BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 17 of 2014
Sri. Ajay Nunia, ……………………………………………….. Complainant.
-V/S-
1. TATA Motors Finance Ltd.
Regd. Ofice – Nanavati Mahalaya 18, Homimodi Street Fast,
Mumbai – 400001 O.P No.1.
2. Branch Office at TATA Motor Finance Pvt. Ltd.
Near Surana Motor Pvt. Ltd.
Hailakandi Road, Meherpur, Dist- Cachar (Assam) O.P No.2.
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Shri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared :- Mr. Soumen Choudhury, Advocate for the complainant.
Mr. Mithu Deb, Advocate for the O.Ps.
Date of Evidence……………………….. 21-04-2015, 28-03-2017
Date of written argument……………… 19-12-2018, 20-12-2018
Date of oral argument…………………. 20-12-2018
Date of judgment………………………. 21-12-2018
JUDGMENT AND ORDER
Sri Bishnu Debnath,
- Sri Ajay Nunia Purchased a TATA SFC 407 Truck bearing Regd. No. As-11-AC/6444 on 08/09/2011 for Rs.6,66,751/-. Out of the said amount Rs.1,66,051/- paid by the Complainant to TATA Motor Finance Ltd. (referred as O.P.No.1) as security deposit and obtain financial aid of Rs.5,30,000/- from the aforesaid TATA Motor Finance Ltd. on entering an agreement to repay loan amount with interest on monthly installment of Rs.17,575/-. The Complainant was paying regularly the monthly installment but unfortunately, the said vehicle met accident on 28/07/2012 and got damaged. Due to that the Complainant could not make payment of few installments and become defaulter in repayment of loan but knowing the above crises of the Complainant, the TATA Motor Finance Ltd. repossessed the vehicle on 13/12/2013. On receiving information the Complainant met the official of the TATA Motors Finance Ltd. at Silchar and offered the outstanding balance and requested to release the vehicle but the O.P.No.1 refused to release the vehicle.
- Accordingly, the Complainant served Advocate’s Notice on 01/02/2013 to the TATA Motors Finance Ltd. but the O.P. referred the matter unilaterally for Arbitration and procured on arbitration award against the Complainant.
- The TATA Motor Finance Ltd. Mumbai is arrayed as O.P.No.1 and branch office of TATA Motors Finance Ltd. at Silchar is arrayed as O.P.NO. 2. Both the O.P. No.1 & 2 in their joint W/S stated inter alia that due to defaulter of repayment of loan by monthly installment. For which, as per terms & conditions of loan agreement, matter has been referred to Arbitration and award has been passed on 06/03/2013 within the knowledge of the Complainant. It is also in the knowledge of the Complainant that Arbitrator awarded Rs.5,29,554/- with interest at rate of 18% per annum on the awarded amount in favour of the O.P. But the present complainant has been filed to evade his legal liability due towards the O.P. and to evade filing of the execution proceeding.
- During hearing the Complainant submitted deposition supporting affidavit and also exhibited documents. The O.Ps also submitted deposition of Sabyasachi Dutta and exhibited some documents. Both the parties advocate have submitted their written argument. I have heard oral argument and perused evidence on record including written argument.
- In this case it is admitted fact that the Complainant took loan from O.P. to purchase a vehicle on Hire Purchased System. It is also admitted fact that the O.Ps. i.e Financial Institutions advancing loan for purchasing vehicle etc. As such in view of definition U/S 2(o) of the Consumer Protection Act.1986 ‘service’ includes the loan advanced by financial institution because the supreme Court of India in M.D. Maharastra State Vs Sanjay Shankarsa Mamarde, in civil Appeal No. 7189 of 2012 while interpreting the word ‘Service” U/S 2(0) of the Consumer Protection Act. 1986 held:-
“The use of words ‘any’ and ‘potential’ in the context. These have been used in clause (o) indicates that the width of the clause is very wide and extends to any or all actual or potential users. The legislature has expanded the meaning of the word further by extending it to every such facilities as are available to a consumer in connection with banking, financing etc. Undoubtedly, when the bank or financial institution advanced loan, they do render ‘service’ within the meaning of the clause. On that behalf, there is no dispute.”
- Therefore, this District Forum has jurisdiction to entertain complaint to see as whether the O.Ps committed any disservice by repossessing the vehicle on 13/12/2013 on the ground of defaulter of the Complainant to deposit EMI.
- In this case it is admitted fact the Complainant was defaulter of payment of EMI. It is also admitted fact that a proceeding initiated with sole Arbitrator by the O.P. for award against the Complainant vide arbitration proceeding No. Lot13/ARB/B/N9/N-95 of 2012 vide Ext.E. As per the said arbitration proceeding an interim order passed on 08/12/2012 to direct the Complainant to hand over possession of the aforesaid vehicle to the duly authorized representative of the O.Ps and also empowered the O.P. to take possession of the vehicle from the Complainant if require and keep the said vehicle in safe custody without causing loss or damage to the same. Subsequently, on 06/03/2013 passed the final award. In that award permitting the O.Ps to realize awarded amount of Rs.5,29,554 with interest at rate of 18% per annum with effect from 08/12/2012 from the Complainant. It has also been permitted to the O.P. for satisfying the aforesaid amount, may sell the vehicle in accordance with law and any amount remain to be realized after adjustment by the O.P. may realize from the complainant and 2 (two) other persons mentioned in the arbitration awards on the title page and they are jointly and severally liable to pay the balance amount to be realized.
- On the above context, I have gone through the evidence on record meticulously and find that the vehicle has been repossession on 13/12/2013 i.e after passing the final award of sole Arbitrator. Thus, it is crystal clear that the vehicle has been repossessed as per interim order as well as final award of sole Arbitrator.
- Therefore, from the evidence on record, I do not find any established fact to conclude that the O.P. repossessed the vehicle by taking law in its hand. Thus, in my considered view repossession of the vehicle is not illegal.
- On going through the arbitration award vide Ext.C it is clear that final order passed exparte. In that order the Arbitration opined that the complainant has knowledge about the proceeding. Thus, at the stage when award is not challenge in appropriate Forum by the Complainant, it is presumed that he had knowledge about the arbitration proceeding as well as arbitration award. In that situation, the National Commission in revision petition No. 1936 of 2015 held that the jurisdiction of District Forum is ousted as soon as arbitrator’s award passed first in time than the instant complaint before District Consumer Forum.
- Thus, in this case it is opined that the repossession of the vehicle is not illegal, rather it has been taken in custody of O.Ps as per procedure established by law in view of clause 18.1 of the Hire Purchase agreement vide Ext.B and award vide Ext.C. So, jurisdiction of this District Forum is Ousted.
- Therefore, this case is dismissed on contest without any cost. Supply free certified copy of judgment to the parties immediately. Given under my hand and seal of this District Forum on this the 21st day of December, 2018.
