IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/100/2015
Date of Filing: 10/08/15 Date of Final Order: 04/09/18
Complainant: Samir Kumar Bhakat
S/O Madan Mohan Bhakat
Vill. & P.O. Sagardighi, P.S. Sagardighi
Dist. Murshidabad. Pin-742306
-Vs-
Opposite Party: 1) Tata Motors Finance Co. ltd.
represented by Branch Manager,
26/13 Sahid Surya Sen Road, P.O.&P.S. Berhampore,
Dist. Murshidabad. Pin-742101
2) The Manager
Ladicon Auto Limited
Collector Agency of Tata Motors Finance Ltd, Malda,
P.O.-Bansbari Dist. Malda, P.S.-Malda. Pin-732101
3) The Manager
Tata Motors Finance Ltd.
Siliguri Branch, ground floor,
Life style Hotel, Hill Court Road,
Siliguri, West Bengal. P.O- Mahananda Bridge,
Pin- 734001, Dist. Darjeeling
Agent/Advocate for the Complainant : Sri Sumanta Roy & Sri Surajit Banerjee
Agent/Advocate for the Opposite Party : Sri Indranil Banerjee
Present: Sri Asish Kumar Senapati…………………. President.
Smt. Chandrima Chakraborty ……………………..Member.
FINAL ORDER
ASISH KUMAR SENAPATI, PRESIDING MEMBER.
This is a complainant under section 12 of the CP Act, 1986.
One Samir Kr. Bhakat (here in after referred to as the Complainant) filed the case against the Tata Motors Finance Co. Ltd. and others (here in after referred to as the OPs) praying for issuance of ‘No Dues Certificate’ on account of his loan.
The sum and substance of the complaint is as follows:-
The Complainant purchased one Indica DLS Car being registration No.WB-58F/5665 on credit facilities from the OP No.1 under terms and conditions incorporated in the loan-cum-hypothecation agreement dated 06.03.07 by taking a sum of Rs.394800/-. The Complainant paid a sum of Rs.6692/- as advance and remaining amount through installments @Rs.6692/- per month.
The OP No.1 encashed all the cheques month by month and the Complainant was not a defaulter in payment of dues. In spite of full payment, the OP No.1 claimed Rs.31499.99/- on account of alleged dues on taking advantage of cheque No. 920801 in the custody of the OP No.1 by threatening to prosecute under section 138 of the NI Act. The demand of Rs.31499.99/- is fictitious and baseless. The Complainant has prayed for a direction upon the OPs for issuance of no dues certificate in respect of this loan.
The OP Nos. 1 and 3 contested the case by filing written version on 19.07.16 inter alia denying materials allegations made out in the complaint, contending that the complaint is not maintainable as it is misconceived and groundless. The complaint is also barred by limitation. The Complainant took financial assistance to the tune of Rs.300000/- on certain terms and conditions but the Complainant did not repay the loan amounts regularly within due date. The Complainant gave some cheques being No. 920181 to 920190 and 920791 to 920800 and after expiry of those cheques the Complainant issued 6 cheques from 308701 to 308703,308707 to 308708 and 920809 and all the cheques were after Jan,2009 and no payment was made by the Complainant in the month of Dec,2008. The OPs claimed the balance amount and after due date of installments, the Complainant called the agent in his house and paid the installments but installments were paid after expiry of due date and as per Companies guideline, if any installment is paid through any collection agent that the collection agent deposits the sum after cutting his service charge and the Complainant did not paid any money for Sep,2009, Jun,2010 and April,2011 within the stipulated time. The OPs prayed for dismissal of the complaint.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OPs, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Decisions with reasons
Point No. 1.
The Ld. Advocate for the Complainant submits that the Complainant is a consumer as he hired the services of the OPs for consideration. It is argued that the Complainant took some loan from the OP No.1 and the OPs did not issue no dues certificate in spite of liquidation of the entire dues as per terms and conditions of the hypothecation agreement.
In reply the Ld. Advocate for the OP Nos. 1 and 3 submits that the Complainant is not a consumer. Having gone through the materials on record and on the careful consideration of the submission of both sides, we find that the Complainant is a consumer in terms of the Consumer Protection Act, 1986.
Point No.2.
The Ld. Advocate for the Complainant submits that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint as the cause of action arose within the territorial jurisdiction limit in this Forum. The Ld. Advocate for the OP Nos. 1 and 3 submits that this Forum has no jurisdiction to entertain the complaint as there is provision of referring the dispute to arbitrator in terms of hypothecation agreement between the parties.
We have gone through the written complaint, written version, evidence and documents submitted by both sides. On a careful consideration, we hold that this Forum have both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos. 3 & 4.
The Ld. Advocate for the Complainant submits that the Complainant took financial assistance from the OP No.1 and repaid the loan as per terms and conditions of hypothecation agreement but the OPs did not issue any ‘No Dues Certificate’ and claimed a sum of Rs.31499.99/- form the Complainant by issuing a notice. He argues that the OPs have admitted in the written version that the Complainant paid the installments though it has been alleged that some installments were not paid within stipulated time. It is further argued that the statements of accounts i.e. Annexture A submitted by the OPs goes to show that the Complainant has already paid Rs.397100/- and as per letter dated 26.03.07, the authorized signatory of the OPs asked the Complainant to make payment of total Rs.3,94,828/-( Annexture 1). He argues that the Complainant has already make payment of Rs.3,97,100/- though he was required to pay Rs.3,94,828/- and so it is clear that the Complainant paid Rs.2,272/- in excess. It is argued that the OPs are not entitled to get any amount from the Complainant and the OPs have deficiency in service as they did not issue ‘No Dues Certificate’ to the Complainant in spite of liquidation of entire amount He prays for necessary direction upon the OPs for issuance of ‘No Dues Certificate’ and release of the vehicle from hypothecation. He refers a decision reported in 2011 WBLR(4) page 666 and 2015 WBLR(1) page 385 where in it is held that the arbitration clause will not be a bar for filing complaint under the CP Act, 1986.
In reply, the Ld. Advocate for the OP Nos. 1 and 3 submits that the Complainant was irregular in repayment of his loan amount as per terms and conditions of hypothecation agreement. It is argued that the Complainant paid Rs.3,97,100/- but he did not pay some installments in time resulting which the OPs charged interest on the defaulted amount. He further argues that the Complainant paid a number of installments after due date through collection agent and the collection agent as per norms of the Company deposited the amount after deducting service charge. He argues that the Complainant is duty bound to pay the service charge for depositing installments through collection agent. It is argued that a notice dated 22.07.14 was issued upon the Complainant claiming Rs36,942.41/-(Annexture B). It is submitted that the OP Nos. 1 and 3 shall issue clearance certificate on receipt of the due amount from the Complainant.
We have gone through the written complaint, written version, evidence of the Complainant ,written argument of both sides and xerox copies of the documents filed by both sides.
Admittedly, the Complainant took loan from the OP No.1 on certain terms and conditions and as per letter dated 26.03.07(Annexture 1) the Complainant was required to make payment of total Rs.3,94,828/- in 59 monthly installments. It appears form the statement of accounts (Annexture A) submitted by the OP Nos. 1 and 3 that the Complainant paid Rs.3,97,100/- upto 30.01.12 and he paid some installments after due time. As per Annexture 1, the Complainant was to required to pay Rs.3,94,828/- and he had already paid Rs.3,97,100/-. The Complainant had not paid a number of monthly installments within due time. The OPs have not submitted any up to date statement of accounts as to the total dues from the Complainant. It is true that the Complainant is required to pay interest and service charge for his delay in payment of installments after due date.
Considering the entire facts and circumstances specially the fact that the Complainant paid some installments after due dates,this Forum thinks that the Complainant is duty bound to pay interest and service charges for delayed payment of installments. We have assessed Rs. 22,000/- for delayed payment and service charge. We are of the view that the OP Nos. 1 and 3 may be directed to issue ‘No Dues Certificate’ in favour of the Complainant on receipt of Rs.22,000/- from the Complainant.
Reasons for delay
The Case was filed on 10.08.2015 and admitted on 07.09.15. The OP Nos.1 & 3 contested the case by filing W.V. on 19.07.16. The O.P. no. 2 did not contest the case in spite of service of notice. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result the Complainant succeeds in part.
Fees paid are correct. Hence, it is
Ordered
that the complaint case No. 100/2015 be and the same is hereby allowed on contest against the OP Nos. 1 and 3 and dismissed against the OP No.2 without cost.
The OP Nos. 1 and 3 are directed to issue ‘No Due Certificate’ in favour of the Complainant on receipt of 22,000/- from the Complainant.
The Complainant is directed to pay Rs.22,000/- to the OP No.1and 3 by 30 days from the date of this order and the OP Nos. 1 and 3 shall issue ‘No Dues Certificate’ in favour of the Complainant by 30 days from the date of receipt of Rs.22,000/- from the Complainant.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President.
Member President.
