of Rs.4,46,967/- total.
4. The complainants praying to direct the opposite parties to pay compensation at the from of Rs.2,00,000/- for deficiency in service.
5. After receiving the notice issued by the Forum, the O. Ps. appeared through their counsel and filed their written statement before the forum.
6. In their reply, O. Ps. stated that, as per clause 26 and 27 of the loan agreement, the dispute arising between the parties is to be referred to arbitration only. They further submitted that the complaint filed by the complainant is not maintainable. It is vehemently denied that, the applicant advanced loan of Rs.2,00,000/- (Two Lacks) only. It is submitted that, the complainant had advanced Rs.2,80,000/- (Two Lacks Eighty Thousand).
7. The O. P.s submitted that the amount of installment was agreed as Rs.50,092/- not Rs.50,000/- as averred by complainant and that was too repaid in half yearly installments for 5 years i.e. in 10 installments, not of 3 installments. As the complainant was irregular and defaulter in repayment, and therefore pursuant to the terms and conditions of the agreement, particularly as per clause 12.1 (ii) of the agreement reposed the vehicle and sold the same. Prior to its sell, opportunity was extended to her for clearance of dues, however, since she failed, the vehicle was sold and sell amount is duly adjusted in the account of complainant.
8. In the specific pleading the O. P. submitted that the complainant had availed the finance for purchase of Swaraj Tractor 855. The respondents had granted loan of Rs.2,80,000/- and finance charges of Rs.2,20,920/- vide agreement dated 30.06.2007. The amount was to be repaid in 60 months. The complainant was irregular in making payment of installments. After the sell of vehicle, and after the sell amount is adjustable in the account of the complainant. The complainant was using the vehicle for commercial purpose, which the complainant has suppressed in the complaint. In view of the above submissions the complaint may kindly be dismissed with heavy exemplary cost.
9. The complainant has filed Copy of demand notice issued by O. P. dated 24.11.2012 at page no. 12, Copy of letter issued by O. P. dated 04/12/2012 at page no. 13, Copy of disability certificate of Mr. Rakesh Tiwari at page no. 20 on record.
10. The opposite party has also filed Copy of bill of vehicle at page no. 37, Copy of loan agreement at page no. 38, Copy of record and proceedings maintained by Arbitrator at page no. 46, Copy of notice issued to complainants at page no. 47, Copy of valuation certificate at page no. 65, Copy of statement of account at page no. 67, Copy of settlement working sheet at page no.68 on record.
11. Both the counsel were absent since long for argument. Hence the case is closed for judgment.
12. As per petition and documents filed on record following points came for consideration:-
Sr. No. | Points | Findings |
1. | Whether the complaint is deserve to be allowed? | NO |
2. | What Order? | As per final order. |
REASONING & FINDINGS
13. The Consumer Protection Act, 1986 is a Special Act. Hence the complainant can be filed complaint before forum even though there is an agreement of Arbitration between the parties.
14. The complainant was required to pay Rs.50,092/- half yearly installment for 5 years. But the complainant did not pay the installment regularly. Therefore as per clause 12.1(ii) of the loan agreement after giving notice of arrears of installment the financer has right to repossess the vehicle. The O. P. has intimated for arrears of loan amount and thereafter seized the vehicle & sold it and credited the amount in the account of complainant. Hence there is no deficiency on the part of opposite parties. Hence the case is dismissed as per final order.
-: ORDER :-
1. The complaint is dismissed.
2. No order as to cost.
