Orissa

Rayagada

CC/42/2017

Ramesh Ch Lima - Complainant(s)

Versus

Parameswara Nayak - Opp.Party(s)

Self

29 Mar 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 42 / 2017.                                Date.      29  .3. 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                   President

Sri GadadharaSahu, .                               Member.

Smt.  Padmalaya  Mishra,                          Member

Sri Ramesh   Chandra  Lima, S/O: Late Bhikari Lima, Advocate,  At: Sai  Nagar,By pass road,Po: Gunupur,   Dist.Rayagada,State:  Odisha.                                                …….Complainant

Vrs.

1.Sri Parameswara Nayak, S/O: Late R.S.Nayak, DSA, Tata Motors Finance Ltd., Gandhi Nagar,2^nd. Lane, Rayagada.

2.The Branch Manager, Tata Motors Finance Ltd.,Sambalpur Branch, Sagar Junction, Sambalpur.

3.The General   Manager, Tata Motors Finance Ltd.,2^nd. Floor,Thane- 400604.                                                                                                                                            .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self.

For the O.P No.1 :- Self.

For the O.P. No.2& 3 :-Sri Tapan Kumar Harichandan, Advocate, Bhubaneswar.

                                J u d g e m e n t.

        The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps to receive the balance  E.M.I a sum  Rs.17,400/-from the complainant and to issue  N.O.C. in favour of the complainant.. The   brief facts of the case are summaried here under.

       That the complainant  availed finance   from the O.P. a sum of Rs.2,88,000/- and to repay the same in 48 instalments Ist. Instalment  was for Rs.10,404/- and other instalments each Rs.8,100/-.  The complainant signed the contract vide  No. 5000671500 and the repayment schedule started from 15.3.2011.  The  E.M.I. amount was transferred to the O.P. through account No. 11116588524  of SBI, Gunupur  of the complainant. Now the complainant is having outstanding a  sum  of Rs.17,400/- to  pay the  O.Ps. The O.Ps now demanding a sum of Rs.50,000/- and  not providing the N.O.C. Hence this case. The complainant prays the forum direct the O.ps to receive balance E.M.I Rs.17,400/-and to provide N.O.C. in favour of the complainant and pass such other relief as the hon’ble forum deems fit and proper for the best interest of justice.

       On being noticed the  O.P.No. 1 appeared in person and filed written version refuting the allegation made against them. The complainant has  purchased the vehicle  financed by the O.P. No.2 and the O.P.  No.1  has done paper works only for the finance the vehicle but  not responsible for collection of the installments  and the O.P.  No.2 is responsible and legally authorizes to collect  E.M.I. and give N.O.C. to the complainant  after payment of all the instalments. The O.P. No.1 is not the authority to issue NOC.  Hence the O.P. No.1 prayed   the forum  to drop the proceedings  against the O.P. No.1 for  the best interest of justice.

The O.P. No.2 and  3  filed  joint  written version through their learned counsel and  submitted that  the  complainant approached the forum by suppressing the material facts. The O.Ps taking one and  other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.Ps  prays the forum to dismiss the case against  them  to meet the ends of justice.

The O.Ps appeared and filed their written version.  Arguments from the  learned counsel for  the  complainant  and O.Ps  heard.  Perused the record, documents, written version  filed by the parties. 

   The  learned counsel for both the   parties     vehemently advanced arguments touching the points both on the facts  as well as on  law.

          FINDINGS.

            The learned  counsel for  O.Ps  vehemently  contended   that the  complaint petition  is not maintainable  and the  complainant  is not a consumer  under the  C.P. Act  and   It is admitted by both the parties  are that the transaction is on hire purchase agreement.

It is admitted by the O.Ps that it is a financing company and offering their services for consideration. It is submitted by  both the parties  that the complainant had availed the said service  for consideration and this fact is clearly   depicted in the Hire purchase agreement. Hence the complainant is a consumer as per the C.P. Act and the O.Ps were giving their services for consideration and as such this dispute comes within the scope of C.P. Act.   The agreement entered into between the parties  clearly reveals that the  complainant will pay    48  Equal monthly installments   @ Rs. 8,100/- commencing from  15.3.2011  and the last  installment falls due  on  15.02.2015  vide agreement  No. 5000671500.

Admittedly the O.Ps have given the necessary finance to the complainant in the transaction .  They also admit the execution of the hire purchase agreement and the condition laid down there as per the hire purchase agreement.

The  complainant vehemently   argued that  he is having outstanding  a sum of Rs.17,400/- to pay the  O.Ps     but   O.Ps are demanding  a sum of Rs.62,301 in their  written version vide para No.5  i.e Rs. 31,248/- towards  over due installment and Rs. Rs.31,053/- towards Net over due interest as on  12.5.2017.  

To substantiate the evidence the complainant submitted that he had paid 2 Nos. of  E.M.I. to the O.P  through  Axis bank, Gunupur on Dt.29.4.2014 Rs. 8,100/- on Dt. 11.11.2014 for Rs.8,100/-  copies of the bank receipt enclosed in the file which is marked  as Annexure-I and Annexure-2.  Further the complainant has  paid Rs.6,900.00 on Dt. 31.5.2012  to the O.P. and money receipt obtained from the O.P. which is marked as Annexure-3.

On perusal of the two receipts this forum observed the O.P. is entitled  for Rs. 17,400/- from the complainant towards  over due E.M.I.

During the course of hearing the complainant argued  that the O.Ps have  illegally charged the over dues interest  to the complainant which is not as per the guidelines of the R.B.I and for that the  complainant is being harassed, so the over  dues interest should be waived  out. So that the complainant can deposit the actual installment amount a sum of Rs. 17,400/- and  the complainant is ready and willing to deposit the  same.  

The O.Ps in their written version contended that  the complainant has  no locus standi  to file  the present case against the O.Ps as it is  a matter to recovery of loan amount and its interest. The calculation  of such is not possible  in a summary court.   Further it is a matter related  to terms  of agreement and its non-compliance by the contracting parties  which can not be  a  matter  adjudicated by the forums like consumer.   The O.P. cited  citation of the apex court  Laxmi Engineering works Vrs. PSG Industrial Institute  reported in  1995 AIR SC 1428.  According  to the above citation the complainant is not coming under the definition and meaning of “Consumer”. The  O.P. in their written argument  contended  that the complainant  has not came in clean  hand before the forum and has suppressed some material facts. The complainant is a chronic  defaulter in repaying the loan dues and he has never made payment of the installments as per agreed terms and conditions for which  huge amount of loan amount  remain unpaid  as such the  O.Ps.   have issued a request letter to the complainant for repay the loan dues as per agreement.

The O.P. contended that  the complainant had never paid installments in time hence  there is Rs.31,053 /- over due interest  is to be paid  by the complainant excluding Rs.31,248/- towards EMI as on 12.5.2017.   The complainant borrowed the loan amount from the O.Ps and the relationship was only of the borrower and debtor and out of such a relationship a consumer dispute can not arise as the  complainant  cannot be  regarded “Consumer” in view  of the   order of the Hon’ble National Commission, New Delhi in Krishan Behari Vyas  Vr. Rajastan Financial  Corporation, Jajpur reported in 1991 (1) CPR- 86,  1991(3) CPJ- 103.  As such the complainant is not coming under the definition and meaning of Consumer.

It is held  and reported  in  CPJ – 1996 (3) page No. 1 in which  the hon’ble  Supreme  Court  observed  Section-34 of the Arbitration Act  does not confer an automatic embargo in the exercise of the powers by the judicial authority under the Act. It is a matter of discretion. Though the Dist. Consumer Forum, State  and National Commission are judicial  authorities for the purpose of Section-34 of the Arbitration Act, in view of the object  of the Act and by operation of Section-3 thereof,  we are of considered view that it would  be appropriate that these forums created under the Act are at liberty  to proceed with the matters in accordance with provisions of the Act rather than relegating the parties to an arbitration. The expression “Not in derogation” in Section-3 makes it clear that the provisions of C.P. Act do not in any way abrogate even partially the provisions of other laws in force and other laws are to be regarded as complementary to each other. Under the C.P. Act consumers are provided with an alternative, efficacious and speedy remedy.  When the consumer is entitled to seek remedy under  two different jurisdiction, he has option to choose one of them.

Section- 2(O) of the C.P. act, 1986  clearly  defines “Service” means service of any description which is made available to potential ‘(users and includes, but not limited to, the  provision  of )  facilities  in connection with banking, financing, insurance , transport, processing supply of electrical or other energy,   board or lodging  or both,  ‘(housing construction ,) entertainment, amusement or the purveying of news or other information, but does not  include the rendering  of any service free of charge or under a  contract of personal service.

 On  perusal  of the documents, written version and arguments  of the parties it is  found that  the main allegation  of the complainant is regarding the  over due penal interest which have been  charged against the  outstanding loan amount. 

Coming to the merit  of   case  the complainant had purchased the vehicle  i.e. Indica Vista Terra  for Rs.4,12,388/- in which an initial amount of  Rs.1,24,388/- was paid by  the complainant as down payment to the dealer and the remaining amount of Rs.2,88,000/- was financed  by  the O.Ps 2 & 3.  The complainant  had agreed to pay finance charges of Rs.1,03,104/- hence the complainant was liable to pay a sum of Rs. 3,91,104/- towards the contract  value, subject to terms and conditions of the loan agreement.  In the said agreement the complainant had agreed to pay  periodical installments @ Rs.8,100/- per month  between 1^st to the 48  installment between the period  from 15.3.2011 to 15.2.2015.

Out of contract  value a sum  of Rs.3,91,104/-  the complainant has already been paid a sum of Rs. 3,73,704/- and balance amount a sum of Rs.17,400/- is liable to pay by the complainant to the  O.Ps. This forum found the O.P. is entitled a sum of Rs.17,400/- from the complainant in the present   case   in hand.

The complainant approached the forum to waive out entire over due penal interest 

Under the above circumstances  the prayer of the complainant to  waive out the entire overdue penal interest is allowed. The complainant contended that the  penal interest  is   excessive and not as per the guide line of the R.B.I. The contention  of the O.P.  that the complainant is not a consumer and this is  not a consumer dispute  which is  not acceptable as the disputes relates to finance between loanee and bank and banking service comes  squarely define   as  service  under the C.P. Act.

            In the foregoing circumstances in our opinion it appears just and proper being this is a welfare legislation to decide the matter the prayer of the complainant is partly allowed.

Hence to meet  the  ends  of  justice,  the following   order is  passed.

                                                           

 

                                                                        ORDER.

In resultant  the complaint petition  stands  allowed in part  on contest against  the O.Ps 2 & 3 and  dismissed against  the O.P. No.1.

            The O.P No.2 & 3  is directed to receive balance E.M.I. a sum of Rs.17,400/- from the complainant  and issue  N.O.C  in  favour of the   complainant  within  7 days  from the date of receipt  of  the above amount.   The   complainant  is ordered to pay  Rs.17,400/-  to the O.Ps within  7 days  from the date of receipt  of this  order.  There is no order as to cost and compensation.

            Parties  are  ordered to comply the above direction within  30 days from the date of receipt of this order.   Service the copies of the order to the parties on free of cost.

Dictated and corrected by me

Pronounced on this             29^th.     day of   March, 2018.

 

MEMBER.                                            MEMBER.                                                        PRESIDENT.