SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service and unfair trade practice in respect of demanding excess loan amount and not issuing the No Objection Certificate are the allegations arrayed against Ops.
2. Complaint, in brief reveals that the Opp.Parties being a finance Company function in the name and style as ‘Magma Fincorp. Ltd.’ with its Head office at Bhubaneswar for State Odisha and its branch office is located at Paradeep, covering the finance area of Kendrapara district, and its corporate office at Kolkata. Complainant for maintaining his livilihood decided to purchase Tata Make LPT 31183IT Truck availed a finance from OP-Finance Company to the tune of Rs.16,27,000/- by executing an agreement bearing No. HO/G/0108/09/000032 dtd. 31.05.2010. As per the agreement the total loan outstandings as for Rs.22,69,665/- which is to be repaid in 59 monthly installments starting from dtd.01.07.2010 to 01.07.2015 with a monthly installment amount of Rs.38,900/- per month. The welcome letter shows the details of EMI’s which is filed into the case Annexure-I. The vehicle was registered before R.T.A,Cuttack bearing Regd. No.OR-05-A-6975. The copy of the Regd. certificate is filed into the case as Annexure-II. The Ops collected monthly installments through their agreement and the copies of available monthly money receipts granted by Ops are filed into the dispute,Annexure-III series. Complainant describes a details of payment perticulars which shows that total Rs.25,19,109/- has been paid by the complainant till dtd.11.06.2015 towards loan dues. It is revealed from the complaint petition that the OP-Finance Company had instituted an Arbitration proceeding bearing No.A.P.132 of 2012 in the Hon’ble High Court of Calcutta, alongwith G.A.No.1395 of 2012, which was ultimately dropped on dtd.22.08.2012 on contest. The copy of the order dtd. 22.08.12 is annexed as Annexure-IV. In the complaint, it is alleged that OP-Finance Company by adopting unethical trade practice instituted a criminal proceeding bearing No.C/19472/2012 U/S-138 of N.I Act before the Metropolitan Magistrate, Kolkata by misusing one of the blank cheque given by the complainant for co-lateral security. The complaint case has been disposed off and complainant apprehends misuse of those 7(seven) nos. of blank cheques by the oP-Finance Company. It is also revealed that as no outstandings dues are pending on the financed vehicle bearing No.OR-05-AK-6975, the OP-Finance Company turned down the proposal of issuing NOC and demanding an illegal excess amount showing the non-closure of loan account. It is further alleged that OP-Finance Company has committed deficiency in service and unfair trade practice for non-supply of Account statement, agreement copy, charging more amount than the actual due and non-supply of NOC, which caused financial loss and mental agony to the complainant. The cause of action of the instant case arose on different dates, lastly on dtd.22.11.2015, when the officials of OP-Finance Company demanded excess amount at the residence of the complainant and refused to issue the NOC. Hence, the complainant prays before this Forum seeking direction of this Forum to OP-Finance Company to issue NOC in favour of the complainant, and to return the excess amount of Rs.2,49,444/- paid by the complainant as EMI dues and to declare the agreement amount of Rs.22,69,665/- as illegal and to pay Rs.50,000/- for financial loss and mental agony for causing deficiency in service and unfair trade practice.
3. Being noticed OP-Finance Company appeared through their Ld. Counsel Mr. Biswajit Rout and filed written statement to defend their case challenged the maintainability of the complaint on grounds of jurisdiction, clause of Arbitration in the agreement etc. by citing different decisions. Ops in their written statement disclose of financing the vehicle, its terms and condition of repayment, EMIs, which are same as complaint petition and needs no further elaboration. It is averred in the written statement that as per the terms and conditions of the hire purchase agreement the OP- Company has every right to repossess the vehicle in case where the borrower failed to pay the dues in time, accordingly the OP-Company has acted lawfully. It is also averred that in the dispute when complainant defaulted in payment of loan outstandings the matter was referred to Ld. Arbitrator, who passed an award of Rs.16,72,700/- on dtd.30.03.2012 in favour of OP-Company. Complainant on receipt of the Arbitration award mislead the Forum and succeeded to get an interim order in his favour. It is further averred that as till-date complainant-borrower has not cleared the loan outstanding dues being a defaulter, there is no question assigning in relation to issue of NOC. As complainant is a chronic defaulter in respect of repayment of loan outstandings, the Ops have every right to take different legal options as per the agreement against the complainant. Under the circumstances, the complaint be dismissed and interim order dtd. 14.12.2015 may be set aside.
4. Heard the case of parties on merit, gone through the documents filed into the case, it is an admitted fact that complainant purchased a Tata Make LPT 3118 3IT truck being financed to the tune of Rs.16,27,000/- by OP-Financed by OP-Finance Company after execution of an agreement bearing Code No.HO/G/0108/09/000032. It is further admitted that the total loan outstanding is for Rs.22,69,665/-, which is to be repaid in 59 monthly installment @ Rs.38,900/- per month starting from dtd.01.07.2010 to dtd.01.05.2015. It is also admitted that, prior to filing of the present complaint parties indulged in litigations by taking shelter of law.
The complaint is filed on allegation that though all the outstanding amounts against the financed vehicle has been repaid, the OP-Finance Company is not issuing the NOC and demanding illegal excess amount on complainant for issuing NOC. It is further alleged that no legal proceeding is pending against the complainant. Countering the allegations Ops state that this Forum lacks the jurisdiction to entertain the complaint U/S-11 of C.P.Act,1986 as all the Ops impleaded in the dispute are residing outside the jurisdiction of the Forum. It is also stated that complainant is a defaulter in respect of payment of EMI’s as its reflects from the information given in the complaint petition itself, as per the agreement the total loan amount is to repaid on 59 monthly installments, but the loan oustandings are not paid within the due date for which different charges were lawfully imposed on the complainant. It is also the case of Ops that on default matter was referred to Ld. Arbitrator who passed an award in favour of OP as to the tune of rs.16,72,700/- on dtd.30.03.2012, as award which has already been passed this Forum, lacks the jurisdiction as per the decision of Hon’ble National Commission in Revision petition No.2363 of 2002 decided on dtd.05.10.06.
On deciding the question of maintainability, it is revealed from the complaint petition that the office/branch office are not located within the local limits of this Forum, it appears from the complaint that for shake of maintainability, it is alleged that the cause of action arose on dtd.22.011.15 within the local jurisdiction of the Forum, which are without any substantial evidence. So far the initiation of Arbitration proceeding is concerned the version of both the sides are contradictory to each other. Complainant filed a Xerox copy of order of Hon’ble High Court,Kolkata in a G.A.No.1395/12 and AP No.132/12(Annexure-IV) where the OP-Finance Company is Petitioner and same is dismissed as not pressed on dtd.22.08.2012. On the other side OP-Finance Company in their written statement state that Ld. Arbitrator passed an award amount of Rs.16,72,700/- in favour of OP on dtd.30.03.12, but no copy of the award of the Arbitrator is filed into the dispute for better appreciation of facts, in this situation the facts presented in connection to filing of Arbitration proceeding and award, if any are confusing and in no way assist to the parties so far opinion of this Forum is concerned.
It is also clear that an accounts dispute exists between the parties for which No Objection Certificate(NOC) was not issued as claimed by the complainant. Complainant to strengthen his case filed a number of Xerox copies of Money receipts (Annexure-III series and information chart in para-8 of the complaint petition, which shows that a total amount of Rs.25,19,109/- has been paid up to dtd.11.06.15. Ops countering the allegation states that complainant has not paid a single EMI in time, but did not produce any documentary proof to substantiate their version. However, in this aspect this Forum can not adjudicate a dispute where a account disputes exists between the parties, the civil Court is only authorized to adjudicate the same.
As per the aforesaid observations it is clear that this Forum lacks the jurisdiction to adjudicate the complaint, as there is no substantial allegation of deficiency in service or unfair trade practice, rather the disputes are related to different legal complications, which is to be raised before appropriate Court of Law by the parties. Accordingly, the I.A. Case No.40/15, which arises out of the present complaint is hereby disposed off as per our aforesaid version, and the interim order before No.2 passed on dtd.14.12.2015 is hereby vacated.
Accordingly, the complaint is dismissed on merit with aforesaid observation.
Pronounced in the open Court, this 12th day of May, 2017.
