IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/226/2017.
Date of Filing: Date of Admission: Date of Disposal:
29.12.17 05.01.18 19.06.19
Complainant: Subrata Kumar Das
S/O- Bipul Chandra Das,
Vill- New Parulia, PO- Parulia,
PS- Suti,
Pin- 742201
-Vs-
Opposite Party: 1. Manager,
Cholamandalam Investment & Finance Co. Ltd.
Dara House, 1st Floor,
No. 2 N.S.C.Bose Road,
Chennai- 600001
2. Manager,
Cholamandalam Investment & Finance Co. Ltd.
PO&PS-Raghunathganj, Dist-Murshidabad
Pin-742225
Agent/Advocate for the Complainant : Sri. Prabir Kr. Banerjee.
Agent/Advocate for the Opposite Party :.Sri Indranil Banerjee
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Subrata Kumar Das (here in after referred to as the Complainant) filed the case against the Manager, Cholamandalam Investment & Finance Co. Ltd. and Another (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant being an unemployed, decided for purchase of a motor vehicle for his livelihood and purchased a Tata Magic Vehicle being registration No. WB58D/2391 on down payment of Rs.1,50,000/- by getting financial assistance from the OPs. The Complainant paid eleven EMI @ Rs.7,710/- but the OPs without giving any notice to the Complainant or without proper seizure list took away the vehicle from the custody of the Complainant. The Complainant informed the matter to the Suti, PS but of no result. Hence, the Complainant has filed the case praying for a direction upon the OPs for releasing the amount of Rs.5,00,000/- with interest and a direction for return of this vehicle.
The OPs contested the case by filing written version on 15.05.18 contending that the case is not maintainable and the case is barred by law of limitation. It is the specific case of the OPs that the Complainant is not a consumer as he has not hired or availed of any services from the OPs from which the Complainant has suffered any deficiency.
It is also the case of the OPs that the Complainant approached the OPs for grant of motor vehicle loan in July’12 and the OPs agreed to grant financial accommodation to the Complainant on certain terms and conditions vide agreement No. XVFUDER00000788498 dated 26.07.12 and loan amount was Rs.2,50,000/- repayable by forty-eight equated monthly installments @ 7,710/-. The Complainant after paying some installments stopped to make payment of EMI in spite of repeated reminders. Ultimately, the OPs sent a final letter to the Complainant on 05.11.14 to make payment but of no result ,then the OPs seized the vehicle on 24.11.14 and sent a pre sale notice to the Complainant on 25.11.14 by registered post. In spite of that the Complainant did not pay any heed to it.
The OPs referred the dispute to the Ld. Arbitrator in terms of agreement between the parties and the Ld. Arbitrator passed arbitration award after service of notice upon the Complainant. The OPs have prayed for dismissal of the complaint.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OPs, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Point no.1
The Ld. Advocate for the Complainant submits that the Complainant is a consumer as he hired the service of the OP for consideration.
In reply, the Ld. Advocate for the OPs submits that the Complainant is not a consumer. Having gone through the materials on record, we find that the Complainant is a consumer.
Point No.2
The Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint. Both the points are thus disposed of.
Point Nos.3&4
The Ld. Advocate for the Complainant submits that the Complainant took some loan from the OPs for purchase a Tata Magic Vehicle vide registration No. WB58D/2391 on making down payment of Rs.2,50,000/- and he also paid eleven monthly installments @ Rs.7,710/-.He contends that the OPs seized the vehicle of the Complainant without giving any notice to the Complainant in violation of the terms and conditions of the agreement. He argues that the OPs have deficiency in service. He prays for a direction upon the OPs to return the vehicle to the Complainant and to pay compensation of Rs.5,00,000/-.
In reply, the Ld. Advocate for the OPs submits that the case is barred by law of limitation as the OPs seizeded the vehicle on 24.11.14 and pre sale notice was sent to the Complainant by registered post on 25.11.14. He further argues that there is arbitration clause in the agreement between the parties and the Complainant referred the dispute to the Ld. Arbitrator who passed an award on 22.0.15. It is further argues that the OPs have submitted all the documents including the copy of application form, loan agreement, arbitration award, pre sale letter dated 25.11.14, final call letter dated 05.11.14 and statement of accounts. He further contends that the case is also not maintainable as the Complainant has filed the case after arbitration award passed by the Ld. Arbitration dated 22.01.15. He draws our attention to a downloaded copy of final order passed by Andhra Pradesh State Consumer Disputes Redressal Commission at Hyderabad in FA No. 848/2018 dated 04.02.13.
We have gone through the written complaint, written version, evidence, xerox copies of documents, written argument and the decision referred by the Ld. Advocate for the OPs. We have considered the submission of both sides.
Admittedly, the Complainant took financial loan from the OPs on certain terms and conditions by executing an agreement in July’12. It appears from the statement of accounts filed by the OPs that the Complainant violated the terms and conditions of the agreement due to non-payment of EMI. It also appears from the documents filed by the OPs that final call letter to the Complainant was issued on 05.11.14 by registered post and pre sale letter to the Complainant was issued by registered post on 25.11.14. It is also clear from the written version that the OPs seized the vehicle on 24.11.14. The Complainant has not filed any document to establish that he responded to the final call letter dated 05.11.14, pre sale letter dated 25.11.14 of the OPs.
We find from the xerox copy of arbitration award dated 22.01.15 that the Ld. Arbitration passed the arbitration award against the Complainant.
On a careful consideration, we find that the vehicle of the Complainant was seized on 24.11.14 and the arbitration award was passed on 22.01.15. The Complainant has stated in his written complaint that cause of action arose on 08.10.17 but he has not stated anything either in his written complaint or in his evidence about any cause of action on 08.10.17.
We find that cause of action arose on 24.11.14 and lastly on 22.0.15 but the case was filed on 29.12.17 i.e. beyond the period of limitation. Hence, we have no hesitation to hold that the case is hopelessly barred by law of limitation.
On perusal of the documents filed by the OPs, we find that the Complainant was not regular in making payment of EMI and the OPs referred the dispute to the Arbitrator in terms of the agreement and the Ld. Arbitrator passed the award against the Complainant on 22.01.15.
With due regard to the decision as referred by the Ld. Advocate for the OPs we find that the said decision is also applicable in the present case. The complainant cannot take shelter of Consumer Forum with a view to frustrate the Arbitration Award.
We find that the Complainant has failed to establish any deficiency in service on the part of the OPs. Hence, the Complainant is not entitled to get any relief against the OPs.
Reasons for delay
The Case was filed on 29.12.17 and admitted on 05.01.18 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No.CC/226/2017 be and the same is hereby dismissed on contest against the OPs without cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
