Brief fact of this case is that, the OP finance company deals with financing purchase of vehicles throughout the state of Odisha having its branch office at Keonjhar. The complainant for his domestic use of self and family on offer of the local agent of the Ops agreed to purchase a Truck bearing Regd.No.JH-02-AU-6965 and the Financed amount of Rs.17,25,167/-(seventeen lakhs twenty-five thousand and one hundred sixty-seven)only was provided by the OPs after documentation at Keonjhar and the said amount to be repaid by 47 monthly instalments @Rs.52,410/- and last instalment bearing Rs.22,500/- on dt.29.09.2023 and the vehicle was registered and insured policy. After purchase the complainant was paying instalments amount regularly after received of the vehicle on dt.24.06.2021.Without the knowledge of the complainant the vehicle was already taken possession by the Ops and taken custody at Puspanath Stock yard Sambalpur and further demanded over telephone a sum of Rs.1,72,000/- as additional interest and other charges within 48 hours otherwise the vehicle would be sold. The complainant approached the Branch Manager OP No.2 and apprise him the facts of his final payment and the demand made as such is unjust and illegal and not liable to pay the same. The OP failed to give any convincing reply and adamant not to release the vehicle unless the demand amount with further additional charges is not paid forthwith. That, the Ops Finance company is in the habit of exploiting the ignorant and innocent people and never disclosed the financing procedure at the time of documentation and subsequently made unnecessary excessive demands and take coercive action for repayment of their unjust and illegal demand. So it apprehends that the Ops are pre-determined to sale the vehicle without following the proper procedure. The repossession of the vehicle No.JH-02-AU-6965(Truck) without the consent of the complainant and non-release of the said vehicle on request, demanded illegal amount are unfair, parade practice and deficiency in service of the Ops which caused financial loss as he could not use the vehicle from that and causes mental agony due to inaction of the Ops. The complainant compelled to file this complaint with cost of litigation.
- For mental agony and financial loss. Rs.2,00,000-00
- Cost of litigation... Rs. 50,000-00
Hence, it is humbly prayed that a direction may kindly be issued to the Ops to release the vehicle and to pay the compensation amount of Rs.2,50,000/- with reasonable interest to the complainant within stipulated time.
The complainant relies upon the following documents:
- Tata Motors letter issued on dt.20.10.2023—8nos.
- Seizure list.. 1no.
- R.C.Particular.. 1no.
An interim application was submitted by the complainant vide Misc.Case No.22 of 2023 in a separate sheet for compensation and release of his vehicle No.JH-02-AU-6965(Truck) by the Ops. As the Ops are pre-determined and have secretly made arrangement to sale the vehicle to their favoured person and the petitioner will be highly prejudiced and it will cause irreparable loss to the petitioner unless restricted through an immediate direction not the sale the said vehicle and release in favour of the petitioner.
Under the above complain the case was admitted and notice issued to Ops. In their written version the Op Financer denies each and every averment and allegation made in the complaint. The OP- Financer stated that as per set out in the terms and conditions of the vehicle loan-cum-Hypothecation Agreement this Hon’ble Commission does not have the territorial jurisdiction to entertain the present complaint. As per the clause which is a binding contract only Mumbai Courts shall have the jurisdiction to try the present complaint. This case has been filed by the complainant seeking relief from this Finance company due to repossession of his financed asset but the fact is that the complainant has suppressed the facts in respect of the final award passed by Ld.Sole Arbitrator on dt.08.08.2022 and as per which the vehicle in question was repossessed on 17.10.2023 in compliance of final Award on dt.08.08.2022 following due process of lay. Hence, the interim application beaing IA/22/23 so also the main complaint being CC/75/23 are liable to be rejected at the outset being not maintainable in the eye of law as both applications/petitions hit the law of “RES JUDICATA”. That, except fo9r a mere bald averment that there is a deficiency in service, the complainant has failed to give any particulars or details to sustain these allegations against the Ops, the complaint is not maintainable. Since there was no violation of agreement by Finance Company had been alleged the petitioner can not take umbrage under deficiency of service. That, when thereis an alternative redressaol Commission of Arbitration as per Agreement between the parties and wherein the matter with regard to the vehicle in question is already disposed of, complaint filed against the financer is not maintainable before this Hon’ble Commission. The petitioner took finance for another vehicle vide No.OD-09U-0700 proved that he was using vehicles for commercial gain as such the complainant is not a consumer u/s 2(7) of theC.P.Act.2019.
The subject vehicle was repossessed on 17.10.23 in compliance of Award dt.08.08.2022 following due process of law. It is to be mentioned here that Rs.1,19,086.76/- was receivable on 17.10.2023 which is the date of repossession, but the petitioner had deposited Rs.52,410/- vide DD No.885732 to show compliance of the Interim Order dt.06.11.23, but it is to be stated herein that Rs.52,410/- does not comes to 50% of the Overdue amount of rs.1,19,086.76/- and thus the complainant had not complied the Interim order on dt.06.11.23. The complainant has suppressed the facts in respect of the outstanding dues of the financed asset since a huge sum was due upon him as on date of repossession of financed vehicle but by misleading this Commission he has come to this Court for interim relief. Another fact which has been deliberately suppressed by the present complainant is that Arbitration Case No.AJ-13/AJJNU1389 of 2022 before the Ld.Arbitrator Mr.Abhay Jogelkar has already been concluded since 08.08.22, the vehicle in question was seized on dt.17.10.2023 in Accordance with the Award passed for which question of violation of any law does not arise.
In the above circumstances, the interim application being IA/22/23 be rejected & the complaint petition being CC/75/23 be dismissed since the disputes pertaining to the financed asset of the present complainant is already decided by the Arbitrator as per the contract executed between the complainant and the OP-Financer.
The OP relies upon the following documents:
- Nil.
On the above pleadings the following issues are framed to decide the case.
- Whether the case is maintainable?
- Whether any cause of action arises on this case?
- Whether Ops have made any deficiency of service?
- Whether the complainant is entitled to get any relief sought for?
FINDINGS
All the issues are discussed jointly to decide the case. The aforesaid vehicle bearing Regd.No. JH-02-AU-6965 has been seized by the OP due to non-payment of EMIs on dt.17.10.23. Following the facts and circumstances of the cases this commission passed an ex-party order under Sec.38(8) directing the Ops to release the vehicle but the OP filed a revision before State CDR Commission,Odisha,Cuttack. Hon’ble State CDR Commission passed an order
directing both the parties to comply the interim passed by this Commission and participate in the further proceeding of this case and to dispose the same on merit within two months from the date of this order.
On dt. 10.05.24 the complainant filed certified copy of R.P.No.153 of 2023 order Dt.29.4.24. As per the order of State CDR Commission the OP has not taken any steps to participate in the further proceedings of the complaint case. But this commission passed this final order on merits taking in to consideration of written version filed by OP.
So far as the written version filed by the Ops TATA Motors Finance Ltd. it is clearly mentioned in para 4 that agreement shall be referred to the Arbitrator and in the instant case Arbitration Case No.AJ-13/AJJNU1389 of 2022 before the Ld. Arbitrator Mr.Abhay Joglekar has already been concluded since 08.08.22 pertaining to the financed asset bearing Regd.No.JH-02AU-6965 of present complainant( Contact No.8000130659) which is prior to filling of the instant consumer case being CC/75/23 which has been filed in the month of Nov-2023 before this Ld.Forum. The OP has raised the issue of “Res Judicata” by citing a judgement of Hon’ble National Commission in Instalment Supply Limited-Vrs-Kangra Ex-Serviceman Transport Co & Anr.reported in (2007)1 CPJ34. Hon’ble National Commission held that”The issue involved in this case is whether a complaint can be decided by the Consumer Fora after an arbitration award is already passed the simple answer to this question is “No.”
In Magma Fincorp Limited-Vs-Gulzar Ali reported in (2016)2 CPJ 231, it has been categorically held that ”It is settled Law that the Consumer Fora cannot question the award. It has no power to set aside the award or decree passed by the Civil Court. If this power is given to the consumer Fora, this will lead to contradictory judgements as has been done in this case.
The complainant is a debtor and this answering OP is a creditor and the relationship between the parties is that of a debtor and creditor which is outside the scope and preview of the consumer protection Act. The complainant has suppressed the matter of fact regarding the Arbitration proceeding and award. So this commission feels that there is no scope and preview to decide the case. There is no cause of action arises in this case. Though the case is maintainable the complainant is not entitled to get any relief.
ORDER
The interim application IL bearing No.22 of 2023 passed earlier by this commission is vacated. The consumer complaint petition being devoid of merits is dismissed without any cost.
