Ld. Advocate(s)
For Complainant: Shiva Das and Parantak Roy
For OP/OPs : Sumon Kumar Mukhopadhyay
Date of filing of the case :13.06.2023
Date of Disposal of the case :30.07.2024
Final Order / Judgment dtd.30.07.2024
The dispute relating to unrealization of insurance money led this complainant to file the present case. The concise fact of the case of the complainant, is that the complainant Bapi Halder purchased a vehicle TATA SOMO GOLD bearing Registration No. WB51A6475, Engine No.30CR401KXY668976, Chassis No. MAT44248CK45237 on loan from the OP Company Shree Ram Transport Finance Co. Ltd. by a loan agreement KRNAGT 906100002. The complainant took the financial assistance from OP No.1 Shuho Pramanick was the guarantor of the said loan. The complainant paid so many instalments but he was unable to pay all the instalments in time. So the OP Company sent legal notice. Subsequently the complainant paid all the dues to the OP against which the OP issued no objection certificate on 08/10/2022. The OP took 3 signed cheques from the complainant during taking loan. The OP Company then lodged a case U/S – 138/142 of N.I Act, against the complainant vide CR Case No. 894/2021 in J.M 5th Court, Krishnagar, Nadia. Despite full payment by complainant the OPs continued the said case. But as per the agreement the said case ought to be withdrawn. One W/A was issued against the complainant in which the complainant took bail on 14/02/2023. The complainant asked the OP No.1 to withdraw the case but he refused. The company practised fraud upon the complainant for wrongful gain. The present case is filed as the complainant suffered hardship. The cause of action arose on 14.02.2023 and subsequent dates. The complainant prayed for an award for compensation of Rs. 4,90,000/- for harassment and mental agony and wrongful gain and litigation cost.
The OP contested the case by filing W.V. wherein they denied the major allegation. The OP challenged the case as not maintainable on the ground that the complainant is not a consumer since the transaction is commercial in nature. The positive defence case of the complainant is that the complainant applied for finance from OP to purchase TATA SUMO GOLD vehicle. He took loan from OP No. 1 and agreed to pay but he failed to pay the dues as per the loan agreement. Notice was sent to the complainant and the guarantor. So OP filed a case against the complainant U/S – 138/142 of N.I Act, before CJM Court Krishnagar on 13/09/2021. While the said case was pending before JM 5th, the complainant did not appear on 22/09/2022. So warrant of arrest was issued against the complainant. In the meantime a settlement was reached and N.O.C was issued by the OP to the complainant on 13/09/2022. The complainant took bail. After the complainant took bail the OP withdrawn the said criminal case on 14.07.2023 since 22.09.2022 W/A was pending against the complainant and as such OP could not withdraw the case and prior to that no NOC was issued in favour of the complainant. The complainant filed this case, subsequently in order to gain illegally. The OP claimed that the case is liable to be dismissed with cost.
The conflicting pleading of the parties led this Commission to ascertain the following point for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the present case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
OP challenged the case as not maintainable on the ground that the complainant is not a consumer.
After perusing the pleading of the parties, it is found that the complainant took loan from the OP Company as financier to purchase TATA Sumo vehicle. The OP claimed that the complainant failed to pay the loan money. The relation of consumer and seller is subsisting between the parties. The other allegations are subjected to proof. So both the parties came within the purview of C.P.Act. Apart from this there is no other material to ascertain that the case is barred under any provision of law.
Accordingly, Point no. 1 is answered in affirmative on behalf of the complainant .
Point No.2 and 3
Both the points no. 2 and 3 have close nexus with each other and as such these are taken up together for brevity and convenience of discussion.
It is the admitted that the complainant purchased the disputed TATA SUMO Vehicle with the loan from OP Company. It is the case of the complainant that he issued 3 cheques to the OP company but failed to pay all the instalments in time. The OP categorically stated that the complainant issued 3 cheques out of which one cheque seems to have been dishonoured and as such case u/s 138 /142 of N.I.Act was lodged in the court of Ld. CJM, Krishnagar which was subsequently transferred to Ld. 5th JM Krishnagar. The OP files CIS documents showing pendency of the criminal case no. 894/2021 dtd. 13.09.2021. The said case was pending for S/R/AD/App for 3 days and thereafter W/A was issued.
Ld. Adv for the counsel argued that on 22.09.2022 on the complainant failed to appear before JM court so W/A was issued and as such the OP had nothing to do. The argument has reasonable force because if the accused failed to appear before the Criminal case, concerned court may issue W/A to ensure his appearance.
It is further found that there is no observation of any superior court that issuance of W/A against the complainant was not justified or improper. There is also no finding by any higher court that the criminal case was filed without sufficient ground or illegally.
The criminal court registers a criminal case u/s 138 of N.I. Act if the complainant fulfilled the main criteria / ingredients of sections 138 of N.I.Act. That apart this Commission is not in a position to ascertain the legality or validity of W/A issued by Ld. CJM court.
Now the main points of argument of Ld. Adv for the complainant is that despite payment of instalment the OP filed the criminal case and as such he has faced defamation for issuance of W/A of also was harassment.
The argument is not acceptable because NOC was issued on 08.10.2022. The criminal case no. 184/2021 was filed on 13.09.2021 which is much prior to issuance of NOC. There is nothing within the four corners of the case record that the complainant paid outstanding money prior to file of the criminal case. On the contrary from the documents of complaint it is found that OP company issued notice to the borrowers and guarantors on 04.05.202 and 01.01.202 regarding the default in payment of instalment amount for the said disputed vehicle for a sum of Rs. 85,901/-.
The complainant also could not file any document to establish that prior to issuance of NOC or lodging of the complaint case. He had fully paid the outstanding money to the OP company.
It is also found from the case record that OP before issuance of W/A the criminal court gave an opportunity to the complainant 3 times for his appearance but due to failure to appear Ld. JM court issued W/A against the complainant .
After assessment of the documentary evidence it transpires that OP sent 2 registered notices to the complainant and the company on 01.01.2022 and 04.05.2022 for payment of all outstanding along with overdue charges failing which company will take proper action. Complainant could not file any document for taking fresh steps or reply to the said notice. The criminal case was filed on 13.09.2021 after 4 months of the last letter of the OP to the complainant. So action taken by the OP cannot be considered as defamatory, harassment or that it is unfair trade practice.
In the back drop of the aforesaid discussion and observation made hereinabove the commission finds that the allegation against the OP could not be substantiated up to hilt.
Complainant therefore could not prove case against OP as per the provision of law.
Accordingly, points no. 2 and 3 are answered in negative against OPs.
In the result CC/60/2023 fails on contest
Hence,
It is
Ordered.
that the CC case 60/2023 be and some is dismissed on contest against OPs without cost.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
( SHRI NIROD BARAN ROY CHOWDHURY)
