Orissa

Cuttak

CC/118/2017

Babaji Jena - Complainant(s)

Versus

Manager,Indusind Bank Ltd - Opp.Party(s)

A Rath

12 Oct 2020

ORDER

                                IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK

C.C No.118/2017

Babaji Jena,

At/PO:Balagachhia,P.S:Barang,

Dist:Cuttack.                                                                                      … Complainant.

 

                Vrs.

 

1.         Manager/Executive,

IndusInd Bank Ltd.,

Regd. Office At:2401,Gen. Thimaya Road,(Cantonment),

Pune-411001,Maharastra.

 

2.        Manager,IndusInd Bank Ltd.,

Consumer Finance Division Old No.115116,

New No.34,G.N.Chetty Road,T.Nagar,

Chennai-17.

 

3.        Manager,IndusInd Bank Ltd.,

Bajrakabati Road,P.S:Mangalabag,

PO:Buxibazar,Town/Dist:Cuttack.

 

4.        Registering Authority(M.V),

Office of R.T.O,Cuttack,

A:Near Collectorate Campus,

PO:Chandinchowk,P.S:Lalbag,

Dist:Cuttack.                                                                                 … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    22.09.2017

Date of Order:  12.10.2020

 

For the complainant.     :    Sri A.C.Rath,Adv. & Associates.

For the O.Ps.1,2 & 3       :    Sri P.K.Misha,Adv. & Associates.

For the O.P No.4             :         None.

 

 

Smt. Sarmistha Nath,Member(W).

The complainant has filed this complaint before this Forum against the O.Ps for Redressal of his grievances Under Section-12 of the Consumer Protection Act,1986(Act in short) in terms of his prayer made in the complaint petition  alleging deficiency in service provided and unfair trade practice adopted by the O.Ps.

1. The case of the complainant in brief is that the complainant purchased one passenger Auto Rickshaw vehicle i.e. Atul Auto for his livelihood on hypothecation being financed by O.P No.1,2 & 3.  The O.P No.1,2 & 3 sanctioned and released an amount of Rs.1,42,000/- in favour of the dealer M/s. MAHAVEER Auto,Link Road,Cuttack and the vehicle was delivered to the complainant  on 18.4.2015 and the same was  registered with the R.T.O,Cuttack bearing No.OD-05N-2628.  The E.M.I was fixed at Rs.5,110/- per month and the complainant was granted 48 E.M.Is for repayment of loan.  The complainant has given down payment of Rs.16,800/- and also hypothecated the financed vehicle.  The complainant has already paid 25 monthly installments as per the statement of account.  Copy of the statement of account enclosed.

On 21.5.17 while the complainant was moving towards O.M.P Square,Cuttack carrying some passengers in his vehicle, all on a sudden some unknown persons detained the complainant along with vehicle at Madhupatna,Cuttackand forcibly took possession without giving any prior notice.The complainant lodged a written report in Madhupatna P.S but police did not take any step.The copy of the written report is enclosed.

The complainant went to the office of O.P No.3 and enquired about the matter and came to know that the O.Ps have taken possession of the vehicle and asked the complainant to pay an outstanding amount of Rs.80,505/- towards break up charge including interest which the complainant is not supposed to pay.But in spite of the illegal demand of the O.Ps the complainant was also agreed to pay the same and requested O.P No.3 to release the vehicle but O.P No.3 did not respond.On 7.9.17 the complainant received a notice bearing No.L/No.5422 dt.31.8.17 from the O.P No.4 compelling the complainant to surrender his R.C book for cancellation of ownership for which the complainant requested the O.P No.4 not to cancel the ownership by sending a registered letter.The copy of R.T.A letter and reply letter along with postal receipt are enclosed.

On same day on 7.9.17 the complainant also received a letter from O.P No.2 wherein the O.P No3 stated that they have terminated the contract and demanded Rs.80,505/- dues from the complainant without giving opportunity to him.

The complainant has prayed before this Forum to direct the O.Ps to release the vehicle in his favour and to direct the O.P No.3 to pay Rs.60,000/- towards business loss, Rs.20,000/- as compensation for mental agony and Rs.20,000/- towards cost of litigation in the interest of justice.

2. The O.Ps 1,2 & 3 entered appearance through their counsel and filed their written version denying the allegation and averments made in the complaint petition.  The plea of the O.Ps is that the complaint does not come under the purview of consumer as per Sec-2 of the C.P.Act and the issues raised by the complainant also do not fall within the ambit and scope of Consumer Protection Act.  The relation between complainant and O.Ps.1,2 & 3 is that of the debtor and creditor for which the complainant could not be deemed to be a consumer.  The further case of the O.Ps is that the loan agreement entered into between the parties itself explains that time is essence of contract and installments are to be paid on or before the date and any default and delay in payment carries additional penal interest and charges @ 36% per annum.  The complainant has not paid installment no.5, 6 & 18 and has paid only 25 installments.  The complainant has suppressed material facts and he is a chronic defaulter since the fifth installment which was due on 21.9.2015.  As the complainant defaulted to pay the installments, several letters and reminders were sent to the complainant to pay the outstanding amount but he did not pay any heed.  Since it is a contractual obligation on the part of complainant to repay the loan dues in time, the O.Ps are authorized to seize the vehicle and as the complainant is a chronic defaulter, the O.Ps No.1 to 3 seized the vehicle on 30.5.2017 and the complainant was intimated by letter dt.1.6.2017 calling upon him to pay an amount of Rs.1,11,286/- for release of the vehicle and again a letter dt.8.6.2017 was issued to complainant requesting to pay the above stated amount or else the bank will be compelled to sell the vehicle.  Copies of notices are annexed as Annexure-B series and letter as Annexure-C & D.

As the complainant did not respond to the letters under Annexure-C & D, the vehicle of the complainant was sold and the consideration of sale was adjusted to the loan account.After adjustment an amount of Rs.75,722.73p is outstanding against the complainant.The O.P bank moved before the R.T.O,Cuttack for cancellation of the ownership of the complainant.

The O.Ps sent several reminders to the complainant to pay the outstanding amount but the complainant did not respond.Hence the O.Ps were constrained to invoke Arbitration clause-23 of the agreement and referred for Arbitration since 8.8.17 for recovery of outstanding amount of Rs.75,722.73p.The further plea of the O.Ps is that the agreement between the parties clearly stipulates about arbitration clause for adjudication of any dispute.The complainant instead of contesting in arbitration proceeding with an oblique intention filed this case before this Forum and this case is liable to be dismissed for want of jurisdiction.

3. We have heard from the learned advocates of the parties and gone through the documents and papers filed by them carefully.

Admittedly the complainant has availed loan from O.Ps but failed to repay the installments as per the terms and conditions of the agreement and the repayment schedule.During course of argument, the learned counsel for the complainant submitted that Hon’ble Apex Court and National Commission have held that no force can be used for repossession of the vehicle by the financier.

On the other hand, the counsel for the O.Ps in course of argument controverted the arguments advanced by the complainant & relied on several decisions and took the stand that due to default in payment of installments, the complainant violated the terms and conditions of the agreement and the O.Ps are authorized to take the repossession of the vehicle. Since the complainant failed to clear up the dues, the vehicle was sold.So there is no question of deficiency in service and unfair trade practice on the part of O.Ps.

In our considered view, the grounds taken by the complainant does not ensure in his favour as because when he defaulted in paying the installments, it gives right to the financier to take repossession of the vehicle.

                                                                                ORDER

Basing upon the facts and circumstances stated above, complainant failed to prove deficiency in service and unfair trade practice on the part of O.Ps.Hence, the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 12^th day of October,2020  under the seal and signature of this Forum.

 

  ( Smt. Sarmistha Nath )

                            Member (W)                                                                                                                                                                                                                                                                                                                                                                                                                  (Sri D.C.Barik)

 President.