Presents:-
- Sri P.Samantara,President.
- Sri G.K.Rath, Member.
Dated, Bolangir the 14th day of September 2015.
C.C.No.35 of 2013.
Radhakanta Naik, age-53 years son of Rajendra Naik.
Resident of village/P.O- Bhaler,P.S.Bolangir Sadar,
District – Bolangir.
.. .. Complainant.
-Versus-
1.Papu Dash, Prop.Dev Tractor (Sonalika Tractor Dealer)
Resident ofSatyanarayanpara, Bolangir Twon, P.O/P.S
And Dist- BOlangir.
2.Branch Manager, Magma FinancePrivate Ltd. Resident
Of Jaganathpara, Bolangir Town, P.O/P.S/Dist-Bolangir.
.. .. Opp.Parties.
Adv.for the complainant – Sri D.Biswal & Associates.
Adv.for the O.P.No.1 - Sri R.N.Bohidar & Associates.
Adv.for the O.P.No.2 - Sri B.Satpathy.
Date of filing of the case- 20.07.2013
Date of order - 14.09.2015
JUDGMENT.
Sri P.Samantara,President.
In the matter of an application u/s.12 of the C.P.Act,198 filed by the complainant alleging deficiency in service against the Opp.Parties.
2. The case of the complainant Radhakanta Naik, purchased one Sonalika Tractor and Trailor for a consideration of Rs 6,63,518/- .The amount is financed by Magma ITL Finance Limited. Down payment Rs 2,63,518/- and Rs 4,00,000/- financed. Repayment scheduled for 60 installments. Over due installment attracting 3% interest on the same.
3. The allegation is that the O.Ps had not supplied the original or duplicate Registration Certificate under repeated request and collected Rs 1098.11 paise more on each installment against the EMI-Rs 11,096/- that to Rs 12,195/- ,the excess comes to Rs 65,904.71 paise. Again also charged Rs 36/- per day in default of payment. On other head collected Rs 16,122/- other finance charges. Relied on one insurance certificate (Reliance General Insurance Co. Ltd), Photo copy and statement account of Magma Finance and affidavit.
4. Pursuant to notice, the O.P made the version admitting purchase of the tractor in question and finance. Denied the involvement his agent in purchase of Sonalika Tractors along with trailor. Further stating the complainant has already received the all documents and master key of the tractor. So the petition be deserve to be dismissed for end of justice.
5. Per contra, the O.P.2 contended, the application made under section 12 of C.P. Act is a false, misconceived, untrue, concocted facts concealing the true state of affairs.
6. Stated the finance made on 30.06.2012 for model-Mahindra ITL of model dI-35 sc (540) S-3 MECH I, bearing Regd.No.OR-17K 7451 and 7452 has been entered under “HIRE PURCHASE AGREEMENT with 60 equated monthly installments @ Rs 12,195/-. Further stating as per the above agreement vehicle would remain hypothecated with the O.P till realization of payment. As per the hire-purchase agreement the forum has no jurisdiction to act upon and the arbitration clause entails so. The said loan was disbursed to the complainant vide proposal No. PG/0174/A/11/100008 on dated 30.06.2012. It is pertinent to mention here that the vehicle is in fact hypothecated in the name of the opposite party. Praying to dismiss with exemplary cost.
7. Heard the learned counsels at extensive and perused the record.
8. Perusal of records reveals, the complaint is not accorded with any original document. The complainant avers, the tractor brand is Sonalika. No money receipt delivery challan, quotation in original found to note. The Insurance Certificate photo copy astonishingly does not reveal any brand name or manufacturers name/cubic capacity with only trolly and trailer and insured’s name. The Hire Purchase agreement column is blank, whereas hypothecated column is filled with. No smart card copy or certified copy from concerned RTO has not filed against the authentication purchase, registration and mode of finance. No receipt has been filed that Rs 4,590/- has been paid in default and negligence. The answer of O.P is evasive and not supported with any document that the relevant papers and master key has delivered to the complainant in substantiation of same. Even the O.P.1 has not adduced anything on the transaction that Sonalika Tractor/model/make has been sold.
9. The case of the O.P.2 is that the vehicle loan was extended for a tractor & trolley being of make and model “Mahindra ITL of model DI-35 SC (540) S-3 MECH I, in his version para 1(a).The other inconsistent contention is that complainant (Hirer) entered into a written hire purchase agreement with opposite party in respect of said vehicle/tractor, para 1(b).
10. The Opposite Party further states that as per set out in the terms and conditions of the Hire purchase finance agreement, para 1( c ), the forum does not have jurisdiction.
11. In accentuation to same in para (2) of the pleadings,speaks “it is pertinent to mention here that the vehicle is in fact hypothecated in the name of the opposite party No.2. Asserting 2 nos. of agreement copy is annexed with.
12. We simply assert that under Hire purchase finance agreement and conjoined with arbitration clause, this court has ample jurisdiction as settled in catena of judgments. Again u/s.3 of the Consumer Protection Act, mandates jurisdiction is an either option. It is admitted by the O.P.2 financer that agreement entered into is hire purchase one. Hire purchase and Hypothecation are two distinctive nature of agreement. One cannot encompass the other. Under hire purchase agreement, the financer is the owner, whereas in hypothecation is not. So the vehicle cannot be at a stretch come into fold of Hire Purchase and Hypothecation, being in ridiculous and mis representing to the court that copy of agreement has been annexed.
13. Having gone through records, submissions and facts of the case, we do not find an iota of truth under any content the entire gamut of story is fictitiously conceived to garland each others mis truth. In absence of any authenticated document, the purchase of vehicle, the registration, the insurance and lastly the mode of finance is shrouded in mystery.
Hence we considered, the case has not merit and hereby is dismissed.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 14TH DAY OF SEPTEMBER 2015.
I agree.
( G.K.Rath) (P.Samantara).
MEMBER. PRESIDENT.
