This case has arisen out of an complaint U/s 35 of Consumer Protection Act, 2019.
The case of the complainant, in brief, is that being an unemployed youth he intends to purchase a vehicle for maintaining livelihood and contacted with the agent of O.P and availed EXCAVATOR vehicle loan from O.P.No-1 on completing formalities, on depositing Rs.3,00,000/- and other expenses, sanctioned vide Loan No:7000546350, payable by 48 EMIs of Rs.58,954/-. The complainant purchased EXCAVATOR vide Registration No:WB61A/8097, Chassis No:BM1111807899, Engine No:4H32011821959 on 27.11.2018 and took delivery of the vehicle and paid monthly installment in due time from 28/11/2018 to February, 2020 through bank transfer.
That suddenly Covid-19 affected the whole world and lokdown declared in March, 2020, so the complainant had no source of income but O.P.No-1 sanctioned Moratorium from March to August 2020 as announced by Central Government and outstanding dues of said period will be payable by further 06 EMIs. He could not pay monthly installment of September & October 2020. On verbal request the complainant was allowed time for payment of outstanding dues within November, 2020.
That suddenly O.P.No-2 forcibly pull out the vehicle at Kaliyaganj-Kushmandi road on 11.11.2020 and parked in it’s parking zone at Bekidanga, Raiganj, Uttar Dinajpur. All documents of the vehicle were also taken from the driver on issuing an Inventory List Format signed by the Recovery Agency of O.P.No-2. On several request O.P neither return the vehicle nor accepted the dues. For the intentional act of the O.Ps the complainant has suffered irreparable loss and injury and for fraudulent trade practice he has been suffering from mental pain and agony.
That on 17.11.2020 O.P.No-2 issued a legal notice to the complainant demanding Rs.22,33,020/- to be repaid in 2022 and for such whimsical act cause of action arose and the complainant prays for direction upon the O.Ps to receive three monthly outstanding dues amounting to Rs.1,77,178/- and release the vehicle to the complainant, compensation of Rs.1,00,000/- for harassment, mental pain & agony and litigation cost of Rs.10,000/-.
O.P.No-1 contested the case by filing written version denying the case of the complainant stating that the borrower/complainant approached O.P.No-1 for loan for purchasing a commercial vehicle CATERPILLAR India Pvt. Ltd CAT-424 bearing Chassis No:BM1111807799, Engine No:4H32011821959 amounting to Rs.24,15,841/-, of which the amount agreed to be financed by O.P.No-1 was Rs.21,25,940/-, agreed to be paid in 46 EMIs of Rs.58,954/- starting from 21.01.2019 to 21.10.2022 with rate of interest 11.62% . Later, after Moratorium the loan amount was changed to Rs.22,54,894/- within a tenure of 55 months in 49 installments(49 installment with six month Moratorium) and by a deed of hypothecation said commercial vehicle was hypothecated with O.P.No-1 till repayment of entire loan amount and the complainant is a simple bailee of the vehicle. After sanction of the loan the complainant made repayment of First 11 installments and part of 12 installment due payable under the said agreement and thereafter he failed and neglected to make any payment whatsoever.
That O.P.No-1 by a letter dated 02.11.2019 through it’s Advocate was constrained to terminate the said agreement and requested the complainant to pay all the dues and also return the said vehicle but the complainant did not oblige.
That Clause 9.11 of the agreement dated 29.11.2018 contains an Arbitration Clause entered by and between the parties and accordingly sole Arbitrator Mr. Partha Sarathi Ghosh was appointed, who by his letter dated 05.02.2020 called upon the parties to file their pleadings but in spite of receiving the same the complainant failed and neglected to appear before the Arbitrator. An Arbitral award dated 21.09.2020 was passed at the end of the Arbitration proceedings where it is clearly stated that O.P.No-1 is the owner of the suit vehicle along with its accessories and is entitled to re-possess the said vehicle, entitled to sell the same, adjust the sale proceeds against the award amount and the complainant is liable to make payment to O.P.No-1 sum of Rs.18,93,227/-.
That a CEQ Asset Possession Kit containing the Asset Inventory List, Asset Possession Kit, Temporary Yard Owner’s Confirmation and Post-re-possession Intimation to Police stating the status of the suit vehicle during possession by O.P.No-1 and its whereabouts Post-re-possession intimation to the Police stating the status of the suit vehicle was issued but at the time of Re-possession O.P.No-1 came to learn that the same was being plied by a third party other than the complainant. O.P.No:2 is not Recovery Agent but is the Parking Yard where the suit vehicle was parked after Re-possession. So the instant case is a chance litigation based on false and frivolous facts, full of suppression and concealment of material facts and same is liable to be dismissed, also on the principle of res judicata.
P o i n t s f o r d e c i s i o n s
- Whether there was any deficiency of service and/or fraudulent trade practice on the part of O.P.No-1 and/or O.Ps which gives rise cause of action of this complaint?
- Is the complainant entitled to get relief(s) as prayed for?
D e c i s i o n s w i t h r e a s o n
Admittedly, O.P.No-1 is a Financier Company dealing the business of Auto Loan, Personal Loan, Business Loan, Commercial Vehicle Loan etc.
Undisputedly, the complainant approached O.P.No-1 for purchasing a commercial vehicle EXCAVATOR/424B2 BACKHOE LOADER, Maker’s Name:CATERPILLAR India Pvt. Ltd bearing Chassis No:BM1111807899, Engine No:4H32011821959, bearing Registration No:W.B61A/8097, Date of Registration 04.01.2019. Tax Invoice dated 23.11.2018 shows price Rs.2047323.37, CGST @9% Rs.184259.10, SGST @9% Rs.184259.10, total Rs.24,15,841.57 & TCS @1% Rs.24,158/-, Invoice total Rs.24,40,000.00.
The complainant stated that he deposited amount of Rs.3,00,000/- (margin money) & also paid other expenses. Policy schedule cum certificate of insurance filed by complainant show that said vehicle was insured with The New India Assurance Co. Ltd, period of cover 23.11.2018 to 22.11.2019 (Registration No:W.B-NEW).
Annexure-1 of Loan cum Guarantee Agreement No:7000546350, dated 29.11.2018 depicts Nitya Kumar Sarkar (complainant as borrower), Sachi Rani Sarkar/complainant’s wife as guarantor, cost of assets Rs.24,15,841, Details of Loan:amount of loan Rs.21,25,940/- Rate of Interest 11.62%, moratorium 60 days and Charges:non-refundable amount-Processing Charges Rs.15,824/-, stamp duty Rs.120/-, granting the Company a credit facility of Rs.21,59,129/-.
The complainant stated that he paid monthly installment in due time from 28.11.2018 to February 2020 through Bank transfer to the Office of O.P.No:1 concern but no document is produced to that effect, save and except 03 Receipt EMIs 1. Transaction Date:24.02.2019, Amount Received: Rs.50,000/-(Cash) 2. Transaction Date:18.01.2020, Amount received Rs.60,000/- (Cash) and 3.Transaction Date 18.02.2020, Amount Received Rs.60,000/- (Cash) paid by complainant/Nitya Kumar Sarkar to O.P.No:1, showing overdue Rs.188006.77, Rs.133322.77 & Rs.137866.77 respectively.
O.P.No:1 replied complainant’s questionnaire stating that the monthly EMI of the complainant, agreed to be repaid is Rs.58,954/- (admitted by the complainant) and that complainant made payment of First 11th installment and partly 12th installment, payable under the said agreement, thereafter, the complainant failed and neglected to make payment in terms of the agreement & the complainant did not pay the loan outstanding amount even after the extension of repayment time period.
The complainant’s case is that due to Covid-19 pandemic situation he was unable to pay the EMI due and he got moratorium facility from March 2020 to August 2020 sanctioned by O.P.No:1 (i.e 06 month). He admits that O.P.No:1 allowed him time for repayment of outstanding dues but he did not produce any document to show that he made payment of subsequent EMIs.
As a result, the O.P.No:1 by a letter dated 02.11.2019, issued through its Advocate, duly terminated the said agreement & called upon the complainant to make payment of all dues of the O.P.No:1 and also to deliver possession of the assets under terms & conditions of the agreement, but the complainant did not comply. The complainant had failed and neglected to make payment of the installments as stipulated in the said agreement even after availing moratorium and have committed breach of contract.
That Clause 9.11 of the agreement dated 29.11.2018 contains an Arbitration Clause entered by and between the parties and accordingly sole Arbitrator Mr. Partha Sarathi Ghosh was appointed, who by his letter dated 05.02.2020 called upon the parties to file their pleadings but in spite of receiving the same the complainant failed and neglected to appear before the Arbitrator. An Arbitral award dated 21.09.2020 was passed at the end of the Arbitration proceedings where it is clearly stated that O.P.No-1 is the owner of the suit vehicle along with its accessories and is entitled to re-possess the said vehicle, entitled to sell the same, adjust the sale proceeds against the award amount and the complainant is liable to make payment to O.P.No-1 sum of Rs.18,93,227/-.
That a CEQ Asset Possession Kit containing the Asset Inventory List, Asset Possession Kit, Temporary Yard Owner’s Confirmation and Post-Re-possession Intimation to Police stating the status of the suit vehicle during possession by O.P.No-1 and its whereabouts Post-re-possession intimation to the Police stating the status of the suit vehicle was issued but at the time of Re-possession O.P.No-1 came to learn that the same was being plied by a third party other than the complainant. O.P.No:2 is not a Recovery Agent but is the Parking Yard where the suit vehicle was parked after Re-possession.
Under above facts and discussion, we are of the opinion that the complainant can’t exercise any right of ownership in respect of said assets, which O.P.No:1 is entitled to Re-possession as security thereof & that complaint is filed only to evade Re-possession, without moving proper Forum challenging Arbitration proceedings and that there was no deficiency of service or fraudulent trade practice on the part of O.P.No:1 and/or O.Ps, rather the instant case is a chance litigation based on false and frivolous facts, full of suppression and concealment of material facts and same is liable to be dismissed, also on the principle of res judicata.
In the result the claim case fails. Hence, it is,
O R D E R E D
that the C.C No-58/2020 be and the same is dismissed on contest against O.P.No:1 & ex-parte against rests but without any cost.
Let a copy of this order be given to the parties free of cost
