IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

             CASE No.  CC/130/2015.

 Date of Filing:                    Date of Admission:                Date of Disposal:

     21.09.15                                      05.10.15                                 01.10.19

Complainant: Palash Karmakar

                        S/o Sambhunath Karmakar

                        Vill-Rabindrapally,

                        PO&PS-Raghunathganj,

                        Dist-Murshidabad,

                        Pin-742225

-Vs-

Opposite Party: 1. M/S, Sachin Finance Corporation

Proprietorship concern represented

through Mr. Sukhendu Pal, S/o Sri Sunil Chandra Pal ,

Vaishno Chamber, 6 Brabourne Road,

Kolkata-700001, PS-Hare Street.

   2. National Insurance Co. Ltd.

26/23/1, shaid Surya Sen Road,

PO-Berhampore, Dist-Murshidbabad,

 Pin-742101

Agent/Advocate for the Complainant                        : Sri. Sadhan Kr. Saha

Agent/Advocate for the Opposite Party No.1 : Sri. Subhanjan Sengupta.

Agent/Advocate for the Opposite Party No.2 : Sri. Ajay Kr. Bhattacharya.

                       Present:   Sri Asish  Kumar Senapati………………….......President.                              

                                          Smt. Aloka Bandyopadhyay……………………..Member.

 FINAL ORDER

Asish Kumar Senapati, Presiding Member.

            One Palash Karmakar (here in after referred to as the Complainant) filed the case against M/s, Sachin Finance Corporation and another (here in after referred to as the OPs) praying for compensation alleging deficiency in service.

  The sum and substance of the complaint case is as follows:-

               The Complainant is a consumer of the OP Nos. 1 and 2 as he purchased a pre- owned truck being engine No. 692DO22195136, Chasis No. 344352187539 registration No. WB23/6108 from the OP No.1 under higher purchase agreement on 27.08.05 on condition to repay the amount by thirty-five monthly installments and accordingly the Complainant paid Rs.8,700/- by demand draft No. 020087 dated 27.09.05 against  a receipt from the OP No.1 and also paid Rs.8,020/- by demand draft No. 024040 dated 26.12.05 and also paid insurance premium for risk of the vehicle to the OP No.2. But unfortunately, the OP No.1 intentionally repossessed the vehicle on 27.12.05 without giving any notice to the Complainant which is against natural justice as no installment was due to be paid on or before such date.

            Suddenly, the Complainant found that a complaint case under section 138 of the NI Act had been initiated by the OP No.1 in the court of Ld. Chief Metropolitan Magistrate at Calcutta being case No. C/1953/06 TR No. 1855/13 and the case was disposed of by the order dated 18.12.13 thereby acquitting the Complainant of the charge brought against him. Under this circumstance, the Complainant suffered a great loss due to whimsical repossession of the vehicle by the OP No.1. The loss amounts to Rs.2,64,000/- and the insurance premium paid of the vehicle was l existing at that time and the Complainant is also entitled to get compensation of Rs. 10,00,000/-. The Complainant claimed Rs.12,89,000/- for deficiency in service and harassment against the OP No.1.

            The OP No. 1 contested the case4 by filing written version on 18.09.17 contending that the case is not maintainable and the case is barred by law of limitation. There is no negligence and deficiency in service or unfair trade practice on the part of the OP No.1. It is the case of the OP No.1 that the subject matter of the instant case related to one commercial vehicle under agreement of higher purchase dated 27.08.05 and according to the higher purchase agreement all parties are agreed to refer all disputes and differences arising out of the said higher purchase agreement to the sole arbitrator, Prasun Kr. Chatterjee, Advocate for adjudication. As per the said higher purchase agreement dated 27.08.15, the dispute was referred to the Ld. Arbitrator and the Ld. Arbitrator passed an award after serving notice on both sides. Ultimately, the award became a decree after lapse of statutory period as no challenge has been made in regard to the said award and the said decree was put in to execution before the Ld. City Civil Court at Calcutta in Money Execution Case No. 1218 of 2006 and the said proceeding was disposed of by an order dated 20.09.06. One Subhendu Banerjee was appointed as receiver of the vehicle vide order dated 20.09.16 with a direction to take possession of the vehicle and to sell the said vehicle and the sell proceedings to be given to the decree holder /OP No.1. Accordingly, the Ld. Receiver sold out the vehicle and the sell proceedings was handed over to the decree holder. This Forum has no jurisdiction to entertain the case of the Complainant as the Complainant is not a consumer. There is no deficiency in service on the part of the OP No.1. The OP No.1 has prayed for dismissal of the complaint with cost.

            The OP No.2 also contested the case by filing written version on 09.09.16 contending that the case is not maintainable and the complainant has no cause of action to file the case. The case is barred by law of limitation. The OP No.2 has no deficiency in service. The OP No.2 has prayed for dismissal of the complaint with cost.

            On the basis of the above version the following points are framed for proper adjudication of the case :

Points for consideration

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Is the case barred by law of limitation?

3. Has the OP No.1 any deficiency in service?

4. Is the Complainant entitled to get any relief, against the OP No.1?

Point No.1

            The Ld. Advocate for the Complainant submits that the Complainant is a consumer as he hired the services of the OP No.1 for consideration. It is urged that he purchased the truck being No.WB23/6108 from the OP No. 1 on higher purchase on 27.08.05 by executing a higher purchase agreement on payment of certain amount.

            In reply, the Ld. Advocates for the OPs submits that the Complainant is not a consumer as he purchased a truck on hire purchase for commercial purpose. It is contended that the Complainant has not even stated that he purchased the vehicle on higher purchase to maintain his livelihood by means of self-employment.

            Perused the written complaint, written version, evidence of the Complainant and documents filed by both sides. Admittedly, the Complainant purchased a pre owned truck from the OP No.1 being No. WB23/6108 on executing a higher purchase agreement dated 27.08.05. A truck is used for commercial purpose. It has not even asserted by the Complainant that he purchased the truck for earning his livelihood by means of self-employment. Therefore, we have no hesitation to hold that the Complainant is not a consumer in terms of section 2 (I )(d) (i) of the C.P.Act, 1986.

Point No.2

            The Ld. Advocate for the Complainant submits that the case is not barred by law of limitation as the cause of action arose after disposal of the case under section 138 of the NI Act by the Ld. Metropolitan Magistrate dated 18.12.13.

            In reply, the Ld. Advocate for the OP No.1 submits that the Complainant has asserted in his complaint that the OP No.1 repossessed the vehicle on 27.12.05 but the Complainant has not filed the case within a period of 2 years. It is further urged that the dispute between the parties was referred by the OP No.1 to the Ld. Arbitrator as per agreement of arbitration dated 27.08.05 who passed an award after service of notice upon both sides. It is further urged that a money execution being No. 1218 of 2006 was disposed of by the Ld. City Civil Court, Calcutta and the vehicle had been sold out by the receiver appointed by the Ld. Registrar, City Civil Court at Calcutta. He argues that the case is hopelessly barred by law of limitation.

            The Ld. Advocate for the OP No.2 submits that the case is barred by law of limitation.

            Perused the written complaint, written version, evidence and documents submitted by both sides.

            We have considered the submission of both sides.

            On a careful consideration, we find that the OP No.1 took possession of the vehicle from the Complainant on 27.12.05 but the Complainant has filed the case on 21.09.15 i.e. after a lapse of about 10 years. The order passed by the Ld. Metropolitan Magistrate in case No. C/1953/06 dated 18.12.13 is not the cause of action of the present case as it has no bearing with repossession of the vehicle by the O.P. No.1/deficiency in service on the part of the O.P. No. 1.

            The cause of action of this case as alleged by the Complainant arose on and from 26.12.05 but the Complainant has not filed the case within the stipulated period of 2 years and no explanation has been assigned by the Complainant for filing of the case at a belated stage. Hence, we have no hesitation to hold that the case is barred by law of limitation U/s  24A  of the CP Act,1986.

Point No.3&4

            The Ld. Advocate for the Complainant submits that the OP No.1 illegally took possession of the vehicle on 26.12.05 causing huge monitory loss. He prays for compensation of Rs.12,89,000/- against the OP No.1.

            In reply, the Ld. Advocate for the OP No.1 submits that the OP No.1 and the Complainant entered into a higher purchase agreement on 27.08.05 and in terms of the agreement, the OP No.1 took repossession of the vehicle on 27.12.05 as the Complainant failed to repay the monthly installments as per higher purchase agreement. It is further urged that the OP No.1 referred the dispute to the arbitrator as per arbitration agreement dated 27.09.05 and the Ld. Arbitrator passed an award in favour of the OP No.1. It is further urged that the arbitration award put in to execution before the Ld. City Civil Court in Money Execution Case No.1218/06 and the vehicle in question had been sold out as per order of the Ld. City Civil Court. It is contended that the OP No.1 has no deficiency in service and the Complainant is not entitled to get any relief.

            The Ld. Advocate for the OP No.2 submits that the Complainant has not prayed for any relief against the OP No.2 and the OP No.2 is an unnecessary party.

            We have gone through the written complaint, written version, evidence of the Complainant and the documents filed by both sides. We have also considered the submission of both sides. The Complainant has failed to establish that he was regular in payment of monthly installments as per higher purchase agreement dated 27.08.05 till 27.12.05 i.e. the date of repossession of the vehicle by the OP No.1. Moreover, it is the version of the OP No.1 that the Ld. Arbitrator passed an award after service of notice upon both parties and the vehicle had been sold out in terms of order passed by the Ld. City Civil Court in Money Execution Case No. 1218 of 2006. We find that the Complainant  has failed to establish any deficiency in service on the part of the OP No.1. Moreover, we have already held that the Complainant has failed to establish himself as a consumer and the case is hopelessly barred by law of limitation.

Therefore, we have no hesitation to hold that the Complainant is not entitled to get any relief in this case.

Reasons for delay

The Case was filed on 21.09.15 and admitted on 05.10.15 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

Fees paid are correct.

In the result, the complaint case fails. Hence, it is

                                    ORDERED

that the Complaint Case No. CC/130/2015 be and the same is hereby dismissed on contest against the OPs without cost.

Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

Dictated & corrected by me.

President

  Member                                                                                                   President.