Orissa

Rayagada

CC/13/2019

Bansidhara Naik - Complainant(s)

Versus

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

Self

13 Dec 2019

ORDER

  

CONSUMER DISPUTES REDRESSAL FORUM

POST  /  DIST: Rayagada,  STATE:  ODISHA,12.10  Pin No. 765001.

                                                      ******************

C.C.case  No.       13         / 2019.                                    Date.  13       .12. 2019

P R E S E N T .

Dr. Aswini  Kumar  Mohapatra,                                     President

Sri Gadadhara  Sahu,                                                        Member.

Smt.Padmalaya  Mishra,.                                                Member

 

Sri Bansidhara Naik,  S/O: Pitabas Naik, Kucheipadar, Po:Doraguda, Dist:Rayagada(Odisha).                                       …..Complainant.

Versus.

1.The   Branch  Manager,  Magma Finance Corporation Ltd., Jeypore, Dist:Koraput.

2.The Area Manager, (General Manager), Magma Finance Corporation Ltd., Kolkata,West  Bengal.                                                …Opposite parties.           

Counsel for the parties:                                 

For the complainant: - Sri Kishore Sahu, Advocate, Rayagada.

For the O.Ps.      :-    Sri Ram Prasad  Patra, Advocate, Rayagada.

 

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non issue of N.O.C.  towards  finance vehicle  Tipper i.e. Ashok Leyland  Model No. AL-U-2518 of 1984   vehicle bearing Regd. No.OE-A-8999  for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.Ps  1 & 2   put in their appearance and filed  written version through their learned counsels in which  they refuting allegation made against them.  The O.Ps 1 & 2    taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. 1 & 2 .   Hence the O.Ps  1 & 2   prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsels   for  both the parties.      Perused the record, documents,   filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                    FINDINGS.

            Undisputedly the  complainant  had availed   loan  for  purchase of  vehicle  Tipper i.e. Ashok Leyland  Model No. AL-U-2518 of 1984   vehicle bearing Regd. No.OE-A-8999 for   a sum of Rs.20,96,000/-  vide  hypothecation  loan  agreement  No.  HO/G/0158/12/000172  on Dt. 06.01.2014. The complainant  was to pay  the total amount  of  Rs.26,20,900/- which was also included the finance  charges a sum of  Rs.5,24,900/- making  in 40   E.M.I.  monthly  installments for the period from 01.2..2014  to  01.05.2017  @  Rs.66,000.00  each E.M.I. (copies of the  account statement   issued by the O.Ps. is  in the file which is marked as  Annexure-I.

        The main grievance of the complainant  is that  after payment of all  E.M.Is  the O.Ps have not issued N.O.C  in favour of the  complainant  towards the finance above vehicle. Hence this C.C. case.

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

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

The O.Ps have in their written version  contended that the complainant is not a consumer in view of the fact that so far the relationship  between him and the  O.Ps  Bank has not developed to that of a “Customer and Banker “.  It is on this score  this forum has no jurisdiction to entertain  the complaint  for a consumer dispute.  However Section 2(1)© (iii) of the C.P. Act lays down  that  complaint means any allegation in writing  made by a complainant   that the services hired or availed of or agreed to be hired  or availed  of by  him suffer from  deficiency in any respect.  In the instant case  the complainant  has agreed to hire and avail  of the services  of the  O.Ps.  Bank on payment of  consideration , viz   rate of   interest  on the amount  loaned to him.  This is corollary  to Section 2(1) (o) of the Act  which  defines “ Service” of any  description  which is  made available to potential users and includes  the provision  of  facilities  in  connection with banking, financing, insurance, transport, processing,  supply of  electrical or other energy and  so on and so  forth.  So according to the  provisions of section 2(i) © (iii) and section  2(1) (o) of the C.P. Act the right of  the complainant  as a consumer can not be  ignored. Hence complaint admitted.

Further  the  O.P. agencies have been constituted     with a view to rendering financial assistance to deserving  applicants    for livelihood.  It has been observed by the Hon’ble  Odisha State Commission, Cuttack in the case of Ravindra Kumar Das  Vrs.  M.D., O.S.F.C., reported in CPJ 1991 (2) page No.  344 that financial  assistance  is a service  rendered  for which a borrower  pays interest.  Thus within the broad meaning  of consumer and service, such service is for  hire.  Any deficiency in service  comes within the scope of the C.P. Act.  Although special forums  have been created under the  Act  to render assistance to the  Corporation, no forum  under the Act has been created  to mitigate the grievances of a borrower or intending borrower.  In such circumstances, the  Odisha State Commission is of the view that  the beneficial  provisions under the Act  gives the Commission   wide power to examine   deficiency in service  in respect of a legitmate grievance  of a consumer who  has complained before the Forum. 

 

The  O.Ps in their written version contended that as the complainant did not pay the loan amount, the  O.P. No. 1 & 2 have initiated arbitration proceedings, the Sole Arbitrator had passed award on Dt.  19.07.2017,  but the  O.Ps have not produced  evidence to substantiate their claim, despite sufficient time given  by this forum to the O.Ps, the  O.Ps have  failed to produce  Arbitration award before the forum. 

This forum observed the charges imposed on the complainant is found to be punitive and not a consumer friendly. The O.P. No. 1 & 2   had  never taken the  spirit on consumer service in their attitude and they have encouraged their business wings to a prohibited area. Though the agreement  shows  percentage of interest  @ Rs.9% per annum but they have charged  more than  @ Rs. 36 % per annum along  with  delayed payment  surcharge.   In total their excess amount claimed from the consumer is beyond  imagination of  an ordinary   person.   Hence the agreement  having a concealed agenda behind the consumer and hence in view of the operation  of the Odisha regulation 1968 the said activities are coming under the  punitive portion of the regulations. Hence  for causing  under hardship and mental agony  the complainant is not liable to pay  any finance  amount  to the O.P. at this stage. The counter  claim of the O.Ps No.1 & 2  are not maintainable before this forum and the O.Ps  1 & 2  have  violating the provisions of   Odisha Regulation- 1968 and Odisha Debt  relief  Act  1981. Further the O.Ps have entered into the scheduled   prohibited area and violated U/S- 23 of the Contract act. 

Admittedly the complainant  had paid  40  monthly  installments  @  Rs.66,000.00  each E.M.I total sum of Rs.26,20,900/- against the said finance.  When the said  contract/agreement void as per the section- 65 of the Contract  act and the O.Ps 1 & 2  will not entitled to enforce the said agreement against the complainant. The  complainant who  enjoyed  the contract with sufferings and paid   all  the E.M.Is as per  hypothecation agreement and  after payment all E.M.Is  with such  void contract the O.P No.1 & 2  are not  entitled to claim any  money from the complainant.

In this connection  this forum relied  citation It is held and reported  in A.I.R. 1994 S.C. page No. 787  and  1994 (I) SCC 243 the Hon’ble Supreme Court  observed  importance of the Act lies in promoting welfare of the society by enabling the consumer to participate  directly in the market economy. It is clearly stated by the apex court that it attempts to remove the helplessness of a  consumer which he faces against powerful business, described a net work of rackets or a society in which producers have secured power to rob the  rest  and the might of public bodies which are degenerating  into store house of in action.

Again It is held and reported in OLR 2007(1) (SC) page No. 472 where in  the Hon’ble Supreme  Court  observed – Loan granted by  finance company- Default in payment- Recovery  of same- Procedure- Recovery of loans or  seizure of vehicles could be done  only through  legal means- The Finance company  cannot employ goondas to take  possession by force.

The entire transaction of the O.P. No.1 & 2  with the complainant in the deal was with an ill intention and they have never followed the rules and regulations while granting  the finance and  payment of all E.M.Is  by the complainant the O.Ps have not issued N.O.C. in favour of the O.Ps  as the  complainant is  a poor,  illiterate and  the above  vehicle was  utilized  by the complainant  for his     livelihood .

The  O.Ps 1 & 2  in their written version contended that they had issued demand notice  for payment of the loan amount. As the complainant did not pay the loan amount, the  O.P. No. 1 & 2  initiated arbitration proceedings. The Sole Arbitrator had passed award on Dt.  Dt.  19.07.2017. From this   it is clear that  the O.P.1 & 2  had obtained  ex-parte   order of the  hon’ble Arbitrator  without  intimating the complainant which  has been initiated.

            Since the said award had obtained by  concealing the truth and suppressed the correct facts of the dealing before the Arbitrator. Hence the O.P. No.1 & 2 are not entitled any finance dues demanded by them by taking advantage of the Arbitration award and the said demand is deemed to be an exaggerated  and false demand.

            The Consumer forums  findings  is  that the complainant is not liable to pay any money to the O.P. towards the said finance. After  payment of  all  the  E.M.Is   by the complainant  they have terminated the said contract which is a void contract  U/S-65 of the Contract Act  and they should  issue N.O.C. in favour of the  complainant  against the said finance  towards full and final satisfaction.   The complainant is no more liable to pay any money towards the said finance  to the O.Ps 1 & 2  by taking the advantage  of the arbitration award.

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 themOn perusal of the documents this forum found the O.Ps 1 & 2 clearly violated the guide lines given by the Act and as well as by the Hon’ble Supreme Court and R.B.I on the above subject and as such the repossession is an unfair trade practice and deficiency putting the poor consumer into financial  loss and mental agony. The O.Ps 1 & 2 without respecting the established law and guide lines of the R.B.I   have repossessed the same and sold without  intimation   to the  complainant.  The complainant   is a unemployed youth and for his livelihood  he doing this business so that the complainant to earn some money so that economically   he can improve in the society.  The intention of the legislature  is also clear. In order to mobilize  and improve the economic conditions   of the  remote areas the scheme is opened it is not for the personal gain of the financing company.  Hence the action of the O.Ps No. 1 & 2   towards repossession and sold of the above vehicle  is a deficiency of service and unfair trade practice. 

            It is held and reported in CPR-2012(1) page No. 89  where in the Hon’ble State Commission, West Bengal observed “That the finance company can not be seized/repossessed without following due process of law”.

Further  the O.Ps have  alleged  in their  written version that the complainant is not a consumer within the meaning of Section  2(1)(d)(i)(ii)  of the C.P. Act, 1986 and used the same vehicle for commercial purpose. The complainant pleaded that she  purchased the above vehicle for the purpose of earning her livelihood by means of self  employment.However, the   O.Ps have not substantiated their contention as to what type of the business the complainant is carrying  on . Further there is no evidence on record  to the effect that the complainant used the above  vehicle for any commercial purpose.The  Section 2(1(d) of the C.P. Act, 1986 makes it clear that the complainant  would be included in the category of consumer as she purchased the above vehicle  by arrangement of finance from  the  O.Ps.  Hence the complainant  would be deemed to be  consumer within the meaning of consumer within the meaning of   the Section-2(1)(d) of C.P. Act,1986.

In this connection this forum relied citation it is held and reported in C.P.R. 2010 (3) page No. 351  the Hon’ble State Commission  Andhra Pradesh where in  observed “Complaint-Maintainability-  Machine allegedly purchased  by complainant for the purpose of earning his livelihood  by mean of self employment  - O.Ps  have not substantiated their  contention as to what type of business complainant is  carrying  on -   No evidence on record to effect that complainant used machine for any commercial purpose-  Complainant would be included in the category  of consumer.”  

 

The  O.Ps have every right to earn profit from its customer, but it should  be reasonable or  acceptable one.  The O.Ps should not be a commercial  business  centres for profiteering  from the exploitation of such type customer.

 

Out of finance  amount a  sum of Rs. 20,96,000/- the  O.Ps  have received  Rs. 26,20,900/- from the  complainant  which is reflected  in the account statement issued by the O.P No. 1 & 2 (copies of the  same is  in the file   which marked as  Annexure-1). So there  is no E.M.Is are outstanding  against the complainant.  So  issue  of   NOC  against the above finance  vehicle there is  no hindrances  arise.

 

 

The O.Ps have in their written version relied  citations which are mentioned here.

The Hon’ble Odisha State C.D.R.Commission, Cuttack  in R.P. No. 97 of 2012 decided  on Dt. 16.07.2013 was held that “If the disputes have been decided by an Arbitrator, subsequent complaint is not maintainable”.  Further  another judgement  in F.A. No. 1261 of 2016 decided on Dt.10.10.2017  in the case of M/S Manas Construction  Vrs. L & T Finance Ltd. & Anr. the Hon’ble National Commission, New Delhi  where in observed  “No consumer complaint is maintainable after passing of an   arbitration award”.

Further  it is held and reported  in AIR 1995 Supreme court page No. 1428 in the case of  Laxmi Engineering works Vrs. PSG Industrial Institute the Hon’ble Suprme Court where in observed  “Commercial  users are not consumers”.

The Hon’ble Supreme Court in the case of Bharti Knitting company Vrs. DHL World wise Express Courier, 1996(4) SCC- 704, where by it was held that when the complainant signs the contract documents, he is bound by its terms & conditions and the on us would be on him to prove the terms and the circumstances, in which he has signed the contract. It is settled principles of law that a person who claims equity, must do equity.

The Hon’ble National Commission in Revision petition No. 2363 of 2002 decided on 5.10.2006 it was held that “A complaint can  not be  decided by the consumer forum after an arbitration award is already passed.”

The Hon’ble National  Commission reported in and as Surendra Kumar Sahoo C/O: Shri Balaram Sahoo Vrs. Branch Manager, Indusind Bank Ltd.  Decided on October,1, 2012  in Revision petition 3319 of 2012 the financier has absolute right to epossess the vehicle in case default in  payment of installments by the borrower.

The facts  and circucmstances in the present case are altogether different than the citation relied upon (supra) by the learned advocate for the O.Ps  in their written version and therefore, said decision will not be applicable to the present case.

For better  appreciation  this forum relied citation which are mentioned here.

it is held and reported in C.P.R 2012(1) page No. 107  where in the the Hon’ble State C.D.R.Commission, New Delhi   observed  “Financial  company is bound to issue NOC after repayment of loan amount”.

The  Hon’ble  State Commisionin the above said  judgement further observed  “Financial service-Loan-Refusal to issue No objection Cetificate –District  Forum directed O.P. to issue NOC and also to pay towards compensation- O.P. could not prove that  complainant paid monthly  installments belatedly- District Forum was wholly justified in holding  O.P. deficient to service, involved in unfair trade practice and causing harassment to complainant.”

It was held by the Apex court and reported   in CPJ 2004(1) page No. 1 where in the Hon’ble Supreme Court observed   “That remedy under C.P. Act.,  1986 is in addition to and not in derogation of other  remedies  available  and that  under remedies  are available  in this Act”.

Further it is held and reported in  CPJ- 2002(3) page No.8 in the case  of   Dr. J.J.Merchant and ors  Vrs ShrinathChaturvedi  where in the Hon’ble  Supreme Court  observed  in para -12 of the above judgement   “In our view this submission also requires to be rejected  because under the Act, for summary or speedy trial,  exhaustive procedure  in conformity with the principles of natural justice is provided.  Therefore, merely because  it is mentioned  that Commission or forum  is required to have summary trial  would hardly be a ground for directing  the consumer to approach the Civil Court.  For trial to be just and reasonable long drawn delayed  procedure. Giving ample opportunity to the litigant to harass the aggrieved other  side, is not necessary.  It should be kept in mind  that legislature has   provided   alternative, remedy to the consumers  and that should  not be curtailed on such ground.  It would also be totally wrong    assumption that because summary trial is provided. Justice  can not be done when  same questions of facts are required to be dealt with or decided.  The Act provides sufficient safeguards.  For   this purpose  we would refer the procedure prescribed  under the Act  for disposal   of the complaint

It  will   seem that in support of  outstanding  amount  the O.P. filed  no statement of account  before  the forum in absence  of which the  forum  wholly justified in holding the  O.P. deficient in service, involved  in unfair trade practice, and causing  harassment    to the complainant, and therefore this forum  allow the  present  C.C.  case  of  the complainant  and the  O.Ps   are liable to issue  N.O.C  in favour of the  complainant  towards finance vehicle.

                Basing on the above citations this forum allow this case in favour  of the complainant.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the action of the  O.Ps   amounts to deficiency in service and negligence only to avoid  the genuine of the  complaint as thus the O.Ps are liable for making  good  for the loss  suffered by the complainant financially, mentaly and physicalywhich is Aliane Juris. Hence  we allow the above complaint petition.  

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

 

ORDER.

In Resultant the complaint petition is allowed in part on contest   against the O.Ps 1 & 2.

The O.Ps No.1 & 2  are ordered  to issue  No objection certificate  in favour of the complainant   towards  finance vehicle  Tipper bearing Regd. No.OE-A-8999 . 
 

The O.Ps  are  ordered to comply the above directions within 45 days from the date of receipt of this order. Serve the copies of the above  order  to the parties concerned immediately free of charges.

Dictated and corrected by me.       Pronounced on this        13th. Day of    December,  2019.

Member.                                             Member.                              President