West Bengal

Dakshin Dinajpur

CC/135/2019

Sri Joydeep Mukherjee, S/O- Prodip Mukherjee - Complainant(s)

Versus

Sunil Agarwal, Prop. Of S.N. Automobile, Auhtorised Dealer, Mahindra & Mahindra Tractor - Opp.Party(s)

Madhumita Das

08 Sep 2022

ORDER

          The instant case has been initiated by the complainant U/S – 12 of C.P. Act,1986 against the Opposite Parties claiming to return back the tractor + Compensation Rs.50,000/- + Litigation cost of Rs.15,000/- Total – Rs. 65,000/- .  

The fact of the case, in brief, is that t he Complainant purchased a Mahindra & Mahindra Tractor from the Opposite Party No.1 through their sales agent the Opposite Party No.2.Previously, the Complainant had present one tractor from the said authorized dealer in the year 09.11.2012. After few years one day in the year 2017, the Opposite Party No.2 Came to him and convinced him to replace a new tractor instead of the old one. Being convinced by the Opposite Party No.2, the Complainant came to the show room of the Opposite Party No.1 at Gangarampur and both the Opposite Parties told him that they will return back the old tractor and Complainant will get Rs.4,24,000/- and he had to pay Rs.4,50,000/- as the total cost of the new tractor was Rs.8,74,000/- and they will also deliver a router free of cost. The Complainant became agree and he purchased a new Arjun Mahindra Tractor, vide Model No. 555P.5, Engine No.NHC2TAE06, Key No. MBN-BE BBBAHNC02032 by replacing his old tractor and said new tractor was delivered on 26.09.2017. At the time of purchase, the Complainant took loan from Mahindra & Mahindra Finance Service Ltd. i.e. the Opposite Party No.3  but at the time of taking loan, the Opposite Party No.3 along with others never disclosed the loan amount nor told the exact installment amount nor the period of repayment and the Opposite Party No,1&2 did not hand over any papers nor documents of the new tractor nor any paper of temporary registration. As a result till to date no registration has been completed of the said tractor. Whenever, the Complainant demanded the papers and documents, the Opposite Parties told that until and unless the schedule of repayment is regular, they will not hand over the papers and documents. The Complainant also demanded the copy of agreement and repayment schedule, the Opposite Parties also did not hand over the same. The Complainant has repaid Rs.3,81,950/- up to October 2019 but in the meantime without disclosing anything, the Opposite Party No.3 sent a demand notice of Rs.5,11,205.80 and in reply to that the Complainant sent an Advocate`s letter disclosing everything but without any response, the Opposite Party No.2 and some persons of the Opposite Party No.1&3 came to the house of the Complainant and threatened him and took away the tractor by assaulting the Complainant without Key but they started the tractor by their own Key. The Complainant informed the matter to the police station and also demanded the statement of account from the Opposite Parties but they did not supply a single paper and they are trying to sell the said tractor.

              Having no alternative, the Complainant filed the instant case for relief as prayed in the plaint.

             Notices were duly served upon the opposite Parties and after receiving the notices, the Opposite Parties No.1&2 and the Opposite Party No.3 appeared before this commission by filing vokalatnama and filed their written version.

             By filing joint written version, the Opposite Parties No.1&2 have stated that previously in the year 2012 the father of the Complainant namely, Pradeep Kumar Mukherjee had purchased one Mahindra Tractor vide Model No. 575 BP, Regd. No. WB61 9459, Chassis No. NKBG00331 and Engine No. NKBG0031 from the Opposite Party No.1 with the finance of HDFC Bank Ltd. Malda Branch. After purchasing the said tractor Complaint and his father run the said tractor on road and they also deposited  EMI to the HDFC Bank Ltd. Malda Branch regarding their loan transaction upon the said tractor. But till to date amounting to Rs.1,85,000/- is lying outstanding dues in the name of Pradeep Kumar Mukherjee and they did not pay the said amount to the HDFC Bank Ltd. Malda Branch. On 25.06.2017 the Complainant had purchased one Mahindra tractor vide Model No. 555 Arjun PS with Rotavetor, vide SL No. HII574475,Chassis No. MBNBEBBBAHNC02032 and Engine No. NHC2TAE0610, from the show room of the Opposite Party No.1 at Gangarampur by replacing the father old tractor. The total price of the new tractor along with Rotavetor is Rs.9,74,000/- and the price of the old tractor is Rs.4,24,000/- and the rest amount  Rs.5,50,000/- he took loan from the Opposite Party No.3 by his own capacity. The Opposite Party No.1 handed over the said tractor to the Complainant on 26.09.2017 and the Complainant and his father also handed over their old tractor to the Opposite Party No.1 on the same date. But they did not hand over the proper documents regarding their tractor. At the time of purchase of the new tractor, the Complainant made a written endorsement in favour of Opposite Party No.1 stating that he will take NOC within 15 days from HDFC Bank, Malda Branch regarding his previous loan transaction and submit the same before the Opposite Party No.1 and take back relevant papers regarding his new purchased tractor from the Opposite Party No.1, but till to date the Complainant has not given NOC regarding their previous tractor`s loan transaction to the Opposite Party No.1. The Opposite Party No.1&2 several times requested the Complainant about the NOC but the Complainant did not provide the same to the Opposite Party No,1. The Opposite Party No.2 is an employee of Opposite Party No.1. The previous old tractor is still regd. In the name of Pradeep Kumar Mukherjee and the said tractor is still hypothecated with the HDFC Bank, Malda Branch and the Opposite Party No.1 is now in trouble for that reason. In this situation without NOC from the HDFC Bank, Malda Branch, the Opposite Party No.1 cannot regd. his name as owner upon the said old tractor which has been replaced from the Complainant and his father. The Opposite Party No.1&2 never threatened the Complainant and his family members with dire consequences and not to took away the tractor by assaulting the Complainant without the key but started the tractor by pushing it by their own key. However after getting the NOC, the Opposite Party No.1&2 are ready to provide papers/ documents and any kind of assistance to the Complainant regarding registration of the tractor at any time. There is no deficiency in service on the part of the Opposite Party No.1&2.

       Hence, the present case is liable to be dismissed against the Opposite Party No.1&2.

       By filing written version, the Opposite Party No.3 has stated that the Complainant has applied for loan of Rs.5,50,000/- before the Opposite Party No.3 for purchasing the Mahindra Tractor 555 Arjun and after going through the all the procedure the loan application of the Complainant was approved and loan was sanctioned to the Complainant and accordingly a loan agreement was executed between the Complainant and the Opposite Party No.3 on 29.11.2027 being agreement no. 5112058 and the terms and conditions of the said agreement are binding upon both the parties. The copy of the said agreement has been supplied to the Complainant. Besides this a welcome letter is sent to the Complainant wherein entire details of his loan and online link is given where from ha can also take the information related to his loan. The total loan amount payable by the Complainant to the Opposite Party No.3 as per the loan agreement value is Rs.7,83,750/- which include the principal amount of Rs.5,50,000/- along with the interest payable by the Complainant to the Opposite Party No.3 is amounting to Rs.2,33,750/-. 

             The Opposite Party No.3 has further stated that as per loan agreement the Complainant was liable to pay off the loan amount of Rs.5,50,000/- to the Opposite Party No.3 in 20 quarterly installments. The first EMI amounting to Rs.12,550/- from 01.12.2017 to04.03.2018, second EMI amounting to Rs.53000/- from 05.03.2018 to 04.09.2020 and the third EMI amounting to Rs.26,8000/- from 05.09.2020 to 05.09.2022.  

        It has been mentioned in clause 8 that in the event of default upon the occurrence  and any time thereafter, the Opposite Party No.3 shall without prejudice to its rights in law be entitled to declare all the sums due and to became hereunder for the full term of the agreement as immediately dua and payable including that the borrower shall be liable to pay the lender principal outstanding along with the other dues including unpaid installments, services taxes, late charges etc. due as on date of such declaration and upon the borrower failing to make such payment in full within 7 days thereof, the lender may upon notice to the borrower terminat this agreement or exercise any other right on remedies which may be available to them under the applicable law. The Complainant committed a breach of terms of the loan agreement by non-payment of EMIs.

         There is also a provision of appointment of Arbitrator in respect of the dispute as such the present application is not maintainable in this Commission and also not within the provisions agreed by and between the parties. The Complainant failed to pay the quarterly installment for which the Opposite Party No.3 sent advocate notice for the demand of outstanding dues of Rs.96000/- and to regularize the loan account. In spite of receiving the said notice the Complainant did not pay the outstanding due of Rs.96000/-.The Complainant has paid his 6 quarterly installments out of 20 quarterly installments i.e. the Complainant made payment of Rs.3,34,650/- only against his loan amount of Rs.5,50,000/-. 

             When the Complainant failed to clear the dues the Opposite Parties after giving the demand notice dated 18.06.2019, repossessed the tractor on 05.09.2019 and when the loan account became a non-performing asset for these Opposite Parties and as such to recover the said loan amount the Opposite Parties sent a pre sale notice dated 18.10.2019 to the Complainant and the guarantor i.e. Krishna Sarkar for selling the said tractor which the Complainant and the said guarantor duly received but still did not clear the dues. Hence, the Opposite Parties sold the tractor on 28.11.2019 and after adjusting the sale proceed amount of Rs.3,11,000/- and still Rs.84,150/- only need to be recovered against the loan account from the Complainant for the closure of the loan account of the Complainant along with accrued financial charges of Rs.25,622/- is still payable by the Complainant to the Opposite Parties. There is no deficiency in service on the part of the Opposite Party No.3.

          Thus, the instant case is not maintainable and liable to be dismissed against the Opposite Party No.3.

         To prove his case, the complainant has filed photo copies of

(i)  23 money receipt

(ii)  03 Roravetor money receipt

         On the other hand, the Opposite Parties No.1&2 have filed the following  documents in support of their defense 

1. One agreement dated 26.09.2017
2. One written endorsement by the Complainant dated 26.09.2017
3. Statement of account of Pradeep Mukherjee of  HDFC Bank, Malda 
4. One vehicle registration certificate vide no. WB 61 9459 in the name of Pradeep Kumar  Mukherjee 
5. Bill  

       The Opposite Party No.3 has also filed some document as follows in support of his defense

1. Copy of offer letter given to the Complainant 
2. Copy of agreement 
3.  Copy of Statement of account 
4.  Copy of police intimation given to New Balurghat P.S.
5.  Copy of Pre- sale notice given to the Borrower and Guarantor

             In view of the above mentioned facts, the following points are cropped up for consideration   

     

      POINTS FOR CONSIDERATION

            

       1.  Whether the Complainant is a consumer to the Opposite Parties?

       2.  Whether there is any deficiency in service on the part of the Opposite

              Parties?            

   3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for? 

 

                                         

                                         DECISION  WITH  REASONS

 

           We have heard argument by Ld. Advocate for the all sides at length. We have also gone through the evidence on affidavit and written argument filed by both the parties. We also perused the documents produced by all the parties before this Commission.           

              At the time of argument Ld advocate for the Complainant narrated the fact of the case as mentioned in the plaint. He further submitted that the Opposite Party No.1&2 did not hand over the documents relating to new purchased tractor at the time of purchasing the tractor. The Complainant paid Rs.3,81,950/- to the Opposite Party No.3 against the loan in spite of that the Opposite Party No.1&3 took away the tractor from the house of the Complainant. There is gross negligence and deficiency in service on the part of the Opposite Parties, hence, the prayer as mentioned in the plaint of the Complainant should be allowed.  

                      On the other hand, Ld. Advocate for the Opposite Parties No.1&2 also narrated their defense case as mentioned in the written version. He further argued that as and when the Complainant and his father submit the NOC of their previous loan transaction from HDFC Bank, Malda Branch to the Opposite Party No.1&2, at the same time the Opposite Party No.1&2 are ready to provide papers/ documents or any kind of assistance to the Complainant regarding registration of the new tractor. There is no deficiency in service on the part of the Opposite Party No.1&2. . Hence, claim petition must be dismissed against the Opposite Party No.1&2.  

                Ld. Advocate for the Opposite Party No.3 after discussing his defense case, he further argued that the Complainant failed to pay the EMI of loan regularly and in order to recover the loan amount, the Opposite Party No.3 sent a sale notice dated 18.10.2019 to the Complainant and the guarantor for selling the said tractor which the Complainant and the guarantor duly received  but still did not clear the dues. Hence, the Opposite Party No.3 sold the tractor on 28.11.2019 and after adjusting the sale proceed amount of Rs.3,11,000/- only need to recover against the loan amount from the Complainant for the closure of the loan account of the Complainant along with accrues financial charges of Rs.25,622/- is still payable by the Complainant to the Opposite Party No.3. There is deficiency in service on the part of the Opposite Party No.3. Hence, the instant case be dismissed against the Opposite Party No.3.

             Now, let us discuss all the points one by one. 

 

Point No. 1 

 

           On perusal of materials on record, it appears that the Complainant purchased a new tractor from the Opposite Party No.1 & 2 by exchange of the old tractor in the name of his father. The Complainant took loan from Opposite Party No.3 for purchasing the new tractor from the Opposite Party no.1&2. If that be the so, then it is clear that the Complainant is a consumer to the Opposite Party No. 1&2 and 3 according to section (2)(i)(d) of Consumer Protection Act, 1986. 

           Accordingly, this point is decided in favour of the Complainant.  

 

Point Nos. 2 & 3 

 

            Both these points are taken up together for discussion for the sake of convenience and brevity.  

.             It appears from the agreement dated 26.09.2017 made in between the Complainant and the Opposite Party No.1 that the Complainant  purchased a new tractor from the Opposite Party No.1 exchanging the old tractor of his father and he disclosed that some premium is still due to the financer of the tractor of his father. The Complainant has assured to the Opposite Party No.1 that within 15 days from the date of this agreement he will submit the NOC from HDFC Bank, Malda Branch, the financer of the old tractor registered In the name of the father of the Complainant, Pradeep Kumar Mukherjee. But this fact has not been mentioned in the Plaint of the Complainant. In other words it can be said that the Complainant has suppressed the material fact and has not come before this Commission with clean hand.   

                  On 26.09.2017, the Complainant has also signed in a written endorsement to the effect that he purchased a new tractor being Model no.555 Arjun P.S. and one Rotavetor by exchanging the old tractor of his father being registration no. WB-61 9459. The exchange value of the old tractor is Rs. 4,24,000/- and the purchase value of the new tractor along with Rotavetor is Rs.9,74,000/- After adjusting the value of the old tractor i.e. Rs. 4,24,000/-the rest due amount i.e. Rs.5,50,000/- will be paid by the Complainant at his own risk.  

               Further, on perusal of the Annexure “A” i.e. document of Mahindra Finance, It appears that a sum of Rs.5,50,000/- has been financed by the Opposite Party No.3. Again, on perusal of the Schedule – 1 of Loan Agreement dated 29.11.2017 made in between the Complainant and the Authorized Signatory of the Opposite Party No.3, it appears that a loan of Rs.5,50,000/- has been sanctioned in favour of the Complainant and one Krishna Sarkar is the guarantor of the Complainant. The no. of installments is 20 and the EMI is Rs.12,500/- for the period from01.12.2017 to 04.03.2018, EMI Rs.53,000/- for the period from 05.03.2018 to 04.09.2020 and EMI rs.26,800/- for the period from 05.09.2020 to 05.09.2022. 

 

                     Further, it provides in clause 15 of the Agreement that -   All disputes, differences and/ or claims arising out of these presents or in any way touching or concerning the same or as to constructions, meaning or effect here of or as to the rights and liabilities of the parties hereunder shall be settled by Arbitration to be held in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or anyatatutory amendments thereof and shall be referred to the sole Arbitrator to be nominated by the Lender. In the event of death, refusal, neglect, inability or incapability of a person so appointed to act as an Arbitrator, the Lender may appoint a new Arbitrator. The Arbitrator shall not be required to give any reasons for the Award and the Award of the Arbitrator shall be final and binding on all parties concerned. The Arbitration proceeding shall be held in Kolkata. Here, we opine that if there be any dispute or grievance against the Opposite Party No.3, the Complainant was required to place the dispute before the Arbitrator but this has not been done by the Complainant.

          Now, it has been stated by the Complainant that he has paid Rs.3,81,650/- where as the Opposite Party No. 3 has stated that the Complainant has paid Rs. 2,81,650/- against the said loan but neither of the party has submitted statement of account or receipt of payment. Though the Complainant has filed some money receipts but they are not satisfactory. Further, for the non-payment of installment of loan amount , the Opposite Party No.3 sent a surrender of vehicle notice to the Complainant and the Guarantor, Sri Krishna Sarkar on 18.10.2019 and when the Complainant did not surrender the vehicle before the Opposite Party No.3, the Opposite Party No.3 took the possession of the vehicle on 05.09.2019 from the house of the Complainant and thereafter he sent Post Repossession Intimation to the Police on 05.09.2019.

            It is an admitted fact that the old tractor being Registration No. WB 61 9459 is still registered in the name of Pradeep Kumar Mukherjee, the father of the Complainant and the Opposite Party No.1 in spite of purchasing the old tractor, he is unable to registered the old tractor in his name because the Complainant has not handed over the NOC from the HDFC Bank, Malda Branch. The Opposite Party No.1 is in trouble some situation due to the Complainant.

          Further, it is the allegation of the Complainant that at the time of taking loan, the Opposite Party No.3 did not disclose the amount of total loan sanctioned, number of installments, period of installments and amount of installments but on perusal of the loan agreement which bears the signature of the Complainant and the guarantor, it appears that everything have been mentioned there. In such circumstances, the allegation of the Complainant is not believable.

                In view of the above mentioned discussions and from the four corners of the case record, we do not find any negligence or deficiency in service on the part of the Opposite Party No.1, 2 & 3. So, we opine that the instant case is liable to be dismissed.

    

 Hence, it is

                                                           O R D E R E D

 

              That the Consumer Case No. 135 of 2019 is dismissed on contest but without cost against the Opposite Party Nos.1, 2 & 3.

              Let a plain copy of this order be supplied to the parties free of cost.