DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 27th day of May, 2019
C.D Case No. 80 of 2016
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sabitri Dutta
W/o: Ramesh Chnadra Dutta
At: Budhapur,
Po: Arsa,
Ps: Tihidi,
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Manager of Mahindra & Mahindra Financial Services Ltd.
2nd Floor, Sadhana House,
Behind Mahindra Tower, 570 P.B. Marg Worli,
Mumbai- 400018
2. Branch Manager of Mahindra & Mahindra Financial Services Ltd.
At: Behera Market Complex, 2nd Floor, By-pass,
Po/Ps/Dist: Bhadrak
…………………………..Opp. Parties
Counsel For Complainant: Sri N. Sahu & Others, Adv
Counsel For the O.Ps: Sri D. Mohapatra, Adv
Date of hearing: 04.04.2018
Date of order: 27.05.2019
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice.
The facts of the complaint are to the effect that the complainant is the consumer and the O.Ps are the financer. The complainant has executed a loan agreement with the O.Ps vide amount Rs 4,85,000/- (Rupees Four Lakhs Eighty-five Thousand only) on dt. 29.03.2013 bearing loan agreement No- 2530288 to purchased a Mahindra Bolero Pickup F.B. The complainant purchased the said vehicle by the persuasion of the O.Ps toearn for livelihood of herself and her family. The said vehicle was registered in the office of the R.T.O Bhadrak vide registered No- OD-22A-0995 and playing on the road on payment of tax, insurance premiums regularly to the O.Ps. The said loan agreement was executed in the office of the OP No. 2. The complainant was assured by the O.Ps to repay back the loan amount in 47 installments. The complainant continued to repay the loan Rs 13,700/- in each installment monthly. The O.Ps said to the complainant to put his signature on some printed papers and some blank papers. The complainant approached requested the O.Ps to provide the copy of the agreement but the O.Ps told that the copy of the agreement and some other papers would be sent to the complainant latter on by register post with A.D. But it is a matter of regret that the O.Ps have not sent a single scarp of papers to the complainant till now. The complainant has paid 22 installments to the complainant till now. A false case has been initiated by the Forest Dept. of Odisha, Baripada Division on 01.09.2014 against the driver. Subsequently the said vehicle was seized by the Forest Dept. also. The said vehicle has not yet been released till now. The aforesaid installments could not be paid completely for seizer of the vehicle. The complainant received the notice from the O.Ps on 06.07.2016. The said letter shows that the OP No. 1 is referring the said dispute to sole arbitrator for adjudication. The venue of the arbitration shall be at Mumbai as agreed upon in the above agreement. The O.Ps also served another notice on dt. 30.10.2016 upon the complainant which was corrigendum notice to recall notice dated 09.06.2016. The O.Ps have imposed Rs 426836/- upon the complainant to pay before them. They have also demanded 25 installments which is amounts to Rs 3,42,500/- to the complainant to deposit before them. They have also threatened to repossess the said vehicle unless and until the amount is repaid. The complainant is a lady those who has sustained mental agony and harassment by this threatening. The cause of action arose on dt. 05.07.2016 when the OP No. 2 threatened the complainant to deposit the amount Rs 426836/-. Otherwise the said vehicle would be repossessed. The complainant has become harassed and mentally upset by the illegal demand of amount vide Rs 84,336/- imposed upon him by the O.Ps.
Hence the complainant has sought for the following reliefs as follows:-
1. The O.Ps be directed to exempt the illegal dues Rs 84,336/- imposed upon the complainant.
2. The O.Ps be directed to pay Rs 60,000/- towards mental agony and harassment and the cost of the litigation also.
Documents filed the complainant (Xerox copies):-
1. Copy of the letter dt. 27.06.2016- 1 sheet.
2. Copy of the letter dt. 30.06.2016- 1 sheet.
3. Copy of the offence report vide Case No- 69 of 2014-15- 3 sheets.
On the other hand the OP No. 1 & 2 have filed their written version analogously having appeared in this Forum through their concerned advocate. First of all they have challenged the maintainability of this complaint in this Forum they have also challenged the cause of action of this case. They have denied all the averments made by the complainant against the O.Ps. They have further challenged that the O.Ps have neither committed any deficiency of service nor any dishonest trade practice towards the complainant. They have averred that the said agreement contains the clause for arbitration where all the disputes, differences, claims and questions whatever arising out of the said agreement shall be referred to the sole arbitrator. As per the said arbitrator clause of the loan agreement all the disputes, differences and/or claims arising out of these presents or in way touching or concerning the same or as to constructions, meaning or effect hereof or as to the right and liabilities of the parties hereunder shall be settled by arbitration to be held in accordance with the provisions of the arbitration and conciliation Act, 1996 or any statutory amendments thereof and shall be referred to the sole arbitrator to be nominated by the lender. In the event of death, refusal, neglect, inability or incapability of a person so appointed to acts an arbitrator, the lender may appoint a new arbitrator. The arbitrator shall not be required to give any reason for the award and the award of the arbitrator shall be binding on all the parties concerned. It is a settled principle of law that the benefit of the justice delivery system should not be available to the petitioner who himself has violated the law and has not come to the Court in clean hands. The present petitioner is guilty of suppression of facts and malicious misrepresentation as he nowhere cared to inform this Hon’ble Court that she is at default for not complying with her responsibilities and duties prescribed under the law and agreed to by loan agreement and he has approached this Court with a non-sustainable prayer basing upon a non-existent claim. The fundamental maxima is that the plaintiffs in equity most come with perfect propriety of conduct, or with clean hands. In application of the principle the complainant is not entitled to any reliefs as he has not come to the Forum with clean hands and has suppressed the material facts. The complainant has filed the case maliciously to get rid of the loan liability and to escape from the legal proceedings going to be initiated against him. Further the O.Ps have averred that the complainant have already been served the loan agreement. They have also admitted that the agreement value of Rs 5,42,325/- was to be repaid by the complainant in 47 periodical installments starting from 29.03.2013 and ending on 20.01.2017 within the scheduled time and date.
That going through the statement of account, it is crystal clear that, the complainant cannot be said to be a regular payer, since she has been very irregular in making the payment of the loan whereas the specified due date and time for payment of the installments was the essence of the said loan agreement. Accordingly, the non-payment and the delayed payment of the installments by the borrower amount to breach of contract, and therefore, the company/O.Ps was constrained to enforce the security and in exercise to its right under the agreement had initiated arbitration proceedings against the complainant. On 10th July, 2017 the complainant was supposed to pay all her 47 installments, whereas, the complainant ahs paid only 22 installments, and is in default of Rs 3,41,600/- i.e. 25 installments and also late payment charges of Rs 1,96,564/- and cheque bounce charges of Rs 8,000/- is due and payable by the complainant. Last payment made by the complainant was on 13th May, 2015. Deposit of several reminders to pay her outstanding dues, the complainant preferred not to pay her outstanding dues and was enjoying the vehicle to the fullest. This conduct of the complainant forced the O.Ps to believe that if they would not take any action under due process of law then it will lose its legitimate claims. Thus the answering O.Ps were constrained to initiate arbitration proceedings against the complainant.
In the conclusion the O.Ps have contend that this complaint has no merit, lacking any cause of action and jurisdiction, they have neither caused any deficiency of service nor dishonest trade practice. Hence this complaint may be dismissed with cost. The O.Ps have not filed any document.
OBSERVATION
We have already perused the complaint and the documents filed by the complainant as well as the written version. As per our observation we have reached at the following findings it is well proved that the complainant is the borrower and the OP No. 1 & 2 both are the creditors of the financing company. As per the complaint it reveals that the complainant has borrowed Rs 4,85,000/- only from the O.Ps bearing loan agreement No- 2530288 to purchase a bolero pick up F.B bearing Regd. No- OD-22A-0995. The complainant has also complaint that it was agreed by both parties to pay the loan amount in 47 installments. It was also agreed that the complainant (borrower) would pay Rs 13,700/- in each installment to the O.Ps (creditors), but the O.Ps have violated the terms and conditions of the agreement. Although the complainant has paid 22 installments to the O.Ps. The complainant has also admitted that she could not pay the installment from 01.09.2014 to 18.07.2016 because the said vehicle could not play on the road and earned money. The another reason that the Forest Dept. has initiated a case against the complainant and seized the said bolero under OR case No- 69 of 2014-15. It is in the ambiguity that whether the said vehicle has been released or not till yet. Subsequently the O.Ps have imposed illegal dues amounting to Rs 44,363/- upon the complainant. The complainant is in the darkness because he has not been supplied any copy of the agreement by the O.Ps (creditors). It is the mandatory duty of the O.Ps to supply the copy of the agreement to the complainant, but they have not done so. They have not filed a single document to prove that they have supplied the copy of the agreement. They have refused to supply the same to the complainant which is supposed to be deficiency of service and dishonest trade practice. They have not filed statement of accounts to the complainant which is to be strictly proved by the O.Ps. As per the above discussion it has been well proved by the complainant the deficiency of service of the O.Ps towards her. Hence it is ordered;
- ORDER
The complaint be and the same is allowed on part. The O.Ps are here by directed to serve the true copy of the loan agreement to the complainant on receipt of written application and required fees. They are also directed to collect interest as per the agreed rate from the complainant, after proper calculation. The O.Ps are further directed to pay Rs 3000/- to the complainant for mental agony and harassment as well as to pay Rs 2000/- for cost of the litigation. The order is to be carried out by both the parties within 30 days on receipt of this order.
This order is pronounced in the open Forum on this day of 27th May, 2019 under my hand and seal of the Forum.
