IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/38/2018.
Date of Filing: Date of Admission: Date of Disposal:
06.03.18 26.04.18 13.09.23
Complainant: Rejaul Sk.
S/o Wajul Sk
Vill-Sarulia, PO-Barua
PS-Beldanga, Dist-Murshidabad
Pin-742189
-Vs-
Opposite Party: Magma Fincrop Ltd.
24 park street, kol-16
Agent/Advocate for the Complainant : Toufiq Ahmed Mustafa
Agent/Advocate for the Opposite Party : A. Guin
Present: Sri Ajay Kumar Das………………………….......President.
Sri. Nityananda Roy……………………………….Member.
FINAL ORDER
Sri. ajay kumar das, presiding member.
This is a complaint under section 12 of the CP Act, 1986.
One Rejaul Sk (here in after referred to as the Complainant) filed the case against Authorised Signatory, Magma Fincrop Ltd. (here in after referred to as the OP) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant while unemployed purchased a truck of Tata LPT 2515 being registration No. WB-57A/1024 with the financial assistance from the OP at a price of Rs. 5,25,795/-. A hire purchase finance agreement was executed by and between the Complainant and the OP and under terms of hire purchased agreement which promotes that the total amount of price shall be repaid by the Complainant by 45 monthly installments of Rs.20,860/-.
The Complainant regularly paid the monthly installments by advance cheque deposited with the OP and the OP encashed the same month by month and there was no default in payment of EMI. But the Complainant with his utter surprise received notice issued by the OP that the one cheque No. 008932 dated 31.08.15 was returned uncashed but the Complainant has sufficient amount in his account at Allahabad Bank but the OP falsely served a notice only to grab more money by way of overdue interest charges and other penal interest charges. The OP arbitrarily and forcefully took over possession of said vehicle from the Complainant on 10.10.14 while the said vehicle was on road. The Complainant further came to learn that the said vehicle had been sold by the OP after forceful possession.
Prior to such sale, no notice asking the Complainant as to why the said vehicle could not be put to sale and as such alleged sale of vehicle is illegal. The Complainant submits that ownership of Complainant has not been extinguished by alleged sale. The Complainant continues to be the owner of said vehicle and the OP could not take possession of vehicle by use of force on the strength of alleged agreement.
In view of the above process alleged recovery of vehicle as adopted by the OP by use of force is arbitrary, whimsical, illegal and as such the OP is liable to return the said vehicle to the Complainant and also liable to pay compensation for the cause of depreciation of lying the said vehicle on road.
The Complainant wanted to know the whereabouts and possession of the said vehicle several times over telephone and by writing but the OP did not response. On 20.11.17 he wrote a letter and on 20.11.18 he sent a legal notice but they did not pay any heed to it.
The Complainant praying for directing the OP to return the said vehicle to him and to direct the OP to pay damages and compensation of a sum of Rs. 1,00,000/- for loss of earning from the date of illegal possession taken over by the OP and for cost of Rs. 10,000/-.
The OP is contesting the case by filing written version contending inter alia that the case is not maintainable. The specific defence case of the OP is that Hirer Purchase Finance Agreement was executed with the hirer/ Complainant wherein as per clause 22 that if any dispute arise between the parties, then the matter would be referred to Arbitrator to adjudicate the same. In this case, matter was referred to an Arbitrator and the Arbitrator has passed the award on 11.05.2015 prior to filing of this complaint, as such the forum does not have jurisdiction to entertain the case, as per National Commission Judgement in Installment Supply Ltd. Vs. Kangra Ez- Serviceman Transport where as it was held that ‘’A’’ complaint cannot be decided by the consumer forum after arbitration Award is passed.
As the hirer/Complainant defaulted in paying the EMI, the OP on the basis of said agreement took the custody of the vehicle on 10.10.14 and the same was informed to the hirer/Complainant and also to Beldanga Police Station, Murshidabad. Pre Sale Notice dated 15.10.14 was sent to the hirer/Complainant to pay the outstanding due amount within 7 days from the date of the receipt of notice or else the vehicle would be sold with due process and the vehicle was sold on 19.01.15. As per agreement, arbitration proceeding had been initiated before Arbitrator Sandip Ghosh and the said Arbitrator passed an award on 15.05.15 for Rs. 3,53,276/- to be paid by the hirer/Complainant to OP along with interest @18% per annum from the date of the awrd till realization of the said award amount. As the hirer/Complainant did not pay the awarded amount and an execution case has been filed against the hirer/Complainant before District Judge Berhampore and the hirer/Complainant is contesting the same. Copy of award dated 15.05.15 along with sale agreement and others documents relating to the said vehicle are annexed and marked as Annexure B.
On the basis of the complaint and the written versions the following points are framed for proper adjudication of the case :
Points for decision
1. Isthe Complainant a consumer under the provision of the CP Act, 1986?
2. Has the OP any deficiency in service, as alleged?
3. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point nos.1, 2& 3
All the points are taken up together for decision for the sake of convenience and brevity of discussion.
Complainant personally submits before this District Commission that the OP arbitrarily and forcefully took over possession of his vehicle without giving any information to him. Subsequently the said vehicle sold by the OP. He prays for directing the OP to return the said vehicle to him and to direct the OP to pay damages and compensation of a sum of Rs. 1,00,000/- for loss of earning from the date of illegal possession taken over by the OP and for cost of Rs. 10,000/-.
Ld. Advocate for the OP submits before this District Commission that as the hirer/Complainant defaulted in paying the EMI, the OP on the basis of said agreement took the custody of the vehicle on 10.10.14 and the same was informed to the hirer/Complainant and also to Beldanga Police Station, Murshidabad. Pre Sale Notice dated 15.10.14 was sent to the hirer/Complainant to pay the outstanding due amount within 7 days from the date of the receipt of notice or else the vehicle would be sold with due process and the vehicle was sold on 19.01.15. As per agreement, arbitration proceeding had been initiated before Arbitrator Sandip Ghosh and the said Arbitrator passed an award on 15.05.15 for Rs. 3,53,276/- to be paid by the hirer/Complainant to OP along with interest @18% per annum from the date of the awrd till realization of the said award amount. As the hirer/Complainant did not pay the awarded amount and an execution case has been filed against the hirer/Complainant before District Judge Berhampore and the hirer/Complainant is contesting the same. Copy of award dated 15.05.15 along with sale agreement and others documents relating to the said vehicle are annexed and marked as Annexure B.
We peruse the documents found with annexure B. The submissions made by the Ld. Advocate for the OP is based on the basis of the documents of annexure B. The materials on record shows that the written version was filed by the OP on 4th July, 2018 stating the facts as submitted by the Ld. Advocate for the OP. The evidence was filed by the Complainant on 15.02.19. But the Complainant did not deny the said facts. Moreover, the Complainant speaks nothing regarding the documents of annexure B. Such being the position, we are of the view that the Complainant filed the instant complaint suppressing the material facts.
In view of the matters discussed above we are of the view that the instant complaint case is not maintainable and as such it is liable to be dismissed against the OP.
Reasons for delay
The Case was filed on 06.03.18 and admitted on 26.04.18. This Commission 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 Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the consumer Case No. CC/38/2018 be and the same is dismissed on contest against the OP but without costs.
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.
