C.F. CASE No. : CC/09/52
COMPLAINANT : Nirmal Swarnakar,
S/o Late Netai Chandra Swarnakar,
Vill. + P.O. Jayrampur,
P.S. Hogolberia, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) Tapas Ghosh, Nepal Mondal,
Office Manager, Beldanga,
Near Krishnagar Rail Station,
ICICI Bank’s Collection Centre,
P.O. Krishnagar, P.S. Kotwali, Dist. Nadia.
- Manager, ICICI Bank Ltd.
Collection Department,
2 No. Upperwood Street,
Kolkata – 16
PRESENT : KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 8th March, 2010
: J U D G M E N T :
In brief, the case of the complainant is that he purchased one Bajaj motor cycle from Islampur Motor Auto Mobile Centre at a price of Rs. 48,000/-. At the time of purchasing the vehicle the OP No. 1 advanced loan of Rs. 38,000/- and the complainant had to pay Rs. 1512/- per month to liquidate the loan amount. To that extent an agreement was signed by both the parties, but the copy of that agreement was not handed over to him. It is his further case that in total he repaid 10 installments of Rs. 15,125/- along with interest i.e., in total Rs. 18320/- to that OP. On 28.01.09 he deposited two monthly installments at the office of the OP No. 1, but no receipt was issued in his favour as the employees of the OP No. 1 were busy with other works. Subsequently, he learnt that the deposited amount was not actually deducted from the loan amount. On 11.02.09 the OP No. 1 intimated him over telephone to go to Haripur. Accordingly, he went there and the OP men forcibly hijacked the motor cycle from him after taking his signature on some documents. Thereafter, on 16.02.09 he visited the office of the OP No. 1 when the OP No. 1 informed him that as the complainant failed to pay the monthly installment amount, so the vehicle was seized by them. He time and again requested the OP to return the vehicle after taking the balance money, if any, but to no effect. Hence, having no other alternative he has filed this case praying for the reliefs as prayed in the petition of complaint.
OP No. 1 & 2 have filed a written version in this case, inter alia, stating that the case is not maintainable in its present form and nature. It is their submission also that the complainant is not a consumer and he has no cause of action to file the case also. It is their further submission that the petitioner purchased a Bajaj motor cycle from the OP No. 2 as per loan agreement on 04.02.08 and the OP No. 2 financed Rs. 38,000/- to purchase the motor cycle. They also submit that the complainant did not pay Rs. 18,320/- in total, rather he paid Rs. 11,716/- only. The petitioner is a habitual defaulter in making payment of monthly installments. It is also not correct that the petitioner paid two installments on 28.01.09 without receiving any money receipt and the OPs did not entry the installments. They also deny that they asked the petitioner to go to Haripur from where the motor cycle was seized by them. Rather as the petitioner failed to pay EMI, so he surrendered the vehicle on 11.02.09 before the OPs and after taking possession of the vehicle they served a general information slip. They also served banking statement to this petitioner on 16.02.09, but the complainant did not turn up. So the OPs sent presale notice dtd. 18.02.09 to the petitioner for recovery of the entire loan amount with all charges of Rs. 41,296/- within 7 days from the date of receiving the said presale notice and after paying all outstanding amount the petitioner could take back the vehicle. In the notice it was also stated that if the petitioner failed to make payment and failed to take possession of the vehicle then the OPs would take essential steps for recovery of the loan amount. After getting the presale notice the petitioner neither made payment of the outstanding amount nor replied to the presale notice. So the OP sold the vehicle by an open bid on 08.07.09 at a price of Rs. 24,750/-. After this sale there is a balance outstanding amount of Rs.19,866/- which the complainant is bound to pay, but he has not paid that amount. Therefore, the complainant has no cause of action to file this case and the same is liable to be dismissed against them.
POINTS FOR DECISION
Point No.1: Is the case maintainable in its present form and nature?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint along with annexed documents and the written version filed by the OPs along with the documents also and after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that the complainant purchased one Bajaj motor cycle after taking a loan of Rs. 38,000/- from the OP No. 1. From the petition of complaint it is also available that it was the agreement that the complainant had to pay Rs. 1512/- as monthly installment for repayment of the loan amount. Accordingly, an agreement was signed between the parties. Complainant’s case is that he repaid Rs. 18,320/- to the OPs on different dates commencing from 27.06.08 to 18.01.09. On the other hand, OPs submit that the complainant actually paid Rs. 11,716/- to them. But from the documents filed by the complainant vide 'Annexure – 3’ series it is available that the complainant paid Rs. 18,320/- in total to the OPs and the payment was done through the agent of the OPs one Nepal Mondal though the OPs have stated categorically that Nepal Mondal did not deposit all the amounts before them. There is no denial on the side of the OPs that Nepal Mondal was not entrusted by them to collect the money from the complainant on their behalf. Rather it is agitated by them that Nepal Mondal made some defalcation against which a criminal case was started against him. So from this version of the OPs we find that Nepal Mondal acted as the collecting agent of the OPs and the complainant rightly paid him money. There is nothing to disbelieve the 'Annexure – C’ series from which we find that the complainant actually paid Rs. 18,320/- out of total amount of Rs. 38,000/-. Within a period of 8 months since the time of taking loan the complainant repaid already 18,320/- to the OPs through their agent Sri Nepal Mondal. So it cannot be said that the conduct of the complainant is not satisfactory and he is a defaulter in making payment of EMI.
Complainant’s specific allegation is that on 11.02.09 at the request of the OPs he went to Haripur from where the motor cycle was seized by them with the help of muscle men. Regarding this OPs submit that as the complainant failed to repay the monthly installment, so he voluntarily surrendered the vehicle before the OPs. We have already discussed that on perusal of the annexed documents it is clear to us that the complainant already repaid about 50% of the loan amount to the OPs within a period of 8 months. So no question of his failure to repay the balance loan amount does arise. Rather we hold that the OPs forcibly seized the vehicle without assigning any proper reason. In this connection ld. lawyer for the complainant cited a ruling from 1 (2008) CPJ 162 (NC) where Hon'ble National Commission held “Consumer Protection Act, 1986 – Section 21 – Banking and Financial Services – Hire purchase agreement – Vehicle financed – Installments defaulted – Vehicle repossessed – Sold – Total amount payable by the complainant – Rs. 5,68,948/- – OP received Rs. 6,09,000/- by margin money, installment and sale proceeds – Rs. 40,052 – received in excess to amount due – OP liable to pay Rs. 40,052/- to complainant along with interest.” On a careful perusal of the above cited ruling we hold that it is applicable in the present case also as in this case it is not established that the complainant was a defaulter in making repayment of the loan amount. Secondly, in this case according to the OPs the due amount is Rs. 19,866/- regarding which they served a notice to the complainant directing him to make payment of that amount within 7 days in default they would take legal action against him. There is no document on the side of the OPs to show that actually the alleged notice was duly served and the same was received by the complainant. But the fact is that the OPs sold the vehicle at a price of Rs. 24,750/- which is higher than the due amount payable by the complainant to them.
Therefore, considering all these we hold that the complainant is not a defaulter in making repayment of the loan. Rather it is established that the OPs forcibly seized the vehicle with ulterior motive and they sold the vehicle at a price of Rs. 24,750/- though the due amount was only Rs. 19,866/-. Service of notice is not at all proved. Ld. lawyer for the OPs submit that in the agreement there is an arbitration clause. So the complainant cannot move before this Forum when there is such a clause in the arbitration.
In a case referred in 1 (2008) CPJ 404 (NC) the Hon'ble National Commission decided “Jurisdiction – Arbitration – Additional remedy provided under Section 3 of Act – Jurisdiction of Fora not barred by arbitration clause.” Ld. lawyer for the OPs have also argued that the case is also not maintainable as there is no consumer and seller relationship between the parties. In the instant case the complainant purchased the motor cycle for his personal use as he is an agent of LIC. So we find that this motor cycle was purchased for his earning livelihood by way of self employment. As per decision of the Hon'ble National Commission in 1 (2008) CPJ 404 NC, “…….. Machine purchased for earning livelihood by way of self-employment – Complainant consumer under Section 2(1)(d) of the Act”. Ld. lawyer for the OPs has drawn our attention to the ruling cited by him from 1( 2009) CPJ 502 Chandigarh. On a careful perusal of the above cited ruling we hold that the OPs cannot get any benefit from this ruling.
In view of the above discussions and considering the facts of this case our considered view is that the complainant is a consumer and the case is quite maintainable in its present form and nature. We do also hold that the complainant has become able to prove his case. So he is entitled to get relief as prayed for. As the motor cycle is already sold by the OPs, so no question of returning the same to the complainant does arise. It is established that the complainant has already repaid Rs.18,320/- to the OPs which he is entitled to get back. In result the case succeeds.
Hence,
Ordered,
That the case, CC/09/52 be and the same is decreed against the OP No. 1 & 2. The complainant is entitled to get Rs. 18,320/- + Rs. 5,000/- for the harassment caused to him along with Rs. 3,000/- as litigation cost. The OPs are directed to make payment of the decretal dues amounting to Rs. 26,320/- to the complainant within a period of one month since the date of passing this judgment, in default, the decretal amount will accrue interest @ 9% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
