DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 9th day of July, 2019
C.D Case No. 07 of 2016
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sri Nityananda Giri
S/o: Late Sankar Giri
Vill: Chakabental,
Po: Keshapur,
Ps: Bhadrak (R),
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Sri Jagabandhu Behera, Branch Manager
MAGMA LEASING Ltd of Balasore Branch
At/Po/Dist: Balasore
…………………………..Opp. Parties
Counsel For Complainant: Sri Nishikanta Nayak, Adv
Counsel For the OP: Sri S. C. Mohapatra, Adv, & Others
Date of hearing: 04.04.2018
Date of order: 09.07.2019
BASANTA KUMAR MALLICK, MEMBER
This dispute arose out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice.
That the facts of the complaint are to the effect that the complainant was an unemployed young man and was earning his livelihood out of the income from a truck bearing registration No- OR-01B-0625 which was purchased in the year 1997. When the said truck demanded a big amount of repairing cost and when the complainant failed to afford for repairing of the vehicle, he approached the OP (MAGMA LEASING Ltd.) for a loan support of Rs 2,00,000/- to repair the vehicle so as to enable the vehicle to ply on the road for generation of income. In response to the request of the complainant and on compliance of the requirements, OP sanctioned a loan of Rs 1,60,000/- in favour of the complainant for repairing of the truck which was advanced on 01.08.2006 repayable in 20 monthly EMIs inclusive of interest and other cost. Accordingly the complainant claims to have repaid the entire loan dues in accordance with the repayment schedule but the OP did not issued No Objection Certificate (NOC) although it had promised to issue the same soon after repayment phase is over. The complainant, awaiting for a longer period of time, when failed to get the NOC from the OP, he personally met and approached for issue of NOC who demanded some more amount of loan outstanding for repayment even though the complainant has repaid the dues in full. Finding no alternative complainant immediately made payment of the residue amount of loan as demanded but the OP express inability to issue NOC instantly and assured to send the NOC by return of post which was not materialized within a period of one year. Being desperate, the complainant once again visited the office of OP and demanded issue of NOC but the OP once again demanded for payment of Rs 10,000/- and some odd amount as outstanding in the loan account. The complainant immediately complied on payment of Rs 10,000/- in shape of demand draft but the OP did not issue the NOC and took the same plea as taken in earlier instances. In order to get the NOC the complainant has ran after OP and requested in many times for issue of NOC but the OP went on making false commitment to issue the same on latter dates. In this manner the OP consumed more then 6 to 7 years to comply the requirement of complainant. Finally an agent of OP reached at the door of complainant and requested to come to the office for a discussion. Relying on his version, complainant went to the office of OP where he came to know that he is required to pay the premium amount which was paid by the complainant towards insurance of the financed truck but did not hand over the policy papers. It is a fact that the complainant had already paid the premium of the police and received policy papers from the insurance authority. Despite sincere efforts and continuous approach over a prolonged period of more than 5 years, the complainant did not find any alternative other than to file this dispute in this Forum praying for a direction to OP to issue NOC and to pay cost and compensation for mental agony and harassment.
The OP objected the allegations of the complaint and contested the case. In submitting the written version OP has raised the question of maintainability on many grounds such as the complainant is not a consumer within the meaning of CP Act, cause of action and barred by limitation. It is raised by the OP that the complainant had filed the same case vide CD Case No- 79/2010 which was dismissed for default of the complainant on 19.09.2011. Once again the same case was filed vide CD Case No- 162/2012 which was dismissed by this Forum on 08.12.2015 and for the last time this CD Case has been filed on 08.01.2016 for adjudication and admission of this case is illegal and bad in the eyes of law and attracts the provisions of res-judicata. Further it is also raised by the OP that as a matter of fact the dispute between the parties was referred to Arbitrator in the beginning of the year 2012 and the same arbitrator vide its Award on 06.09.2011 awarded a sum of Rs 45,666/- in favour of the OP which was required to be paid by the complainant and in order to substantiate its contents, OP has cited some decisions of Odisha State Consumer Dispute Redressal Commission and Hon’ble National Commission holding that “if any dispute has been decided by the arbitrator, subsequent complaint on the same matter is not maintainable”. It is also held by the National Commission “a complaint cannot be decided by the Consumer Forum after an arbitration award is already passed”. Further the OP has stated the background facts in narrating that the complainant has availed a loan of Rs 1,60,000/- on 01.08.2006 which was repayable in twenty equated monthly installments including interest of Rs 48,080/- and as such the total credit value arrived at Rs 2,08,080/-. Accordingly the complainant had signed the contract and hypothecation & loan agreement being present in office of the OP. Therefore the complainant is responsible to perform his part of duty and responsibility in repayment of loan without defalcation. But in the instant case, since the complainant has not paid the full dues to the OP, his claim for issue of NOC is not valid and sustainable in the eyes of law. Besides, the OP also had been paying the insurance premiums to the insurer as there was outstanding in the loan account and the premium amount was debited to the loan account of the complainant. In the above backdrops the present dispute does not have any merit for admission and adjudication and therefore liable to be dismissed with cost.
Evidently the complainant is a borrower who had availed credit support of Rs 1,60,000/- from OP in the year 2006 in order to get his old truck repaired in executing the relevant documents including loan hypothecation and agreement. The credit so availed by the complainant was to be repaid in twenty equated monthly installments commencing from 01.08.2006 @ Rs 10,400/- per month. Other than above all other allegations of the complaint are disputed by the OP to this case.
Gone through the contents of complaint petition, written versions submitted by the OP, heard the parties in course of hearing, perused the materials on record, referred the decisions as provided by the OP and observed as discussed below.
1. The sole OP raised the objection in stating that the complaint is not maintainable as the complainant is not a consumer within the meaning of CP Act and as the complainant is the borrower of loan, the relation between the complainant and OP is “borrower” and “lender” for which no complaint can be filed and no dispute can exist in any Court other than the Court of arbitrator. That apart the entire dispute relates to accounting matters which is not maintainable in the Consumer Forum. On the other hand the complainant objected the contention of OP in stating that he is a consumer in true sense of the term as he has paid service charges to the OP for availing service as and when necessary. As regards the relation between the parties is no doubt borrower and lender and the plea taken by the OP is not sustainable as because the complainant is a consumer under the OP. Hence the plea of the OP does not hold good in the present case.
2. The OP has raised the question of cause of action and limitation as the complainant had availed the loan in the year 2006 which was repayable in 20 monthly installments but the complainant did not pay back the entire amount of loan together with interest, penal interest and other charges as agreed between the parties within the stipulated time and according to the terms of the agreement. Had the complainant paid the entire amount of loan to the full satisfaction of the OP, there would have been no delay in issuing NOC. But the actual fact remains that the complainant has not paid the entire amount of loan as per repayment schedule as against which the OP has charged late payment charges (penal interest) and the charges due to bounce of the post dated cheques as per terms of the agreement. On the contrary the complainant submitted in stating that the entire amount of loan together with interest and other charges has been repaid by the complainant within the due dates and thus there was no default and delay in repayment. On perusal of material evidence on record i.e. the accounts statement furnished by both the parties reveals that the complainant has not paid the entire amount forgetting the repayment schedule and the residue amount outstanding in the loan account. Therefore it is held by the Forum that the nonpayment of loan is intentional and deliberate and hence the complainant failed to prove his allegation.
3. It is evident from the pleadings and written version that the complainant had availed a loan of Rs 1,60,000/- on dtd. 01.08.2006 and was liable to repay Rs 2,08,080/- (principal+ interest) in 20 EMIs stating from August 2006 but the complainant failed to discharge his full liabilities within the stipulated time and as such the complainant is liable to pay the residue amount of loan together with penal interest and other charges. The complainant resisted the contentions of OP in stating that he has paid the entire amount of loan as per repayment schedule but the OP has manipulated the loan accounts as it is maintained at their end and in their system. It is pertinent to mention that a demand draft for Rs 10,000/- was made over to the OP to the credit of his loan account on dt. 09.01.2007 which has not been credited to his loan account. Such action of the OP leads to believe that the said OP has resorted to unfair trade paratactic and lot of similar manipulation might be there in the loan accounts statement. On perusal of materials on record it is evident that the complainant has paid an amount of Rs 10,000/- on 09.01.2007 in shape of D.D drawn on Union bank of India in favour OP which is not accounted for but failed to adduce evidence in support of his statement as to he has repaid the entire amount of loan. Hence the allegation brought in the complaint by the complainant is not fully correct and sustainable.
4. The OP in it’s written version as well as in course of hearing stated that two numbers of similar dispute was filed in this Forum by the complainant prior to filing of this case. First one was filed in the year 2010 vide CC No- 79/2010 which was dismissed for default of the complainant on dt. 19.09.2011 and the second one was filed during the year 2012 vide CC No- 162/2012 which was dismissed on dt. 08.12.2015 for default of the complainant and the third one was filed in this Forum on 08.01.2016 which falls within the ambit of settled provisions of law i.e. res-judicata as the cause title and facts of all three cases remains same and unchanged. Therefore the complaint filed by the complainant is liable to be dismissed. In objecting the contentions of OP complainant stated in course of hearing that he had engaged advocates for conducting the case on his behalf who did not conduct the case properly and remained absent as a result of which the first two cases were dismissed for default of the complainant. Simultaneously it is the settled position of law that the complainant should not suffer for the lapses/mistake of the conducting advocate. Hence it is prayed that the complainant should not a victim of the negligence of conducting advocates. If the averments of complainant would be taken into granted in respect of first dismissal how the same mistake was repeated in the second case. Hence it is believed beyond doubt that the plea complainant is manufactured and based on falsehood.
5. The OP has raised the question of maintainability in attracting the attention of this Forum that according to the terms of agreement executed by the parties at the time of advancing loan, the matter was referred to the arbitrator during the year 2011 which was decided on 06.09.2011 awarding a sum of Rs 45,666/- in favour of OP. When the matter has been decided by the arbitrator in the year 2011 it is not fair to file a case in this Forum in the year 2016, after a lapse of 5 years, and as such the case is not maintainable in the Consumer Forum. On the contrary the complainant submitted in stating that the matter of arbitration was beyond his knowledge and therefore the submission of the OP with regards to the awards given by arbitrator should not be accepted and the contentions of OP in this matter need to be quashed.
On examination of materials available on record and evidences adduced by the parties in course of hearing and taking the above discussions into consideration, the Forum holds that the complainant failed to prove his allegations other than payment of Rs 10,000/- in shape of D.D drawn on Union Bank of India vide D.D No- 031421/09.01.2017. Hence it is held that the OP is also partially responsible for not accounting for the amount paid by the complainant in shape of D.D. As such all other allegations made by the complainant remained on proved as the complainant has failed to substantiate the allegations. Hence it is ordered; ORDER
The complaint be and the same is dismissed except holding the OP liable for payment of Rs 10,000/- to the complainant with interest @ 9% on quarterly rests from the date of handing over the D.D till the date of passing this order. The complainant is liable to pay the balance amount of loan of Rs 45,666/-, after deduction of Rs 10,000/- together with interest and other payments made by the complainant, if any, as mentioned above, within a period of 30 days from the date of passing of this order and in the circumstances without cost & compensation.
This order is pronounced in the open Forum on this day of 9th July, 2019 under my hand and seal of the Forum.
