Date of Filing: 06.07.2022. Date of Disposal: 04.07.2023.
Complainant- Soham Roy & Others Vs. O.P.- Punam Projects Pvt. Ltd. & Others.
Order Date: 04.07.2023 .
Today is fixed for passing order in respect of M.A. Case being No. 53/2022 and payment of cost of Rs.100/- to the Consumer Legal Aid Account, Purba Bardhaman by the complainant.
Ld. Advocate for the complainant is present but the complainant did not make payment of cost of Rs.100/- as per order.
On 06.07.2022 the complainant has filed this petition u/S 38(8) of the C. P. Act, 2019 supported by an affidavit praying for passing an interim order in favour of the complainant as against the OPs thereby suspending the operation of the B Schedule notice till the disposal of the instant case and to pass an ad-interim order to the same effect till the disposal of the instant application on the grounds that they filed a complaint being No. CC/136/2022 on 06.07.2022 against the OPs on the grounds that the complainant No. 1 had entered into a higher purchase agreement on 10.09.2016 with the OP No.1 Financer and the OP No.2 is the Chairman of OP No.1 for purchasing a vehicle being No. WB 39 A-8134 as per the agreement dt. 1009.2016 in respect of the vehicle the complainant No. 1 is the borrower and the complainant No. 2 is the guarantor and the OPs are the Financers thereof. The complainant No. 1 started to repay the installments following the spirit of the C Scheduled Higher Purchase agreement wherein the complainant was agreed to pay Rs. 15,88,000/- having on and from 10.09.2016 in total 47 installments to the OPs. All on a sudden, the OPs barring following the procedure prescribed by law and without following the Reserve Bank Guidelines like that of non-serving of the pre-possession notice in relation of the complainant, like that of non-disclosing of the identity of the bouncer re-possessors, like that of non-disclosing of the fact that the bouncer Re-possessors are duty trained of 100 hours, re-possessed the A Schedule mentioned vehicle. All on a sudden, the complainant found that a group- of 10 to 12 people came into their house, just before the onset of COVID pandemic and claimed themselves as recovery officers of the OP No.1 Financial Institution and conveyed to the complainants that the A-Schedule mentioned vehicle would be seized themselves for the purpose of realization of the outstanding dues as was lying before the OP No.1. The complainant then requested them that he will repay all the outstanding dues in near proximity, but they paid no heed to such words and took the A-Schedule mentioned vehicle away from the possession of the complainants by applying force. Thereafter, all on a sudden, the complainant received one notice dt. 18.04.2022 which has been specifically described in details in Schedule B issued by the OPs wherein the OPs claimed exorbitant amount in respect of loan amount which has been taken by the complainant for the purpose of buying A Scheduled mentioned vehicle. Be it mentioned here that B- Scheduled mentioned notice is generated through computer and the complainant raised doubt regarding proper functioning of the Computer at the time of processing the B Schedule mentioned notice. In this way, the OPs committed deficiency in service and unfair-trade practice against the complainant tried to project the complainant as defaulter in respect of the C Scheduled mentioned agreement concerning the A Schedule mentioned vehicle and the complainant loan in paragraphs 11 7 12 of the petition u/S 38(8) of the C.P. Act, 2019 stated how the OP are in deficiency in service and unfair trade practice regarding the calculation of the value of the vehicle along with interest.
The OPs filed W/O against this M.A. case, denying all the material allegations , contending inter alia that this case is not maintainable in the present form and the case is barred by limitation. The OPs stated that on the basis of the proposal made by the complainant, a hypothecation –cum-loan agreement had duly executed on 10.09.2016 at Kolkata office and the complainant Soham Roy, S/O Sajalananda Roy, with borrower and Mr. Sajalanana Roy as guarantor to the agreement had duly executed it. It is also stated that the complainant, being borrower, was asked to pay the amount in relation to the loan together with interest to the Financer within 47 months by monthly payment ,more particularly in terms of Schedule B to the s aid agreement, total agreed amount being Rs. 15,88,000/- to be payable in 47 monthly payments, first payment of Rs. 29,900/- to be made on 10.11.2016 and subsequent payment of Rs. 29,350/- to be paid on or before 10th day of each succeeding English Calendar month. The borrower have/had make payment towards payment of EMI since 11.11.2016 to 26.11.2019 by 22 EMIs amounting to Rs. 6, 11,900/- only. It is also submitted towards execution of the loan agreement the borrower paid Rs. 2500/- as agreement charges and Rs. 1, 20,000/- towards insurance premium on behalf of the complainant. But all on a sudden, the complainant stopped payment of EMIs and the OPs requested the complainant to handover the vehicle but without any justification the complainant had been continuously plying the bus. As a result, the OP was constrained to re-possess the bus to avoid sustaining huge pecuniary loss. But in spite of knowing everything the complainant violated the terms and conditions of the same upon non-payment of EMI for a long period.
Upon this background, the OP submitted the complainant fails to prove the prima facie case and prayed for vacating the Interim Order passed on 15.07.2022.
Perused the case record including the petition u/S 38(8) of the C .P. Act, 2019 and W/O against it filed by the OP and the loss of sale notice dt. 18.4.2022. The OP did not file any documents including the higher purchase agreement and the OP admitted that they took the re-possession of the vehicle of the complainant and the complainant submitted that all on a sudden without giving any notice , the musclemen of the OPs forcefully took re-possession of the vehicle and the notice dt. 18.04.2022 clearly shows that balance dues is Rs. 13, 20,868/- from the complainant though he took the re-possession of the vehicle forcefully . Therefore, there is a prima facie case in favour of the complainant and balancing the convenience and inconvenience of this case is also in favour of the complainant.
It also appears from the order dt. 15.07.2022 that the Interim order was passed in favour of the complainant by staying the operation of the B Schedule notice dt. 18.04.2022 till 22.08.2022 and subsequently it was continued to extend till this day (04.07.2023).
Under the above facts and circumstances, we are of opinion that this M.A. case is hereby disposed of in favour of the complainant.
Hence, it is
ORDERED
That the M.A. case being No. 53/2022 be and the same is disposed of on contest but without any cost.
The Interim Order dt. 15.07.2022 is made absolute till the disposal of the Consumer Complaint No. 136/2022.
The case be fixed for filing evidence-on-affidavit by the complainant.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C., Purba Bardhaman D.C.D.R.C., Purba Bardhaman D.C.D.R.C., Purba Bardhaman
