Orissa

Cuttak

CC/166/2021

Saroj Kumar Nath - Complainant(s)

Versus

M/s Caterpillar Financial Service India Pvt Ltd - Opp.Party(s)

A K Choudhury

12 Oct 2022

ORDER

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

                                                                C.C.No.166/2021

Saroj Kumar Nath,Proprietor,

M/s. Basanti Transport, MIG-18,Housing Board Colony,

Charbatia,Choudwar,Cuttack,Odisha-754028..                       ... Complainant.

 

                                                Vrs.

1.        Authorised Officer,

M/s. Capterpillar Financial Service India Pvt. Ltd.,

6^th Floor,Towere ‘B’ Pretige Shantiniketan,

The Business Precinct,Whitefield Main Road,

Bengaluru,Karnataka-560048.

 

2.        Authorised Officer,

M/s. Capterpillar Financial Service India Pvt. Ltd.,

C/o:Gainwell Commosales Pvt. Ltd.,Plot No.2132/5140,

BJB Nagar,Lewis Road,(Near Gautam Petrol Pump),

Bhubaneswar-751014,Odisha.                                              ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    07.10.2021

Date of Order:   12.10.2022

 

For the complainant:          Mr. A.K.Choudhury,Adv. & Associates.

For the O.Ps               :                 None.

 

Sri Debasish Nayak,President.             

            Case of the complainant as made out from the complaint petition in short is that the complainant had obtained finance in order to purchase one excavator machine to earn his livelihood.  Accordingly, the complainant had entered into hypothecation agreement with the O.P No.2.  The cost of the said excavator machine was of Rs.63,00,000/- out of which a sum of Rs.56,70,000/- was disbursed in favour of the complainant by the O.Ps which was to be repaid by him in 47 number of E.M.Is @ Rs.1,46,005/-.  The loan application/agreement no.80870000497 dt.17.6.20 was thus executed for an amount of Rs.56,70,000/-.  The complainant had insured the said excavator machine also.  But during the pandemic situation, the situation became grim for which his excavator machine was seized by the O.Ps on 2.9.21 without serving upon him any demand notice but he admits to have been served a default notice dt.25.3.21.  Thereafter, he had tried to settle the issue by persuading the O.Ps but no fruitful result had yielded.  The complainant has further mentioned that during pendency of WPC no.9095 of 2020 and WPC no.15941 of 2020 before the Hon’ble High Court, the O.P No.1 had arbitrarily invoked the arbitration clause by sending notice on 255.5.21 pertaining to his loan as availed by the complainant.  Thus, the complainant has filed this case seeking direction from this Commission that the seizure as made pertaining to his excavator machine to be illegal and void, the O.Ps to restructure the loan account, the O.Ps to pay him a sum of Rs.60,000/- per month from the date of seizure of the excavator machine and to further  pay him a compensation amount of Rs.5,00,000/- towards his mental agony and harassment and further to bear his litigation cost to the tune of Rs.30,000/-. The complainant has also prayed for any other reliefs as deemed fit and proper.

            The complainant has filed copies of several documents in order to prove his case.

2.         Having not contested this case, the O.Ps are set exparte vide order dt.1.6.22.

3.         The points for determination in this case are as follows:

i.          Whether the case of the complainant is maintainable ?

            ii.         Whether the O.Ps were deficient in their service towards the complainant ?

            iii.        Whether the complainant is entitled to the reliefs as claimed ?

Point no.ii.

            Point no.ii being the pertinent one is taken up first for consideration here in this case.  The complainant had obtained finance for purchasing one excavator machine. He had entered into hypothecation agreement with the O.Ps and had thereby agreed to the terms and conditions therein in order to repay the loan amount of Rs.56,70,000/- to the O.Ps in 47 number of equal monthly instalments @ Rs.1,46,005/-.  The complainant admits that he was served default notice by the O.Ps dt.25.3.21 which goes to   show that the complainant became a defaulter for which such default notice was served upon him by the O.Ps.  The complainant complains of the pandemic situation and has stated about the advisories as issued by the Govt. of India as well as the Govt. of Odisha but has not filed any such advisories in order to apprise this Commission regarding the same. When the complaint had entered into the hypothecation agreement while obtaining loan from the O.Ps, he is supposed to be adhering to all the terms and conditions of the said agreement and violation of the same would definitely entitle the O.P to repossess the vehicle/machine for which the loan was advanced.   Hon’ble Apex Court has also decided in the case of Bharathi Knitting Company Vrs. DHL Waorldwide Express Courier (1996) 4 SCC 704 wherein it is held that when the complainant signs the contract documents, he is bound by it’s terms and conditions and the onus would be on him to prove the terms and the circumstances in which he had signed the contract  and the principles of law is well settled in this score that the borrower or loanee when becomes a defaulter, the financier can repossess the machine/vehicle after observing the formalities.   In this case, as it appears from the complaint petition, default notice was served from which the complainant was well aware that he had violated the terms and conditions of the hypothecation agreement by not paying the timely instalments due from him.  Thus, it cannot be said here that O.Ps were deficient in their service when they repossessed the Excavator machine for which they had advanced the finance in favour of the complainant.  Accordingly, this point is answered.

Points no.i & iii.

            From the above discussions, it can never be said here that the case of the complainant is maintainable and that he is entitled to any of the reliefs as claimed by him. Hence it is so ordered;

                                                            ORDER

            Case is dismissed against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 12^th day of   October,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                            Sri Sibananda Mohanty

                                                                                                                                        Member