FINAL ORDER
Samaresh Kumar Mitra, Member:
The case of the complainant is that he approached the OP No.2 for loan facility for purchase of a commercial vehicle in or about June,2010. The OP No.2 on verifying the credentials of the petitioner and being satisfied with the same sanctioned a loan amounting to Rs.2,50,000/-. An hypothecation agreement entered in between the parties and OP financed the vehicle bearing registration No.WB 41C 4782 to this complainant. On the basis of the agreement the complainant received a sum of Rs.231947/- on 31.7.2010 and in 23 instalments a sum of Rs.309401/- was fixed to be repaid by the complainant for loan amounting to Rs.250,000/-. The petitioner No.2 approached the OP No.2 for loan facility for purchase of a commercial vehicle in or about January,2011. The OP No.2 on verifying the credentials of the petitioner and being satisfied with the same sanctioned a loan amounting to Rs.1,89,000/-. An hypothecation agreement entered in between the parties and OP financed the vehicle bearing registration No.WB 15A 2112 to this complainant. On the basis of the agreement the complainant received a sum of Rs185800/- on 31.01.2011 and in 23 installments a sum of Rs.233078/- was fixed to be repaid by the complainant for loan amounting to Rs.1,89,000/-. Again the petitioner No.1 approached the OP No.2 for loan facility for purchase of a commercial vehicle in or about October,2011.The OP No.2 on verifying the credentials of the petitioner and being satisfied with the same sanctioned a loan amounting to Rs3,90,000/-. An hypothecation agreement entered in between the parties and OP financed the vehicle bearing registration No.WB 41C 1940 to this complainant. On the basis of the agreement the complainant received a sum of Rs.3,80,000/- on 3.11.2011 and in 34 installments a sum of Rs.527423/- was fixed to be repaid by the complainant for loan amounting to Rs.;3,90,000/-. The petitioners availed of loan amounting to Rs.8,29,000/- in total in respect of all three vehicles and they had to pay a total amount of Rs.1069902/- as per repayment schedule. They also averred that they are using the vehicles for their livelihood by means of self employment;. During the period of repayment the OP No.2 informed that as they have contravened with the repayment schedule so they have to renew their respective loan agreements failing which the hypothecated vehicle should be repossessed by the OP. The OP on the pretext of failed monthly installment repossessed the vehicle being no.WB 15A 2112 and lured this petitioner No.2 to renew the loan agreement. And in the same way the vehicle being nos WB 41C 4782 & WB 41C 1940 were renewed. In respect of three vehicles the petitioners were provided with loan facility to the tune of Rs.609814/- only on the pretext of renewing the loan agreements of the petitioners. Thus in total the OP provided the petitioners loan facility to the tune of Rs.14,38,814/- The petitioners till date made a payment of Rs.1154307/- only in cheques from their bank accounts. The OP have also adjusted a sum of Rs.66,565/- which the petitioner No.2 received from the insurance company without the permission of the petitioner no.2.. The opposite parties are depicting and claiming that they have provided a loan facility of Rs.17,49,403/- in addition of the original loan agreements at the time of renewing the loan agreements instead of Rs.6,09,814/- only are claiming that the petitioners owe a sum of Rs.11,64,297/-.The petitioners have been deprived of service and have been subjected to the unfair trade practices of the OPs..They prayed for a direction upon the opposite parties to restrain from repossessing the schedule vehicle of the petitioners, passing an order of Rs.15,00,000/- for mental agony and harassment and cost of proceedings.
The OP appeared by filing written version denied the allegations as leveled against him and he averred that the petitioners took loan duly entered into loan cum hypothecation agreement by endorsing on the agreement and duly deposited there first installment in all three agreement. The petitioners clubbing all three agreements into one and without stating actual state of affairs, depicting an imaginary story to blame the OP, The OP further stated that they run their business through legal process and they time to time sent default notices to the petitioners on 24.5.2013 &10.12.2013 and the OP sent legal notices to the petitioners. Lastly the OP sent termination of agreement letter 27.02.2013 and initiated arbitration on 11.3.2015 with a petition u/s-17 of arbitration &conciliation Act,1996. The Arbitrator of Arbitration Tribunal allowed the petition and appointed Advocate, Rajdip Sur as the receiver, who received the possession of the vehicle on 27.3.2015 and kept the vehicle at a parking lot at Ranaghat. The op company filed complaint case before the ACJM, Chandannagar and now the case is pending before the 3rd J.M. Chandannagar and an N.I. Act case is pending against the vehicle being no.WB 41C 1940 before the ACJM Srirampore and another complaint case is pending before 2nd J.M, Chandannagar u/s-420&406 IPC in relation to vehicle no.WB 15A 2112. And three arbitration proceeding pending before Arbitral Tribunal Burdwan. That meanwhile Ld Arbitrator has already passed an award in respect of all three cases and as the matter has already been disposed off now this Forum has no jurisdiction u/s 3 of the C.P. Act. So the petition filed by the petitioners is liable to be rejected with cost.
The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants in the complaint petition.
The OP filed evidence on affidavit which is nothing but replica of his written version.
Both sides filed written notes of argument which are taken into consideration for passing final order.
Argument as advanced by the agent of the complainants and Ops heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainants Amulya Ghosh & Mousumi Ghosh are ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards
the Complainant?
4. Whether the complainants proved their case against the opposite party, as alleged and whether
the opposite party is liable for compensation to them?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based
on the above perspectives.
- Whether the Complainants Amulya Ghosh & Mousumi Ghosh are ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainants herein being the customer of the OP finance company took loan as finance for purchasing three vehicles, TATA LPT-1109 to engage the vehicle for carrying goods for his/her livelihood, so being consumers they are entitled to get service from the OP .
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP to hand over the said vehicle and damages amounting to Rs.1500000/- for mental pain and agony and other reliefs as this Forum deems fit and proper ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?
The case of the petitioner No.1 is that he approached the OP No.2 for loan facility for purchase of a commercial vehicle in or about June,2010.The OP No.2 on verifying the credentials of the petitioner and being satisfied with the same sanctioned a loan amounting to Rs.2,50,000/-. An hypothecation agreement constituted in between the parties and OP financed the vehicle bearing registration No.WB 41C 4782 to this complainant and the complainant received a sum of Rs.2,31,947/- on 31.7.2010 and in 23 installments a sum of Rs.309401/- was fixed to be repaid by the complainant for loan amounting to Rs.2,50,000/-. The petitioner No.2 approached the OP No.2 for loan facility for purchase of a commercial vehicle in or about January, 2011. The OP No.2 on verifying the credentials of the petitioner and being satisfied with the same sanctioned a loan amounting to Rs.1,89,000/-. An hypothecation agreement constituted in between the parties and OP financed the vehicle bearing registration No. WB 15A 2112 to this complainant. and the complainant received a sum of Rs1,85,800/- on 31.01.2011 and in 23 installments a sum of Rs.2,33,078/- was fixed to be repaid by the complainant for loan amounting to Rs.1,89,000/-. Similarly the petitioner No.1 approached the OP No.2 for loan facility for purchase of a commercial vehicle in or about October,2011.The OP No.2 on verifying the credentials of the petitioner and being satisfied with the same sanctioned a loan amounting to Rs3,90,000/-. An hypothecation agreement constituted in between the parties and OP financed the vehicle bearing registration No.WB 41C 1940 to this complainant and the complainant received a sum of Rs.3,80,000/- on 3.11.2011 and a sum of Rs.527423/- was fixed to be repaid in 34 installments by the complainant for loan amounting to Rs.;3,90,000/-. The petitioners availed of loan amounting to Rs.8,29,000/- in total in respect of all three vehicles and they had to pay a total amount of Rs.1069902/- as per repayment schedule. They also averred that they are using the vehicles for their livelihood by means of self employment;. During the period of repayment the OP No.2 informed that as they have contravened with the repayment schedule so they have to renew their respective loan agreements failing which the hypothecated vehicle should be repossessed by the OP. The OP on the pretext of failed monthly installment repossessed the vehicle being no. WB 15A 2112 and lured this petitioner No.2 to renew the loan agreement. And in the same way the vehicle being nos WB 41C 4782 & WB 41C 1940 were renewed. In respect of three vehicles the petitioners were given loan facility to the tune of Rs.609814/- only on the pretext of renewing the loan agreements of the petitioners. Thus in total the OP provided the petitioners loan facility to the tune of Rs.14,38,814/- The petitioners till date made a payment of Rs.1154307/- only in cheques from their bank accounts. The OP have also adjusted a sum of Rs.66,565/- which the petitioner No.2 received from the insurance company without the permission of the petitioner no.2.. The opposite parties are depicting and claiming that they have provided a loan facility of Rs.17,49,403/- in addition of the original loan agreements at the time of renewing the loan agreements instead of Rs.6,09,814/- only are claiming that the petitioners owe a sum of Rs.11,64,297/-.The petitioners have been deprived of service and have been subjected to the unfair trade practices of the OPs.
The OP appeared by filing written version denied the allegations as leveled against him and he averred that the petitioners took loan duly entered into loan cum hypothecation agreement by endorsing on the agreement and duly deposited there first installment in all three agreement. The petitioners clubbing all three agreements into one and without stating actual state of affairs, depicting an imaginary story to blame the OP. The OP further stated that they run their business through legal process and they time to time sent default notices to the petitioners on 24.5.2013 &10.12.2013 and the OP sent legal notices to the petitioners. Lastly the OP sent termination of agreement letter 27.02.2013 and initiated arbitration on 11.3.2015 with a petition u/s-17 of arbitration & conciliation Act,1996. The Arbitrator of Arbitration Tribunal allowed the petition and appointed Advocate one Rajdip Sur as the receiver, who received the possession of the vehicle on 27.3.2015 and kept the vehicle at a parking lot at Ranaghat. The OP company filed complaint case before the ACJM, Chandannagar and now the case is pending before the 3rd J.M. Chandannagar and an N.I. Act case is pending against the vehicle being no. WB 41C 1940 before the ACJM Srerampore and another complaint case is pending before 2nd J.M, Chandannagar u/s-420 &406 IPC in relation to vehicle no.WB 15A 2112. And three arbitration proceedings are pending before Arbitral Tribunal Burdwan. That meanwhile Ld Arbitrator has already passed an award in respect of all three cases and as the matter has already been disposed off now this Forum has no jurisdiction u/s 3 of the C.P. Act. So the petition filed by the petitioners is liable to be rejected with cost.
It appears from the case record that this Forum find interim order u/s-13(3B) on 20.3.2015 directing the OP not to repossess the impugned vehicles but on 12.7.2016 the OP violating the order of this Forum repossessed the vehicle No.WB 41C 1940 and handed over after repossession letter dated 12.7.2016 to the petitioner. In the after repossession letter it is stated that due to default clause mentioned in the said agreement and for chronic default in the payment track, on nonpayment in the monthly installments by the addressee No.1 they took the possession of the vehicle.
Many a time, by making reference to the provisions of Sec.8 of 1996 Act, in the past also, such objections were raised and the Hon’ble Supreme Court of India, when interpreting the provisions of section 3 of the 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd & Another Vs. N.K. Modi (1996) 6SCC 385, C.C.I Chambers Coop. Housing Society LTD Vs. Development Credit Bank Ltd(2003) 7 SCC 233, Rosedale Developers Private limited Vs. Aghore Bhattacharya and others ( Civil Appeal No. 20923 of 2013) etc …, came to a conclusion that the remedy provided under sec.3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes will not debar the Consumer Foras, to entertain the complainants, filed by the consumers.
After perusing the case record it appears that the dispute was referred before the Arbitration Tribunal and the sole Arbitrator found that he inclined to allow the Claimant’s application as the respondents i.e the petitioners herein have no legal right to retain custody of the above vehicle and the condition 7 value of the vehicle is likely to be jeoparadised if the custody of the vehicle is allowed to remain in the hands of the respondent No.1. As such the application under section 17 of the Arbitration and Conciliation Act,1996 filed before him on 11.03.2015 Mr. Rajdeep Sur Ld. Advocate Chandannagar is appointed Receiver to i). recover custody of the said vehicle, ii). Make an inventory of the said vehicle, and iii). Take possession of the said vehicle forthwith.
So at this point if the prayer of the complainant is allowed then it will cause complexity and multiplicity of case among the parties as vehicle in dispute has been given in possession of a person by the Ld. Arbitrator vide order No.1 dated 11.03.2015. So after a deliberation over the material in record and circumstances under which this case was born, we are of strong conviction that the case is devoid of merit as such the case is dismissed on contest.
Going by the foregoing discussion hence it is ordered that the complainants/ petitioner have failed to prove their case by adducing cogent document/evidence and therefore, the complainant fails on contest. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove his case beyond any doubt so they are not entitled to get any compensation as prayed for.
ORDER
Hence, ordered that the complaint be and the same is dismissed on contest against the but without any cost.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by opposite parties, hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
Dictated and corrected by me. Samaresh Kr. Mitra, Member, CDRF, Hooghly.
