Date of Filing: 17.03.2015 Date of Final Order: 30.11.2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
The complaint case may be summarized as follows:-
One Bimal Roy, hereinafter referred to as Complainant lodged the complaint case against (1) The Branch Manager, Sundaram Finance Ltd., Cooch Behar Branch,P.O. & Dist. Cooch Behar, PIN-736101, (2) The Manager, Sundaram Finance Ltd., Siliguri and (3) M/s Usha Motors, Falakata, Dist. Alipurduar hereinafter referred to as OPs alleging unfair trade practice and deficiency in service. According to the Complainant, the Complainant purchased one New Holand Tractor from M/s Usha Motors (OP No.3) for earning his livelihood by means of self-employment by taking financial assistance from the Branch Manager, Sundaram Finance Ltd., Cooch Behar (OP No.1) in terms of mutual agreement dated 24.12.12. The Complainant took a loan of Rs.4,50,000/- out of the total price of Rs.6,70,500/- @ 9.95% interest per annum, payable by 47 monthly installments @ Rs.13,450/-. The Complainant is a simple man having no knowledge of English language and put his signatures on some Blank Non-Judicial Stamp papers and the Complainant is an illiterate person. After completion of all formalities, the Complainant got the vehicle which was duly registered being No.WB-63/7376 and subject to hypothecation in favour of Sundaram Finance Ltd. The Complainant paid up the installments up to September, 2014amounting Rs.2,93,020/-to the OPs but the OPs had been pressurizing to deposit Rs.14,200/- or 15,000/- per month in lieu of Rs.13,450/- per month as per agreement. The Complainant requested the OPs for a copy of agreement and upto date Statement of Account but the Ops did not supply the same to the Complainant and one Sanjib Nath, Collection Agent of the Ops came to the home of the Complainant on 11.03.15 along with some muscle man and demanded Rs.1,50,000/- and threatened the Complainant that he would take possession of the vehicle. The Complainant is always ready and willing to pay the dues to the Ops. The Complainant informed the matter to the Superintendent of Police, Cooch Behar on 16.03.15. The cause of action arose on 11.03.15.
The Complainant has prayed for a direction against the OPs for supply of a copy of agreement dated 25.11.12 and up-to-date Statement of Account. The Complainant also prayed for Rs.25,000/- as compensation for mental pain, agony and harassment, Rs.25,000/- for unfair trade practice and deficiency in service and 10,000/- towards litigation cost.
The OP Nos.1 & 2 put their appearance and filed w/v on 04.05.15 inter-alia denying the material allegation made out in the complaint contending that the case is not maintainable.
It is the version of the OP No.1 & 2 that they have financed the vehicle being purchased by the Complainant and accordingly, a hypothecation agreement was signed by the Complainant and the said vehicle was registered before RTO, Cooch Behar and a Certificate of Registration was issued showing that the vehicle being hypothecated to Sundaram Finance Ltd. The Complainant has miserably failed to pay the EMI as well as insurance charges on several occasions, resulting disobedience of the contract signed by the Complainant and the OPs. The Ops never tried to take forcible possession of the vehicle being No.WB-63/7376. The Complainant has filed this case with a view to take undue benefit. They have prayed for dismissal of the complaint.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service/unfair trade practice, as alleged by the Complainant?
- Whether the Complainant is entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1.
The Ld. Agent for the Complainant submits that Complainant has hired the services of the OPs and the Complainant is a consumer under Section 2(1)(d)(ii) of the C.P. Act, 1986. It is further argued that the Complainant the vehicle for earning his livelihood by means of self-employment.
In reply, the Ld. Agent for the contesting OPs has stated nothing on this point. On perusal of the complaint, w/v, evidence and documents on record, we are of the view that the Complainant is a consumer under Section 2(1)(d)(ii) of the C.P. Act, 1986 under the Ops.
Point Nos.2.
The Ld. Agent for the Complainant has submitted that cause of action arose within the jurisdiction of this Forum and the address of the OP. No.1 is also within the jurisdiction of this Forum. He argues that the claimed amount is within the pecuniary limit of this Forum. The Ld. Agent for the OPs has not stated anything on this point.
Having heard the Ld. Agents of both sides and on perusal of the materials on record, we are of the considered opinion that this forum has both pecuniary and territorial jurisdiction to entertain the complaint.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submits that the Complainant purchased one Tractor by taking a loan of Rs.4,50,000/- from the OP. Nos. 1 & 2 for earning his livelihood by means of self-employment on the strength of the agreement dated 24.11.12 @ 9.9% interest per annum repayable by 47 monthly installments @ Rs.13,450/-. He argues that the Complainant is an illiterate person but the OPs obtained some signatures of the Complainant on blank non judicial stamp papers, conquest papers and some printed forms. It is urged that the Complainant paid Rs.2,93,020/- upto September, 2014 to the OPs against proper money receipts but they claimed Rs.14,200/- or Rs. 15,000/- per month in lieu of Rs.13,450/- as per agreement. It was argued that the OP Nos.1 and 2 tried to take forcible possession of the vehicle and demanded Rs.1,50.000/- through their agent, Sanjib Nath along with some muscle men on 11.03.15 and the matter was duly informed to the Superintendent of Police, Cooch Behar on 16.03.15. He argues that the Complainant is entitled to get reliefs as mentioned in the complaint petition for deficiency in service and illegal trade practice on the part of OP Nos.1&2.
In reply, the Ld. Agent for the OP Nos.1 and 2 submits that the contesting OPs never disturbed the peaceful possession of the Complainant over the Tractor, but on hearing the Ld. Agents of both sides, this Forum passed an order dated 27.07.15 restraining the OPs from taking possession of the vehicle on condition that the Complainant will pay Rs.1,34,500/- (Installments for the period from October, 2014 to July, 2015) by 10 installment of Rs.13,450/- each and he is also to pay Rs.13,450/- per month as regular installment i.e. Rs.26,900/- per month for 10 months and thereafter Rs.13,450/- per month till liquidation of the entire amount.
It is argued that the Complainant preferred revision before the H/S/C on being aggrieved upon the order passed by this Forum dated 27.07.15 and the H/S/C was pleased to dismiss the revision vide its order dated 18.02.16 in RP/118/2015. It is submitted that the Complainant took a loan on execution of a loan agreement and a letter of guarantee dated 27.12.12 and the Complainant was defaulted in making payment of installments since October, 2014 which is evident from the State of Accounts. He argues that the OP No.1 requested the Complainant to make regular payment of installment but of no result and ultimately, the Complainant filed this complaint with a view to evade repayment. It is urged that the Complainant is not entitled to get any relief against the Ops and the Ops have no deficiency in service or illegal trade practice. He has drawn our attention to the decisions reported in CPR 2015 (4) – page-214 and (2013) 2 CPJ 154.
We have gone through the complaint, w/v, evidence adduced by both parties and the documents furnished by both sides. The Complainant purchased a Tractor being No.WB-63/7376 by taking financial assistance of Rs. 4,50,000/- from the OPs on certain terms and conditions as per loan agreement dated 27.12.12 (Annexure “A”). According to the Complainant, the rate of interest was 9.95% per annum but according to loan agreement, rate of interest was monthly compounded @ 18.51% and annualized @ 20.19%. It appears from the Annexure “A” i.e. loan agreement that the document was duly executed by the Complainant and authorized signatory of the OPs. It also appears from the letter of Guarantee dated 27.12.12 that one Haleswar Roy and Ramendra Nath Roy put their signatures as guarantors of the said loan. Admittedly, the Complainant filed an application dated 17.03.15 u/s 13 (3B) of the CP Act, 1986 praying for an order restraining the Ops from taking forcible possession of the vehicle being No.WB-63/7376 and this Forum passed an order dated 27.07.15 restraining the Ops from taking forcible possession of the vehicle on condition that the Complainant will pay Rs.1,34,500/- by 10 installments of Rs.13,450/- each and he is also to pay Rs.13,450/- per month as regular installment.
The Complainant preferred revision against the said order and the H/S/C was pleased to dismiss the vide its order dated 18.02.16 passed in RP 118/2015. The Complainant has not stated that he has complied the direction of this Forum passed on 27.07.15. Therefore, it is clear that the Complainant has not been paying any installment with effect from October, 2014. According to the loan agreement, the loan was repayable by 47 monthly installments ending on 10th October, 2016 but as per Statement of Accounts (Annexure “B”) furnished by OPs, the due amount is Rs.3,99,591/- as on 20.10.17. It is crystal clear that the Complainant has not been paying any installment since October, 2014 but he is using the vehicle without making any payment. The Complainant has alleged that OP. Nos.1 & 2 obtained signatures of the Complainant on some blank papers but this Forum finds no reason to believe the said statement of the Complainant.
The Complainant has made false statement in para 5 of his written complaint by stating that the Complainant is an illiterate person but he put his signatures in the complaint, Quotation (Annexure-B) Loan agreement (Annexure- A) and even in some deposit slips (Annexure - C/2, C/6, C/18). It appears from the above mentioned deposit slips, loan Agreement and Quotation that the Complainant put his signatures in English.
On a careful consideration over the materials on record, we have no hesitation to observe that the Complainant has failed to establish any deficiency in service or illegal trade practice against the OP Nos.1 & 2 but we are constrained to hold that the Complainant has filed this case on frivolous and vexatious allegations to evade repayment of loan.
Therefore, we hold that the Complainant is not entitled to get any relief in this case and the complaint should be dismissed with cost of Rs.2,000/- as the Complainant filed this case on frivolous and vexatious grounds against the OP. Nos.1 & 2.
We find that the Complainant has not claimed anything against the O.P. No.3.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the OP Nos.1 & 2 with cost of Rs.2,000/- payable by the Complainant to the O.P. Nos.1 & 2 by 45 days from the date of this order. The complaint case be dismissed against OP No.3 without cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
