Orissa

Cuttak

CC/171/2014

NImai Charan Das - Complainant(s)

Versus

Manager,Shriram Equipment Finance Company Limited - Opp.Party(s)

B M Mohapatra

09 Jun 2022

ORDER

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

                                                                C.C.No.171/2014

 

Sri Nimai Charan Das,

S/O:Late Benudhar Das,

At:Nimakana,P.O/P.S:Tirtol,

Dist:Jagatsinghpur.                                                                          ... Complainant.

        

                                                Vrs.

1.         Shriram Equipment Finance Company Limited,represented by Manager,

303-306,Sabari Samridhi Building,

V.N.Purav Marg,Next to Chembur S.T.Road,Chembur,

Mumbai.

Branch Office At:Rajarani Petrol Pump,

Lewis Road,Bhubaneswar,Dist:Khurda.

 

2.         Shriram Equipment Finance Company Limited,represented by Branch Manager,                   

Biswal Complex,Mahanadi Vihar,

Sikharpur,Cuttack.

 

3.        Shriram Equipment Finance Company Limited, represented by Branch Manager,

Chandikhole Branch,At/P.O/PS:Chandikhole

Dist:Jajpur.                                                                                                                       ...Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    21.11.2014

Date of Order:  09.06.2022

 

For the complainant:            Mr. B.M.Mohapatra,Adv. & Associates.

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

 

Sri Debasish Nayak,President              

            Cased of the complainant in nutshell is that the complainant being an unemployed youth had purchased one Excavator of Model-HYUNDAI-R-210 in order to earn his livelihood and maintain his old ailing parents who are dependent on him.  He incurred a loan from M/s. Shriram Equipment Finance Company Ltd., who is O.P No.1 in this case.  O.P No.3 is the branch wherefrom the loan was obtained practically by the complainant.  The cost of the said Excavator was Rs.43,00,000/-.  The O.P No.1 & 3 had agreed to provide finance to the complainant in the year 2011.  Accordingly, the hire purchase agreement was signed by the complainant wherein his brother’s wife stood as a guarantor vide agreement no.CHNDIO302280003.  Besides signing certain documents, the complainant had signed in some blank sheets as given to him by O.Ps No.1 & 3.  By virtue of the said loan agreement, the complainant was financed a sum of Rs.32,22,723/- which was to be repaid in 47 number of monthly instalments.  A copy of the agreement was desired to be taken by the complainant but the O.Ps had not provided him the same.  In the year 2014, the mother of the complainant fell ill and was suffering from paralysis.  It is for this, the complainant could not pay 3 monthly instalments for which he had requested O.Ps No.1 & 3 to allow him some time in order to repay the said defaulted instalments. But on 12.11.14 at Jagatpur area of Cuttack, 5 to 6 persons identified themselves to be the agents of O.Ps No.1 & 3 had forcibly taken away the said Excavator of the complainant by driving out the driver and snatching away the key from him.  On the request of the complainant to the O.Ps, they agreed to provide him a moratorium period and to hand over the Excavator to him but they wanted the arrear instalments in cash.  On 17.11.14 the complainant had met O.P No.1 at his office and had carried the cash with him but O.P No.1 had refused to accept the cash or to return the Excavator.  When the complainant asked for the accounts statement, he was not provided with the same for which he could not know about the outstanding arrear amount.  It is further alleged by the complainant that the O.Ps without serving him any notice had taken away his Excavator with a malafide intention.  The O.Ps had never issued any notice or letter asking the complainant to repay the arrear dues.  The complainant further mentioned in his complaint petition that he is prepared to pay the arrear dues if allowed in easy instalments.        The complainant has relied on a decision of the Apex Court, in the case of Manager,ICICI Bank Ltd. Vrs. P.Kaur reported in (2007) 36 OCR(SC) 815 wherein it is observed that “before taking any action, the owner of the vehicle should be intimated about the outstanding dues through notice.  Despite that if the owner fails to comply the same, action through police and strictly as per the RBI guidelines may be taken and not by the appointed contractors in the arbitrary and high handed manner”.  It is for this, the complainant has alleged in his complaint petition that the O.Ps 1 & 3 had taken law into their own hands without taking action as per the law.  Thus, it is alleged by the complainant that the O.Ps had practised unfair trade for which he had sustained irreparable loss and heavy financial loss.  The complainant through his complaint petition has prayed for a sum of Rs.85,000/- towards his mental agony and harassment, a sum of Rs.2,00,000/- towards the loss sustained together with cost of Rs.15,000/- from the O.Ps towards cost of his litigation.

2.         On the other hand, O.Ps have contested this case and filed their written version wherein they have mentioned that as per the contract in between the borrower and the financier, in the event of any dispute, the matter can be referred to the Arbitrator.  So according to them, instead of availing the remedy under the contract, the complainant had approached this Commission.  They have mentioned in their written version that under the loan-cum-hypothecation contract, the financier does not provide any service which is settled position of law and as such, there can be said that there was no deficiency.  According to the O.Ps, the case of the complainant as such being not maintainable is liable to be dismissed.  That apart, the O.Ps have alleged that the complainant uses the vehicle for commercial purposes by engaging a driver/operator.  Thus he does not come under the definition of “consumer”.  It is the contention of the O.Ps in their written version that, this Commission lacks jurisdiction since because the cost of the equipment exceeds the pecuniary jurisdiction of this Commission.  They have admit in their written version about the financing a sum of Rs.32,22,723/- to the complainant but according to them, the complainant is liable to pay a sum of Rs.43,72,438/- in 47 instalments with effect from 5.4.13 till 5.2.17 @ Rs.92,800/- which was executed between the complainant and O.P No.3 on 28.2.13 vide loan-cum-hypothecation agreement No. CHNDIO302280003.  According to the O.Ps, they have the right to repossess the asset of the defaulter and dispose it by way of public auction in order to achieve best possible price.  When the complainant became a defaulter, the O.Ps had issued notice to him on 4.1.14 demanding a price of Rs.34,26,120.97 within 7 days.  Again they had issued a pleader’s notice to the complainant on 22.1.14 and the postal proof is filed accordingly.

The statement of account as on 3.12.14 relating to the agreement dt.28.2.13 reveals that the complainant’s payable instalments were Rs.18,66,863/- out of which the complainant had paid a sum of Rs.11,24,860/- and thereby the complainant was to pay the instalment arrear of Rs.7,41,978/- besides the ODC due of Rs.2,52,871/-.  Out of the said ODC value a sum of Rs.12,640/- were only collected.  So the residual amount due from the complainant is of Rs.2,40,231/-.  Thus, the complainant is liable to pay a total amount towards instalment with penalty etc a sum of Rs.32,49,561.71p. And the O.Ps have also denied to have ever threatened to the driver/operator of the Excavator or to the complainant or to have adopted any unfair means in order to repossess the said vehicle from the complainant.  Thus, they have prayed to reject the complaint petition.

            Both the parties have filed copies of documents in support of their stands taken.

Keeping in mind the averments as made in the complaint petition and that in the written version, this Commission thinks it proper to settle the issues in order to arrive at a proper conclusion in this case.

1. Whether the complainant of this case is a consumer?
2. Whether the complainant had a cause of action to file this case?
3. Whether the compliant as filed by the complainant is maintainable?
4. Whether there was any deficiency in service by the O.Ps.
5. Whether the complainant is entitled to the reliefs as claimed?

Issues No.1 & 2.

            For the sake of convenience issues no.1 & 2 are taken up together first for consideration.

            When it is averred by the complainant in his complaint petition that in order to earn his livelihood and to maintain his dependant old ailing parents, he had incurred loan and had purchased the said Excavator of Model- HYUNDAI-R-210, he is definitely a consumer as per the definition i.e. envisaged in the Consumer Protection Act,1986.  When his vehicle was repossessed because of being defaulter for certain instalments, the complainant had cause of action to file this case.    There is no bar to the complainant to approach this Commission without preferring the Arbitration.  Hence, these two issues are answered in favour of the complainant.

Issue No.3.

            While perusing the complaint petition and the supportive documents as filed from either sides in this case, it is noticed that the vehicle in question i.e. the Excavator which was purchased by the complainant is of a value of Rs.43,00,000/-, the complainant had incurred a loan of Rs.32,22,723/- for purchasing the said Excavator.  As per the C.P.Act,1986, the pecuniary jurisdiction of this Commission was of Rs.20,00,000/- only and when the value of the machine(asset) exceed the said amount, it can well be said here in this case that this Commission lacks proper jurisdiction to entertain the complaint petition as filed by the complainant against the O.Ps.  Thus this issue is answered accordingly.

Issues No.4 & 5.

            From the above discussions, it is needless to proceed further to settle these two issues     here in this case.  Hence it is so ordered;

                                                             ORDER

            The case is dismissed on contest against the O.Ps for lack of jurisdiction and without any cost.

Order pronounced in the open court on the 9^th day of June,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                                                                 

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                            

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.