Orissa

Rayagada

CC/44/2020

Chandra Sekhar Mandangi - Complainant(s)

Versus

The Branch Manager, Mahindra and Mahindra Ltd., - Opp.Party(s)

Self

18 Dec 2021

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.__44_______/2020                                      Date.   18     .12.  2021.

 

P R E S E N T .

Sri   Gopal   Krishna   Rath,                                               President.

Smt.Padmalaya  Mishra,.                                                 Member.

 

Sri Chandra Sekhar Mandangi, S/o: Late  Ramaya Mandangi, At:Tumbiguda, Dist:Rayagada.                                                        …         Complainant.

           

Versus.

1.The  Manager, Mahindra   & Mahindra  Financial Service Ltd., Rayagada

2.The  Managing  Director,  Mahindra & Mahindra Ltd.,  Farm Division,  Akurli Road,  Kandivili (East), Mumbai- 400 101

3.The Manager, Paramount Automotives Pvt. Ltd., Bye-pass Road,Gandhi Chowk, Po:Jeypore, 764 001, Dist:Koraput(Odisha).

4.The  Manager, Paramount Automotives Pvt. Ltd.,  At: Komotalpeta, Devdola, J.K.Pur, Po/Dist:Rayagada. 765 017, State:Odisha.                            Opposite parties.

For the complainant:- Sri L.M.Patnaik, Advocate, Rayagada.

For the  O.P.No.1   :- Sri K.Ch.G.S.Kumandan, Advocate, Rayagada.

For the O.P.No.2:- Set  Exparte.

For the O.P. No.3& 4:- Sri K.N.Samantaray, Advocate,Jeypore.

                                                            JUDGEMENT.

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of deposited amount  towards finance vehicle i.e. Tractor vide Regd. No.OD-18-G-1634  for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P No.1   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.P No.1  taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, . The facts which are not specifically admitted may be treated  as denial of the O.P  No.1. Hence the O.P No.1   prays the commission to dismiss the case against  them  to meet the ends of justice..

On notice, the O.P.  No..2  neither entering in to appear before the commission  nor filed their  written version inspite of more than  7 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.2.  Observing lapses of around 1(One) years   for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P No.2. The action of the O.P No.2  are against the principles of  natural justice as envisaged  in the Act. Hence the O.P No.2 . was  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

 

Being   notice, the O.P No.3 & 4   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.P No. 3 & 4   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, . The facts which are not specifically admitted may be treated  as denial of the O.P  No.3 & 4.. Hence the O.P No.3 & 4    prays the commission to dismiss the case against  them  to meet the ends of justice..

 

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

This commission   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.

From the records it reveals that, there is no dispute that the  complainant had  availed loan  for purchase of  Tractor   bearing Regd.  No. OD-18-G-1634 from the   O.P No.1 (finance co.)  a sum of Rs.6,53,567/- during the month of  May, 2018..  The  complainant  had  agreed to pay  the finance charges and  was ageed to  payable to the O.Ps on  E.M.Is @ Rs.14,500/- per installment  as stated in the agreement..   .

The main grievance of  the complainant  was that  on Dt. 16.2.2019  the O.P. No.1 (Finance co.) had  seized the Tractor  from the  complainant. Hence this C.C. case.

The O.P.No.1 (Finance Co.) in their written version contended that the complainant was   a  chronic defaulter from the beginning  for payment of E.M.I-. . Due to the irregularity in payments and regular default, the vehicle  Tractor  was repossessed on Dt. 16.02.2019 and was sold after observing due procedure of law.  Even after the vehicle was taken repossession  on Dt. 16.02.2019 the complainant did not approach for  any settlement of his dues  inspite of  repeated correspondences.

The  O.P. No.1(Finance Co.) in their written version  contended that  the grievance made out is not a consumer dispute rather it is a civil dispute,  There was latches by the complainant in becoming a regular defaulter in payment of the dues, as per the installments fixed on the due dates.

On perusal of the written version filed by the O.P. No.1 (Finance Co.)  it is  revealed that the  complainant who approached this commission  has intentionally  suppressed the fact and  approached this commission   with  out  clean hands.  Further  it is observed that the prima-facie there is no ground for the complainant to initiate the present case  with false averments and concoted version without any material documents. The averments of the O.P. No.1(Finance Co.) was not denied by the  complainant. Again it is observed  the complainant is not entitled to get any relief in this case, since he was continuously made defaults in payment of E.M.Is and the O.P. No.1(Finance Co.)  had taken the steps as per the  agreement . It is observed the complainant is found to be a chronic defaulter in repayment of the loan and he has suppressed the material facts and as such she is not entitled to any relief.

For the better appreciation  this forum  relied citations which are mentioned here under.

 "Under the Hypothication  Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee / trustee, therefore, taking possession of the vehicle on the ground of non-payment of installment has always been upheld to be a legal right of the financier. The Hon’ble Supreme Court vide its judgment in Trilok Singh &Ors. v. SatyaDeoTripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K.A. Mathai @ Babu&Anr. v. KoraBibbikutty&Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119; Charanjit Singh Chadha &Ors. v. SudhirMehra, VI (2001) SLT 883 = III (2001) CCR 232 (SC) = 2001 (7) SCC 417, following the earlier judgment of this Court in Sundaram Finance Ltd. v. The State of Kerala &Anr., AIR 1966 SC 1178; Smt. Lalmuni Devi v. State of Bihar &Ors., I (2001) SLT 26 = I (2001) CCR 9 (SC) = 2001 (2) SCC 17 and Balwinder Singh v. Asstt. Commissioner, V (2005) SLT 195 = III (2005) CCR 8 (SC) = CCE 2005 (4) SCC 146."

 It is not disputed before us that the petitioner had raised a loan of Rs.6,53,567/- to purchase the Tractor. No statement of account showing repayment of loan installments has been filed by the petitioner. It is observed  that the petitioner had defaulted several times in making the payment on the date when it was due. Further it is not disputed that as per Hypothication  Agreement the financier was authorized to repossess the vehicle in case of default in repayment of loan installments.  Hon’ble Supreme Court of India in Managing Director Orix Auto Finance (India) Limited case (supra) has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of financed vehicle. There is nothing to show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced.

In view of the order passed by the  Apex Court  the complaint filed in the present case before the commission   is not maintainable. Accordingly, without  going into the merits of the case, this commission  dismiss  the above complaint petition  with liberty to the complainant to seek appropriate remedy available to him   before the appropriate  court

To meet the ends of justice  the following order is passed.

ORDER

 

In resultant the complaint petition is    stands  dismissed. The complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is disposed of.

           

             Pronounced in open commission  today on this   18th.  day of    December ,2021 under the seal and signature of this commission.

A copy of this order as per the statutory requirements , be forwarded to the parties   as per rule.

 

                                              Member.                                                President