Rajasthan

StateCommission

FA/693/2014

Megma Fincorp Limited - Complainant(s)

Versus

Smt. Praveen Benson w/o Vinod Benson - Opp.Party(s)

Ajay Raj Tantia

03 Jun 2015

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 693/2014

 

Magma Fincorp Ltd. Having its regd.office at 24 Park Street Kolkata & ors.

Vs.

Smt.Praveen Benson w/o Sh.Vinod Benson r/o 66, Govindpuri,Ajmer Road,Sodala Jaipur & ors.

 

Date of Order 3.6.2015

 

Before:

 

Hon'ble Mr.Vinay Kumar Chawla-Presiding Member

Mr. Liyakat Ali- Member

Mrs.Sunita Ranka -Member

 

Mr. Ajay Raj Tantia counsel for the appellants

Mr. Giriraj Prasad counsel for the respondent

 

BY THE STATE COMMISSION

 

This appeal has been filed against the judgment of

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learned DCF Jaipur 3^rd dated 22.8.2013 by which it allowed the complaint.

 

Brief facts giving rise to this dispute are that the complainant had taken a loan of Rs. 5,25,000/- on 27.9.2003 from M/s. GE Money Financial Services Pvt.Ltd., New Delhi who has a branch at Jaipur also. The opposite party deducted a sum of Rs. 2000/- as processing fee and further a sum of Rs.11,125/- was deducted from the loan amount for processing fees and a sum of Rs. 5,13,875/- was disbursed. The complainant has submitted that rate of interest agreed between the parties was 10.75% p.a. but the opposite party has charged interest @ 19% p.a.. He also submitted that the monthly EMI was agreed to be fixed at Rs.6629/- while the EMI of Rs.9507/- was fixed and recovered from the complainant. The complainant stated that he had re-paid all the loan due to the opposite party. This complaint was filed for recovery of Rs.11,125/- deducted as processing charges and for recovery of excess interest amount charged from the complainant. The opposite party did not appear before the learned DCF and considering the fact and evidence submitted by the complainant the DCF ordered that the complainant is entitled to receive Rs. 11,125/- unauthorisedly deducted from the loan amount alongwith interest of 12% p.a. It also ordered that as per

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the EMI chart marked 15, the opposite party had received Rs.70,827.80 in excess of the loan amount which should be returned to the complainant alongwith interest @ 12% p.a.

 

This appeal has been filed by M/s.Magma Fincorp Ltd. who by virtue of an assignment agreement entered into between the appellant and respondent no.2 ( M/s. GE Money Financial Services) dated 13.2.2013 was assigned the account of the complainant. An application u/s 27 of the Consumer Protection Act, 1986 was filed by the complainant against the present appellant. This appeal was filed after the appellant received the notice u/s 27 of CP Act,1986 with a delay of 286 days.

 

The learned counsel for the appellant has submitted that appellant was not a party before the learned DCF, hence no execution proceedings can be proceeded against them. He also argued that there was an arbitration clause in the agreement and matter was referred to the arbitration and arbitrator has passed a award against the complainant and this complaint is not maintainable. He further argued that the complainant should have made the appellant a party before the learned DCF as the complainant was informed in the month of February 2013 that by

 

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virtue of an agreement her account has been assigned to them for recovery proceedings.

 

The learned counsel for the complainant has refuted the arguments of the learned counsel for the appellant. He has submitted that this complaint was filed in the year 2011 and notices were served on M/s.GE Money Financial Services who chose not to appear before the learned DCF and the complainant was not aware of any agreement of assignment between the appellant and M/s. GE Money Financial Services. He submitted that the complainant had appeared before the arbitrator and had submitted that a consumer complaint has been filed before the Consumer Forum and this arbitration proceedings cannot go on but the arbitrator avoided the submissions and passed an award in favour of the company against which an appeal has been filed before the appropriate court and the award of arbitrator has been stayed.

 

The learned counsel for the appellant has further argued that this dispute relates to rendition of the accounts and Consumer Forum has no jurisdiction to go into this question and the complaint was not maintainable.

 

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We have heard the submissions of both the counsels. On going through the record, we find that this complaint was filed in the year 2011 against M/s.GE Money Financial Services and M/s.GE Money Financial Services were served the summons but they did not appear before the learned DCF and the DCF proceeded against them ex-parte. The agreement of assignment was entered between the appellant and M/s.GE Money Financial Services in February 2013 and this complaint was decided on 22.8.2013. We do not find any record on file by which the complainant was informed of the assignment agreement. The submission of the appellant that the present appellants were not party before the learned DCF and they cannot be proceeded for non-compliance of the order of the learned DCF cannot be accepted. When by virtue of assignment agreement the present appellants had taken all the rights and liabilities from M/s.GE Money Financial Services, now it cannot be said that the judgment of the learned DCF cannot be enforced against them. The complainant cannot be held responsible that present appellant was not made a party before the learned DCF. It was the duty of the present appellant upon assignment to enquire about all the pending cases against M/s.GE Money Financial Services and to get themselves substituted and pursue the cases. We also do not agree with the submission that arbitrator has

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already passed the award, hence the complaint is not maintainable as is evident that complaint was filed before the arbitration proceedings were initiated and appellant did not inform the arbitrator of the proceedings pending before the Consumer Fora while the arbitrator ignored the submissions of the complainant about the pending complaint.

 

We have perused the appeal memo and on merits virtually there has been no challenge of the findings of the learned DCF which has held that the complainant is entitled to receive Rs. 11,125/- as processing fees unauthorisedly deducted from the loan amount and a sum of Rs. 70,827.80 which has been excessively charged from the complainant be returned to the complainant.

 

We do not agree that this was the dispute regarding rendition of the accounts as the complainant had specifically stated in her complaint that Rs.11,125/- has been unauthorisedly deducted from the disbursed loan amount and interest @ 19% p.a. has been charged from the complainant. Both these allegations come under deficiency of service. On these points no factual avernment has been made in the memo of appeal. As M/s.GE Money Financial Services did not appear before the

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learned DCF and did not file any statement of facts , we have no option but to accept the findings of the learned DCF and we maintain that proceedings u/s 27 of the Consumer Protection Act,1986 can be proceeded against the present appellants as they have been assigned this loan account.

 

We find no force in this appeal and the appeal is hereby dismissed. Amount deposited by the appellant shall be released to the complainant as per order of the learned DCF.

 

 

 

Member Member Presiding Member

 

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