Orissa

Cuttak

CC/19/2017

Bishnu Charan Nayak - Complainant(s)

Versus

Manager,Magma Fincorp Ltd - Opp.Party(s)

A P Ray

30 Jun 2018

ORDER

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

                                                                                    C.C No.19/2017

Bishnu Charan Nayak,

Son of Late Iswar Nayak,Sikharpur Traffic Chhack,

Tala Sahi,Sikharpur,PO:College Square,

Cuttack-753003..                                                                             … Complainant.

 

                Vrs.

 

 

1.        General Manager,

Magma Fin Corp. Limited,

Regd. Office:Magma House,24 Park Street,

Kolkata-700016(W.B).

 

2.            The Manager,

                Magma Fin Corp. Limited,

Niramala Plaza,At:Forest Park,

Bhubaneswsar-751009.              

 

3.            Branch Manager,

Magma Fin Corp. Limited Sumitra Plaza,3^rd Floor,

Arunodaya Nagar,Near Govt. Bus Stand,

Badambadi,Cuttack-75302.                                                            … Opp. Parties.

 

 

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

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   14.02.2017

Date of Order: 30.06.2018

 

For the complainant:                      Mr. A.P.Ray,Adv. & Associates.

For the  O.Ps.             :                    Mr. R.K.Pattnaik,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

This consumer complaint has been filed by the complainant alleging therein deficiency in service on the part of O.Ps and seeking appropriate relief against them in terms of his prayer in the complaint petition.

1. The brief facts that give rise to this complaint is that the complainant had taken a loan of Rs.5,86,836/- from the O.Ps for purchase of a Tata Motor truck.  The said loan was repayable together with interest in 46 installments @ Rs.22,000/- each.  The complainant thereafter started his transport business to earn his livelihood and in the mean time he has already paid 12 out of 17 installments to the O.Ps.  Annexure-A is the copy of receipts showing repayment of 12 installments to the O.Ps.

It is further revealed that Sanjay Nayak the son of the complainant had been managing the truck business since then.But on 8.5.2016 he met with a road accident and sustained multiple fractures on different parts of his body and was admitted to S.C.B.Medical College & Hospital,Cuttack on the same day. It had adversely affected the business of the complainant.Annexure-2 is the copies of the medical documents with regard to accident and treatment provided to the complainant’s son.

In the month of November,2016 the Central Govt. declared demonetization and it had also precipitated the suffering of the complainant.He was even unable to earn his livelihood and maintain his family.

The complainant thereafter intimated O.P.2 about his plight in the business on different occasions but there was no response from the latter to come to the help of the complainant.Annexure-3 is the copy of the letter dt.31.1.2017 issued by the complainant by registered post in this regard.

It is also revealed from the complaint that the complainant is a rustic villager having no knowledge of English and he was not provided with rules and regulations of the loans by the O.Ps.Although he was ready to repay the defaulted E.M.Is to the O.Ps 2 & 3 on subsequent installments, the latter did not agree.They rather insisted on full payment of the balance amount at a time which the complainant was unable to comply with in view of his distress condition.That apart, it is alleged that the O.Ps are repeatedly sending musclemen to the house of the complainant to threaten him for immediate repayment of the amount.More specifically it is stated that on 20.1.2017 one Bastia, a person belonging to the O.Ps Company rushed to the residence of the complainant, abused the inmates and also threatened them in different ways.It has caused serious tension and mental agony to the complainant.He was also apprehending danger and unable to ply his vehicle on the road because of the repeated threats given by the musclemen of the O.Ps.This conduct of the O.Ps is tantamount to deficiency in service.As such he has filed this case against the O.Ps with prayer that the O.Ps 2 & 3 be directed not to disturb him or to seize his vehicle bearing Regd. No.OR-05-AD-0962, to direct them to allow him 8 months time to repay the defaulted E.M.Is for six months.It is also further prayed that the O.Ps may be directed to pay Rs.80,000/- towards loss incurred by the complainant for not being able to ply the vehicle, Rs.15,000/- towards compensation for mental agony and harassment and Rs.5000/- towards cost of litigation in the interest of justice.

2. The O.Ps entered appearance and contested the case.  At the outset, it is revealed from joint written version filed by the O.Ps that the case is not maintainable and the complainant is not a consumer as the vehicle is used for commercial purposes.  The dispute between the complainant and the O.Ps is that of a borrower and a lender and the present dispute is essentially a dispute of civil nature which does not come within the purview of C.P.Act.

It is further stated that there is an arbitration clause in the agreement entered into by the parties and on that basis any dispute arising out of this transaction shall be referred to the sole Arbitrator.The complainant has violated the arbitration clause in the agreement by filing the present case before this Forum.Annexure-A & B are respectively the copies of the judgment of the Hon’ble Apex Court and of hire purchase agreement filed by the O.Ps in this case.

According to the O.Ps, the complainant has defaulted in making repayment of 8 nos. of installments amounting to Rs.1,75,917/-.A copy of the repayment details has been filed and marked as Annexure-C.It is also stated that the complainant has suppressed the material facts of this case with oblique motive and has not approached this authority in clean hands.They have also filed the copy of the statement of account dt.25.2.2017 of the complainant which has been marked as Annexure-D.Annexure-E is the copy of the duly translated guidelines provided to the complainant.

It is specifically stated that there is no deficiency in service in any manner on the part of the O.Ps.Rather the complainant is at fault and violated the terms and conditions of the agreement.As such it is prayed that the consumer complaint being devoid of merit may be dismissed.

3. We have heard the learned counsels from both the sides and gone through the case record.
4. The learned counsel for the O.Ps at the outset called in question the maintainability of this case on various grounds.  According to him, the vehicle of the complainant was used for commercial purposes and as such the complainant is not a consumer competent to file this case and therefore this Forum lacks jurisdiction to entertain it.  It is also simultaneously submitted that the complainant has not approached this Forum in clean hand as he has not deliberately stated about the arbitration clause in his complaint petition.  It is also stated that when there is an arbitration clause in the hire purchase agreement vide Annexure-B, any dispute arising out of this transaction shall be referred to the sole Arbitrator.  When it has not been done, the complainant is said to have violated the terms and conditions of the said agreement.  The fact of existence of said arbitration clause is not disputed by the learned advocate for the complainant.  During course of argument, the learned advocate for the O.Ps have relied upon a decision of the Hon’ble Supreme Court reported in AIR 2010(S.C) 488 (Branch Manager, M/s. Magma Leasing and Finance Ltd. and another Vrs. Potluri Madhabilata and another).   It has been held by the Hon’ble Apex Court in the said judgment that when there is an arbitration clause, no position is left to the court and the court has to refer the parties to the Arbitration.  In another judgment of the Hon’ble National Commission reported in 2017 (2) CPR-277(N.C) (Bischnu Charan Sharma Vrs. Sriram Finance Company Ltd. and another),  it has been held that provisions of C.P.Act,1986 cannot be used in derogation and Arbitration of Reconciliation Act,1996. 
5. In view of the observation stated above, it cannot but be held that the complainant has deliberately violated the terms and conditions of the agreement vide Annexure-B.  He has also not come to this Forum in clean hands.  So far as the commercial use of the vehicle of the complainant is concerned, there are no sufficient materials brought to the notice of this Forum to give a finding in favour of the O.Ps.
6. Admittedly, the complainant is at fault and has violated the terms and conditions of the agreement by not making payment of E.M.Is for 6 consecutive months.  In that view of the matter, it is also held that the complainant had gone against the terms and conditions of the agreement entered into by him and the O.Ps.  Hence ordered;

ORDER

The consumer complaint is found devoid of merit and as such stands dismissed.  No order as to cost.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 30^th    day of June,2018 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                          President.

                                                             

                                                                                                              (Smt. Sarmistha Nath)

                           Member(W)