C.F. CASE No.          : CC/08/63                                                                                                         

 

COMPLAINANT             :  Sri Sanjoy Das,

S/o Late Kalachand Das

of Dhubulia Bazar Colony,

P.O. & P.S. Dhubulia,

Dist. Nadia.

 

       –  Vs  – 

 

OPPOSITE PARTIES/OPs   : 1.  The Manager,

Magma Leasing Limited,

24, Park Street,

Kolkata – 700 016.

 

             : 2. The Director,

Samanta Automobiles Pvt. Ltd.

Krishnagar Branch Office,

Near Palpara More,

P.O. Krishnagar, P.S. Kotwali,

Dist. Nadia.

 

 

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

 

DATE OF DELIVERY             

OF  JUDGMENT               :  12th May, 2009.

 

 

:    J U D G M E N T    :

 

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

The complainant, Sanjay Das has filed this case against the OP No. 1, The 

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Manager, Magma Leasing Ltd., 24 Park Street, Kolkata 700 016 and OP No. 2, the Director, Samanta Automobiles Pvt. Ltd., Krishnagar Branch Office, P.O. Krishnagar, Nadia alleging that the complainant purchased an ambassador car of Hindusthan Motors vide chassis No. AGC 867018 on 14.07.03 at a price of Rs. 4,04,479/- for which he paid Rs. 5,000/- on 20.06.03, Rs. 10,135/- on 23.06.03 and Rs. 96,379/- on 23.06.03; thus, he paid Rs. 1,11,514/-.   At the instant OP No. 2, the complainant contacted with OP No. 1, who is the financier of the persons purchasing the vehicle and executed an agreement to pay the rest amount of Rs. 2,92,965/- by 36 post dated cheques, each to the tune of Rs. 10,135/- per month.   The OP No. 2 sent a statement of account showing bounce of three cheques viz., cheque No. 668382, 668384 and 668385 dtd. 01.08.03, 01.10.03 and 01.11.03 respectively, each amounting to Rs. 10,135/-.  On receiving that statement he contacted with the Allahabad Bank and obtained a certificate on 31.01.06 that those 3 cheques had not been placed before them for encashment, till date.   However, to set the controversy at rest he deposited Rs. 30,405/- on 24.04.06 in cash.   After payment of all dues, the complainant asked the opposite party No. 1 for issuance of a no-objection certificate which was not issued.   Subsequently, through his lawyer, Pradip Bannerjee a notice was sent on 14.02.06 requesting for issuance of a no-objection certificate.   On 22.11.08, the opposite party No. 1 sent a notice claiming Rs. 1,22,018.86 as due as on 22.11.08 which is obviously illegal.  By filing the instant case he has prayed for permanent injunction restraining the opposite party No. 1 for snatching the vehicle, an order to the effect that the complainant has paid all the dues that the claim of Rs. 1,22,018/- is vague and fictitious, the sum of Rs. 5,00,000/- as compensation, cost and other relief.

The OP No. 1 has contested this case by filing a written version whereon he has denied the material averment of the complaint alleging that that the complainant has not hired or availed of any service from the opposite party for 

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which they have suffered any deficiency in any respect, he is not the service provider, that the complainant was a debtor and the opposite party was a creditor and the relation between them is a debtor and creditor which is outside the jurisdiction of this Forum.  No dispute or differences between a debtor and a creditor would be subject matter of a petition of complaint before any consumer Forum, that the instant complaint is not maintainable as it does not come within the purview of Consumer Protection Act.  The State Consumer Disputes Redressal Commission, West Bengal has also come to a similar conclusion in the case of Everest Coal Sales Pvt. Ltd. vs. Ashoke Layland Finance Ltd. being SC case No. 97/O/95 whereon the Hon'ble State Commission has held in a case of loan agreement there is no element of service against the owner and therefore, such a complaint is not maintainable.  It has further alleged that this Forum has no territorial jurisdiction to entertain this case.  Pursuant to an agreement, the complainant purchased an ambassador motor vehicle for which Rs. 2,90,979/- has to be paid to the complainant.   And that amount is to be repaid by 36 monthly installments at a rate of Rs. 10,135/- each;  the first installment would be paid in July 1st, 03 and the last installment would be paid in June 1st , 2006.   Pursuant to the agreement the complainant has made himself a defaulter and thus, the agreement would stand terminated.  In view of the above facts and circumstances the case is liable to be dismissed.

The OP No. 2 by sending 3 letters dtd. 24.02.09, 05.03.09 and 31.03.09 has stated that the complainant has no grievance against him and his name may be deleted from this case.  He has no filed any written version.

In view of the above facts and circumstances, the following points are taken for proper adjudication.

Point No.1   Whether this Forum has the territorial jurisdiction to entertain this        complainant?

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Point No.2      Whether this case is maintainable?

Point No.3   If maintainable, whether the complainant is entitled to get relief as       prayed for?

 

FINDING WITH REASONS

 

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

The complainant has stated that he purchased the said ambassador car from the OP No. 2 who carries on business at Krishnagar, P.S. Kotwali, Dist. Nadia.

It is admitted fact that the OP No. 2 sold the ambassador car to the complainant and the OP No. 1 who carries on business at Kolkata financed the complainant for purchasing the same by executing an agreement between the complainant and the OP No. 1.

From the averment it is admitted fact that the complainant purchased the said ambassador car from the OP No. 1 who carries on business at Krishnagar.  Pursuant to Section 11(2)(c) of this Act, the complaint can be entertained where the cause of action wholly or in part arises.   As the complainant purchased the car from the OP No. 1 who carries on business at Krishnagar, Nadia, the cause of action in part arose at Krishnagar.   Hence, we are of opinion that this Forum has the territorial jurisdiction to entertain the case.

It is admitted fact that the complainant purchased the ambassador car from the OP No. 2 and the OP No. 1 financed the same to the complainant for purchasing the car on execution of an agreement.   It is also admitted fact that the complainant and the OP No. 1 agreed that the complainant would repay the said loan by 36 monthly installments @ Rs. 10,135/- for which the complainant handed over 36 post dated cheques.    

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It is the case of the complainant that he has repaid all the dues.  Instead of that by sending a statement of account by the OP No. 1 to the complainant dtd. 22.11.08 he (OP No. 1) has claimed Rs. 1,22,018.86 due which is to be repaid by the complainant.

The Ld. Lawyer of the opposite party No. 1 has argued that by citing a ruling 1995 (3) page 93, Smt. Revathi Kalyan Kumar vs. KSFC however it is stated “Complainant borrowed a loan and mortgaged property and hypothecated the stock – Properties put into auction sale towards recovery of loan in the proceedings initiated under Section 31 of State Finance Corporation Act – Claim for compensation on allegation that properties were sold for a partly sum – Relationship between complainant and opposite party is only that of borrower and creditor – Complainant is not a consumer and complaint is untenable”.

He has also referred a ruling SC Case No. 97 /O/95 dtd. 24.08.1996, whereon the Hon'ble President, State Commission, West Bengal in a similar case has opined not maintainable.   

The Ld. Lawyer of the complainant has argued that admitted fact that the complainant purchased an ambassador car after taking loan from the OP No. 1 by execution of an agreement who agreed to repay the said loan by 36 monthly installments for which he paid 36 post dated cheques.

It is settled principles that in spite of arbitration clause in the agreement, the case is maintainable in the consumer Forum pursuant to section 3 of this Act.  He has further argued that by citing some rulings CPJ 2004 (3) page 15, 2008 (1) CPJ 441, 2008 (1) 162 NC that the case of a hire purchase is entertainable by the Consumer Forum.

Perused the above cited rulings of the complainant.  It is settled principles that each case should be considered with its own facts.  The above cited ruling of the complainant does not tally with the facts of the case.  In the above cited ruling the 

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fact was / is that the creditor sold the property of the debtor for realization of the amount due,  and the excess amount from selling the property was not returned to the debtor.  The same was allowed by the Consumer Forum.

In the instant case according to the complainant, he has paid all the dues and the statement of account sent by the OP No. 1 is vague and exaggerated.   By filing the instant case the complainant has prayed for permanent injunction against the OP No. 1.

It is obvious from the facts of the case that according to the OP No. 1 the complainant has to pay installments which remain due and according to the complainant he has paid all the dues.   Thus, to settle the dispute between them the complicated facts which require to be proved by cogent documentary evidence is a prolong procedure which ought to be settled in the civil court.   The fact of this case attracts proper accounting and also detail evidence to set the disputes between the parties at rest.   As the facts involve both complications of law and facts, in our considered opinion, in the summery procedure and for expedition disposal within the stipulated period as enumerated in Section 13, this case is not entertainable by the Consumer Forum.   Moreover, section 14 of this Act has enumerated what types of relieves can be rendered to the complainant.  There rendering relief of granting permanent injunction has not been depicted.  Thus, we cannot grant permanent injunction as prayed for.

Admitted fact that the Forum has the jurisdiction to entertain a case / dispute of hire purchase.  But each case should be adjudicated as to its facts.  In the instant case the facts as stated in the complaint is not within the purview of the jurisdiction of the Consumer Forum for settlement of the dispute.  Furthermore, relying upon the case No. SC Case No. 97/O/1995 dtd. 24.008.1996 adjudicated by the State Commission, West Bengal, we can safely conclude that the case is not maintainable.   In this context, the ruling (2008) 1 WBLR (CPSC) 455 (State 

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Consumer Disputes Redressal Commission, West Bengal) is in our considered view,  befittings in the instant case which provides as follows.

“Complainant purchased track by hire purchase agreement – Vehicle stolen during validity of Insurance – After settlement of insurance claim opposite party No. 1 paid to the complainant Rs. 1,33,727/- - Complainant complaint about payment of lower amount – The agreement between the parties was hire purchase agreement – What amount to be paid to the complainant is matter of calculation – Such dispute cannot be decided in a consumer Forum – The matter must be referred to civil court – Hence, the complainant is not maintainable and is liable to be dismissed.” 

In view of the above aspects we are of opinion that the case is not maintainable.

Hence,

Ordered,

That the case is dismissed on contest against the OP No. 1 and exparte against the OP No. 2 without any cost. 

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

The case is disposed of by  3 months 23 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