DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK : (ODISHA).
Consumer Complaint No. 86 of 2022.
Date of hearing : 21.02.2023.
Date of order : 31.03.2023.
Dated the 31st day of March 2023.
Sri Rabindra Kumar Mallik,
S/o:-BidyadharMallik,
At:-Basudevpur Near Tentulia Mandir,
Po/P.S:- Basudevpur, Dist:-Bhadrak, Odisha. ………….. Complainant.
-:Versus:-
- The Chief Manager, Mahindra & Mahindra Financial
Service Ltd., Mahindra Finance, Get way building
Apollo Bounder, Mumbai-400001.
- The Branch Manager, Corporate Office, Mahindra & Mahindra Financial Service Ltd., Mahindra Finance, 2nd Floor Sadhana House- 570PB Marg, Worli Mumbai-400018.
- The Branch Manager, Mahindra & Mahindra
Financial Service Ltd., Mahindra Finance,
1st Floor, Behera Mansion, Near Salandi Bypass,
Bhadrak, Salandi Bypass Road, Mathasahi Chhak,
Bhadrak, Odisha, Pin-756101 . .…………Opposite parties.
P R E S E N T S.
1. Sri Shiba Prasad Mohanty, President,
2. Smt. Madhusmita Swain, Member.
Counsels appeared for the parties.
Counsel for Complainant : Sri Banamali Jena, Advocate & Associate,
Counsel for Opp. Parties : Sri Biplab Kumar Tripathy, Advocate.
J U D G M E N T.
SRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.
Brief facts of the case is that, the complainant has purchased a Bolero Plus vehicle bearing Regd. No.-OD-22G-1124, Engine No. GRG4J75128 & Chassis No. MA1XE2GRKG5K25561, with the help of O.P.No.3 and financial assistance from the Mahindra & Mahindra Financial Services Ltd. O.P. No.3 has sanctioned loan to the complainant for purchase of the aforesaid vehicle. Petitioner has paid all dues of the O.P. Finance Company with interest & on dtd.28.06.2021 complainant had paid the full & final amount of Rs. 16,000/- as per the official calculation of the O/o the Mahindra & Mahindra Financial Service Ltd. authorized office at 1st Floor, Behera mention near Salandi Bypass, Bhadrak. But unfortunately till today O.Ps are not issuing NOC to transfer the vehicle in the name of the complainant. Complainant is a bonafide loanee under O.Ps. The O.Ps are deficient in their services & negligent in their duty. Complainant has requested many a times to the O.P. No.3 to supply exact account statement against loan agreement No. 4450108, but he did not paid any heed to the request of the complainant & shown indifferent attitude towards complainant & harass him again & again. The action of the O.Ps amounts to unfair trade practice & they have committed deficiency of their service towards the complainant.By the negligent & deficient act of the O.Ps, complainant has been harassing & he is moving with mental agony & sorrow. The grievance of the complainant was not considered by the O.Ps & they have intentionally & deliberately avoided the complainant to provide proper service. So the complainant has been compelled to approach this Hon’ble Commission by filing this consumer complaint against the O.Ps. Complainant is a consumer under the O.Ps & the cause of action for filing of this case arose on dtd.02.08.2022 when the complainant’s advocate sent legal notice to the O.P.No.3 & when the letter was received by O.P.No.3 on dtd.04.08.2022 when complainant requested O.Ps for issuing NOC to transfer the vehicle in his name for the last time on dtd.30.07.2022. Complainant has prayed to direct the O.Ps for supply of NOC to him.
O.Ps submitted that the present complaint petition is not maintainable in view of the prayer made in the said petition. Prayer made in the petition is completely not tenable in the eyes of law as per C.P. Act, 2019 in Section 2 (7) (i) read with the Explanation (a) thereof. Complainant in his consumer complaint categorically admitted that he has purchased Mahindra Bolero Plus 2WD 9 Seater vehicle by obtaining loan from the present O.P. which he intended to use for commercial purpose. It is not the case of the complainant that he was using the same to earn his livelihood. In absence of specific pleading in the complaint petition with regard to the use of the vehicle for earning livelihood adverse inference has to be drawn against the complainant. Therefore consumer complaint as presented by the complainant is not maintainable as he is not a consumer. It is pertinent to mention here that the Hon’ble Apex Court in Laxmi Engineering Works Vrs. PSG Industries Institute [AIR 1995 SC 1428] has clearly held that if any person obtains any good for commercial with a view to use such goods exclusively for earning profits such person has to be excluded from the purview of the C.P. Act, 1986. Applying the ratio laid down in the aforesaid judgment since here is no pleading in the consumer complaint that the complainant was using the vehicle for earning livelihood, therefore present consumer complaint has to be dismissed on the said ground. Further it is stated that as per the clause of the Loan Agreement any dispute between the parties are tobe settled by way of ‘Arbitration’ as per the provisions of the Arbitration & Conciliation Act, 1996 & clause of the said agreement defines the ‘Jurisdiction’ of such proceeding. The parties to the agreement had specifically admitted that the disputes if any between the parties have tobe referred to the sole Arbitrator for Arbitration. Agreement has been accepted & executed between the complainant & the O.P. and finalized by the company at ‘Mumbai’ & all covenants, terms & conditions including payments shall be observed & performed at Mumbai.At the outset O.Ps submits that the above complaint is wholly false, frivolous & vexatious & is filed only with an intention to harass the O.Ps & make unlawful gain. Complainant had approached the O.Ps on 2016 for sanction & disbursal of the loan amount of Rs.6,75,000/- for purpose of purchasing a new Mahendra Bolero Plus 2WD 9 Seate vehicle under hypothecation to the O.P.s. After being satisfied with financial credibility of the complainant the O.Ps sanctioned & disbursed the loan amount of Rs.6,75,000/- to the complainant, agreement value [including interest] to be repaid by the complainant was Rs.8,76,728/-& an agreement to that effect was executed on 22.10.2016 vide Loan Agreement No.4450108. Complainant purchased a vehicle of his choice being a Mahindra Bolero Plus 2WD 9 Seater bearing Regd. No.OD-22-G-1124, Engine No. GRG4J75128, & Chasis No. MA1XE2GRKG5J25561. Agreement value of Rs.8,76,728/- was to be repaid by the complainant in 52 installments of Rs.18,540/- each starting from 22.10.2016 & ending on 20.01.2021. During the Global Pandemic of Covid-19 the complainant was allowed the facility of moratorium of six months from April 2020 to August 2020. Complainant after availing the loan from the O.Ps had paid his installments but very irregularly thereby attracting additional interest for delayed payments. Since the complainant has executed loan agreement, the terms & conditions are binding upon him. As per the clause of the agreement, the borrower (complainant) is supposed to make the payment of the periodical installments in time & on failure of the borrower to do the same, the lender (O.Ps) shall be entitled to the remedies as available under the said agreement. Loan agreement expressly states that additional financial charge @ 3% per month shall be charged if the borrower makes any default in payment of periodical installments. The borrower shall not withhold any payments that are due to the lender, even on account of any error in computation of the installment amount or in the computation of late payment charges & agrees that the obligation to pay installment is absolute & unconditional. The borrower agrees to keep the charged asset in a good condition, duly covered by a comprehensive insurance policy with all dues duly paid on time. The borrower agrees that the obligation to repay the loan will not be subject to any change on account of any product failure or its ultimate use & also agrees to provide security to the lender. Loan agreement defines an event of default shall occur if the borrower fails to pay any of the periodical installments or a part thereof or other payment required here under when due whether demander or not. Loan agreement provides the consequences of default in payment of periodical installments by the borrower. Loan agreement gives power to the financer to repossess, sell or otherwise dispose of the asset in the event of default by the borrower, i.e. power of securitization. Loan agreement states that any question, dispute or difference that arises between the parties shall be settled through Arbitration. Complainant is a defaulter of the loan & for which the O.Ps as per loan agreement has not issued NOC to the complainant. On 28.12.2022 complainant had paid an amount of Rs.8,75,203/- towards the principal outstanding of Rs.8,76,726/- excluding the unpaid additional interest of Rs. 7,462/-.
Keeping the aforesaid facts in consideration, the O.Ps submits that the averments made in the complaint petition are denied as all false & fabricated except those which are mattes of record & the complainant be put to strict proof of the same.Complainant is not a consumer under the C.P. Act, 2019 as defined U/s 2 (7)(i) of the Act. There is no specific pleading to the effect that consumer himself plying the vehicle in order to earn his livelihood. Therefore complaint petition is not maintainable in view of the fact that the vehicle in question has been purchased for being used under commercial purpose & as such the complainant does not fall within the scope & ambit of consumer. Complainant is a chronic defaulter had grossly neglected to discharge his contractual obligations & has failed to pay the EMI regularly. An amount of Rs.1,525/- along with an additional interest of Rs.7,462/- is due & payable by the complainant as per the statement of account dtd.28.12.2022 & unless the contractual liability is fulfilled by the complainant, the O.Ps reserves the right not to issue NOC to the complainant as per the terms & conditions agreed upon by both the parties. The allegation of unfair trade practice adopted by the O.Ps is all false & baseless, it is the duty of the complainant to discharge his liabilities as per terms & conditions of the loan agreement which he has grossly failed to comply. In case of Hypothecated vehicle the law is well settled that, the ownership lies with the Financer till the last EMI is paid. Under the relevant provision of the Motor Vehicle Act enables a person to run the vehicle on road without any let or hindrance. The absolute ownership of the vehicle does not pass to him until all the conditions in an agreement are fulfilled or he opts to purchase the vehicle. It would be a fallacy to equate the borrower with an absolute owner having proprietary rights in the vehicle. It would be the financer who would be entitle to the possession of the vehicle when the same is subject of Loan-Cum-Hypothecation Agreement. So the question of ownership is vested to the financer till the last installment is paid. The Loan-Cum-Hypothecation means a charge in or upon any movable property, existing in future, created by a borrower in favour of a secured creditor, without delivery of possession of the movable property to such creditor, as a security for financial assistance. Complaint petition is self-contradictory & is full of surmises & conjectures which is liable to be dismissed in limine. Complainant is not entitled to any of the reliefs as prayed for by him & this complaint petition is liable to be dismissed in limine for filing of frivolous & vexatious complaints.
After hearing the rival contentions and examining the material evidences available in record these following issues cropped up to be answered before arriving into the rightful conclusion of the dispute:
Issue No.1
Whether complainant in absence of specific pleading in the complaint petition with regard to the use of the vehicle for earning livelihood can he termed as consumer within the definition of ‘consumer’ ?
Issue No.2
Whether a clause of Arbitration in the Hire-Purchase agreement limits the consumer commission to try the consumer dispute ?
Issue No.3
Whether OPs are liable to charge additional interest? Whether the complainant has repaid the loan?
Issue No.4
Whether the OPs have committed unfair trade practice and deficiency in service ?
Issue No.5
If so, then what relief the complainant is entitled to ?
The answer to issue no.1 is that when the complainant sought to acquire the vehicle but he did not have adequate fund to purchase the vehicle, he approached the OP for financial assistance to purchase the same. As the complainant hirer agreed to pay the finance charges who in turn makes the finance available to him. So the finance charges constitute the consideration paid by the hirer complainant to the financer OP. So, the complainant is very much a consumer within the meaning of section 2(7) of COPRA, 2019. Even if, specific pleading in respect of using the case vehicle to earn his livelihood, it it understood from the complaint petition when considered in its entirety, there remains no doubt that the complainant was plying the case vehicle to earn his livelihood. So, issue no.1 is answered in favour of the complainant.
The consumer enactments are in addition to and not in derogation of the provisions of any other law for the time being in force as per section 100 of COPRA,2019. So, even if there is a clause of Arbitration in the case Hire-Purchase agreement then also that can not limit the consumer commission to adjudicate the consumer dispute. So, issue no.2 is answered in favour of the complainant.
on dtd.28.06.2021 complainant had paid the full & final amount of Rs. 16,000/- as per the official calculation of the OP No.3. Agreement value of Rs.8,76,728/- was to be repaid by the complainant in 52 installments of Rs.18,540/- each starting from 22.10.2016 & ending on 20.01.2021. If the pandemic moratorium of 6 months will be added to it, then the tenure extends upto 20.06.2021. It is the admitted position of the OPs that the complainant had paid an amount of Rs.8,75,203/- towards the principal outstanding of Rs.8,76,726/- and that an amount of Rs.1,525/- along with an additional interest of Rs.7,462/- is due & payable by the complainant as per the statement of account dtd.28.12.2022 of the OPs. The complainant has never been supplied with any statement of accounts against the loan. The complainant has repaid almost the entire loan in due time. The outstanding of Rs.1525/- is negligible and ignorable considering his repayment of around 9 lakhs. The complainant is not liable to pay the additional interest of Rs.7,462/- but he has to pay the balance of the principal outstanding i.e. Rs.1,525/- . So, Issue No.3 is party answered in favour of the complainant and partly in favour of the OPs.
The complainant has not repaid the entire loan a remnant is remaining. As per the terms of the loan agreement an amount of Rs.1525/- remains as outstanding. So, it is very much within the rights of the OPs not to issue ‘NOC’ against the loan. These OPs have thus not committed any unfair trade practice or deficiency in service. So, Issue No.4 is answered in favour of the OPs.
So far as the last issue is concerned, the complainant is entitled to get ‘NOC’ as soon as he clears the loan outstanding of Rs.1525/-. The commission dims it proper that as the loan has been paid in due time, charging addition interest or delay charges is unjustified.
O R D E R.
In the result complaint is partly allowed. The complainant has to pay an amount of Rs. 1525/- to these OPs within 7 days of receipt of this order and these OPs shall issue ‘NOC’ within 7 days of receipt of the payment of Rs.1525/-, failing which these OPs shall have to pay an amount of Rs.500/- for each date of delay after the 8th day of receiving of the payment of Rs.1525/- from the complainant. No cost to any party.
