Orissa

Cuttak

CC/207/2021

Upendra Bhanja Sahu - Complainant(s)

Versus

Srei Equipment Finance Ltd - Opp.Party(s)

B K Sinha & associates

14 Sep 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                        C.C.No.207/2021

Mr. Upendra Bhanja Sahu,

C/O:Sarbeswar Sahu,

At:Kukuta,P.S:Balimi,

Dhenkanal,Odisha,

At present Haripur Rd,Dolamundai,

Cuttack-753001.                                                                         ... Complainant.

 

                                                Vrs.

1.        Branch Manager,

       Srei Equipment Finance Ltd.,

       Bypass Rd,Talcher,Odisha-759100..

 

2.       Managing Director,

Srei Equipment Finance Ltd.,

Plot No.Y-10 Block EP,Sector-V,Salt Lake City,

Kolkata.                                                                             ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:     08.12.2021

Date of Order:   14.09.2022

 

For the complainant:            Mr. B.K.Sinha,Adv. & Associates.

For the O.Ps           :                Mr. A.K.Samal,Advocate.

 

Sri Debasish Nayak,President.                                     

            Case of the complainant as made out from the complaint petition in short is that he had purchased a JCB Excavator after obtaining finance from the O.Ps to the tune of Rs.20,00,000/- and had himself paid the down payment amount of Rs.6,50,000/-.  Thus, the financed money of Rs.20,00,000/- was to be repaid by him in 30 number of instalments @ Rs.56,500/-.  The complainant had paid an amount of Rs.11,30,000/- in 20 number of             instalments.  Due to Covid-19 situation the JCB of the complainant could not be used for which it had adversely affected the livelihood of the complainant.  The complainant had then contacted the O.Ps requesting them to pay the remaining instalments which he could not pay but the O.Ps had refused for such proposal and rather had threatened him to seize his vehicle and auction it.  The complainant has thus filed this case seeking direction from this Commission to the O.Ps not to seize his vehicle, to rephase the schedule hereby making easy instalments and also to direct the O.Ps to pay him compensation amount of Rs.2,00,000/- towards his mental agony and a sum of Rs.1,00,000/- towards his litigation expenses.  He has further prayed for any other reliefs as deemed fit and proper.

            He has filed copies of certain documents in order to prove his case.

2.         The O.Ps have contested this case and have filed written version.  According to them, the complainant does not come under the definition of consumer, had not approached with clean hands, has suppressed and misrepresented several material facts and that the case of the complainant is not maintainable.  They admit about the complainant purchasing one JCB loader as per hypothecation agreement/contract bearing no.153642 dt.5.2.18 executed in between the complainant and the O.Ps.  The O.Ps have further stated that the complainant had engaged operator/driver for operating/plying the said vehicle, thus he does not fall within the ambit of consumer as per the C.P.Act,2019.  In this context they have kept reliance over the case of Laxmi Engineering Works Vrs. P.S.G Industrial Institute in Civil Appeal no.4193 decided on 4.4.1995.  They have also relied upon another decision of the Hon’ble Supreme Court of India in the case of K.Sagar,M.D,Kinan Cheat Fund, Murshirabad Vrs. A.Bal AD and another in Civil Appeal no.1498 of 2005 decided on 11.6.2008 and reported in AIR 2008 SC 2568.  The O.P through their written version have also stressed upon the provisions of clause-7.2.1 of the Hypothecation agreement as entered into by the complainant of this case with them, which empowers the O.Ps to take over possession of the financed asset without giving any notice to the borrower if the borrower fails/commits default in repayment of the secured obligation in terms of the agreement or in the event of the borrower committing breach of any of the terms and conditions under the clause.  Thus, according to the O.Ps, they were never deficient in their service nor their act was illegal or arbitrary.  They have further stated in their written version that according to the guidelines issued by the R.B.I under “Covid Regulatory Package” they had given the complainant the moratorium period of 6 months but still then complainant continued to remain default in repaying the instalments as due from him even after the completion of the moratorium period being availed by him.  The O.Ps had noticed the complainant on 15.5.21,21.6.21,22.7.21 and 14.9.21 asking him to clear the huge outstanding dues of Rs.5,00,948.32p and ultimately when the complainant had not responded, rather had obtained an interim order, with a direction given to the O.Ps not to take any coercive steps against the complainant and his vehicle bearing Regd. No.OD-19L-7340.  Thus, the O.Ps have prayed for rejection of the complaint petition showing it to be not maintainable.             

            They have also filed copies of all the documents in order to prove the agreement in between them and the complainant and the account statement copies showing the payment as made by the complainant alongwith other connecting documents.

3.         Keeping in mind the averments as made in the complaint petition as well as contents in the written version of the contesting O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

            ii.         Whether there was deficiency in service on the part of the O.Ps?

            iii.        Whether the complainant is entitled to the reliefs as claimed?

 

Issue no.1.

            The O.Ps through their written version have stated that the complainant do not fall within the definition of consumer since because the JCB vehicle was being used for commercial purposes at Dhenkanal jurisdiction.  The complainant had engaged one operator/driver for operating/ply the said vehicle.  Thus, according to them, the complainant is not a consumer as per the C.P.Act,2019.  While perusing the case record, it is noticed that the complainant resides in the territorial jurisdiction of Cuttack district and has specifically mentioned in his complaint petition that he had purchased JCB in order to earn his livelihood and that he had suffered loss during the pandemic situation of Covid-19 as his earning was hampered.  Thus, the contention raised in this score regarding the maintainability is set aside and this Commission comes to a conclusion that the case of the complainant is maintainable.  Accordingly, this issue is answered.

Issue no.ii.

            On perusal of the hypothecation agreement as entered into by the complainant with the O.Ps, by executing the same, the complainant had infact agreed to all its terms and conditions and since when he became a defaulter even after availing the moratorium period of 6 months as given by the R.B.I guidelines during the pandemic situation under the title “Covid Regulatory Pacdkage”, it can never be said that the complainant was willing to clear the instalments as due from him to the O.Ps.  Thus, the copies of the letters as issued by the O.Ps in this context prove that time and again the complainant was requested to clear the huge outstanding dues which he had not listened to.  The complainant had managed to obtain an order thereby refraining the O.Ps to take any coercive measures against him and his vehicle.  Thus, it cannot be said here that the O.Ps were deficient in their service.  Accordingly, this issue goes in favour of the O.Ps.

Issue No.iii.

            When the complainant is a defaulter even after availing a “Covid Regulatory Package” of six months moratorium period, this Commission comes to a view that the complainant was a wilful defaulter and thus has not approached with clean hands and had suppressed material facts for which he is not entitled to the reliefs as claimed by him. Hence it is so ordered.

                                                            ORDER

            The case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 14^th day of   September,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                           Sri Sibananda Mohanty

                                                                                                                                                 Member