This is a case u/s 12 of C.P. Act 1986 filed by the complainant Netai Modak wherein it is contended inter-alia to the effect that a loan cum hypothecation agreement being number  5000720635 dt.06.05.11 was executed in between the complainant and O.P.No 1 in relation to vehicle under registration  no. WB 73 C 1226. According to said agreement when the complainant failed to pay the E.M.I., by sending legal notice dt. 09.01.2013 the O.P.No.1 asked the complainant to pay off the balance entire dues, out of       Rs 4,48,202.01/- within 48hrs. from the time of receipt  of the said legal notice. The O.P.No.1 subsequently asked the complainant to pay Rs.1,38,000/- towards the dues amount against the said loan. It is further case of the complainant that when the O.P.No.1 through his men illegally took possession of the said vehicle from Paharpur More, illegally the complainant lodged a complaint being Kotwali P.S. Case No. 223 of 2013. Since taking the said vehicle the O.P.No.1 kept the said vehicle in the motor garage of the O.P.No.2. Subsequently on 30.01.13 by issuing two cheques the complainant paid the said entire balance amount of Rs. 1,38,000/- in favour of the O.P.No.1 and the O.P.No.1 directed the O.P.No.2 to release the said vehicle in favour of the complainant, but the O.P.No.2 failed to handover the said vehicle intact with previous condition. Thereafter several times the complainant asked both O.P.No1 and 2 to release the vehicle in question in his favour in good condition, but in vain. Hence this case.

                     The O.Ps. contested this case by filing written version and denied all material averment of the complaint as alleged against them by the complainant. It is also contended in the W.V. that the case is not maintainable as because-(a) As this Forum has the jurisdiction to try this case, (b) As the Arbitration Proceeding has already been completed before institution of this case, (c) As the vehicle in question was not plied with by the complainant himself (d)As the vehicle in question is a goods carrying commercial vehicle.

                    In the above circumstances the O.Ps. have prayed for dismissal of the case with cost.

POINTS TO BE DECIDED

1)Is the complainant entitled to get reliefs as sought for?

2)To what other relief or reliefs is the complainant entitled?

DECISION WITH REASONS

                    Point Nos 1 and 2:-

                    Both these points are taken up together for discussion as they are interlinked and interrelated.

                    Facts remain that all the loan amount alongwith the interest have already been liquidated by the complainant in favour of the financer O.P.No.1. It is also fact that inspite of having the entire loan amount including its interest from complainant, unfortunately the vehicle in question intact as well as with good condition is/was not delivered in favour of the complainant. In Arbitration proceeding No. Lot 48/JO5 of 2013 we find that “Liberty granted to the Respondants, to apply for modification of order, if any”. Upon considering these averments  we are of the view that the said Arbitration case is still pending for which we are consider to opine that as the said Arbitration proceedings is still pending, this complainant has right to lodge this complaint before this Forum. So for avoiding intricacies of law in relation to Arbitration matter as ventilated in the different findings/ judgement /rulings etc. etc. we are of the view that this Forum has amplejurisdiction to dispose of this case with full power of jurisdiction.

                 That apart after having considered the relevant materials on record as adduced by both parties we are to say that this complainant being aged about 60yrs old having no alternative source of income except the income availed from this vehicle, paid off all the entire dues including interest in favour of O.P.No. 1 and unfortunately the  O.P.No. 1 could not satisfy us by adducing any satisfactory and cogent material/evidence to the effect that (the O.p.No.1) ever restrained himself from recovering the loan amount from the complainant with alleged allegation to the effect that “the complainant himself didn’t ply the vehicle in question”. Accordingly we do hold that to avoid the reliefs as claimed by the complainant the O.Ps have taken plea with false pretext.  So we are inclined to hold that this plea of the O.P.No.1 “to the effect that the vehicle in question was not plied with by the complainant himself  and/ or the vehicle in question was used for commercial purpose” wouldn’t and shouldn’t prevail.

                     So after having regard to the document on record and after considering the relevant materials on record and also after having regard to the arguments advanced by both parties we are satisfied to opine that the complainant has adduced sufficient evidence/materials to get relief as sought for.

                     Thus the case succeeds.

                     Hence it is

O  R  D  E  R  E  D

                      That the CC No.38/13 filed by Netai Modak u/s 12 of C.P.Act 1986 be and the same is decreed on contest against the O.P.No.1 with cost of Rs.1000/-(Rupees One Thousand)only to be paid by the O.P.No.1 in favour of the complainant and the case is dismissed against O.P.No.2 without cost.

                       The O.P.No.1 is hereby directed to return the vehicle in question, alongwith one stepny, wheel jog, lever, Two new MRF tyres, two new appolo tyres and one appolo tyre with stepny vide tyre No 71650 and 716 as were with the vehicle at the time of taking possession of the vehicle by the O.P.No.1, in favour of complainant within one month from this date.

                       The O.P.No.1 is further directed to pay a sum of Rs 50,000/-(Rupees Fifty Thousand) only to the complainant as compensation for his harassment and mental agony.

                       The O.P.No.1 is further directed to carry out this order within one month from this date failing which the complainant is to file separate  proceeding against the O.P.No.1 before this Forum for getting reliefs as per this order and in that case the complainant will get interest @ 10% p.a. on the decretal dues as well as on the current market value of the said vehicle, to be calculated on and from the date of filing of this case till the recovery of the entire decretal dues and recovery the said vehicle in question.

                       The O.P.No.1 is further directed to deposit a sum of Rs 5000/-(Rupees Five Thousand) only in the A/C of State Consumer Welfare Fund within one month from this date failing which the concerned authority is to recover the said amount from O.P.No.1 by filing separate proceeding against O.P.No.1 as per provision of law.