Order-17.
Date-27/07/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that he is an unemployed and a driver by occupation and has been making his livelihood through bus driver vide driving license No.15135811. The complainant has been plying a bus being No.WB 15A 4895 from Srirampur to Tarakeshwar by paying monthly subscription to Tarakeshwar Bus Association. The OPs on 19-02-2007 advanced a loan to the complainant to the tune of Rs.6,25,796/- with the condition that the said amount would be paid by the complainant in 58 tenure months and the complainant handed over 12 post dated blank cheques to the OPs at the time of the said loan. The complainant fixing the loan purchased a chassis described in the plaint and prepared a body of the said bus at his own cost. The complainant registered the bus with Road Transport Authority, Hooghly. The complainant as per terms and condition of hire purchase agreement paid Rs.50,000/- down money and he also paid the instalment amount regularly totalling Rs.9,02,247/-. The complainant has stated in the plain that he has paid the total amount of Rs.9,02,247/- on 07-02-2012, the complainant issued a letter through registered post with A/D through OPs asking to issue clearance certificate of the said loan account along with a no objection certificate and the OPs received the said letter but surprisingly OP illegally claimed an amount of R.2,12,879-83 from the complainant and they have also sent a copy of award passed by the arbitrator Pulin Behari Das. The complainant further stated that there is no case no. appearing on the copy of the award and the complainant for the first time came to learn about the award against him as because neither OPs nor arbitrator Pulin Behari Das issued any notices of summons of the said arbitration case to the present complainant. it is alleged that the arbitrator without going through the documents passed the said order. it is also alleged that the award was passed on 04-12-2008 and the OPs accepted the cheques, bank drafts and cash from the complainant up to 30-12-2011 and when complainant demanded clearance certificate from the OPs on 07-02-2012 the OPs sent the Xerox copy of the award to the complainant. it is alleged that despite clearing of all the dues, in spite of hire purchase loan of the complainant the OPs are illegally claiming huge amount of money from the complainant and also threatening the complainant to take possession of the said bus forcefully. The complainant also sent legal notice to the Ops on 30-09-2015. On 19-01-2016 complainant requested the OPs to settle the matter but to no good. Hence, this case.
OPs have contested the case in filing written version contending, inter alia, that the instant case is vague, harassive, speculative and is liable to be dismissed. The statements made in paragraph 2,3,4,6 and 7 are also denied and it is stated that the same are matters of record. It is denied that the complainant has paid the instalment regularly. It is submitted that still a sum of Rs.7,80,777-60 is due and payable by the said complainant to the OPs. It is denied that there is gross negligence and deficiency of service on the part of the Ops as alleged. It is denied that the complainant has suffered losses or the OPs have caused physical and mental harassment to the complainant. The OPs have prayed for dismissal of the complaint.
Point for Decision
- Whether the OPs are guilty of deficiency of service?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents filed from the side of the respective parties. It appears that the OPs advanced a loan of Rs.6,25,796/- to the complainant vide a loan cum guarantee agreement dated 19-02-2007. The complainant is asking for issuance of clearance certificate of the loan on the ground that he has cleared of the dues of the said loan agreement along with interest to the tune of Rs.9,02,247/-. The OPs have come up with a different version and have stated that still a penal interest to the tune of Rs.7,80,777-66 is due by the complainant. But surprisingly the OPs, as we find, have not issued any notice informing the complainant that a sum of Rs.7,80,777-66 being penal interest remains due by the complainant prior to filing of the instant case. It, however, is admitted by the OPs that the complainant has made payment of the principal amount. It is a truism of law that the Forum is not supposed to make calculation of accounts or settlement of outstanding dues or billing in between the parties. We, however, find from the version of the complainant that an Arbitral award has been passed dated 04-12-2008 by an Arbitrator, Sri Pulin Behari Das. The complainant alleges that he received no notice or summon either from the side of the OP or from the side of the Ld. Arbitrator. It is alleged that the Arbitrator without going through the documents passed the said award. It is also stated that the OPs communicated the order of award but no case number is mentioned on such copy of the order. We think that the complainant can approach and challenge the award under the Arbitration and Conciliation Act before the appropriate authority or court. Since an award is passed by the Ld. Arbitrator, the remedy lies elsewhere under the Arbitration and Conciliation Act and not in this Forum. It is alleged by the complainant that the OPs are illegally claiming huge amount of money and threatening to take possession of the said bus forcefully. We think that the OPs have no right to take possession of the said bus forcefully without due process of law. Under the present circumstances, considering the facts and circumstances of the case having regard to the materials on record, we are inclined to dispose the case in terms of the operating portion of this order which follows.
Hence,
Ordered
That the OPs are restrained from taking forcible possession of the Bus being No.WB 15A 4849 with chassis No.453514ASZ801581 from the custody of the complainant without the due process of law.
No order as to cost. The case is thus disposed of on contest.
