IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Smti S.Bora
Member(F)
District Consumer Disputes
Redressal Forum, Sonitpur
Sri P.Das
Member(Gen.)
District Consumer Disputes
Redressal Forum, Sonitpur
CONSUMER COMPLAINT NO.31/2018
1.Sri Ramen Basumatary : Complainant
S/o Late Arun Basumatary
Resident of Village Meghaijharanii
P.O & P.S: Thelamara,Mouja: Naharbari
Dist:Sonitpur, Assam-784149
Vs.
1.M/s Mahindra & Mahindra Finance Service Ltd. : Opp party No.1
Represented by its Legal Manager
Gateway Building Apollo Bundra , Mumbai-400001
2. M/s Mahindra & Mahindra Finance Service Ltd. : Opp. party No.2
Branch office: Ist Floor, Sitaram Mansion,
New Amlapatty
P.O & P.S: Tezpur,Dist:Sonitpur(Assam)-784001
Appearance:
Mr.Rajib Boruah,Adv. : For the Complainant
Mr.A.K.Paul, Adv. : For the Opp. party
Date of Argument : 21/09/19
Date of Judgment : 15/10/2019
JUDGMENT
- The case, in brief, is that complainant obtained a ‘Mahindra Maximo Passenger’ commercial vehicle on 09/11/2011 with financial assistance of the opp. parties. One Jonaram Boro stood guarantor to the loan. The registration number of the vehicle is AS-12-E-6270. The EMIs of the loan were initially regularly paid but after sometime, due to financial hardship, complainant was unable to pay the instalment within due dates. Complainant intimated his financial position to the opp. party with assurance to regularize the payment. But in the month of December,2012, the opp. party No.2, through its men, forcibly repossessed the vehicle. It has been alleged that the opp.party no.2 refused to issue repossession inventory list and accounts statement of payment made, inspite of repeated demand of the Complainant. Post repossession of the vehicle, opp. party No.2 continued pressurizing the Complainant to pay the defaulted instalments and threatened to lodge police case against him. Succumbing to such pressure, Complainant paid an amount of Rs.10,220/- to the representative of opp. party No.2. That despite paying such amount the opp. party No.2 continued demanding an amount of Rs.2,09,450/-. On 4/8/2018 opp. party no.2 served a notice of Money Execution case no. 1/2017 upon the Complainant through the guarantor Jonaram Boro asking to show cause, fixing 13/8/18 for enforcement of the award dtd 04/8/14 passed by the sole arbitrator, who directed the Complainant to pay Rs.2,09,450/- with interest thereon. It has been alleged that- Complainant was ignorant of initiation of any arbitration proceeding, as no notice of arbitration or copy of the award passed by the sole arbitrator was ever served on the Complainant. It is further alleged that Complainant, after receiving notice of M/Execution case no.01/17 visited the office of opp. party No.2 on 7/8/18 and requested to provide him with copy of the repayment statement, copy of the agreement, copy of report of repossession of the vehicle.But the opp. party No.2 refused to provide the same. The Complainant on 7/8/18 could also know that the vehicle was sold out in auction without giving any notice, information or opportunity to the Complainant. Alleging deficiency in service and adoption of unfair trade practice by the opp. parties, the Complainant is therefore, before the Forum praying a total relief of Rs.4.00 lakhs with interest @ 18% per annum.
- Opp. party contested the case by filing written version. At the very inception, it has been contended that the case filed after 5(five) years of cause of action, is barred by limitation. Acording to the opp. party, cause of action for the complaint arose when the notice of termination of contract was given to the Complainant on 31/5/2013 and the vehicle was repossessed on 24/6/2013 and subsequently sold in public auction on 01/7/2013. Terming the status of the Complainant as “Chronic Defaulter” the opp. party contended that the Complainant miserably failed to repay the instalments and as on May,2013 has defaulted 07(seven) consecutive instalments, which culminated in breach of contract by the Complainant. It is further contended that opp. party was constrained to enforce its security and to exercise its right under the contract of loan agreement. Opp. party has challenged the case mainly on the following points.
- Rs.2,35,000 was the principal loan extended to the Complainant;
- Agreement value to be repaid by Complainant inclusive of interest was Rs.3,11,845/-;
- Repayment schedule was in 36 EMIs @ Rs.10,220/- starting from 09/11/2011 and ending on 09/09/2014;
- Complainant miserably failed to repay the EMIs onwards from October,2012 and as on May,13 defaulted seven consecutive EMIs;
- Non-payment and delayed payment of the EMIs amounted to Breach of Contract;
- By notice dtd 31-05-13 termination of contract was notified to the complainant and the guarantor as well. Complainant duly acknowledged receipt of the same on 06/7/13 as per postal A/D Card. Similarly, the guarantor acknowledged receipt of the notice on 03/7/13;
- Vehicle was repossessed on 24/6/13 with signature of the Complainant and sold out in public auction on 01//7/13.The sale proceed was duly credited to the loan account of the complainant on 01/7/13;
- Contract agreement of the loan contained arbitration clause;
- Arbitration proceeding was initiated as per clause 26 and 27 of the contract of loan;
- Notice dated 24/6/13 of Arbitration and Conciliation Act,1996 was served upon the Complainant on 06/7/2013;
- First notice with claim application and other material from the learned arbitrator was served upon the Complainant on 29/7/13;
- Copy of the interim award of the learned arbitrator was duly served on the Complainant on 14/9/13;
- Another notice from the arbitrator for hearing was served upon the complainant on 23/11/13;
- Copy of award of the learned arbitrator dtd. 04/8/14 was sent by learned arbitrator on 18/9/14 to the Complainant and the guarantor as well and was received by the wife of the guarantor on 11/11/2014 as reflected from postal A/D card;
- Notice of Money Execution case No.1/17 served upon the Complainant on 04/8/2018 fixing 13/8/2018 to show cause for enforcement of the award dtd. 04/8/14 passed by the learned arbitrator for Rs.2,09,450/- with interest thereon.
- Asserting with the above elaborated explanation that it had fully complied with all the legal obligations prior to embarking on repossessing the vehicle, auction sale and serving of demand notice to recover the debts from the Complainant etc, the opp. party denied any deficiency and practice of unfair trade and has prayed for dismissal of the complaint with cost.
- Complainant as C.W 1 tendered his evidence-in-chief on affidavit proving few documents thereunder as Ext-1 to 3. Complainant also examined his guarantor Sri Jonaram Boro as C.W.2 on affidavit. Opp. party declined to adduce evidence of any witness and preferred to remain content by cross-examining the Complainant and his witness C.W.2.
- We have carefully gone through the entire materials available on record together with the written argument filed on both sides and draw up the following points for determination of the dispute.
POINTS FOR DETERMINATION
- Whether the complaint is barred by limitation ?
- Whether the opposite party adopted unfair trade practice as alleged ?
- Whether there was deficiency in service on the part of the opposite party ?
- Whether the Complainant is entitled to get any relief ?
DECISION ON THE POINTS WITH DISCUSSION
6.Point No (i) & (ii): For the sake of convenience of discussion, these two points are taken up together for decision. The Complainant alleged that the vehicle in question was forcibly taken away by the opposite party No.2 in the month of December, 2012 for failure of the Complainant to pay the instalments due. After taking over possession of the vehicle even the opposite party No.2 continued to make demand of payment of instalments due. But failed to furnish documents including repossession notice inspite of repeated request made by the Complainant. They even threatened to lodge police case against the Complainant. Hence, having no other alternative, Complainant paid an amount of Rs.10,220/-. In the meantime, on 04-08-2018, notice of M-Execution Case No.1/17 was served on the Complainant through the guarantor, Sri Jonaram Boro, in connection with the award dated 04-08-2014 passed by Sole Arbitrator Mr.A Srinivasan for an amount of Rs.2,09450/- with interest. According to the Complainant, he was quite in dark about the appointment of arbitrator and arbitration proceedings against him. In the meantime, on his visit to the office of the opposite party No.2 on 07/08/2018, came to know about the sale of the vehicle in question in auction without giving any notice to him.
7. The Complainant as C.W.1, in cross-examination, though initially tried to conceal the fact of receipt of any kind of notice, but, at a later stage of cross-examination, admitted receipt of the loan recall notice, arbitration notice etc. Relevant portion of his cross-examination is quoted below –
“I have received the loan recall notice dated 31-05-2013. It is a fact that on 06-07-2013, I have received the notice dtd.31-05-2014. It is a fact that Ext-A was the A/D card of delivery of notice dtd. 31-05-2013. I do not know that the dispute was sent for arbitration.I have also received a notice dated 24-06-2013 from”Kennedy and Associate Advocates” on 06-07-2013 sent by registered post. Ext-B is the said notice dtd 24-06-2013. Ext-C is the A/D card of notice dtd 24-06-2013 from the postal authority. Ext-C(i) is my signature. I cannot say whether or not the said notice was also received by my guarantor. I have also received the notice dated 10-07-2013 from the arbitrator named A.Srinivasan. Ext-D is copy of the said notice.Ext-E is the A/D card of receipt of the notice dtd. 10-07-2013 by me. I have also received another notice dtd 05-08-2013 from the arbitrator. Ext-F is copy of the said notice. Ext-G is the A/D card of receipt of the said notice. Ext-G(i) is my signature . Thereafter also, I received another notice dtd. 15-10-2013 from the arbitrator. Ext-H is copy of the said notice. Ext-1 is A/D card as to receipt of the said notice. Ext-1(1) is my signature. I have not complied with any of the notices of the arbitrator. I have also received copy of the award of the arbitrator sent by post”.
8. In view of such evidence of the Complainant, we do not find any material of adoption of any unfair trade practice by the opposite party. His evidence reproduced above clearly demonstrates that the complaint is full of misleading facts.
9. The Complainant purposefully mentioned in paragraph-16 of the complaint that- “cause of action for the complaint arose on 9/11/2011, 12/2012, 4/8/2014, 4/8/2018, 7/8/2018, 13/8/2018 and thereafter”.
10. To save the limitation for filing complaint before the Consumer Commission, the Money Execution case is not at all relevant. The opposite party took possession of the vehicle in the month of December, 2012. If he has any cause of action for filing complaint under the Consumer Protection Act, the same accrued on the date of repossession, but not later than that. Under no circumstance, the M.Execution case can be treated as continuing period for instituting a complaint under the Consumer Protection Act.
Thus both the point No.(i) and (ii) are decided in the negative, i.e, against the Complainant.
11.Point no.(iii) : To decide this point, we have found the judgment rendered by the National Consumer Disputes Redressal Commission in the case of ‘Dewar Motors @ Dewesh Motors vs. Uttam Bhuyia’, reported in (2017) ,ConLT 302; (2017) 1 CPJ 408(2017) 1 CPR 86, a very very relevant one.While passing the judgment, the National Commission relied on several judgment passed by the Hon’ble Supreme Court. The National Commission quoted relevant portion of the judgment of the Hon’ble Supreme Court in the case of “ Suryapal Singh vs. Siddha Vinayak Motors & Anr”. [II (2012) CPJ 8 (SC)] in para 9 of the judgment as under -
“Under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier”.
12. The facts of the case before the National Commission referred to above are almost similar to the case before us. In the above-referred case of ‘Dewar Motors’ the Hon’ble National Commission, following catena of decision rendered by the Hon’ble Supreme Court held that-
“ ……….in case of hire purchase agreement the financier is the owner of the subject matter of the agreement and the purchaser is only a hirer who would acquire ownership only after clearing of the loan”.
In view of the above the National Commission in the case of ‘Dewar Motors’ held that the financier cannot be held guilty for deficiency in service.
13. Under the facts and circumstances of the case in hand and in the light of the judgment of the Hon’ble Supreme Court and the National Commission referred to above, we are duty bound to decide the point under discussion in the negative.
14.Point No.(iv): As all the Points are decided against the Complainant he is not entitled to get any relief whatsoever.
O R D E R
In the result, the case of the Complainant fails and stands dismissed. No order as to cost.
Given under our hands and seal of this Forum this 15th day of October, 2019.
Dictated and corrected by:
Pronounced and delivered by :
(SMT.A. DEVEE)
President (SMT A. DEVEE)
District Consumer Disputes Redressal President Forum,Sonitpur,Tezpur District Consumer Disputes Redressal Forum
Sonitpur,Tezpur
We agree:- (Smti S. Bora ) (Sri P.Das)
Member(F) Member(Gen)
