Orissa

Rayagada

CC/104/2021

Krushna Chandra Ganta - Complainant(s)

Versus

The Branch Manager, Cholamandalam Finance Ltd., - Opp.Party(s)

Self

03 Sep 2022

ORDER

                     DISTRICT   CONSUMER DISPUTES  REDRESSAL COMMISSION, RAYAGADA,

AT:  KASTURI NAGAR, Ist.  LANE,   L.I.C. OFFICE     BACK,PO/DIST: RAYAGADA, STATE:  ODISHA, PIN NO.765001 E-mail dcdrfrgda@gmail.com

…

 

C.C.CASE  NO.104/2021                                      Date.     3 .9. 2022.

 

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President.

Sri   Satis  Kumar  Panigrahi                                             Member

 

Sri  Krushna  Chandra  Ghanta,  S/O: Late Murali Ghanta, At:Katalang, Po:Sikarpai,   Dist: Rayagada,  State:Odisha, 765 017.  Cell No.9437721002.                                                                                                              … Complainant.

Versus.

1. The  Branch Manager, Cholomandalam Investment and  Financial Co. Ltd., ,  Near   Union bank, Po/Dist:Rayagada.

2.The Regional  Manager, Cholomandalam   Investment and  Financial Co. Ltd., Dare House, Ist. Floor, No.2, NSC Bose Road,  Parrys Chennai- 600 001.                                                                                         …. Opposite parties

 For the complainant Self.

For the  O.Ps Sri Rama Prasad Patra, Advocate, Rayagada.

 

ORDER.

 

                        The present dispute arises out of the complaint petition filed by the above named complainant  alleging deficiency in service  against the afore said O.Ps not to seize the vehicle  Mahindra 475 DI Tractor  Regd. No. OD-18-B-0834     Manufacturing   year 2015   and  to receive the E.M.I.  amount as and when deposited by the complainant and waive out the  over due penal interest. The brief facts of the case is briefly summarised  hereunder.                                                                            

That  the complainant  had  availed finance from the O.Ps for his livelihood and  had  purchased vehicle viz: Mahindra 475 DI Tractor  Regd. No. OD-18-B-0834     Manufacturing   year 2015.That the complainant  had   availed finance on Dt. 22.2.2020  an  advance amount a sum of Rs. 2,69,923/-   along with  interest  Rs.86,741/ to pay the loan amount in monthly  installments @ Rs.9,350/  starts from   25.3.2020  to 25.8.2024 consisting  54  months which is  in force for the  above vehicle  vide  agreement No.XTRARAY00003474794. That  the  complainant has  already  paid total amount a sum of Rs. 56,350/ on  installments to the O.Ps for the above   vehicle .  Still the O.Ps are demanding by sending a demand notice statement of account to the complainant, and when the complainant is  going to deposit the part amount to the branch of the O.P.  they have refused to receive the same with ill intention. The O.Ps are  in ulterior mode to seize the vehicle and to stop the earning of the complainant so that the complainant will be bound  to pay the demand amount. The O.Ps are demanding to deposit  huge amount at a  time, where as the contract of agreement is in force till 25.8.2024. Hence this case filed before the commission for redressal of  his grievance. The complainant prays   to direct the O.Ps  not to seize the above  vehicle  and to receive the  amount  as and when deposited by the complainant and to waive  out the Delayed  payment surcharge and further prayed to direct the O.Ps. to pay  damages  and such other relief as the commission  deems fit and proper for the best interest of justice.

 

            On being noticed the O.Ps. filed  written version  through their learned counsel.  The O.Ps denied each and every averment made in the complaint  petition  by the complainant  against the O.Ps except those are specifically admitted herein.    The complaint petition is not maintainable  under the C.P. Act. It is a matter of recovery of loan  amount and its interest. Further it is a matter related  to terms of agreement and its non-compliance  by the contracting parties  which  can not be a matter adjudicated  by  the commission   like consumer. The complainant is a chronic defaulter in repaying the loan dues and he has never made payment of the installments  as per agreed terms and conditions for which huge amount of loan remain  unpaid  as such the O.P. No.1 had issued a request  letter to the complainant  for repayment of the   loan dues as per agreement. The complainant  has not come in clean hands before the commission  and he has suppressed some material facts. The O.Ps prayed the to dismiss the case against the O.Ps and the interim order  passed  by the  commission  may be set aside for the best interest of justice.

 

    The O.Ps appeared and filed their written version. Heard  arguments from the  learned counsel for  the  O.Ps  and from  the  complainant.      Perused the record, documents, written arguments  filed by the parties. 

Both the   parties     vehemently advanced arguments touching the points both on the facts  as well as on  law.

          FINDINGS.

            The learned  counsel for  O.Ps  vehemently  contended   that the  complaint petition  is not maintainable  and the  complainant  is not a consumer  in the  C.P. Act  and   It is admitted by both the parties  are that the transaction are   Hypothicated agreement.

It is admitted by the O.Ps that it is a financing company and offering their services for consideration. It is submitted by  both the parties  that the complainant had availed the said service  for consideration and this fact is clearly   depicted in the Hypothicated agreement. Hence the complainant is a consumer as per the C.P. Act and the O.Ps were giving their services for consideration and as such this dispute comes within the scope of C.P. Act.   The agreement entered into between the parties  clearly reveals that the  complainant will pay    54  Equal monthly installments    Rs. 9,350/-  commencing from Dt.  25.3.2020  and the last  installment falls due  on  25.8.2024  vide agreement  No. XTRARAY00003474794.

Admittedly the O.Ps had given the necessary finance to the complainant in the transaction .  They also admit the execution of the Hypothicated  agreement and the condition laid down there as per the hire purchase agreement.

On perusal of the written argument  filed by the learned counsel for the  complainant it is revealed that  the complainant has already paid an amount of Rs. 1,33,256/  till   12.8..2022  and thereafter  O.Ps are demanding amount by charging  over due  interest and penal interest  to the complainant and to deposit higher amount at a time. Thereafter the complainant without getting any alternative knocked the  door of the  commission with a prayer that the O.Ps ought  not to seize the vehicle till  the final  E.M.I   Dt. 25.8.2024 and to  waive out the over dues interest.  Further it is observed  in the complainant petition the complainant submitted that    the O.Ps have  illegally charged the over dues interest  to the complainant which is not as per the guidelines of the R.B.I and for that the  complainant is being harassed, so the over  dues interest should be waived  out. So that the complainant can deposit the actual installment amount. Again it is observed both the parties are entered into agreement   to deposit  the loan amount up to 25.08.2024 and the agreement is in force. So the O.Ps should not obstruct the vehicle of the complainant at any point of time till completion of agreement. The complainant will deposit the defaulted  E.M.I  after waiving of over dues interest .

The O.Ps in their written version contended that  the complainant has  no locus standi  to file  the present case against the O.Ps as it is  a matter to recovery of loan amount and its interest. The calculation  of such is not possible  in a summary court.   Further it is a matter related  to terms  of agreement and its non-compliance by the contracting parties  which can not be  a  matter  adjudicated by the  commission  like consumer.  It is not tenable  in view of the clause- 29  of agreement  and owing to it section- 8  of the Arbitration  and conciliation Act, 1996 is attracted  which debars the jurisdiction of consumer forum to try and decide the matter .Further the  clause-30  of the executed contract  between the parties  specifies that courts in “Chennai”  alone  have   exclusive jurisdiction  over any matter arising out of  connecting this agreement. The O.P. cited  citation of the apex court  Laxmi Engineering works Vrs. PSG Industrial Institute  reported in  1995 AIR SC 1428.  According  to the above citation the complainant is not coming under the definition and meaning of

Consumer. The  O.P. in their written version   contended  that the complainant  has not came in clean  hand before the commission  and has suppressed some material facts. The complainant is a chronic  defaulter in repaying the loan dues and he has never made payment of the installments as per agreed terms and conditions for which  huge amount of loan amount  remain unpaid  as such the  O.P. No.2  had issued a request letter to the complainant for repay the loan dues as per agreement. In reply the complainant has admitted that  he has defaulted in repaying the regular installment due to his  ill health and under takes to repay all the pending installments.  

The complainant had never paid installments in time hence forth there is Rs.91,144/- over due as on 12.8.2022.  The O.P. had never  intention to seize the vehicle of the complainant as no such documents have been  filed by the complainant in this context before the commission. The complainant borrowed the loan amount from the O.Ps and the relationship was only of the borrower and debtor and out of such a relationship a consumer dispute can not arise as the  complainant  cannot be  regarded “Consumer” in view  of the   order of the Hon’ble National Commission, New Delhi in Krishan Behari Vyas  Vrs. Rajastan Financial  Corporation, Jajpur reported in 1991 (1) CPR- 86,  1991(3) CPJ- 103.  As such the complainant is not coming under the definition and meaning of Consumer.

In  written   version  the O.P. contended  that clause-30 of the executed contract  between the parties specifies that courts in “Chennai”  alone have execlusive jurisdiction over any matter arising  out of connecting this agreement,  yet  it can not over ride statutary  provision under section-100 of the C.P. Act, 2019

It is held  and reported  in  CPJ – 1996 (3) page No. 1 in which  the hon’ble  Supreme  Court  observed  Section-34 of the Arbitration Act  does not confer an automatic embargo in the exercise of the powers by the judicial authority under the Act. It is a matter of discretion. Though the Dist. Consumer Forum, State  and National Commission are judicial  authorities for the purpose of Section-34 of the Arbitration Act, in view of the object  of the Act and by operation of Section-3 thereof,  we are of considered view that it would  be appropriate that these forums created under the Act are at liberty  to proceed with the matters in accordance with provisions of the Act rather than relegating the parties to an arbitration. The expression “Not in derogation” in Section-3 makes it clear that the provisions of C.P. Act do not in any way abrogate even partially the provisions of other laws in force and other laws are to be regarded as complementary to each other. Under the C.P. Act consumers are provided with an alternative, efficacious and speedy remedy.  When the consumer is entitled to seek remedy under  two different jurisdiction, he has option to choose one of them.

As per Section 2(1)(O) 1986 (Corresponding  Section- 2 42 of the C.P. act, 2019  clearly  defines Service means service of any description which is made available to potential users and includes, but not limited to, the  provision  of   facilities  in connection with banking, financing, insurance , transport, processing supply of electrical or other energy,   board or lodging  or both,  housing construction  entertainment, amusement or the purveying of news or other information, but does not  include the rendering  of any service free of charge or under a  contract of personal service.

 On  perusal  of the documents, written version and arguments  of the parties it is  found that  the main allegation  of the complainant is regarding the  over due penal interest which have been  charged against the  outstanding loan amount. The  default in payment of regular installment as per agreement  on the part of the  complainant is admitted  by the complainant.. So admittedly the complainant has failed  to  pay the regular  installments  in time  for which  the O.P. (Bank)  has   charged   penal interest as per the loan agreement.  As per the Bank statement relied only the  complainant has paid Rs.1,33,256/- till Dt. 12.8.2022.  and over dues E.M.I. is  Rs.91,144/-  as on 12.8.2022. From this  it is clear that  the above  payment made by the complainant  is not  regular  on monthly basis which resulted  in his penal interest over  the loan amount.

The complainant approached the commission  to waive out entire over due penal interest  and also filed a petition for an  interim   order for  prohibiting the O.P. Bank not to repossess the  vehicle. The interim petition was disposed  of directing the O.P.  not to take forcible  possession of the loan  vehicle and also to accept the installment paid  by the complainant. The O.P. while honoring the order of  this commission  did not seize the vehicle,   the complainant paid the  installment amount  which is  much less than the E.M.I. for which the  outstanding loan    has swelled-up.

 The complainant contended that the  penal interest  is   excessive and not as per the guide line of the R.B.I. The contention  of the O.P.  that the complainant is not a consumer and this  is  not a consumer dispute  which is  not acceptable as the disputes relates to finance between loanee and bank and banking service comes  squarely define   as  service  under the C.P. Act.

            In the foregoing circumstances in our opinion it appears just and proper being this is a welfare legislation to decide the matter the prayer of the complainant is partly allowed.

Hence to meet  the  ends  of  justice,  the following   order is  passed.

                                                           

 

 

 

 

ORDER.

In resultant   the complaint petition is allowed in part  on contest ..

            The   complainant is directed to  pay   the outstanding loan amount within 45days   and also to  pay regular  E.M.I  to the O.Ps  from receiving  this order.

            The O.Ps shall  not charge overdue penal interest beyond the guide lines fixed by the R.B.I.

            The  Interim order passed   earlier     stands  vacated.

            Parties  are  ordered to comply the above direction.   Service the copies of the order to the parties.

Dictated and corrected by me

Pronounced on this      3^rd.      day of   September, 2022.

 

                                                MEMBER.                                                        PRESIDENT.