Orissa

Jajapur

CC/106/2022

Prasanta Kumar Das. - Complainant(s)

Versus

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

Paresh Kumar Dhal.

15 Mar 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION:JAJPUR :  ODISHA..

                                                                       Consumer Complaint No. 106 / 2022.

                                                                             Date of filing of complaint  :-     24.08.2022,

                                                                             Date of Hearing                :-       09.02.202

                                                                             Date of Order               :-        15.03.2024.

Dated the 15th day of March, 2024.

Prasant kumar Das, S/o:-Basanta kumar Das,

Vill:-Sanaraipada,  

Po:- Kotapur, P.S.Dharmasala,

 Dist:- Jajpur.                                                                                                                                                                                                                                                                                                            ….....  Complainant.

            Versus.

1. Mahindra & Mahindra Financial Services Ltd, Mahindra Finance

Sadha House,2^nd Floor, Behind Mahindra Tower- 570,

P.B.Marg,worli, Mumbai.

2).    The Manager, Mahindra & Mahindra Finance Ltd, Mahindra Finance,

        At/P.O/P.S/ Panikoili, Dist. Jajpur.

            P R E S E N T S.

  1.   Mrs. Susmita Mishra,                  President,

2.   Sri Bibekananda Das,                Member .

 

Counsels appeared for the parties.                           

For the Complainant: - Sri  Paresh ku.Dhal, Advocate.

For the Opp. Parties :-    Sri Bilap ku.Tripathy,  Advocate.                 

J U D G M E N T.

Sri  BIBEKANANDA DAS, MEMBER.

                   The complainant has filed the C.C.Case  U/Section -35 of C.P.Act,2019 seeking the following reliefs, direct the O.ps to pay Rs.4,00,000/- ( Rupees Four lakh) only as compensation and issue N.O.C immediately in favour of the complainant and refund the excess amounts which the O.Ps had taken from the complainant and not to seize the vehicle till disposal of the C.C.Case.

               The brief fact of this case is that, the complainant had purchased the vehicle from Mahindra & Mahindra Ltd, bearing  Regd.No.OD-04L-2605 on dated 17.04.2018 and the said vehicle  is hypothecated to OP.no.2 the vehicle is used  for self employment for managing day to day livelihood. The cost of the vehicle is Rs.5,35,677/- and the amount of finance is Rs.4,80,000/- . The EMI was fixed at 42 numbers amounting to Rs.14,850/- each and loan agreement executed on dated 20.04.2018 and repayment  schedule was fixed from dated 15.05.2018 to dated 15.10.2021 in toto the complainant had to pay Rs.6,23,700/- to the O.ps. The petitioner regularly paid the EMIs to the O.P-finance company and an amount of Rs.6,71,940/- in toto was paid by the complainant to the O.ps up to the date 19.07.2022. It is submitted by the complainant  that when the vehicle was on the road, without any prior notice to the complainant , the O.P.no.2’s benchmen on dated 14.05.2022 took away the vehicle forcibly  from Panikoili Chhak and subsequently after  interference  of police the complainant get back his vehicle after two months 8 days on dated 15.07.2023. The complainant sustained heavy financial loss during these period which amounts to Rs.3,00,000/- for such detention by the O.ps. It is alleged by the complainant that inspite of payment of full EMIs and other charges to the O.ps, the O.ps have not yet issued  the NOC in favour of the complainant even after repeated approaches and on the contrary they are demanding more amount towards the loan illegally and  arbitrarily  and not taking any steps towards the grievances of the complainant.

               The O.ps on the contrary submitted that the C.C.Case is not maintainable in its present Form, as there is no pleadings in the complaint petition that the complainant was using the vehicle for earning livelihood. Further it is stated  that the parties to the agreement had specifically admitted that any dispute between the parties are to be settled by way of Arbitration as per the provision of Arbitration & Conciliation Act, 1996. Hence this Commission lacks jurisdiction to adjudicate the matter. An arbitration proceeding was intiated against the complainant vide Arbitration Case No.OR/2022/750 of 2022 for breach contract due to failure for payment of his due and accordingly an arbitration award was passed against the complainant. The complainant is not entitled to any reliefs as prayed for and this complaint petition is liable to be dismissed.

               Heard the learned counsels for both the parties. Perused the entire record and documents available on record and also gone through the written version filed by the O.ps and the citations filed by both the parties. From the above facts and circumstances as stated above it is our considered view that it is not disputed that the complainant availed loan from the O.ps and as against such loan the complainant  was paying interest which is consideration and as such the complainant is a consumer as per observation of Hon’ble Supreme Court reported in 1995(2) SCC-150-S.C( Consumer Unit and Trust Society Vrs. Chairman M.D,Bank of Baroda).

               The contention made by the O.Ps in their written version that, as per agreement the dispute shall be adjudicated by Arbitration but not by this Commission is not sustainable in view of the Hon’ble Supreme Court  reported in 2004-CTJ-(1) S.C,        where in it was held that :

“ Arbitration clause has no bar for entertaining the dispute by the      Consumer Fora.”

Further the Hon’ble Supreme Court vide its order  dated 05.10.2023 in the matter between Smt.M.Hema latha Devi & others as Appellants and B.Udayasai as Respondent( Civil Appeal Nos-65006501 of 2023 ( Arising out SLP(C) DS48494850 of 2023 held that :

“even  if there is an Arbitration clause between the parties, that itself will not oust the jurisdiction of a consumer court. It was also held by the Hon’ble NCDRC in many case that “ the presence of an Arbitration Clause in the agreement does not bar the jurisdiction of consumer Fora.”

                        In this context we are inclined to hold that though the O.ps are empowered as per term and conditions  of the agreement to seize the financed vehicle in case of default monthly installment of the loan but such seizure must be as per law in view of the observation of Hon’ble National Commission reported in 2016(2)-CLT-31(N.C),wherein it was held that :

                             “ vehicle repossessed by financer without notice is illegal.”

In the present case in hand that the O.Ps have committed deficiency in service and adopted unfair trade practice by seizing the vehicle of the complainant on dated 14.05.2022 violating the guidelines of the Apex Court. The complainant was regularly paying the EMIs and has paid a total amount of rs.6,71,940/- to the O.ps towards the EMIs including the down payment which is evident from the documents submitted by the O.ps. As per the agreement the complainant had to repay the loan to the O.Ps in 42 EMIs which comes to Rs.6,23,700/- that means the complainant had paid excess amount to the O.ps than the required loan amount, which should be duly compensated by the O.ps. Further the O.ps have stated in para-9 of their written version that an arbitration award was passed on  dated 15.07.20222  against the complainant but no document/ award  has been submitted by the O.Ps  in support of their case. So, the citation filed by the O.ps are not squarely applicable to this present case in hand.

                        In view of the above observation, it is our considered view that the O.ps have committed gross negligence, deficiency in service as well as unfair trade practice  by putting the complainant into mental harassment by seizing and keeping the vehicle for 2 months and 8 days and also for not issuing NOC in favour of the complainant after receipt of the entire loan amount for which the complainant sustained heavy financial loss and undergone mental  harassment during these period which can not be compensated in any manner.

O R D E R.

               We, therefore, directing the O.Ps to refund the excess amount which has been received from the complainant towards loan amount  i.e Rs.48,240/- along with interest @9% per annum from the date of last deposit i.e dated 19.07.2022 till the date of payment  to the complainant and further the O.ps are directed to pay Rs.50,000/-( Rupees Fifty thousand)  towards  compensation for mental harassment, business loss and cost  of this litigation and  also issue NOC in favour of  the complainant , within a period of 45 days  from the date of receipt of this order, failing which the O.ps shall be liable for execution proceeding as per C.P.Act,2019.

               With the aforesaid observation and direction the C.C.case No.106/2022  is allowed  and accordingly disposed off.

               Issue extract of the order to the parties for compliance.

               Pronounced in the Open Commission on this the 15^th day of March, 2024.