Orissa

Dhenkanal

CC/60/2017

Manoj Kumar Mishra - Complainant(s)

Versus

SREI Equipment Finance Pvt. Limited, & Others - Opp.Party(s)

03 Jan 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                C.C.Case No. 60 of 2017

Manoj Kumar Mishra, aged about 46 years

S/o Sujan Mohan Mishra,

At: Bankatia, PO/PS: Rasol,

Dist: Dhenkanal                                                                                ……………..Complainant

                                                                Versus

1) SREI Equipment Finance Pvt. Limited,

    At: Talcher, Bye Pass Road,

    PO/PS: Talcher, Dist: Angul

2) SREI  Equipment Finance Pvt. Limited,

     Regional Office, Jyadev Bihar,

     Bhubaneswar, Dist: Khordha

3)SREIEquipment Finance Pvt. Limited,

     Regd. Office-86 C Tapasia Road (South)

     Kolkata-70046                                                                   ……………..Opp. Parties

Present: Sri Badal Bihari Pattanaik, President,

                  Miss Bijayalaxmi Satapathy, Member

                  Sri Purna Chandra Mishra, Member

Counsel: For the complainant:  Bhabagrahi Panda & Associates

                  For the Opp. Parties: Akhya Kumar Samal & Associates

Date of hearing argument: 18.12.2017

Date of order: 03.01.2018

                                                                JUDGMENT

Sri Badal Bihari Pattanaik, President,

                In the matter of an application U/s 12 of Consumer Protection Act, 1986 filed by the complainant alleging deficiency in service on the part of the Opp. Parties.

                1) Very briefly, the case of the complainant stated are that  he has purchased one Excavator  in order to earn his livelihood  by availing financial assistance from the Opp. Parties and the complainant has made initial deposit of Rs. 5 lakhs.  It was agreed that the complainant will repay the loan amount with interest in 34 equal monthly installment commencing from 15.3.2015 and the last installment date was fixed as 15.12.2017.  The monthly loan installment is Rs. 85,510/-.  The Opp. Party issued D.D to the L & T Company and delivered the vehicle at Rasol under the jurisdiction of this Forum.  The Machine Serial No.    N2.00523 and the Chassis No. N2.00523 having Engine No. 4H.2190/1420354.  The Opp. Party company took number of signatures in a printed form agreement, hypothecation etc but did not supply any copy of the same  to the complainant and the Opp. Parties have not yet supplied the copy of repayment schedule and simply told the installment amount per month fixed at Rs. 85,510/-.  It is further stated that the complainant has been paying the monthly installments regularly and till date the complainant has paid Rs. 14 lakhs.  It is further alleged that the machine showed defect and could not be used.  The complainant repaired the engine  and due to defect in the engine he could not repay 4 to 5 installments in due time which was within the knowledge of the Opp. Parties and the complainant also requested the O.Ps to clear up the defaulted installments at the end of July-2017.   It is further stated that as per the repayment schedule fixed by the O.P the complainant has to clear up the loan by the end of December-2017.  Till March-2017 the Opp. Party claims a sum of Rs. 5,97,600.  On 21.2.2016 the complainant paid Rs. 2,40,000/- by depositing in the account of the O.P.  The complainant offered Rs. 3 lakhs to the O.P towards payment of outstanding installment but the O.P refused to receive the same  and demanded to clear up the entire loan amount with interest  although the due date was December-2017.  On 30.3.2017 all on a sudden the O.P with his hired people reached at Hindol and seized the vehicle forcibly and took the vehicle from the possession of the complainant from the stock yard of Angul and despite several requests the O.P is not receiving money nor releasing the vehicle and demanding the entire loan amount and other mis-expenses with interest which is illegal. When the petitioner asked for the seizer, the O.P provided copy mentioning the place of seizer at Sornpur instead of Hindol.  The Opp. Party has never send any intimation before seizing the vehicle.  After seizure of the vehicle the complainant contacted the O.P and offered Rs. 3 lakhs promising to clear the defaulted installment within July or August-2017 to which the O.P refused.  The vehicle was purchased for livelihood purpose of the complainant.  The Forum is also having territorial jurisdiction as the vehicle was delivered at Rasol in  March-2015 and illegally and forcibly seized by the O>P.  at Hindol.  Therefore, the complainant has come up before this Forum seeking for a direction to the Opp. Party to release the vehicle immediately on receipt of Rs. 3 Lakhs from the complainant. Besides, the complainant prays to direct the Opp. Party to supply copy of original agreement, repayment schedule and corrected copy of statement of account along with compensation and cost of the litigation of Rs. 1,00,000/-.  The contents of the petition are supported by affidavit.

                2)  The Opp. Parties appeared and filed their written version.  It is in the version of the Opp. Parties that the complaint is not maintainable as the complainant is not a consumer.  As the Arbitration clause 9.11 exists in the agreement executed between the complainant and the O.P Company, the consumer dispute is not maintainable.  The District Consumer Forum has no territorial jurisdiction to adjudicate upon the dispute.   The complainant has availed financial assistance from the Talcher Branch Office.  The excavator was seized at Sonepur which comes under the territorial jurisdiction of Sonepur District Forum.  As such this Forum lacks jurisdiction to adjudicate upon the dispute and thus the case is liable to be dismissed.   The vehicle was purchased for commercial purpose for which the complainant is not a consumer.  The O.P Finance Company agreed to provide financial assistance for purchasing a Hydraulic Excavator of L & T Company, Komastu PC 71 to the complainant which is a heavy construction machinery was financed by the O.P Company to the complainant for commercial use purpose under a loan agreement bearing contract No.78335 Dt. 15.1.2015 for which the dispute between the parties does not fall within ambit of Consumer Disputes.  Besides, when the complainant has engaged the same for commercial purpose, which excludes him to come under the definition of “Consumer” as provided under the C.P. Act.  It is further stated that  The loan agreement provides ample rights to the O.Ps to seize the commercial equipment and after disposal of the same at the best price  available in the market, adjust the sell consideration against the outstanding of the loan account of the complainant  Due to huge outstanding dues lying upon the complainant, the O.P Company was compelled to take repossession of the asset/machine and terminated the loan agreement after dues service of numerous demand cum-pre-repossession notices and subsequent pre and post repossession intimation letter to local Police Station.  In the present case the O.Ps have not committed any fault and the O.Ps are not liable for any deficiency in service. .  It is admitted that the complainant has availed loan/financial assistance from the O.P Company for purchasing one Heavy Commercial Equipment/Machine – Hydraulic Excavator of L & T Company, Komastu PC 71 by executing a loan Agreement vide Contract No.78335 on 15.1.2015.  The due date of payment of EMI commencing from 15.3.2015 and maturity date is 15.12.2017.  The loan facility/finance amount is Rs. 24,07,000/-.  The complainant is to clear the loan dues with interest in 34 nos. of EMIs @ Rs. 85,510/- per month on 15^th day of every month.  Since the beginning the complainant committed defaults in payment of EMI dues for which the O.P Company had sent several demand notices on equal intervals vide dt. 21.7.2016 and 21.8.2016 and the complainant did not respond to the same. Therefore, the O.P company was compelled to issue the Demand cum Pre-Repossession notice on 8.10.2016 and 11.11.2016 by Regd. Post demanding payment of Rs. 5,06,443/-, which was calculated up to the month of 31^st October-2016  asking the complainant to pay the said amount within seven days from the date of receipt of the notice.  But the complainant did not respond to the said notices.  As on 30.3.2017 the financial year ending the contract of the complainant stands with Rs. 7,90,981/-  towards defaulted EMIs and overdue charges excluding the future installments.  Accordingly the agreement was terminated   and the termination notice was also sent to the complainant by Registered Post and the complainant was liable to pay the amount of Rs. 16,50,571/- to the O.P Company.  As the complainant did not pay the said amount within the stipulated period the O.P Company was compelled to repossess the vehicle after due notice.  Accordingly, it is pleaded to dismiss the complaint as there is no deficiency in service on their part.

                3)  On the aforesaid pleadings of the respective parties following issues are framed for determination.

                1)  Whether the complaint is maintainable?

                2) Whether there is deficiency in service?

                3) To what relief if any, the complainant is entitled?

4) Issue No.1:

                In order to prove the case the complainant has filed evidence by way of affidavit and relied on certain documents.  Whereas the Opp. Party without filing any evidence by way of affidavit has filed some documents in support of his case.  The learned counsel for the Opp. Parties argued that the case is not maintainable on the ground that the Opp. Parties have no branch office within the jurisdiction of this Forum for which this Forum has no jurisdiction and accordingly the case is not maintainable.  He further argued as there is an arbitration clause in the agreement, between the parties the complainant should approach his grievance if any, before the arbitrator and as such this Forum has no jurisdiction to entertain the complaint.  He further argued that the complainant has purchased the vehicle in question for his commercial purpose for which he is not a consumer and as such the case is not maintainable.  On the other hand learned counsel for the complainant argued that there is specific pleading in the complaint petition that the complainant has purchased the vehicle in question to earn his livelihood   so he is a consumer.  He further argued that even if there is an arbitration clause in the agreement it does not oust the jurisdiction of this Forum.   He further argued that even if the Opp. Parties have no branch office in the District of Dhenkanal but the Opp. Parties extended loan facilities to the petitioner and others within the jurisdiction of this Forum and further when the vehicle was forcibly repossessed from the possession of the driver  of the petitioner at Hindol this Forum has territorial jurisdiction to adjudicate upon the dispute.  We have gone through the pleadings and documents filed by the parties.   On perusal of the complaint petition we noticed that at para-3 the complainant has specially stated that in order to earn his livelihood the petitioner intends to purchase one excavator and at para-14 of the complaint petition it is stated that the said vehicle was purchased for livelihood.    On the other hand even though the Opp. Parties in their written version at page-6 have stated that the complainant has not purchased the excavator in question to earn his livelihood and before availing this finance for purchasing the excavator  the complainant was already earning his livelihood from heavy commercial machinery/equipment’s hiring contract business  but the O.Ps have    not filed any documents to   that effect.  Further in the written version  although it is stated that the complainant earns his livelihood from his existing fuel station at Kunua in the name and style M/s Maa Sukia Bauti KSK,  dealership of Indian Oil Corporation and to expand his existing business and to earn more profit he purchased the excavator in question.  But the Opp. Parties have not filed any documents or evidence that the complainant has used the said excavator in his Fuel Station for more profit. By relying an annexure-2 the Opp. Parties argued that the complainant has an existing fuel station. On our perusal of this annexure-2 we noticed that this is a letter of appointment issued by Indian Oil Corporation to the complainant and one Saroj Kumar Mishra regarding appointment of dealers of Indian Oil Corporation.  But that letter of appointment does not establish that the complainant is the sole owner of the Fuel Station and now it is being operated exclusively by him.      There is no definition in the C.P.Act “to earn his livelihood”.  To maintain a family   the amount required varies from person to person  &family to family.  In the instant case Opp. Parties are not able to establish that the complainant has sufficient income from his fuel station to maintain his family properly. The learned counsel for the Opp. Parties argued that they have no branch office within the territorial jurisdiction of this Forum for which this Forum has no jurisdiction.  Admittedly, the Opp. Parties have no branch office within the jurisdiction of this Forum.  But the Opp. Parties in the written version have categorically admitted that the financial assistance has been extended to the complainant and others in the District of Dhenkanal.  Hence even if the Opp. Parties have  no branch office within the District of Dhenkanal but    they are  carrying their  business for gain  in the district of Dhenkanal   by extending financial assistances to the petitioner as well as other  public within the territorial jurisdiction of this Forum.  When the Opp. Parties carrying on their business for gain by extending financial assistances to the complainant as well as the general public within the territorial jurisdiction of this Forum the present case falls U/s 11 (2) (a)  & ( c ) of the C.P.Act.   Further it is specific case of the complainant that the Opp. Parties have seized the vehicle forcibly from Hindol which comes within the territorial jurisdiction of Dhenkanal District.  But the Opp. Parties in their written version have stated that the vehicle was repossessed at Sonepur from the possession of the driver of the complainant and to that effect it is stated by the Opp. Parties that it was intimated before the seizure and after the seizure to the Model Police Station at Angul and to that effect they have filed some documents.  On perusal of documents filed by the Opp. Parties we noticed that on 30.3.2017 the  Opp. Parties  intimated the O.I.C Model Police station Angul regarding   pre-repossession notice  and  post-repossession notice.  But the Opp. Parties have not filed extract of   the station diary entry. Further the complainant is a resident under Rasol Police Station.  But the Opp. Parties have not intimated before the Rasol Police Station regarding pre-possession or post-possession of the vehicle.  Further when the vehicle was seized at Sonepur then it was the duty of the Opp. Parties  to report at Sonepur Police Station regarding seizure of the vehicle.  On perusal of the seizure list we noticed that there is signature of the complainant from whom the vehicle was sized.  But as per statement of the Opp. Parties the vehicle was seized from the possession of the driver of the complainant.  But there is no signature of the driver in the seizure list.   On perusal of the said seizure list we noticed the Opp. Parties have stated place of repossession as Sornpur (Boud). But in the written version it is stated that the place of seizure is at Sonepur.  The Opp. Parties have not filed any counter affidavit of the person who has seized the vehicle in respect of place of seizure and from whom it was seized.  So in our opinion the seizure list is not a genuine one and we come to a conclusion that the excavator was seized at Hindol which comes within the territorial jurisdiction of this Forum.    Further it is well established that even if there is an arbitration clause in the agreement,   as per section 3 of the C.P.Act this Forum has jurisdiction to adjudicate upon the dispute and it is the choice of the party whether he will approach the Arbitrator or Consumer Forum.  In this regard we are fortified by a decision of the Apex Court in case of M/s Fair Air Engineering Pvt. Ltd, Vrs. N.K. Modi  1996-99 Consumer- page 4771 (NS) and another decision of the National Consumer Disputes Redressal Commission in the case of Magma  Fincorp Ltd vrs. Ashok Kumar Gupta reported in 2010 (3) CPJ page 384.  Further we are fortified by a decision of Hon’ble Supreme Court reported in 2012( 1) CPJ page-29 in the case of National Seed Corporation Ltd, vrs. M. Madhusudan Redy and Anr.  On our above discussions we come to a conclusion that the complainant is a consumer and this Forum has territorial jurisdiction and accordingly the case is maintainable.

5) Issue No.2

                Learned counsel for the Opp. Parties argued that as the complainant was a defaulter and after several demand notice when the petitioner failed to pay the installments dues in time for which pre-seizure notice was issued to the complainant and thereafter the excavator was seized and there is no deficiency in service on the part of the Opp. Parties.  On the other hand the learned counsel for the complainant argued that there was some defect in the excavator and there was repair of engine work for which the complainant could not be able to repay four to five installments in time.  But the Opp. Parties without giving any pre-repossession notice seized the excavator illegally by using force through hired people without following due process of law which amounts to deficiency in service.  On perusal of the pleadings and documents filed by the parties we noticed that although the Opp. Parties have stated that they have issued demand notice before repossession of the excavator alongwith pre-repossession notice and filed copy of the notices but the Opp. Parties have not filed any documents or postal receipt to show that it was sent to the complainant by Regd. Post.   On perusal of the agreement filed by the Opp. Parties the mode of service of notice has been mentioned at clause 9.3. The Opp. Parties have  not specifically stated in their  written version whether the notice was served or communicated to the complainant by Regd. Post/Speed Post/courier, facsimile transmission or personal deliver on the complainant.    But no such documents is also filed to that effect.  Therefore, in absence of any document in relation to service of notice for re-possession, in our opinion the repossession of the excavator is illegal and without due process of law which amounts to deficiency in service.  Further prior to repossession of the excavator the Opp. Parties have not sent any notice to the guarantor also.   Admittedly, the complainant has availed financial assistance   from the Opp. Parties  by depositing initial deposit  amount of Rs. 5,00,000/- and he has already paid Rs. 14,00,000/- towards installment dues  till 3.5.2017 and the last  installment dues was 15.12.2017.  But due to default the vehicle was repossessed by the Opp. Parties on 30.3.2017.  Even if in this case by an interim order the Opp. Parties were    directed to release the vehicle  after receiving a sum of Rs. 3,50,000/- from the complainant and the complainant was also directed  to pay the installment dues regularly, but the Opp. Parties  preferred revision before the Hon’ble State Commission and the order of this Forum was not complied.  As such since 30.3.2017 the vehicle is in the possession of the Opp. Parties and the very purpose for which the excavator was purchased has been defeated.   Now therefore, as the Opp. Parties have    illegally seized the excavator forcibly without any due process of law they are not legally   entitled to impose any penal charges on the complainant from the date of seizure of the excavator and they  cannot impose the same and the complainant is also not liable to pay the same.  In this regard we are fortified by a decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in 2014 (CPR) (II) page 576 in case of Bajaj Finance Auto Ltd, Vrs. Somesh N.K wherein it has been held that forcible repossession of vehicle is against settled principles of law.  We are also fortified by another decision of the Hon’ble National Commission reported in   2009 (3)  CPR  page 201 in case of HDFC Bank Ltd,  versus Balwinder Sing  wherein it has been held  by their Lordship that Act of Bank reposing vehicle which it had financed on default in payment of certain installments with help of musclemen amounts to serious deficiency in service.  In another decision reported in 2009 (3) CPR page 2005 in case of M/s Capital Trust Ltd, vrs. Sanjay Dutta and others  wherein it has been held by the Hon’ble National Commission that Financer reposing vehicle by use of force where there was default in payment of certain installments by purchaser under hire purchase agreement would constitute deficiency in service.  Learned counsel for the Opp. Parties relied on a unreported decision of Hon’ble State C.D.R.Commission, Odisha Cuttack in the case of Laxmidhar Mallik versus Srei Equipment’s Financial Ltd, in C.C. No. 36 of 2016.  In the said case   Hon’ble State Commission dismissed the case as the Opp. Party has established that the petitioner is a Class-I Electrical Contractor working in the state of Karnataka and for which Hon’ble Commission hold that the petitioner not purchased the impugned machine to earn his livelihood.  But in the case at hand the Opp. Parties have not established his stand by adducing cogent evidence in this regard hence the case is not applicable to the facts of the present case.   Learned counsel for the Opp. Parties  also relied on a decision of Hon’ble National Commission  reported in 2012 (4) CPR page 75 in the case of Sriram Finance Transport Company Ltd, vers Mr. Chamanlal wherein Hon’ble National Commission has held that the financier can repossess the vehicle for default in repayment of loan amount.  Learned counsel for the Opp. Parties also relied on another decision of National Commission reported in 2012 (4) CPR page 313 in the case of  Surendra Kumar Sahoo vrs. Branch Manager, Indusind Bank Ltd, wherein it has been held that Financier can repossess the vehicle for default in payment of installments and another  decision of Hon’ble National Commission  reported in 2011 NCJ 443  in the case of Shriniwas  vrs. M/s Mahindra Finance Mahindra and Finance Service  Ltd, wherein it has been held the seizure of vehicle for default in payment cannot be considered as deficiency. He also relied on another decision  of Hon’ble National Commission reported in 2013 (2) CPR 548  and 551 in the case of M/s Indusind Bank Ltd,  Sri Avtar Singh  wherein it has been held that commercial user cannot maintain consumer complaint. In the above referred decisions as relied on by the Opp. Parties have not discussed the decisions relied on by the petitioner.  Hence the decisions which are in favour of the complainant are more applicable to the facts of the present case and the complainant is accordingly entitled to get reliefs basing on the decisions relied by the complainant.   Now therefore, taking into consideration of the  principle of law as has been decided by the National Commission as referred to above,  the interest of justice would be best safeguarded if the excavator is released at the earliest subject to payment of all the default installments till the date of seizure i.e. 30.3.2017 and the complainant shall pay the balance monthly installment dues of Rs. 85,510/- each from April-2017 to December-2017   within nine months from the date of release of the vehicle.  Hence ordered.

                                                                                ORDER

                The complaint is allowed on contest in the light of the observations made in the preceding paragraphs.  The Opp. Parties are directed to release the Excavator immediately subject to payment of all the default installments dues  till the date of seizure i.e. 30.3.2017.  The Opp. Parties are also directed not to charge any penal interest/charges on the complainant after the date of seizure i.e. 30.3.2017.  The complainant is also directed to go on paying the balance monthly installments of Rs. 85,510/- each from April-2017 to December-2017 within nine months from the date of release of the vehicle.

(Sri Purna Chandra Mishra) (Miss Bijayalaxmi Satapathy) ( Sri Badal Bihari Pattanaik)

                   Member                                 Member                                 President