Orissa

StateCommission

A/835/2007

General Manager, Magma Leasing Ltd. - Complainant(s)

Versus

Prabir Kumar Swain, - Opp.Party(s)

M/s. R.K. Pattanaik & Associates

16 Dec 2020

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
ODISHA, CUTTACK
 
First Appeal No. A/835/2007
( Date of Filing : 05 Oct 2007 )
(Arisen out of Order Dated 05/09/2007 in Case No. CC/213/2007 of District Cuttak)
 
1. General Manager, Magma Leasing Ltd.
Regd. Office: 24-Park Street, Kolkata
2. Branch Manager, Magma Leasing Ltd.
Nirmal Plaza, 1st Floor, Forest Park, Bhubaneswar, Dist.: Khurda
...........Appellant(s)
Versus
1. Prabir Kumar Swain,
Village: Siha, P.O/P.S: Erasama, Dist.:Jagatsinghpur. At Present: Qr. No.2-Rt/373, OSAP Battalion, P.O: Rourkela -10, Plant Side, Dist.: Sundargarh
2. Ranjan Kumar Dash,
At/P.O: Khuntuni, P.S: Gurudijhatia, Dist.: Cuttack
...........Respondent(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE Dr. D.P. Choudhury PRESIDENT
 
PRESENT:M/s. R.K. Pattanaik & Associates, Advocate for the Appellant 1
 
Dated : 16 Dec 2020
Final Order / Judgement

FIRST APPEAL NO. 835 OF 2007

          Heard learned counsel for the appellants.

2.      Service of summon against the respondents is sufficient. None appears on behalf of the respondents.

3.      This is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

4.      Learned counsel for the appellants submitted that the complainant alleged that OP Nos. 1 and 2 financed OP No.3 to purchase a vehicle bearing Registration No. OR -04-E-4577. It is alleged inter alia by the complainant that OP No.3 sold the vehicle to the complainant and OP Nos. 1 and 2 without any notice to the complainant has seized the vehicle. Complainant has alleged that seizure of the vehicle by OP Nos. 1 and 2 is illegal and as such, he filed complaint before the learned District Forum.

5.      Learned counsel for the appellants submitted that OP Nos. 1 and 2 entered appearance and filed joint written version stating that the case is not maintainable as complainant is not a consumer as per provisions of law. It also challenged the territorial jurisdiction of the learned District Forum.

6.      Learned counsel for the appellants further submitted that they have not permitted OP No.3 to sell the vehicle to the complainant and as such the so called sale is illegal and according to him, when there is default in payment of the loan dues, the vehicle has been rightly seized by OP Nos. 1 and 2 and in the meantime, it has been sold away.

7.      Learned counsel for the appellants submitted that the learned District Forum after hearing both parties illegally passed the impugned order by observing that there is unfair trade practice adopted by the appellants but in fact the appellants have  not adopted any unfair trade practice. Learned District Forum ought to have appreciated the facts and law involved in this case.

8.      Learned counsel for the appellants submitted that the learned District Forum has erred in law by observing that the money receipt granted by the appellants to the complainant while some installments paid by him on behalf of OP No.3, amounts to acceptance of  complainant as a loanee by OP Nos. 1 and 2. Learned District Forum ought to have held that such documents per se never  create any legal relationship between the appellants and the complainant as a transaction between the complainant and OP Nos. 1 and 2 is illegal. So he submitted to set aside the impugned order by allowing the appeal.

9.      Learned counsel for the appellants further submitted that he has no objection for compliance of the impugned order but objection is raised to the extent that the complainant is not legally authorized to challenge the so called seizure.

10.    Considered the submission of learned counsel for the appellants and perused the DFR including the impugned order.

11.    The operative portion of the impugned order is as follows:-

                   “xxx   xxx   xxx

8. It is contended by the learned counsel for the OPs 1 & 2 that question of issuance of demand notice for Rs.1,41,766/- to complainant and presale notice to him does not arise because the transaction between complainant and OP 3 is not a valid one and without the consent of OP 2. Such contention is not acceptable  because under Annexes- 4 & 4/a when OP 2 received different amounts on four occasions in  the name of OP 3 when the complainant had signed as hirer of the vehicle in question. The fact of complainant signing as hirer in those four receipts has to been challenged by OPs 1 & 2 in their version. Therefore it  can be safely said that OP 2 knowing very well that complainant is hire/user of the vehicle in question, seizure of the same without any prior notice to him and that to not allowing the complainant to make payment of arrear dues after 15 days  15 days in spite of personal approach to OP 2 can be held to be illegal seizure leading to unfair trade practice.”

9. Fact remains that the vehicle in question is in the possession of OP. Therefore the OP 2 is directed to release the vehicle in question in favour of the complainant on payment of up-to-date defaulted E.M.Is. In case of default in payment of further installments after release, the Opp.Parties will be at liberty to take action as per terms and conditions of the agreement. It is further directed that OP 2 is liable to pay a sum of Rs.2000/- to complainant as compensation. No order as to costs.”

12.    The observation of the learned District Forum to the extent that  under Annexure - 4 and 4/a  which are the receipts of different amount  paid by the complainant in the name of OP No.3 as latter  was the loanee under  OP Nos. 1 and 2 shows complainant as hirer is not correct view. Learned counsel for the appellants rightly submitted that any person can deposit the amount but relationship stands by virtue of the contract with OP No.3 and complainant cannot be said as hirer for acceptance of money on behalf of OP No.3 when the financer is not aware of any such transaction and the transaction itself is illegal being hit by lack valid agreement between OP No. 1 and 2 and complainant. Therefore, the observation of the learned District Forum in Para - 8 requires for intervention. When the alienation of the vehicle is illegal, the complainant has no locus standi  to ask for any relief. Therefore, this Commission direct that the impugned order is liable to be set aside and it is set aside.

13.    The appeal stands allowed. No costs.

          Statutory amount deposited be refunded to the appellants with interest accrued thereon, if any on proper identification.

DFR be sent back forthwith.

          Supply free copy of this order to the respective parties.

 
 
[HON'BLE MR. JUSTICE Dr. D.P. Choudhury]
PRESIDENT
 

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