DATE OF FILING                    :   27-05-2011.

DATE OF FINAL ORDER      :   20-03-2012.

Md. Safir Ansari,

son of Late Md. Siddique,

of 24-A, Hemanta Chatterjee Street, P.S. Bally,

District –Howrah---------------------------------------------------------------  COMPLAINANT.

                                             -   Versus   -

                                                P   R    E     S    E    N     T

                         1.     Hon’ble President    :     Shri T.K. Bhattacharya.

                                C      O      U       N        S        E        L

Representative for the complainant           :     Shri Kamal Kumar Sen,

                                                                             Ld. Advocate.

Representative for the O.P. No.-1               :    Shri Ajay Chakraborty, 

                                           F  I   N   A    L       O   R   D    E     R

1.         This is an application U/S 12 of the C.P. Act, 1986 praying for Rs. 6,00,000/- ( Rupees Six lakhs ) for mental suffering and harassment and Rs. 1,00,000/- ( Rupees One lakh ) for mental and physical torture perpetrated upon him by the o.ps. who took recourse to forceful means for the failure to repay the loan amount together with other reliefs as this Forum may deem fit and proper.

2.         Though the complainant made payment to the tune of Rs. 73,000/- or more towards repayment of sanctioned loan of Rs. 4,57,690/- as per agreement with the O.P. no. 1 dated 28-08-2010 through E.M.I. @ Rs. 18,270/- from Punjab National Bank, Liluah Branch, Howrah, and the total period being fixed up till 10-01-2013, O.Ps. snatched away the vehicle being no. WB 53 A 3675 TATA LPT 1613 by muscle power with the help of mercenary hooligans on  27-03-2011 and all his requests went unheeded. Hence the complaint. 

3.         The o.p. no. 1 contested the case by filing written version admitting the agreement and contended interalia that the total loan amount together with interest was to be repaid in 35 installments @ Rs. 18,270/- E.M.I. As the complainant failed to pay the E.M.I. the matter was referred to the Arbitrator as per Arbitration Clause and the proceeding are still pending ; that no force was applied for taking over possession of the vehicle,  rather it was repossessed and peacefully taken over as per the clause of hypothecation in the agreement ; that from the statement of claim before the Arbitrator Rs. 5,00,000/- ( Rupees five lakhs ) and more was due and that is why the vehicle was repossessed. So this is a fit case for dismissal.

4.         Upon pleadings of the parties following points arose for determination   :

1.         Is the complaint maintainable in view of the Arbitration Clause  ?

2.            Is there any deficiency in service on the part of the o.ps. ?

3.            Whether the complainant is entitled to get any relief as prayed for  ? 

DECISION OF  REASONS  

Point No. 1.

5.         The o.ps. in their written version and in the petition U/S 26 of the C.P. 1986 categorically stated that Section 5 and Section 8 of the Arbitration and Conciliation Act, 1996 contains a mandatory provision that if a proceeding is instituted before a Judicial Authority  in respect of which there is inexistence of agreement of arbitration, such judicial authority will refer the parties to Arbitrator. O.P. no. 1 further contended that arbitration agreement is wide and comprehensive and encompasses the entire spectrum of the disputes. So this Forum has no jurisdiction to entertain, try and determine the instant case. In support of such contention  o.ps. cited that decision of  Karnataka State Commission reported in 1995(3) CPR  page 93 and also referred a copy of one judgment of Hon’ble State Commission, West Bengal,  passed on 24^th May, 1996 only to establish that the relationship between a debtor and a creditor does not come within the scope of the Consumer Protection Act, 1986.

6.         We are unable to accept the contention in view of the fact that the former judgment of Hon’ble Commission of Karnataka was in connection with a case where the auction bid was accepted against a very paltry  amount  and thereby not identical to that of the case at hand. The other judgment was passed in the year 1996.  We are in the dark if any appeal was preferred against the same order. That apart the instant case is altogether different where the o.ps. in a high handed manner allegedly took possession of the vehicle with the help of muscle men.

7.         In fact the prayer of the complainant is fortified by two cited decisions - one of the Hon’ble High  Court of Andhra Pradesh  reported in AIR 2008 A.P. 166 wherein it is observed that Section 8 of the Arbitration and Conciliation Act, 1996 has not taken away the jurisdiction of Consumer Forum and remedy under Consumer Protection Act, 1986 is not in derogation of remedy provided under the said Act of 1996.  This observation of the Hon’ble High  Court is reinforced in the celebrated decision of the Hon’ble Apex Court in the judgment reported in 2000 Supreme Court Cases Vol. 5 page C 294, simultaneously reported in AIR 2000 (Supreme Court) page 208. Hon’ble Supreme Court held that existence of an arbitration clause in the agreement is no bar to entertain the complaint under Consumer Protection Act, 1986 as the remedy under this Act is in addition to the provision of any other law. Section 3 of the Consumer Protection Act, 1986  is reproduced for proper appreciation. That the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

8.         Therefore, in view of the settled principle of law on this score after the Pronouncement of the Hon’ble Apex Court, we are of the view that the dispute over the exclusion of jurisdiction of this Forum in view of  incorporation of the Arbitration Clause in the Agreement is set at rest. The case is quite maintainable before this Forum. Accordingly the point no. 1 is disposed of. 

Point Nos. 2 & 3  :

9.         Both the points are taken up together for consideration. The instant case is a class by itself. It reminds us the story of the famous Drama Merchant of Venice by Shakespeare where Shylock, a hard-heated moneylender pressed for the flesh of the borrower on his failure to repay the borrowed sum.  

10.       Ours is a story virtually identical in character where the complainant Md. Safir Ansari, owner of the vehicle no. WB - 53A- 3675, a truck meant for his livelihood, approached the O.P. no. 1 through the O.P. no. 2 for financial assistance for furnishing and repairment of the said vehicle, and soon the deal was translated into an agreement dated 28-08-2010 resulting the allotment of a sum of Rs. 4,57,690/-. But to the utter surprise of the complainant a cheque to the tune of Rs. 4,14,525/- with no clarification for deduction of the amount of Rs. 43,000/- and odd from the allotted amount, was issued with EMI @ Rs. 18,270/-, repayable by 35 EMIs by 10^th January, 2013. The complainant was paying the EMIs regularly upto the month of Feb’11 and paid Rs. 73,000/-. But on his failure to pay the EMI for March, 2011, the O.P. no. 1 forcibly repossessed the vehicle for the purpose of the loan, with the help of muscle power though it was not purchased by the same loan amount. All his cry for release of the vehicle went unheeded and it was sold as alleged.

11.       The O.P. no. 1 in the petition filed U/S 26 of the C. P. Act, 1986 as well as in the written version held high the deed of agreement and attached much importance  to the terms of default in the payment of E.M.I., as if it is as sacred as the religious scriptures and there cannot be any respite for the borrower who once recorded his signature there.

12.       Annexure A is the loan cum guarantee agreement. It runs in 8 pages. The prints of  the contents are in terribly smallest form and not readable without the help of the magnifying glass. It is needless to mention that a needy borrower never goes through the terms in between the lines and a tolerably literate person like the  present complainant who can simply record his signature in English, can never understands its purport, nor can realize the chicanery or the legal jugglery as embodied there. Naturally the hapless borrower, the complainant, was compelled to record his signatures in the pages of the virtually unilateral agreement, not knowing its consequences. We can draw a dramatic analogy of irony of the case of King Duncan in Shakespeare’s Macbeth who is pleased to accept Macbeth’s hospitality, not knowing that Macbeth is going to murder him that night.

13           In the instant case the loan provider, like the poacher  reaped this

predicament of the innocent borrower, the complainant and he was rather compelled  by circumstances to record his signatures on the pages of the Annexure A i.e. the agreement dated 28-08-2010. So we are of the view that the said agreement being virtually unilateral in temperament cannot be as sacrosanct as canvassed.

14.       That apart the default for a single month i.e. Marh’11 cannot ip-so-facto authorize the O.P. no. 1 to take recourse to extremely high handed measure i.e. to virtually snatch the vehicle with the help of mercenary hooligans, when Hon’ble Supreme Court currently is of the view that hypothecated vehicle cannot be repossessed by rough and tough measures even if there occurs default.

15.       The complainant is a bonafide consumer. As soon as he enters into an agreement i.e. written contract, he is construed as the consumer in terms of Section 2( c ) of the Consumer Protection Act. The o.ps. as the service provider have got total responsibility for any act which are mentioned as ‘Restrictive Trade Practice’ U/S 2( c )( i ) and 2 ( r ) of the C.P. Act, 1986. Unfair Trade Practice means a Trade practice for the purpose of promoting, sale, use or supply of any goods or for the provision of any service the service provider adopts any unfair method or unfair or deceptive practice.

16.       Coming to the definition of deficiency as enjoined in the Section 2(1)(g) of the said Act we come across that any fault, imperfection, shortcoming or inadequacy in the  quality, nature and manner of performance which is required to be maintained by or under    any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.  In the present case o.ps. deliberately snatched the vehicle in question without giving him any opportunity to hear for his default for only one month, which is definitely comes within the ambit of deficiency in service U/S 2(g) and thereby involving Section 12 of the C.P. Act, 1986 as amended. 

17.       Therefore, in the light of the observations that is foregoing, we are of the view that the o.ps. adopted extreme measures to repossess the vehicle in dispute from the lawful possession of the complainant who is a consumer by virtue of the agreement dated 28-08-2010. The Consumer Protection Act, 1986 has a wide reach to compensate the complainant who had to withstand undepictable  physical and mental sufferings together with the insult in the estimation of his neighbours having been forcibly dispossessed of his only means of livelihood i.e. the vehicle being no. WB-53A-3875 which constitutes a great loss to him and his family. We are of the view that the capricious and oppressive act on the part of the o.ps. in  snatching the vehicle shall not go unpunished.

18.       With a view to vindicate the strength of law to check on arbitrary and capricious exercise of power, in tune with the observation and direction of the Hon’ble National Commission as reported in 2004 AIR SCW 2362 in awarding compensation, we are of the view that the o.ps. shall be saddled with a compensation of Rs. 4 lacs payable to the complainant for prolonged mental agony. Further award of compensation of Rs. 3 lacs for harassment and mental torture perpetrated upon him and a sum of Rs. 2 lacs for lowering down the social status and prestige of the complainant in the estimation of others shall be appropriate and proper. Further sum of Rs. 1 lac for causing illegal and overt acts violating principle of law, equity and natural justice shall be reasonable and justified.

            Both the point nos. 2 & 3 are accordingly disposed of.        

            Hence,

                                    O     R     D      E      R      E        D   

      That the C.C. NO. 43 of 2011 ( HDF 43 of 2011 )  U/S 12 of the C.P. Act, 1986 as amended till date is allowed on contest against the O.P.-1 and dismissed against the O.P.-2 without cost.

      The complainant is entitled to a compensation of Rs. 4 lacs  from the O.P.-1 for his prolonged mental agony.

      The complainant is further entitled to an award of compensation of Rs. 3 lacs for prolonged harassment and torture perpetrated upon him by the O.P.-1.

      The complainant be further entitled to a compensation of Rs. 2 lacs for lowering down his social status and prestige in the estimation of others by the overt acts of the O.P.-1.

      The complainant is further entitled to a compensation of 1 lac from the o.ps. for causing illegal and overt act violating the principle of law, equity and natural justice by the O.P.-1.

      The complainant is further entitled to litigation cost of Rs. 10,000/-.

      The o.ps. do pay total compensation aggregated to Rs. 10,10,000/- to the complainant within 30 days from the date of this order failing the sum shall carry an interest @ 18% per annum till full satisfaction of the decree.

      The complainant is at liberty to put the order into execution after expiry of the appeal period.   

            Supply the copies of the order to the parties,  as per rule.