HON'BLE MR. KAMAL DE, PRESIDING MEMBER
Order No. : 04
Date : 04.12.2019
Revisionist is present through Ld. Lawyer.
Revisional application is taken up for hearing.
Heard. Considered.
The instant Revision stems from the impugned order No. 13 dated 23rd July, 2019 passed by the Ld. DCDRF, Purba Bardhaman in MA Case No. 12 of 2019 arising out of complaint case No. 192 of 2018.
In filing the instant revision, it is alleged that the Ld. Forum committed an error apparent in law as well as in fact in passing the impugned order.
It is also alleged that the Ld. DCDRF, Purba Bardhaman failed to appreciate the materials on record and passed the order arbitrarily against the principle of natural justice.
It is also alleged that the impugned judgement is passed on conjecture and surmise and is also tainted with irregularity. Revisionist has prayed for setting aside the impugned order.
The revisionist alleged that the complainant along with is wife obtained a loan from the OP revisionist for purchasing a Light commercial vehicle and the petitioner company financed Rs. 10,17,610/- to the OP and the said loan was repayable in equal monthly instalments.
There was also provision for referring any dispute to Arbitrator in the said Agreement for loan and guarantee. Dispute cropped up regarding repayment of loan and the matter has been referred before Arbitrator who intimated about such arbitration proceeding to the OP - complainant vide notice dated 03.09.2018 but surprising by the complainant has filed the case being No. 192/2018 before the Ld. Forum below.
It is alleged that the vehicle met with an accident on 24.03.2018 in which the driver also died. It is also alleged that the complainant used to ply the truck for commercial purpose. It is also stated that the Ld. Forum below has no jurisdiction to entertain the complaint case being 192/2018, as such.
It is also stated that the complainant borrower failed to repay the instalments in terms of the Agreement for loan and guarantee.
So, the OP – revisionist is entitled to take possession in their custody.
It is stated that the Ld. Forum failed to consider all such facts and passed the impugned order which is prima-facie an error on the face of the record.
Decision with reason
The question is whether the impugned order passed by the Ld. Forum below suffers from any irregularity, impropriety or illegality?
Admittedly, OP seized the vehicle in question and the vehicle is lying in the possession and custody of the OP – revisionist.
It is also stated by the revisionist that OP seized the vehicle in question as the complainant failed to pay instalment in time.
It is also given to understand to us that the complainant in filing the Misc. Application submitted that he is ready and willing to pay the monthly instalment which have fallen due and he is ready and willing to pay Rs. 2,50,000/- for getting back the vehicle from the OP, instantly.
We find that Ld. Forum below passed a conditional order with a direction to the complainant - OP to pay Rs. 2,50,000/- as arrear dues.
It is also pronounced by the Ld. forum below that the OPs are to return the vehicle to the complainant subject to payment of Rs. 2,50,000/- from the complainant.
It is also stated in the body of the order that OP is to calculate the unpaid instalments which have fallen due till date.
The impugned order as it appears is a conditional order.
OP is to agitate the matter of commercial use of the vehicle or the matter of arbitration process/procedure etc. before the Ld. Forum below during the trial, if desired.
Revisionist is also at liberty to challenge the maintainability of the case before the Ld. Forum below at the earliest opportunity if so advised.
The impugned order, we find, does not suffer from any irregularity, illegality or impropriety. The impugned order is a conditional interlocutory one. Moreover, when the vehicle in question is in possession of the revisionist.
We find no ground to interfere into the impugned order so passed by the Ld. Forum below at this juncture.
Hence,
ORDERED
The Revision being No. 4 of 2019 is dismissed ex-parte but on merit.
The impugned order being No. 13 dated 23rd July, 2019 passed by the Ld. DCDRF, Purba Bardhaman in MA No. 12 of 2019 is upheld.
Ld. Forum below is directed to dispose the case preferably within 3 months from the date of receipt of this order in accordance to law.
Let a copy of this order be supplied to the parties free of cost.
Office to send a copy of this order to the Ld. Forum below at once.
No order as to cost.
