MRS RAJASHREE AGARWALLA, MEMBER-
Deficiency in service in respect of demand of illegal, arbitrary loan amount by Op-finance Company on the Complainant’s financed vehicle are the allegations arrayed against the Ops.
2. Complaint in brief reveals that, Complainant to purchase a vehicle availed a loan of Rs. 2,80,000/- from SRIRAM TRANSPORT FINANCE Co. Ltd.(Ops) by executing loan Agreement bearing No.-CHND1041125003. The loan dues are to be paid within 47 monthly instalments commencing from dt. 25/11/14 to dt. 05/11/2018 and Complainant was paying loan amount till Aughust-2016 regularly. It is revealed from the Complainant petition that Complainant –loanee availed a tyre loan of Rs. 30,000/- and Insurance loan amounting of Rs. 36,000/- and complainant has cleared the loan dues against the finance of Tyre. The Ops are demanding an illegal and arbitrary amount of Rs. 3,000,00/- without considering the payment of Rs. 2,15,000/- by the Complainant against pending loan dues. The Complainant is filed with prayer that, the Ops be directed to settle the loan account of the Complainant on one-time basis and not o repossess the vehicle of the Complainant-loanee.
3. Op- finance Company on receipt of the Notice appeared through their Ld. Counsel and filed written version into the dispute. Ops in their written version challenge the maintainability of the Complainant on grounds of ‘ Cause of action’ Arbitration clause as per the agreement and as the allegation relates to ‘Accounts dispute’, consumer Forum lacks the Jurisdiction to entertain the Complaint by citing decisions of Honbl’e Apex Court and Honbl’e State C.D.R. Commission, Odisha. Ops in para-wise replies averred that the net agreement value is for Rs. 4,38,169/-, which includes the loan amount of Rs. 2,80,000/- and finance charge payable on it is Rs. 1,58,169/- and the loan dues to be cleared within 47 installments on different EMI amounts in specific instalments. It is also averred that, complainant is a chronic defaulter and as on dt. 19/12/2016 the Complainant is liable to pay Rs. 3,21,238/- as per the statement of loan account, which is filed into the case as Annexure- B. It is also averred that as per the arbitration clause of the Agreement, Mr. Madhab Ch. Rath (Retd. Dist. Senior Judge) is appointed as sole Arbitrator and the Complainant –loanee has been intimated about the same vide Notice dtd. 3/12/2016. The Arbitration Notice and Postal receipts are filed as Annexure-A. Accordingly, the Ops prays this Forum to dismiss the Complaint as it devoids of any merit and Ops have acted lawfully as per the Agreement.
4. Heard the case on merit, as non-appears on behalf of the parties on date of argument. Complainant in order to substantiate his case filed self-attested Xerox copy of letter dtd. 1/12/2014 addressed to complainant by Op-finance Company (one sheet), self attested Xerox copy of letter dtd. 25/11/2014 of Op-finance Company to complainant (one sheet), EMI schedules(one sheet), Schedule (one sheet). Op- finance Company filed Annexure-A & B.
The admitted facts of the case are that Complainant by executing an agreement with Op-finance Company availed loan to the tune of Rs.2,80,000/- which is to repaid in 47 monthly installments. It is the case of the Complainant that, the Op-finance Company excluding the payments of Rs. 2,15,000/- paid by the Complainant again demanding Rs. 3 lakhs towards loan dues, which according to Complainant is an illegal arbitrary dues, and preys the Forum seeking a direction to Op- finance Company to settle the loan account on one time basis and not to repossess the vehicle of the Complainant. On the other hand Op-finance company challenge the maintainability of the Complainant on different grounds and on facts of the case, it is stated the total net agreement value is for Rs. 4,38,169/- and the loan amount is to repaid within 47 monthly installments @ Rs. 9600/- and few instalment of different amounts. It is the further case of the Op-finance Company that, Complainant is a chronic defaulter and an arrear outstanding of Rs. 3,21,238/- is pending on the Complainant as on dt. 19/12/2016.
On point of maintainability, Op-finance Company raised the plea that there is no cause of action as no office or branch office is located within the territorial jurisdiction of this Forum and all the transactions were made in the branch office of Ops, located at Chandikhole, Dist- Jajpur. We agreed with the submissions of the Ops, as the Complaint/ Petition is completely silent regarding arising of any cause of action within the territorial jurisdiction of this Forum. The second plea of Ops on maintainability of the Complaint is that as the instant dispute relates to ‘Accounts Dispute”, this Forum lacks the Jurisdiction to adjudicate, the contentions of the Op-Finance Company has legal strength relay on the decisions of Honbl’e Apex Court and Honbl’e State Commission, Odisha mentioned in the written version, which needs no elaboration. On third point of maintainability on grounds of “clause of Arbitration”, as per the agreement, if any dispute arises matter to be referred to a sole arbitrator. Accordingly, Mr. Madhab Ch. Rath (Retd. Dist. Senior judge) is appointed as arbitrator and the Complainant has been intimated by Notice dt. 31.12.2016, Annexure-A. In this regard we, opine that the same ground is not applicable to the present dispute, as prior to issue of Notice Complainant has filed the consumer complainant on dt. 25/11/2016 taking the recourse under the Provisions of C.P.Act on grounds on deficiency in service. Further U/S 3 of C.P.Act, 1986 and decisions of Honbl’e higher Forums, it is the choice of the Complainant, whether to go for the ‘Arbitrator” or to take shelter of law under any other Act. Thus, filing of consumer Complaint is not a bar inspite of Arbitrator clause in the Agreement.
On factual aspect of the dispute, nothing is revealed from the Complainant petition that, how the Op-finance has committed any deficiency in service or Unfair Trade Practice? It is clear that in case of Finance of a vehicle the Op-Company as a financer and by virtue of agreement executed with loanee has every right to collect the loan dues and even in case of default can repossess the vehicle, it is settled position of law, which can’t be overruled. Further, as per the prayer, this Forum can’t enforce the Op-finance Company to go for one time settlement on a financial dispute. It is upto the Op-financer to decide, whether the Ops will go for one time settlement or not. Hence, the Complaint is defeated both in factual aspect of the case and on grounds of maintainability.
In I.A. Misc case No. 33/16, which arises out of the present C.C.Case, where this Forum directed the Complainant, to pay Rs. 1 lakh on final dispute of the Interim application. On its Compliance Complainant deposited acknowledgement of slip of Op-finance Company showing receipt of Rs. 50,000/- (Rs. Fifty Thousand only) vide cheque /D.D. No. 288474 and 288475, of Rs. 25,000/- each on dt. 29/8/2017, another Rs. 10,000/-(Rs ten thousand only) in shape of D/D dt. 30/11/2017 bearing D/D No. 222736 was deposited before Op-finance Company as revealed from the memo filed by Complainant. It is clear that Complainant in toto has paid Rs. 60,000/- (Rs. Sixty Thousand only) instead of Rs 1 lakh as per our order No. 14 dtd. 31/07/2017 in I. A. Misc case No. 33/16. Accordingly, it is directed that the Ops will adjust the amount of Rs. 60,000/- (Rs Sixty thousand only) against the pending outstanding loan dues of the Complainant, if any and liberty is given to Op-finance Company to take appropriate action under the C.P.Act 1986, to recover the balance ordered amount of Rs. 40,000/-.
Having observations reflected above the Complainant is devoid of any merit and is dismissed without any cost.
Pronounced in the open Court, this 19th day of December, 2017.
I, agree. I, agree.
Sd/- Sd/- Sd/-
MEMBER PRESIDENT MEMBER
