IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/178/2018
Date of Filing: Date of Admission: Date of Disposal:
26.11.2018 05.12.2018 01.06.2023
Complainant:Ainul Sk
S/o- Kuddus Sk.
Vill- LalnagarDakshinpara
P.O.- NowaparaSimulia
P.S- Hariharpara
Dist- Murshidabad
Pin-742134
-Vs-
Opposite Party1.Manager,
Tata Motors Finance Ltd.
Rene Tower. 6th Floor
A-Wing. Plot No.-AA-1, 1842
Rajdanga Main Road
Kol-700107
2. Manager
Tata Motors Finance
Ground Floor, Pallab Mansion
26/13, S.S. Sen Road, Gorabazar
P.O.-Berhampore, P.S- Berhampore
Dist- Murshidabad
PIN-742101
3. Pulak Dey
S/O Late Dulal Chandra Dey
18, Mankumari Road
P.O. & P.S.-Berhampore,
Dist- Murshidabad,
PIN-742101
Agent/Advocate for the Complainant : Prsant Kr. Singha &Sukanta Mondal
Agent/Advocate for the O.P. No. 1 & 2 : Indranil Banerjee
Agent/Advocate for the O.P. No. 3 : Pranab Kumar Das
Present: Sri Ajay Kumar Das…………………………..........President.
Smt. Aloka Bandyopadhyay……………………..Member.
Sri. Nityananda Roy…………………………………….Member.
FINAL ORDER
SMT. ALOKA BANDYOPADHYAY, member.
This is a complaint under section 12 of the CP Act, 1986.
One Ainu Sk. (here in after referred to as the Complainant) filed the case against Manager, Tata Motors Finance Ltd. &Ors.(here in after referred to as the O.P.s) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant purchased TATA ACE HT BS III Light Goods Vehicle from GATI MOTORS Pvt.Ltd, Banagram. T.T. Road. Durgapur on 21.02.2011 taking the financial assistance from TATA Motors Finance Ltd on an agreement of repayment of the loan amount of Rs. 2,70,000/- through monthly installment basis. In the month of May, 2012 the Complainant came to know through collection agent that an amount of Rs. 25,900/- is due and later on he was informed that an amount of Rs. 43,700/- is due and this created a doubt in the mind of the Complainant and asked for repayment statement for the financier through its collection agent and the collection agent stoppedcollecting monthly installments. On 24.02.2017 the Complainant had received a “Settlement Offer” from the financier which reveals that the Complainant had to pay Rs. 70,000/- within 28.02.2017 for full and final settlement of the loan.
In this offer letter it has also been mentioned that financier agreed to accept Rs. 32,000/- as full and final settlement. On enquirythe Complainant came to know from O.P. No. 3 that Rs. 70,000/- would be the correct amount. Considering this the Complainant paid Rs.10,000/- on 25.02.2017 and Rs. 60,000/- on 28.02.2017 through the collection agent of the O.P. Mr. Pulak Dey (O.P.3). After a couple of days the Complainant came to know that the agreement had been terminated and the O.P. 3 showed a print out document from the Tata Motros Finance Ltd. to that effect. On 17.02.2018 two muscle men stopped the vehicle at Krishnanagar Post Office More and took the possession of the said vehicle and handed over repossessed vehicle inventory list. The Complainant lodged a complaint against this illegal act before Krishnanagar Police Station. On reply of the advocate’s letter of the Complainant he came to know that all the 45 installments had fallen due and the matter was referred to arbitrator and the arbitration award has been passed. As the notice of the arbitrator has not been sent to the Complainant and as the Complainant is unaware about the vehicle approached before the O.P. on 8th October, 2018 for return of the said vehicle but the O.P. refused for the same. Finding no other alternative the Complainant filed the instant case before this Commission praying for a direction to return the vehicle in good condition or pay a sum of Rs. 3,00,000/- along with Rs. 1,50,000/- for loss of earning and mental agony and Rs. 30,000/- for litigation cost.
Defence Case
After due service of the notices the O.P.s appeared by filing W/V contending inter alia the case is not maintainable as the borrower of the loan and the lender are bound by the terms and condition applicable for the loan stipulated under the agreement between the parties.
Points for decision
1. Is the Complainant a consumer under the provision of the CP Act, 1986?
2. Have the OPs any deficiency in service, as alleged?
3. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point no.1
We peruse the complaint. The averments made in the complaint indicate that the Complainant is a consumer under the Consumer Protection Act, 1986 as well as Consumer Protection Act, 2019.
Point Nos. 2 & 3
Both these points are taken up together for the sake of convenience and brevity of discussion.
Undoubtedly, the Complainant is the owner of the TATA ACE HT BS III Light Goods Vehicle having registration number WB57B 0054 (vide Annexure-2).In order to purchase the said vehicle the Complainant had taken a loan of Rs. 2,70,000/- from TATA Motors Finance Ltd on an agreement of repayment of loan through monthly installment basis. As per petition of the complaint the Complainant began to repay the loan through the collection agent i.e., O.P.3. In the month of May, 2012 that the Complainant came to know that outstanding amount was Rs. 43,700/-. On 24.02.2017 the Complainant had received a “settlement offer” from the O.P. wherein it has been stated that “ you have approached TMFL and offered to settle your aforesaid account. As per our mutual discussion we understand that you are ready to pay an amount of Rs. 70000 (Rupees Seventy Thousand) against full and final closure of the captioned loan account.
Henceforth trusting upon the commitment/s made by you we have agreed to receive an amount of Rs. 32000 in full and final settlement of the captioned account provided that the same is paid strictly as per below mentioned schedule.
Amount Date of Deposit
Rs. 70000/- On or Before 28/02/2017
In case of any deviation in above mentioned payment schedule any amount deposited by you shall be considered as deposit towards total outstanding as mentioned in this letter.”(vide Annexure-3)
The Complainant further stated that he had paid Rs. 10,000/- on 25.02.2017 and Rs. 60,000/- on 28.02.2017 to the collection agent namely Pulak Dey (O.P.3) (vide Annexure 4 & 5) and O.P. 3 provided loan termination letter (vide Annexure-6). Later on 17.02.2018 two musclemen took possession of the vehicle without scrutinizing the relevant papers and handed over repossessed vehicle inventory list (vide Annexure 7).
After receiving the advocate’s letter the O.P. informed that all 45 installments had fallen due and the matter was referred to arbitrator and sent the copy of arbitration settlement award (vide Annexure 9 & 10).
The Ld. Advocate for the Complainant at the time of argument stated that O.P. had never informed about outstanding due of the loan amount, and/or never issued any notice regarding repossession of the vehicle and nor even sent any notice of arbitrator. So, the repossession was illegal and the Complainant is entitled to relief.
O.P. No. 1 & 2 in the W/V stated that the hypothecation agreement number 5000655661 dated 27.01.2011 was executed between the Complainant and the O.P. No. 1 & 2 and the loan was granted for a period of 02.03.2011 to 02.12.2014. It was decided that the loan amount will be recovered through 46 installments and the amount Rs. 8390/- is to be paid by the Complainant for 1st to 45 installments and Rs. 7794 for 46 installmentsand all the installments are to be paid within 2nd of every English Calendar month and the Complainant had also agreed to pay delayed charges in case of any default. The Complainant committed defaults in paying the installments on regular basis and the O.P. 1 & 2 recalled the entire loan amount vide its letter dated 13.04.2012 but the Complainant did not pay any heed to this letter. Thereafter, the O.P. invoke arbitration as per their agreement in this matter and Mr. Nitin Chavan was appointed as the sole arbitrator and on notice this time also the Complainant failed to make any representation/ appearance.
At the time of argument Ld. Advocate of the O.P. No. 1 & 2 drew our attention to the fact that the Ld. Arbitrator Mr. Nitin Chavan ordered as such :“ I therefore Do HEREBY AWARD AND DETERMINE THAT the Respondents, jointly and severally, will pay to the Claimant, a sum of Rs.276220.57/- inclusive of interest and other charges and further interest @ 18 % p.a on Rs. 276220.57/- to be computed from 13th April, 2012till the date of payment/ realization. In my opinion interest @ 18 % p.a. is proper and also in accordance with the Section 31 (7)(b) of the Arbitration & Conciliation Act, 1996. I further permit the Claimant, for the purpose of realization. Satisfaction of the aforesaid amounts to sell/transfer the said Vehicle of the Make/ Model / Registration No. TATA ACE WB57B0054 Engine No. / Chassis No. 275ID06MZYSK9194 MAT445056AVP98354 in accordance with law, and if any sum still remains to be realized by the Claimant from the Respondents, even after the sale of the said hypothecated vehicle, the same be realized, jointly and severally from the Respondents, including the assets/properties of the Respondents.”
O.P. No. 3 in the W/V stated that he was an employee of the TATA Motors Finance Ltd since 21st April, 2016 as Customer Relationship Executive-Collections and he performed his work as an employee so, he had never taken any amount to his personal capacity and more over he had not supplied any documents to the Complainant.
For the sake of argument if we consider that the O.P. No. 1 and 2 send the settlement offer on 24.02.2017 but the Complainant has failed to establish that he has paid the agreed amount. Moreover, the arbitration award has already been passed and in this circumstances the O.P. 1 & 2 has relied upon the judgment passed by the Hon’ble Supreme Court in SURYAPAL SINGH VS. SIDDHA VINAYAK MOTORS AND ANR (2012) CPJ8 (SC) it was held by the Hon’ble Apex court that “Under the Hire Purchase Agreement, is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of nonpayment of installment has always been upheld to be a legal right of the financier.”
The ld. Advocate of the Complainant also relied upon the judgment of National Commission in Instalment Supply Limited –Vs- Kangra Ex-Serviceman Transport Co. &Anr. Reported in (2007) 1 CPJ 34, is whether a complaint can be decided by the Consumer Fora after an arbitration award is already passed. The simple answer to this question is No. “ In the above case this Hon’ble Commission categorically held that in view of the arbitral award having been passed in the arbitration proceedings between the parties the disputed issues had become Res Judicata and further concluded that “ Award was passed before complaint was filed by respondent No. 1. It will thus govern the dispute between the parties. In view of the decision of the Arbitrator which is binding on parties, the Fora below should not have passed an order by overlooking the award.”
Considering the facts and circumstances of the case and the documents filed before us and the argument advanced by both the parties we are of the view that arbitration award had already been passed on 09.07.2012 but the case has been filed before us on 26.11.2018. So, as per the order of the Hon’ble Apex Court and Hon’ble National Commission we have no scope to interfere in this matter as because arbitration award has been passed much before the filing of this case. Such being the position we are declined to pass any order against the O.P.s and as such the instant case is liable to be dismissed.
Reasons for delay
The Case was filed on 26.11.2018 and admitted on 05.12.2018. This Commission 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/178/2018 be and the same is dismissed on contest against the O.P.s but under the circumstances without any order as to costs.
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 acknowledgmentas 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.
Member
Member Member President.
