Date of Filing: 05-08-2016 Date of Final Order: 20-12-2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of the C.P. Act, 1986.
The gist of the complaint case is as follows :
One Sri Sudhir Kumar Barman (hereinafter referred to as the Complainant) filed the case against the Branch Manager, Tata Motors Finance Ltd., 4th Mile, Sevoke Road, Siliguri and the Manager, OSL Automotive Pvt. Ltd., (Tata Motors), Jhinaidanga, Nilkuthi, Cooch Behar (hereinafter referred to as the O.Ps) alleging unfair trade practice and deficiency in service.
It is the version of the Complainant that he intended to purchase one LMV (Car) for earning his livelihood by means of self employment in 2012 and the O.P. No.1 promised to disburse the loan of Rs.1,90,000/- for purchasing the said vehicle @ 12% P.A.. As per agreement made between the parties, the loan was repayable by 47 monthly installments @ Rs.5,960/- vide Contract No.5000934069. The O.P. No.1 took signatures of the Complainant on blank non-judicial stamp papers, some conquest papers, some printed forms and some blank cheques and the Complainant is an illiterate man.
The O.P. No.1 issued one Money Receipt after receipt of installment on 19/03/2013 in the name of one Subhas Ch. Barman in lieu of Sudhir Kumar Barman. The Complainant contacted the office of the O.P. No.1 for obtaining no objection certificate with a view to cancelling hypothecation in favour of the O.P. No.1 on registration certificate but of no response and ultimately received a summary of loan on 30/03/2016 from the O.P. No.1 and it appeared from the summary of loan that an amount of Rs.40,076 was still outstanding as on 20/02/2016.
Hence, the Complaint has been filed praying for reliefs including compensation for unfair trade practice and deficiency in service.
The O.P. No.1 contested the case by filing W/V on 05/12/2016 inter-alia denying the material allegations made out in the complaint contending that the case is not maintainable as the Complainant has no cause of action to file the present case. It is asserted that the case is not maintainable for want of territorial jurisdiction. There is no unfair trade practice or deficiency in service as alleged by the Complainant. The Complainant has defaulted in payment of installments as per agreement. The complaint is not maintainable in terms of Clause 23 of the loan agreement. The O.P. No.1 has prayed for dismissal of the complaint with cost.
The O.P. No.2 filed W/V on 03/01/2017 inter-alia denying the material allegations made out in the complaint contending that the vehicle in question was purchased by the Complainant from the O.P. No.2 and there is no consumer dispute between the Complainant and the O.P. No.2 lodged the complaint and claimed an exorbitant amount of compensation for illegal gain and the complaint is liable to be dismissed with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer of the O.P. No.1 as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P. No.1 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 No.1.
On going through the materials on record, it is found that the Complainant purchased a vehicle from the O.P. No.2 on taking a loan of Rs.1,90,000/- from the O.P. No.1 on certain terms and conditions.
Therefore, we are of the considered view that the Complainant is a Consumer of the O.P. No.1 in terms of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
Point No.2.
The Ld. Agent of the O.P. No.1 submits that the address of the O.P. No.1 is not within territorial jurisdiction of this Forum and no cause of action of this case arose within the jurisdiction of this Forum. He prays for dismissal of the case for lack of territorial jurisdiction.
We have gone through the complaint, W/V evidence and documents filed by both sides.
The Address of the O.P. No.1 is not within territorial jurisdiction of this Forum and nowhere in the complaint it has asserted that cause of action of this case arose within territorial jurisdiction of this Forum.
We find that no cause of action of this case arose within territorial jurisdiction of this Forum.
Hence, we hold that this Forum lacks 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 is a simple man and he put his signatures on some papers on good faith at the instance of the O.P. No.1. It is urged that the Complainant has repaid the loan and he is entitled to get NOC from the O.P. No.1. It is submitted that the claim of outstanding amount of Rs.40,076/- as on 20/02/2016 is baseless. He prays for appropriate reliefs in this case.
The Ld. Agent for the O.P. No.1 submits that the Complainant defaulted in payment of installments as per agreement being No.5000934069 dated 25/03/2012 and a legal notice dated 09/02/2014 was sent to the Complainant by registered post with A/D requesting him to make payment but of no result. He argues that the O.P. No.1 initiated Arbitration Case No. Lot 71/DCM1726 of 2014 in connection with Loan Agreement No.5000934069 against the Complainant and the Complainant did not appear before the Sole Arbitrator Kainaz Irani inspite of service of notice and ultimately the Ld. Arbitrator passed award on 27/02/2015, long before institution of this case. He submits that he has already submitted the documents in support of his contention. It is urged that Clause 23 of the Loan Agreement clearly speaks about Arbitration.
The Ld. Agent of the O.P. No.1 draws our attention to a decision reported in 2016 (I) WBLR (CPSC) 661 where in it is held that the complaint case filed after passing of Arbitration award by the Ld. Arbitrator is not maintainable. He also draws our attention to the decision passed by the Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission dated 04/02/2014 & 24/05/2017 in First Appeal No. FA/12/313 & FA/2017/04.
We have perused the materials on record and we have also considered the submission of both sides. We have carefully gone through the decision referred by the Ld. Agent for the O.P. No.1.
The Complainant has asserted falsely in para 5 of the complaint that he is illiterate. It appears from the complaint and other documents submitted by the Complainant and the O.P. No.1 that the Complainant put his signatures in English.
It is clear from the Arbitration Award passed by the Ld. Arbitrator in Arbitration Case No. Lot 71/DCM1726 of 2014 dated 27/02/2015 that the Complainant did not contest the Arbitration Case in spite of service of notice. The present case was filed on 05/08/2016 i.e. about two and half years after the date of Arbitration Award.
With due regard to the decision as referred by the Ld. Agent for the O.P. No.1, we are of the view that the complaint case is not maintainable. The Consumer Forum cannot be used as a tool to frustrate order of an Arbitrator.
Hence, we hold that the Complainant has failed to establish in deficiency in service or unfair trade practice against the O.P. No.1 and the Complainant is not entitled to get any relief against the O.P. No.1.
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 O.P. No.1 without cost and dismissed ex-parte against the O.P. No.2 without cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, 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.
