C.F. CASE No.          : CC/09/01                                                                                                         

 

COMPLAINANT             :  Tarun Chakrobarty

S/o Sri Pran Gopal Chakrobarty

of Arabinda Road, P.O. Krishnagar,

P.S. Kotwali, Dist. Nadia.

 

 

       –  Vs  – 

 

 

OPPOSITE PARTIES/OPs   : 1.  The Manager, HDFC Bank Ltd.

having its office at 

Retail Asset Division Gillander House, 

1st Floor, A – 1, 8 N S Road, Kolkata  &

Register Office at HDFC Bank House, 

Senapati Bapat Marge,

Lower Parel (West) Mumbai – 400 013.

 

 

             : 2. Samit Halder (Owner)

A.S.A. Enterprise,

L.M. Ghosh Road, P.O. Krishnagar,

P.S. Kotwali, Dist. Nadia.

 

 

             : 3. The Collection Agent 

Samadhan Advisory Services Pvt. Ltd.,

Beledanga, P.O. Krishnagar, 

P.S. Kotwali, Dist. Nadia.

 

 

PRESENT              :  SHRI DILIP KUMAR BASU                     PRESIDENT              :  SMT SHIBANI BHATTACHARYA          MEMBER  

 

DATE OF DELIVERY             

OF  JUDGMENT               :    28th April, 2009.

 

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:    J U D G M E N T    :

 

The fact of the complainant's case, in a nutshell, is as follows. 

The complainant, Tarun Chakraborty has filed this case against the OPs viz., (1) The Manager, HDFC Bank Ltd., 8, N.S. Road, Kolkata, (2) Samit Halder (Owner), ASA Enterprise, L.M. Ghosh Road, Krishnagar and (3) The Collection Agent, Samadhan Advisory Services Pvt. Ltd. alleging that he purchased a Bajaj Motor Cycle from the OP No. 2 at a price of Rs. 33,703/- on 27.06.06.   He deposited Rs. 8,000/- in cash to OP No. 2 at the time of purchase and handed over 36 post dated cheques in favour of OP No. 1 for making payment as monthly installments.   At the time of purchase the financier was Centurion Bank of Punjab; subsequently, the same financier has been merged with HDFC Bank Ltd.  At the time of sanctioning loan, the agent of Centurion Bank of Punjab obtained his signatures on some blank papers and also on some written papers.  The monthly installments were in Rs. 1000/- to Rs. 1200/-.    The OP No. 1 has encashed the post dated cheques on 01.09.06, 11.10.06, 20.11.06, 1212.06, 16.01.07, 18.05.07, 25.05.07 and 12.12.07, total 8 cheques.    The OP No. 1 received Rs. 9,688/- through cheques and Rs. 21,767/- in cash through the agent.    The OP No. 1 by registered notice dtd. 02.12.08 has been claiming Rs. 24,645.86 which is absolutely illegal.  The OP No. 1 has adopting unfair trade practice by claiming Rs. 24,645.86. The OP No. 1 is trying to seize the Motor Cycle.  By filing the instant case he has prayed for restraining the OP No. 1 or his agent, muscle men permanently from snatching the Motor Cycle, No. WB – 52/E 3235 from his custody, an order that the sum of Rs. 24,645.86 as claimed by OP No. 1 is vague and fictitious, compensation of Rs. 50,000/- for mental agony and harassment and other relief.

The OP No. 1 &2 have not been contested this case by filing written version.   

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The OP No. 3 has contested this case by filing a written version alleging that by dint of an executed agreement the OP No. 3 became the agent of HDFC Bank for collection of retail asset on behalf of the said Bank.  The OP No. 3 has no liability in any way and he is not the necessary party in this case.

 

In view of the above facts the following points can be taken into account for proper adjudication.

Point No.1    Whether the OPs have caused any deficiency in service as alleged?

Point No.2    Whether the complainant is entitled to get compensation as prayed for?

 

FINDING WITH REASONS

 

Both the points are taken together for sake of convenience and for the purpose of avoiding needless repetitions. 

It is admitted fact that the complainant, Tarun Chakraborty purchased Bajaj Motor Cycle from the OP No. 2 at a price of Rs. 33,703/- on 27.06.06.  It is also admitted fact that he purchased the same in installments for which he issued 36 post dated cheques to repay the installments.  From the statement of accounts supplied by the Bank (xerox copy), it reflects that on 01.09.06 the complainant paid Rs. 1211/- vide cheque No. 265141, On 11.10.06 Rs. 1211/- vide cheque No. 265142, on 20.11.06 Rs. 1211/- vide cheque No. 265143, on 12.12.06 Rs. 1211/- vide cheque No. 265144, on 16.01.07 Rs. 1211/- vide cheque No. 265145, on 18.05.07 Rs. 1211/- vide cheque No. 265149, on 25.05.07 Rs. 1211/- vide cheque No. 265150, on 12.06.07 Rs. 1211/- vide cheque No. 266161.  Thus, the complainant paid Rs. 9,688/- through the post dated cheques.    The payment receipts (xerox copy) transpires that on 02.03.07 one P. Biswas received Rs. 1211/-, on 15.07.07 one Sandip Chatterjee received Rs. 1211/-, on 28.09.07 one Tirthankar Biswas received Rs. 1211/-, on 15.11.07 one Tirthankar 

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Biswas received Rs. 1181/-, 28.12.07 Tirthankar  Biswas received Rs. 1181/-, on 01.01.08 P. Biswas received Rs. 1181/-, on 29.02.08 Tirthankar Biswas received Rs. 1181/-, on 10.02.08 Tirthankar Biswas received Rs. 1181/-, on 26.03.08 Tirthankar Biswas received Rs. 1581/-, on 29.04.08 Tirthankar Biswas received Rs. 1581/-, on 30.05.08 T. Biswas received Rs. 1581/-, on 29.06.08 T. Biswas received Rs. 1181/-,  on 27.08.08 Ramesh Sarkar received Rs. 1181/-,  on 30.10.08 Ramesh Sarkar received Rs. 1181/-,  on 22.10.08 Ramesh Sarkar received Rs. 1181/-, on 28.11.08 Rupam Roy received Rs. 1181/-, on 25.12.08 Rupam Roy received Rs. 1181/-.   Thus, the complainant has paid Rs. 9,688/- through cheques + Rs. 21,367/- by cash totalling to Rs. 31,055/-.   

The Ld. Lawyer of the complainant has argued that after filing this case he has paid Rs. 3,543/- vide receiving date 15.03.09, 15.03.09 and 27.01.09 received by Bikramaditya Chanda on 15.03.09 and Rupam Roy on 27.01.09.   The receipts filed here have clearly transpired that the complainant since March, 2009 paid Rs. 31,055/- + Rs. 3,543/- = Rs. 34,598/-. 

The Ld. Lawyer of OP No. 3 has argued that the complainant has no grievance against him and no relief has been claimed against him.  After receiving the notice the complainant ought to consult with the Bank within 60 days.   The procedure is that the Bank shall not seize the Motor Cycle within that 60 days.  By that time, the complainant has not contacted with the Bank.   He has further argued that this Forum has no jurisdiction to entertain the complaint.   The complainant ought to file this case to Debt Recovery Tribunal to get relief.

The ruling 1 (2008) CPJ 214 (NC) provides “(II) Jurisdiction – Arbitration – Hire purchase agreement – Additional remedy provided under C.P. Act – Jurisdiction of Forum not ousted by arbitration clause in agreement.” 

The ruling III (2008) CPJ 216 provides “(III) Hire purchase agreement – arbitration clause – provisions of Consumer Protection Act in addition to, not in 

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derogation of provisions of any other law – Complaint before Fora maintainable irrespective of arbitration clause in agreement.”

In view of the above cited rulings read with Section 3 of this Act, we are of opinion that this Forum had the jurisdiction to entertain this complaint.  

We have already come into finding that the complainant till today had paid Rs. 34,598/-.   

The sum of Rs. 24,645.88 as pointed out in the notice may not be due.   However, the complainant may be asked to contact with the OP No. 1 for ascertaining the actual dues which may be cleared off as per agreement by May, 2009.   It is fact that installments are still due which will be according to the contract satisfied by May / June, 2009.  Under this circumstances, we can not say that the complainant has paid all his dues and we cannot direct the OPs not to take any action against the complainant for realization of the dues from the complainant.

It is settled principle that the Apex Court and the various High Courts of our country have been discarding to seize the vehicle through muscle men without adopting the procedure of law.  In the instant case we also remind the OPs not to take any assistance of the muscle man to seize the Motor Cycle of the complainant without adopting due procedure of law.

In view of the above facts the complainant has succeeded to establish his case in part.

Considering the facts and merit of the case, we pass no order as to awarding compensation.

Hence,

Ordered,

That the instant case is allowed in part on contest against OP No. 3 and exparte against the OP No. 1 & 2 without any cost.

The complainant is directed to consult with the OP No. 1 for ascertaining 

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the dues.

The OP No. 1 & 2 are also directed either jointly or severally to furnish a statement of account after verifying the papers lie with them and furnished by the complainant within 15 days from the date of meeting the complainant with the OP No. 1 or 2 with all documents.

We pass no order as to seizure of the Motor Cycle.

Hand over a copy of this order to the parties free of cost.

The case is disposed of by 1 month 13 days.

 

Dictated & corrected by me.

 

  (D.K. Basu)

    President         

C.D.R.F., Nadia

           (S. Bhattacharya)           (D.K. Basu)

Member             President            

           C.D.R.F., Nadia      C.D.R.F., Nadia