Presents:-
- Sri P.Samantara, President.
- Smt. S.Rath, Member.
- Sri G.K.Rath, Member.
Dated. Bolangir the 3rd day of July 2015.
C.C.No.13 of 2013.
1.Bitu Bhoi,age-60 years ,son of late Dambaru Bhoi.
2.Sitakanta Bhoi, age-30 years son of Bitu Bhoi.
Both are resident of village-Kuturla P.O.Mursingh,
P.S.Tusura, Dist- Bolangir.
.. .. Complainants.
-Versus-
1.The Manager,Aditya Motors, N.H.5,Bamphakuda,
Phulnakhara, Cuttack-754001.
2.Ashwini Swain (Bapi)age-37 years son of Not known.
Resident of House No.4480,Talpalipada,Bolangir Town,
P.O/P.S & Dist- Bolangir.
3.The Branch Manager, Cholamandalam Investment & Finance
Company Limited,Khariar Road Branch Office, At-Khariar Road,
P.O/P.S- Khariar Road, Dist- Nuapada.
4.The Managing Director, Cholamandalam Investment &
Finance Co.Ltd,Dare House, No.2, N.S.C.Bose Road,
Parrys, Chennai-600001.
.. .. Opp.Parties.
Adv.for the Complainants – Sri P.Agrawal & Associates.
Advocate for O.P.No.1 - Sri L.Padhi & Associates.
Advocate for O.P.No.2 - Sri S.B.Acharya & Associates.
Advocate for O.Ps 3 & 4 - Sri B.S.Satpathy.
Date of filing of the case- 26.02.2013
Date of order - 03.07.2015
JUDGMENT.
Sri P.Samantara, President.
Brief facts of the case are that the complainants in availed of a finance amounting to Rs 4,00,000/- through the O.P.2 in purchase of a Mahindra Bolero XL 2WD from ADITYA MOTORS,Phulanakhara,Cuttack-754001.The complainant averred, the vehicle costs Rs 6,10,138/- bearing Regd.No.OR-03G-8662,Chassis No. MAIWG2GHK-B5C71449 and Engine No.GHB4C23597. The vehicle ;is financed by Cholamandalam Investment and Finance Company limited, Branch-Khariar Road, Nuapada, having head office at Chennai.
2. The complainant further averred, he has deposited Rs 10,000/- on dt.15.04.2011 towards booking charges of the vehicle against account No.30478263804 (M/S. Aditya Motors) Cuttack, and also deposited a sum of Rs 2,00,000/- on dated 18.04.2011 and by Sitakanta Bhoi Rs 50,000/- on dated 18.04.2011 plus Rs 1,50,000/- on dated 19.04.2011 against the same SBI account being a guarantor on such financed purchase. Post these payments, the vehicle delivered on dt.30.04.2011.
3. It is also added complainant has issued twenty numbers of (PDC) to O.P.No.4 from his account bearing No.11341826710 (SBI),Bolangir Branch. The EMI is Rs 11,370/- and 19nos. cheque has been encashed and one cheque has not yet encashed as because same is blank as per the instruction of the NBFC company. The complainant states in encashment 19 nos. cheques, each amounting to Rs 11,370/- ,the financer has already collected Rs 2.16,030/- besides the collection agent named Santosh Kumar Pujari has collected Rs 11,370/- each respectively on dated 04.01.2013 and 01.02.2013 being an excess amount collected at O.Ps end. The booking cheques original receipt handed over to the O.P.No.2.
4. The complainants more added to the fact that although they have paid more than cost of the vehicle, the O.P.4 has made a letter on outstanding of 27 nos installments is to be paid each amounting to Rs 11,370/- stating in fact the complainants are not liable to pay anything either to the O.P.No.1 or to O.P.No.4 and demand letter issued by O.Ps 3 and 4 is simply an unfair trade practice in exploitation of consumer. The booking charges Rs 10,000/- has been deposited on O.P.1 account.
5. Further it is found, the complainant has effected with deception of Rs 2,00,000/- and the O.P.No.4 demand of installments is illegal. The cause of action arose on dt.10th February 2013 in issuance of letter dated 07.02.2013. Relied letter dated 07.02.2013,deposit receipts in various dates, along with R.C.book of the vehicle, affidavit and later on written note of argument. Praying direction be made that the complainant is not liable, to pay any more. O.P.No.4 be directed to return last un encashed cheque and a refund of excess amount of Rs 22,740/- as collected, along with litigation expenses.
6. On getting notice, the O.Ps appeared and filed their respective version in various different dates, as follows.
7. The O.P.1 filed the version contending that the assertion in para-1 of the complaint is not fully correct and onus lies on the complainant to adduce legal evidence. In fact O.P.No.2 is the representative of the financier O.Ps No.3 and 4, through whom the vehicle in question has been purchased through finance in favour of the complainant No.1 has been effected.
8. Again admittedly stated that the complainant and one named Sri Kailash Mohanty of Bolangir, both have purchased the vehicle on same day and taken possession of vehicle through the O.P.No.2 Mr.Aswini Swain, on payment and there is no dues of the O.P.No.1 against the complainant.
9. Further added that booking charges amounting to Rs 10,000/- has been paid by O.P.No.2 against booking of two vehicle- One for China Meher and another for complainant, accordingly receipts are issued. On the allegation of payment of Rs 2,00,000/- , it is submitted the 2 lakhs have been paid towards the vehicle in question. In addition to the same, further admitted Rs 50,000/- has been given towards the vehicle of Kailash Mohanty, more with Rs 1,50,000/- has been also paid towards the vehicle Kailash Mohanty, issued with receipt. All the above payments paid through the O.P.No.2. O.P.No.2 delivered the vehicle to the complainant on dt.30.04.2011.
10. The O.P.No.1 averred that he has received ed the entire cost of the vehicle, receipt has been issued and the allegation made against the O.P is false and incorrect. That neither there is any cause of action nor any manipulation/deception or deficiency of service in evident on the face of the record. The entire amount deposited in the account of this O.P has been accounted with so far as the instruction of the O.P.No.2 which needs to be taken into account. In view of the above made averments this O.P has no liability, there is no case against the O.P, thus the case may be dismissed against the O.P under the above circumstances, Relied on transaction regularization form, release letters, Money receipts & Retail Invoice in photo copies.
11. The O.P.No.2 filed the version on dated 03.01.2014 contending that O.P.No.2 is not the sales representative of O.P.No.1 and O.P.No.2 has no connection in between the mode of finance or with O.P No.3 and 4 .He is a totally stranger to the present case so to say the complaint is totally baseless against him.
12. Further stating he has not received any booking charges as alleged and averment on delivered vehicle on 30.04.2011 to the complainant is vehemently denied., the allegation made by the complainant is false and fabricated, further averring O.P.2 has never delivered any vehicle to any body by virtue of any finance .On the other hand, the allegations made by the complainant for reference of any letter of correspondence with respect to any finance is a fake and frivolous one. The complainant has never handed over any receipt to the O.P.2 at any point of time and further the allegation made by the complainant is an imaginary one. That there is no cause of action against the O.P.2,further jurisdiction and provision of any does not stand against the O.P.2 as because the O.P.No.2 was neither an employee of the company nor he has engaged in any type transactional reference.
13. Further submitted that the case which has been filed by the complainant against O.P.2 is not maintainable as because, prima-facie, there is not any connection between the parties, companies with respect to any finance of any vehicle; Again O.P.2 never delivered any vehicle to the complainant, neither involved any transaction nor has taken any money from the complainant at any point of time. On the alleged amount, it is stated the money has been deposited by the complainant is within account of O.P.No.1 which has been deposited at S.B.I. Bolangir Branch, and cheques if any has been encashed by the M.D. of the company (Cholamandalam ). So in view of the aforesaid facts and circumstances, the petition may kindly be dropped to meet the ends of justice.
14. Perse the O.Ps 3 and 4 contended that instant consumer complaint as filed by the complainant is not maintainable either law or in facts. There is neither any deficiency of service nor any cause of action. In absence of same, the complaint is unsustainable in the eyes of the law and on this score be dropped. The complaint relates purely to accounts and payable of EMI, so law in this regard is well settled that the account related disputes cannot be decided by the consumer forums.
15. It is also more contended, the complainant has availed the finance for a Bolero vehicle for commercial purpose and the declaration that he is self employed in agriculture with annual income Rs 4,00,000/- ,therefore the instant finance is not to earn livelihood but for commercial purpose, which does not qualify the ingredients of a valid complaint envisaged u/s. 2(c ) of the Act. More to say the dispute is not maintainable because of Arbitration and jurisdiction clause in the agreement.
16. The O.Ps 3 and 4 has financed Rs 4,00,000/- on the application and agreement with condition that same to be repaid in 46 EMI @ Rs 11,370/- and it is not a fact no blank cheque was given to the O.P. No excess amount has been received by the answering O.Ps. The repayment structure in the application & agreement cannot be challenged after 1 & ½ years of execution and moreover consumer forum under the provisions of C.P.Act lacks jurisdiction to interfere into the sanctity of the agreement. No contractual obligation has been discharged relating installments & dues in time. It is also submitted that the part PDC cheques were issued by the complainant being duly filled up with date and amount. The cost of the vehicle was Rs 6,10,318/- and finance was Rs 4,00,000/- thereby down payment should be Rs 2,10,318/- and the alleged extra amount over and above the down payment of Rs 2,10.318/- needs to be clarified by the account holder only.
17. In view of the aforesaid facts and circumstances of the case, O.Ps 3 and 4 humbly pray this learned forum that in exercise of the power conferred u/s. 26 of the Act 1986 may be dismissed with the exemplary cost.
18. Heard the learned counsel of the complainant and counsels of the O.Ps at length. The learned advocate on both contended each others submissions and evidence on record. Also gone through erudite arguments at boths ends .Perused the materials on record and submitted affidavit.
19. On the outset, it is clear and on record, the vehicle costs Rs 6,10,138/- and we notice on dt.15.04.2011 a sum of Rs 10,000/- deposited towards booking charges and subsequently a sum of Rs 2,50,000/- on dt.18.04.2011 and Rs 1,50,000/- dt.19.04.2011 against the account No.00478263804,SBI,Bolangir, Branch and the vehicle delivered on dt.30.04.2011 and the vehicle supplier (the O.P.No.1) also availed the loan amount Rs 4,00,000/- from Cholmandalam Finance under documentation. So it is more than the fact that the O.P has deligently accepted Rs 8,10,000/- without any objection against the declare cost of Rs 6,10,138/- . The O.P.1 contended, the facts as elaborated in application is not fully correct and admittedly states, Mr. Ashwini Swain has made payment for an other purchaser of Bolangir named Kailash Mohanty and there is no dues on the complainant so it is collusion by the parties to deceive the amount of Rs 2,00,000/- in cunning, shrewd and employing deceptive mode against the complainants.
20. On perusal of record the O.P.2 vigorously denounce his involvement and transaction made. On the context of affidavit that has been sought on his profession, accounts status and involvement in the case that compelled others to made him a party. The submitted affidavit by the O.P.No.2, which he does not prefer to answer the points of evidence as desired by the forum nor adduce any paper relating to the profession. Rather reply is far from truth, casual and managed one, we hereby ponder to note, employer and employee is in knowledge to unearth nothing concrete.
21. Being perused the affidavit evidence as sought by this forum from O.P..1 where in the para-11 of the affidavit reveals- in fact the O.P.No.2 is the representative of the financier O.P No.3 & 4 through whom the vehicle in question has been purchased, financed in favour of the complainant which is not supported by any document. We find both the O.Ps No.1 and 2 are in collusive evasive exercise.
22. Similarly the sum of Rs 10,000/- the booking charges which has been deposited in the bank, but astonishingly the amount has been bifurcated without the involvement of O.P.No.1 is not yet sufficiently cleared at either’s end. The produced money receipts are manually issued and same does not tend to suffice the mode of issuance has taken place in transparent manner although the money deposited in the account by cash of Rs 10,000/- through the bank. So tampering ,maladjustment and deceptive endorsement in record is vivid and deliberate and the complainant is no way responsible to adduce evidence or proof against the commission of bifurcating the amount that deposited in O.P.No.1’s account. So also out of Rs 4,00,000/- deposited at O.P.No.1 account which has been siphoned off towards other vehicle purchase. The entire onus rest on theO.P.1 to answer, clarify and corroborate that same has not been done or the defalcation caused at his end. Entire submission does not reveal that the allegation as made on diversion of money from the deposit of complainants to O.P.1 account has been made by O.P.2 or by others end. The entire story cannot be happened without the involvement, active participation and deceptive and defalcation indulgence. We are clear the O.P.1 has behind the envisioned mal-marketing concept that landed the complainant into mis-leading deceptive practice costing deliberate and intended diversion of deposit money with the help of other.
23. On other hand, the O.P.2 has denied all the facts against him without any documentary evidence. The evidence sought on his professional status and transaction position on his bank account has been completely avoided him and also by O.P.1 and O.Ps 3 &4 on the same issues. It is also on his agency profession. He has been proceeded with action in various consumer cases under this Forum. Mere denial does not absolved his involvement in the shrouded deal under Aditya Motors banner. It is come to surface, the other O.Ps usually used him underpin dealing as both of them castigate each other that Aswini Swain is the agent of other, which is established, he is in the knowledge of O.P.No.1 and O.Ps 3 &4. In such a situation, we apt to know, O.P.1 as advance that he is a stranger to the case is untrue and ill represented one. It is made out he make liaison in procuring potential consumer for sales and arrangement of finance to sales. His entire dealings have been suppressed in a collusive manner of exercise.
24. Further, it is raised interganum petition by both O.P.1 and O.Ps 3 & 4 that the case is not maintainable as because the case relates to commercial purpose, arbitration clause and jurisdiction clause, sanctity of agreement, the case involves the allegation of accounts matter and misappropriation of the money & being a complicated case cannot be decided summarily rather referred to the civil Court.
25. On the above noted issue, it is well settled that in purchase of a vehicle against paid consideration, the complainant is a consumer, the finance availed by him exclusively for the purpose of earning his livelihood by means of self employment and no bar restricts in multiplicity of employment under the law.. So in perusal we find the case is maintainable, got the jurisdiction and suffered no barred of limitation. Primarily it is a consumer case, arbitration clause is not a bar to the entertainment of the complaint by redressal agency, as authoritatively settled, again the case has been made complicated by the O.Ps raising various issues beyond the purview, which is under the purview to be adjudicated.
26. Further it is noticed from the record one criminal case bearing 1CC No.104/2013 has filed under various offence but when O.Ps 3 & 4 made submission on hearing that the person named Aswini Swain ( O.P.2) is no more, the agent of the finance company and perusal of 1CC complaint and other record reveals he has introduced the complainant and involved during course of business, such admission and countenance speaks the double standard ensured to bulldoze the designed involvement, that does not convey good news that O.P.2 is a stranger, has been charged with misappropriation of money deposited in O.P.1’s SBI account and O.P.3 and 4 is no more to concern and they are only concerned for the finance amount in such a scenario, it is substantively transpire O.Ps 3 and 4 has taken the help, in mustering the suppressed facts in diversion of money in glove with the vehicle supply agency, in which all the circumstance strengthens our belief.
27. Again on the submission of O.P 3 and 4 ,the question raised is ;-
(i)The Opposite Parties are not having any branch office at Bolangirt under the territorial jurisdiction of this forum.
(ii)As there is one “Arbitration clause’ the dispute matter should refer to the sole Arbitrator for adjudication.
28. The submission on first point, it is warranted to file the license of the NBFC company, which will clearly say about the jurisdiction of business is of all India periphery, the office stationed at Chennari, how do permitted to make business at Raipur, Nuapada district and Bolangir. The license has not been produced to declare authenticity & authorization to conduct business which will suffice the jurisdiction, Giving finance is a service. So to say service is intangible and jurisdiction can contain every district of the Odisha.
29. On the Arbitration clause, contention- it is pertinent to note that the contention is baseless in view of the decision, we prefer to rely- M/S. Magma Financial Corporation –Versus- Pandit Ishwar Dev Thakur, in which it is held- “where arbitration proceedings were initiated much after the consumer complaint was filed and then arbitrator gave award it would not render complain or order passed by consumer Fora infructuous “. And again it maybe stated that the provisions of Sec.3 of the Consumer Protection Act,1986 is in addition and not in derogation of the proceedings of any other law for the time being in force Thus the case is maintainable under the jurisdiction.
30. On the contrary, the O.Ps 3 and 4 is silence over the status of O.P.2”s professional relation and communication, above all dealing hitherto made by him and non production of any books of account that has malafidely suppressed for which the concoction will come to the light. It is an admitted legal proposition fraud vitiates ever thing and visits with penal consequences, the fraud and deception in this case was perpetuated with the active connivance of some black sheep working in the institution and those should be deterred at any cost.
31. After considering the respective contentions of learned counsels for the parties we directed the O.Ps to produce, the points of evidence by affidavit. Except O.P 3 and 4 all the O.Ps give affidavit but far from opted points. Even the complainant is given with option to made a commission of chartered firm to look into the irregularities, but the complainant does not prefer in appointment of chartard firm commission rather prefer to goes by the records at hand.
32. Having regard to complaint, it is noticed, he has deposited an amount of 4 lakhs in various dates, in the SBI account of O.P.No1. On the either hand, it is said only two lakhs has been received and another two lakhs has been summed up against another person. O.P.2 claimed to be a stranger, astonishing O.P.1 says he is the agent of the financier. O.Ps 3 and 4 . On the other side O.P 3 and 4 said, the acquaintance is made during course of business and also made a 1CC case against him. In such situation, we come to belief, the O.P.2 is more or less familiar and acquainted with the business of O.P.1 and O.Ps 3 and 4 . And the alleged amount of 2 lakhs has been apparently diverted from the complainant’s deposit in SBI account of O.P.1 by the active connivance of O.P.2 and O.P.1 is the sole culprit in hatching the malafide design to suit his promotion of interest. It is simple and substantive.
33. In view of the aforesaid discussion land observation we find the complainant has got the merit in his dispute. The arbitration order has been set aside as declared. The direction will move to under the above noted pith and substance of unfair trade practice.
Hence ordered.
ORDER.
(i) We hereby direct the O.P.1 to pay a sum of Rs 2,10,000/-( Rupees Two lakhs ten thousand) only, along with interest @ 14.42% P.A. from the date of deposit/ payment made by the complainant till the date of this order to O.P.3 and 4 and also to pay Rs 1,000/- ( Rupees One thousand) only, as litigation expenses to the complainant within 30 days of this order, failing which interest @ 12% P.A will accrue on the entire amount till payment.
(ii) We further direct O.P.2 to pay a sum of Rs 10,000/-( Rupees Ten thousand) only, towards the loss sustained by the complainant along with a compensation of Rs 2,000/-(Rupees Two thousand) only, towards causing loss, harassment and mental agony, for the active connivance with other and misinforming the forum by affidavit, in addition with a sum of Rs 1,000/-( Rupees One thousand) only, towards litigation expenses to the complainant within 30 days of this order, failing which the entire amount carry interest @ 12% per annum from the date of application till realization.
(iii) We further direct the O.P.3 and 4 shall refund the excess amount already deposited by the complainant amounting to Rs 22,740/- (Rupees Twenty two thousand seven hundred forty) only, and pay a compensation of Rs 5,000/- (Rupees Five thousand) only along with Rs 1,000/- (Rupees One thousand) only as litigation expenses to the complainant within 30 days of this order, failing which the entire amount of Rs 28,740/- will carry interest @ 12% P.A. till payment and they shall not collect any pie from the complainant.
(iv) The interim order passed on dated 27.02.2013 vide Misc.case No.2/13, in the aforesaid case is stands vacated.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 3RD DAY OF JULY 2015.
I agree. I agree.
( S.Rath) (G.K.Rath) (P.Samantara)
MEMBER. MEMBER. PRESIDENT.
