SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service on illegal seizure of the complainant’s passenger transport vehicle are the allegation arrayed against the Opp. Parties.
Complainant in brief reveals that, complainant being an unemployed youth and to maintain his live hood availed a finance from op- Company (Cholomandalam Investment & Finance Co. Ltd.) purchased std a MAXXIMO LOAD CARO 9L through the authorized dealer Utkal Automobiles Ltd. Cuttack. Complainant after execution of an agreement on dt.31.08.2011 bearing No. XUFPBNR000006274849 availed a finance to the tune of Rs 2,05,150/- after depositing of 12 no.s of postdated cheques(PDCs) and completion to other formalities complainant for the purpose of above loan deposited an amount of Rs.1,21,248/-. The vehicle was registered before RTA Or-29-8134. It is stated in the complainant petition that through PDCs were presented as mode of repayment, but the ops collected the amount by sending their authorized agent to the residence of the complainant. The collection receipt of installments computer generated copies and copy of the bank passbook of complainant are filed as Annexure-3,4 and 5 copies. It is further stated that the complainant has cleared up all the installments in regular manner and only Rs. 14,008/- is pending as EMI. In the month of November,2014 complainant has cleared up all the installments in regular manner and only Rs.14,008/- is pending as EMI. In the month of November,2014 complainant received a notice from the Ops demanding Rs. 51,342/-(Rupees Fifty one thousand & three hundred forty two)only was due till October-2014. On receipt of the notice when complainant inquired the matter at the office of Ops located at Paradeep and demanded a copy of statement of loan account, same was denied by the ops. Prior to the notice dt,20.11.2014 notice was served on the complainant. Ops on dt,05.12.14 illegal seized the vehicle of the complainant bearing No. OR-29-8134 by using hired muscleman and kept the seized vehicle on the Mahaveer Stockyeard of B.K. Associates Garapur under the open sky. The above acts of the Ops are deficiency in service which caused loss of income and mental agony to the complainant. The cause of action of the instant case arose on different dates but lastly on dt. 05.12.14 when the complainant found his vehicle kept in Mahaveer Stockyard, Garapur, Kendrapara.
On receipt of Notice Ops-Finance Company appeared through their Ld counsel filed written and para wise reply in to the dispute by denying the allegations and challenged the maintainability on the grounds of section-2(d) of the C.P.Act 1985 and on the clause of arbitration excluding the jurisdiction of the Consumer Forum. In the written version it is averred that complainant availed a loan to the tune of Rs2,05,150/- from the Op-Finance company by executing an agreement No. XUFPBNR000006274849 purchased a MASSIMO vehicle. As per the agreement the repayment has to be completed by paying 35 nos. of EMI’s which include the interest of the loan. The repayment schedule(Annexure-B) begins from dt.01.09.11 to dt.01.07.11. Complainant willfully defaulted in paying EMI’s in due time the ops reminded the complainant several times regarding default in paying EMI’s as a result of which over due amounts accrued on the complainant loanee which are still remaining unpaid. It is further averred that the complainant has cleared all installments dues. OP-Finance company in their para wise reply averred that complainant is not a consumer as per the provisions of the C.P. Act rather complainant has availed the loan to expand his business which is reflected in the loan application from(Annexure-C). It is further averred that due to delay and default in payment of installments Ops deploy their staff to collect Emi’s through 35 installments are paid but an amount of Rs.29,721/- is pending on the complainant as delayed surcharge which is reflected in the statement of account(Annexure-D). The written version reveals that as the complainant did not pay the outstanding over dues of delayed payments, ops repossessed the vehicle on support of repossession. Complainant cited a decision of the Hon’ble National Commissioned reported in 2010(i) CC85(NC) in case of Manohar Singh-Vrs-Mahindra &Mahindra Finance. The written version includes that since the agreement is of dt.31.08.11 the dispute arising of it is also barred by limitation being filed in December,2014 which is beyond three years hence the relief claimed by the complainant is liable to be dismissed with cost.
Heard the arguments advanced by the Ld. Counsels appearing for the parties pursued the Annexure like original loan application form, loan agreements and schedule of agreement and attested Xerox copy of statement of account as files by ops and attested Xerox copy of Cash receipts dt.30.08.11 and Inventory of the vehicle dt.05.12.14 filed by the complainant for the just decision of the case. Op-finance Company also filed written notes of argument.
The admitted facts of the case are that complainant being a borrower availed a finance to the tune of Rs. 2,05,150/- from the op-Finance company to Purchase a MAXXIMO vehicle by paying a down payment of Rs.1,21,248/-. It is also admitted that an agreement bearing No. . XUFPBNR000006274849 was executed between the parties on dt. 31.08.11 for availing the aforesaid loan. It is further admitted that the vehicle was repossessed by Op-Finance Company. First we have to discuss the maintainability of complainant mainly on three grounds.
In the first point in para-I of the parawise reply of written statement states that from the loan application from which is filed by the complainant –borrower declares that complainant’s monthly gross income isRs.30,000/- from sweet Stall Business and he has availed the loan not to earn his livehood rather for expansion of his business. Countering the allegations Ld.Counsel for complainant submitted that sweet stall business is a family business which runs jointly by the complainant and his brother and their family members are quite dependant on the income of the said sweet stall. Ld.Counsel for complainant further submitted that the Ops have not brought a single evidence that the subject vehicle was not driven by the complainant himself and by engaging a professional driver in such a situation. The complainant can be excluded from and agreed with the submissions of Ld. Counsel for the complainant. In the situation complainant cannot be categorized as commercial category of consumer who wants to expand his business by availing the said loan for purchase of the vehicle.
The 2nd point raised by the Ops that as per the agreement any dispute arised between parties shall be referred toa sole Arbitrator at Chennai for Arbitration. Ld Councel for complainant vehementaly opposed and submitted that this Forum beings a judicial authority has ample power to adjudicate the dispute U/S-3 of the C.P.Act1986. In overview and considering the contentions of the parties and relying on the decision of the Hon’ble Apex Court in Fair AIR ENGINEERS Pvt.Ltd.-vrs-N.K.Modi reported in IIICPJ-1,1996(SC) where the Hon’ble Supreme Court in their observation opined that whenever there is an agreement containing in arbitration clause but action is brought before a judicial authority which includes a consumer forum by one of the parties, the other parties may apply for stay of these legal proccedings before filing the written statement then the said judicial authority may stay all the proceedings before filing of the written statement in this Forum hence the clause of Arbitration is not a bar in adjudication of the present dispute.
Thirdly Ops raised that as the agreement was signed between the parties on dt.31.08.11 and complainant filed on December2014, Hence the complaint is barred by limitation. The legal appositions involved in the allegations includes Sec.11 and Sec.24-A of the C.P.Act1986 Section-II of the C.P.Act describes the jurisdiction of the consumer Forums. In Section-II clause narrates that acomplaint is maintainable if the cause of action wholly or in part arises, It is settle principle of law that cause of action is a bundle of facts and continuing process which gives the plaintiff/complainant to sought relief. Through in the instant case the cause of action has arisen on different times which includes the payments at the residence of the complainant. Notice was issue to the complainant on dt. 20.11.14 and repossession of the vehicle took place on dt. 05.12.14 further when the complainant is filled with in the time limit prescribed under the C.P.Act 1986.
Now the question before this Forum relates repossession of the vehicle. Complainant in his complaint states that he has to pay Rs.14,008/- only as EMI as pending outstanding dues and not any other charges till-date. Complainant further submits that as per loan application form it was approved by the Ops that complainant will pay monthly installments in shape of post-dated cheques(PDCs).Accordingly complainant handed over 12 nos. of signed cheques before the Ops for the purpose of the finance of the vehicle and repayment of installments. Complaint also reveals that without any valid reason Ops collected the monthly installments through their authorized agent from the house of the complainant.
On the other side Op-Finance Company submits that it was agreed between the parties that the finance amount of Rs. 2,05,150/- along with usual interest as per the agreement will be collected in 35 monthly installments as the complainant was a defaulter in respect of payment of EMI’s. Ops deploy their staffs to collect the EMI and complainant is a defaulter in respect of monthly EMI’s for which an amount of Rs. 29,721/- is accrued as overdue charges in result Ops repossessed the vehicle of the complainant, through the EMI’s are fully paid by the complainant .In this situation we have to decide here that whether the complainant –borrower was a defaulter and over dues accrued on the complainant is legally sustainable or not? Ld.Counsel for complainant during course of argument submitted that as per the loan application form mode of payment of EMI’s were by means of post-dated cheques and the Ops violating the norms collected the monthly EMI’s through their officials on suitable dates for which complainant –borrower cannot be construed as a defaulter. Ops do not speak a single sentence regarding the allegations of collection of EMI’s through PDC’s it is only stated that as the complainant was defaulter Ops deploy their staff to collect the EMI’s. We examined the loan application from and schedule of agreement where it is clearly mentioned the statement of Accounts(Annexure-I) where it can be noticed that some monthly installments are encased by the way of PDCs submitted by the officials or deposited by the complainant. Now, it is clear that for collection of monthly installments PDCs were presented before the Ops but the Ops failed to produce any evidence before this Forum that the PDCs presented by the complainant was dis honoured by the concerned bank for which over dues were accrued on complainant for delayed payment before treating complainant a defaulter. Further Notice was served to the complainant regarding default in payment of EMI’s except the notice dt.20.11.14 which was sent prior to repossession of the vehicle by the Ops. On the aforesaid discussion we arrive into a conclusion that in lack of proper evidence of non-payment or delayed payment of installments it is unfair to treat a customer like complainant as a defaulter. When the Ops in their own admission states that all the agreed EMI’s are paid by the complainant-borrower against finance of the said vehicle. Further the outstanding of over dues to the tune of Rs.29,527/- as claimed by the complainant is illegal and arbitrary for which the complainant is no way responsible for payment of Rs. 29.527/- . Through it is the settled principle of law that in a hire instant case the Ops have adopted a method which is neither according to law and nor a natural justice to a borrower.
As per the aforesaid observations and payment all the EMI’s by the complainant including the payment of Rs.15,000/- by an Interim order of this Forum to release the vehicle on condition that the amount is subject to adjustment of the final hearing of the case. Accordingly the amount deposited before the ops be adjusted against pending outstanding of EMI’s with the amount of Rs.14,008/- if not adjusted earlier. The vehicle is free so far the finance is concerned and by interim order of this Forum, the vehicle has been released and in possession of the complainant accordingly the interim order released and in possession of the complainant accordingly the interim order passed earlier is hereby vacated. Further as per aforesaid observation when the vehicle bearing No.OR-29_8134 is free from any financial liability it will be legal duty of OP-Finance Company to release the NOC in favor of the complainant against the disputed vehicle.
O R D E R
Having observations reflected above, the complainant is allowed in part on contest. It is directed that the Ops will issue NOC against the said vehicle one month of receipt of the order, failing which Rs. 50/- will be imposed for the delayed period.
No order as to cost.
Pronounced in the open Court, this the 16th day of September 2015.
