FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application U/S 12 of the C.P. Act, 1986.

The fact of the case in brief is that the complainant entered into a loan cum hypothecation agreement with the OPs bearing No.  5001783960 dated 28.04.2015 for purchasing one vehicle having registration No. WB11C7161 to earn his livelihood by driving the said vehicle. The loan amount sanctioned was Rs. 5,70,000/- to be repaid in  48 EMIs payable on and from  02.06.2015 till 02.05.2019 @ Rs.16009/- only. Besides that, the complainant have to pay additional amount of Rs 25,300/- for renewal of insurance every year together with EMI. Sometimes, the EMI of Rs. 16009/- was deducted in advance causing difficulties to the complainant. In spite of regular payments he was disturbed by the people of the OPs over phone on the pretext that his installment is due and if he does not pay, his vehicle will be ceased by the OPs. In order to create harassment to the complainant  both mentally and physically the OPs have initiated an arbitration proceeding being No. TMFL/159279/2018 against the complainant  at Mumbai. On receiving the notice of arbitration the complainant had to go to Mumbai to attend the proceedings on two occasions and produced all relevant documents before the arbitrator and after perusing the documents the arbitrator Sri  P C Phalgunan has passed an order dated 16.07.2018 with the following observations.

Advocate Supriay appeared for claimants. Respondents appeared in person and submits that he has been paying the installments after perusing the documents, statement of accounts which also shows that respondents are paying the installments. Hence, the claimants are directed not to disturb/harass the respondents  as he is paying the installments regularly. Matter adjourned on 25.09.2018”

However, the said arbitration could not be further proceeded due to the observation made in arbitration petition No. 506/2019 by the Hon’be High Court of Bombay against the arbitrator appointed by the OPs. The complainant has paid entire loan amount and asked for NOC from the OPs. The OPs instead of issuing NOC are harassing the complainant and trying to compel him to pay some extra amount and in default they will cease the vehicle which has caused severe mental agony to the complainant. The referred vehicle is the only source of the income to the complainant and for unnecessary dragging the complainant to Mumbai has caused monetary loss to the complainant. This is a complete unfair trade practice by the OPs and they have caused harassment and agony to the complainant by threatening him over the phone and by calling him to Mumbai for a fabricated arbitrator proceeding. The cause of action first arose on  25.03.2018 when the complainant received an arbitrator notice. The cause of  action was continuing since the OPs are frequently calling the complainant, lastly on  28.06.2019 over  phone and are threatening him to pay some dues else they will cease the vehicle. Under the said circumstances, the complainant has been forced to file the complaint against the OPs to this commission with the relief/reliefs as detailed in the complaint petition.

The OP-1 has contested the case by filing their WV contending inter alia that the OP-1 had financed a sum of Rs.  5,70,000/- to the complainant for the purchase of subject vehicle as per terms and conditions of the loan cum hypothecation dated 28.04.2015 as mentioned earlier. The complainant is liable to repay the same loan with interest amounting to Rs. 8,44,332/- as per the agreement.  The complainant is liable to pay delay payment on unpaid amount till realization. The OP-1 issued legal notice dated 13.02.2018 calling upon to pay the outstanding dues which the complainant had  failed to comply. The OP-1 initiated arbitration proceedings to recover the balance amount and the complainant was accordingly informed about the said proceedings. The complainant is using the subject vehicle for commercial purpose for which the complainant cannot be considered as consumer as per C.P. Act. The complainant has taken part in the arbitration proceedings on the self same issue for which this commission has no jurisdiction to deal with such issue again. The OP-1 did not try repossess the subject vehicle and never threatened the complainant.  The complainant still has certain dues to clear for which the OP-1 is not in a position to issue the NOC at this stage.

The OP-2 has also contested the case by filing WV on her behalf and submits that she has no connection with the complainant and she never entered into any agreement with him.  She had never dealt nor she rendered any service to him so deficiency of service does not arise at all in this case. In her personal capacity the OP-2 cannot be held liable  for not issuing NOC to the complainant. The complainant has not come in clean hand. He is not a consumer since the subject vehicle is used for commercial purpose. As per submission of the OP-2, she is in no way  related to  the allegation in the instant complaint.

Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1) Whether the OPs are deficient in rendering proper service to the complainant?
            2)   Whether the OPs have indulged in unfair trade practice?

3)    Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3:-

All the points are taken up together for sake of convenience and brevity in discussion.

            The fact of the case in brief is that the complainant Sk. Md. Abdulla was financed a loan of Rs. 5,70,000/- for purchasing the subject vehicle from the OP-1 vide agreement dated 28.04.2015. As per the agreement the repayment of the loan was started from 02.06.2015 with the EMI of Rs. 16,009/-. From the bank statement submitted by the complainant it appears that there has been smooth repayment by way of EMI through ECS on and from  03.06.2015.

 But on perusal of the documents placed on record it is understood that the OPs had filed an Arbitration case against the complainant for non payment of dues  vide Arbitration Proceedings No. TMFL/159279/2017. In view of that the complainant received a letter from the Ld. Arbitrator P.C .Phalgunan of Mumbai to attend the  hearing as stipulated. Though the arbitration proceeding is not the subject matter of this consumer complaint but we could not resist ourselves to understand the reason for filing the case before the Arbitrator. In the statement of claim filed by the claimant, here it is the OP1, to the Arbitrator it is understood that the Respondent, here it is the complainant, was very irregular in making payments of the installments  of the said loan and interest due thereon under the said Agreement. The claimants state that as on 12.02.2018 an aggregate sum of Rs.2,53,223.61 is due and payable by the respondent towards the remaining contract balance, overdue installments, delayed payment charges, costs, expenses etc. together with further interest thereon @36% p.a. as per the particulars of claim annexed and marked Exhibit “A” hereto.

While perusing the particulars of claim under Exhibit “A” it is observed that outstanding (Foreclosure) Loan amount as on 12.02.2018 is Rs.2,53,223.61 and the delayed payment charge is zero and other expenses and charges is also zero. And further interest on Rs.253224/- @36% p.a. from 13.02.2018 till payment and/or realization in full.

From the above statement we fail to understand that in which month the complainant was in default and what was the defaulted amount the complainant had failed to pay. If for argument sake, let us admit that  the complainant has failed to make repayment of EMI  for a particular month /s then recalling of the entire outstanding loan at a time is inhuman, unreasonable and suffers from the  lacuna of high handedness which definitely attract the principle of natural justice also. Because of his financial crunch the complainant went to the financier for fund which is supposed to be repaid by installments  Here, the claimant i.e. the OP is silent on mentioning the particular month/s when the complainant was in default. Mere recalling of the entire outstanding loan  amount in the claim statement without highlighting the default amount give rise to so many doubts and there is definitely a lack of transparency. Any way that is the issue to be taken care of by the Arbitrator. The Arbitrator after perusing the papers has passed an order dated 16.07.32018 with the following observation :

 Advocate Supriya appeared for the claimants. Respondents appeared in person and submits that he has been paying the installments. After perusing the documents, statement of accounts which also shows that Respondents are paying the installments. Hence, the Claimants are directed not to disturb/harass the Respondent  as he is paying the installments regularly. Matter adjourned on 25.09.2018”.

This order clearly indicates that there was no fault on the part of the complainant and the complainant was forced to drag at Mumbai for adjudication. Being a law abiding person the complainant obeyed the instruction of the Arbitrator and attended the proceedings at the cost of financial, physical and mental harassment which the OPs cannot ignore . To bear with the cost of the proceeding including engagement of advocate at Mumbai  is highly expensive which has been borne by the helpless complainant. This unnecessary harassment being suffered by the complainant must be compensated by the OPs. The issue of non maintainability of the instant complaint on the ground that the vehicle was/is being used for commercial purpose has already been decided by the Commission vide order dated 25.11.2019 which has gone against the OPs. Moreover, the Arbitration Case is stopped by the order of the Hon’ble High Court of Bombay not for the reason of the complainant. The complainant cannot be made to wait for an unlimited period in the situation where there has been no fault of the complainant.

Now let us examine the questions of the complainant and the answers of the OP1

Question No. 7. : What was the observation made by the Arbitrator P.C.Phalgulan in the arbitration proceeding being No. TMFL/159279/2017 dated 16.07.2018 ?

Reply : The order of the Learned Arbitrator is matter of record and is within the knowledge and custody of the complainant.

Question No. 9 : Do you have any document/s to show that you served any written notice upon the complainant demanding arrear of installment not paid by him.

Reply : Yes we have documents to show that notice of demand has been sent to the complainant through our Advocate.

Question No. 14. : Have you mentioned in your affidavit the date and the number of installments which according to you the complainant has not paid ?

Reply :  Yes, the date and number of installments not paid has been stated in the affidavit.

The reply of the OP1 in respect of Q.No. 7 Is otherwise avoiding in nature but the observation of the Ld. Arbitrator is really a matter of record and clearly in favour of the complainant as pointed out boldly as above.

 The reply of the OP1 against the question no.9 put forth by the complainant is also not supported by any document. The legal notice as mentioned by the OP1 is not submitted and nowhere found in the record. So sending the demand notice to the complainant is accordingly not proved.

The reply against the question No.14 is also not to the point. The date and number of installments not paid has not been mentioned in the affidavit.

On perusal of the entire case record we have not found any demand notice either from the OP1 or from the Advocate of the OP1 sent to the complainant. No document has been submitted by the OP1 to establish that the complainant has failed to pay any particular installment/s during the period. In view of that the complainant could not understand how he has become the defaulter. It is also difficult on our part to understand how the complainant became the defaulter. Rather from the annexed Bank Statement it is observed that the Bank  has deducted the total 48 installments including Insurance Premium from the complainant’s Bank Account. through ECS. No specific notice mentioning the month of default was sent by the OP. Moreover the complainant’s submission of full repayment  is supported by the Bank Statement.  As such the demand of the OP1 is found not justified and also the action of the OP1 in dragging the complainant at Mumbai has already been proved unjustified. In consequence thereof the complainant has  suffered mentally, physically and financially for which the OP1 is held responsible.

Under the above facts and circumstances we are of the considered view that the complainant

has established the case against the OP1

In the result, the consumer complaint succeeds.

Hence,

                                                                        Ordered

That the complaint case be and the same is allowed on contest against the OP1  and dismissed against the OP2 with the following directions.

1. The OP 1 is directed to pay a sum of Rs.50,000/-  to the complainant as compensation towards harassment, mental agony and for the expenses incurred by the complainant at Mumbai. -.

           2.  The OP-1 is further directed to pay a sum of Rs. 20,000/- as cost of litigation to the complainant.

3.The OP-1 is also directed to issue  the NOC to the complainant immediately.

The above orders are to be complied by the OP-1 within a period of 45 days from the date of this order. In default, the complainant will be at liberty to put the order into execution.

Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties.