JUDGEMENT

Shri A.K.Patra,President:

1. This Complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice on the part of the Opp.Party for their demand of higher amount than its agreed amount to close the loan account and for their denial to issue “No Due Certificate” with respect to the financed vehicle/machine.
2. Complainant seeks for an order directing the O.Ps/ Company not to seize the subject machines/KUBOTA HARVESTER and to received an amount of Rs.1,74,460.40/- towards full & final settlement of the loan and to issue      ”No Due Certificate” in favour of the complainant and further prayed for an order directing the Ops to pay Rs.50,000/- as compensation towards mental agony along with  cost of the litigation.
3. Brief fact of the complaint is that, the complainant had purchased a machine/vehicle i.e machines/KUBOTA HARVESTER being financed by OPs. The complainant has avail financial assistances of Rs.13,00,000/- only on dt.29/10/2029 vide contract No. 6553146 .The finance charge was Rs.4,83,600/-and total agreement value is Rs 17,83,334.The tenure of loan is 48 month  repayable with 14 numbers of quarterly instalment. The first instalment due on 10/01/2020 and last instalment due date is 10/07/2023 .The complainant has already paid Rs.15,80,600/- up to 18/03/2023 and as per the loan account statement the borrower/ complainant  is to pay Rs. 1,74,460/-only towards full & final settlement of the loan.        It is contended that as per the loan summary statement of the ops/ finance company the total instalment payable is 14 and the finance company has already received 12 numbers of instalment. Accordingly,  rest two instalment total amounting  Rs.1,74,460.40/- is payable as such the Op/finance company is entitle for Rs,1,74,460.40/-only as per their statement of loan account. The complainant on dt. 04/05/2023   had gone to deposit the said amount  Rs. 1,74,460/-as per the account statement with a request to issue “No Due Certificate” but the Ops refused to receive the said amount  demanding payment of two instalment of Rs. 1,74,460/-each  illegally  & unfair manner. The complainant has already repaid Rs.15,54,713/- and ready to pay Rs,1,74,460.40/-only as per their statement of loan account towards full & final settlement of the loan but the ops/company has denied to received the same demanding payment of extra instalment of Rs,1,74, 460.40  causing  financial burden & mental agony to the complainant .Hence this complaint .
4.  To substantiate his claim the complainant has filed the true photo copy of the following documents:- (i) copy of invoice dt.27/11/2020 towards purchase of the subject vehicle,(ii) copy of loan summary /repayment scheduled  dt.19.12.2019 vide contract No. 6553146 dt.29/10/2019, (iii) Copy of permit dt13/11/2020 issued from the Directorate of Agriculture and Food  Production, Government of Odisha. (iv).Copy of loan account statement dt.28 April 2023 under Consumer ID NO. 60001013025, Agreement dt. 29 oct.2019The averment of complaint petition is supported by an affidavit of the complainant Tejaraj Pradhan.   
5. On being notice the OPs appeared through their Learned Counsel Shri M.R.Mohanty & associate and filed their written version. Primarily the Op has challenged the maintainability of the complaint taking plea of jurisdiction & arbitration clause of the loan agreement and further contended that, complainant is not a consumer as defined under C.P.Act. The complaint allegation is denied by the OPs on all its material particulars and asked the complainant to strict prove of the complaint allegation
6. However, financial assistances of Rs.13,00,000/-  on dt.29/10/2029 vide contract No. 6553146 – provided to the complainant for purchasing of the vehicle is not   disputed by the Ops . It is also not disputed that, the first instalment payable was due on 10/01/2020 and last instalment due date was 10/07/2023.
7. The Ops  contended that, as per the loan agreement the complainant was to repay the total agreement value of Rs. 18,80,502/- in 14 instalment but as the complainant availed the moratorium accordingly the loan payment scheduled & tenure was changed. The loan tenure was extend to 51 month and number of instalment is increased to 15  (fifteen)) from 14(fourteen) .The Ops   further submitted that, the complainant has deposited Rs. 14,05,874/-only towards loan instalment but still Rs.3,50,260.54/- is due to make payment on the part of the complainant. And that, due to default on the part of the borrower/complainant the loan agreement is already terminated by serving notice dt.19/09/2022 where in the complainant was called upon to make payment of the entire outstanding loan amount. As on 20/09/2023 the complainant is in default of three EMIs amounting to Rs.3,50,261/-only with late fine charges of Rs.50,728/-.It is alleged that, the complainant is an intentional defaulter which revealed from the track record not entitled to any reliefs claimed .The Ops in their written version has quoted the provision there contended in clause 8(eight)  of the subject loan agreement and denied any deficient service & unfair trade practice on their  part and  further urged to dismissed this complainant with cost.
8. To substantiate their claim the Ops have filed the following documents with their written version,(i) copy of loan account statement as on 20^th  September 2023 under Customer  ID NO. 60001013025 vide  Agreement dt. 29 oct.2019 there in the name of Tejraj Sahu/complainant ,(ii) copy of loan account statement as on 2^nd  November 2023under Consumer ID NO. 60001013025  vide  Agreement dt. 29 oct.2019 there in the name of Tejraj Sahu/complainant. The averment of the written version is supported by an affidavit of one Santosh Prasad Mohanty ,the Manager defence at Mahindra and Mahindra Finance Services Ltd, Bhubaneswar.
9. Heard .Perused the material available on record. We have our thoughtful consideration on the contention of both the parties and argument submitted by their Learned Counsel.
10. Law is well settled that arbitration and jurisdiction clause of the loan agreement does not bar the jurisdiction of the consumer Fora /Commission to entertain the complaint. Hence, the primarily objection raised by the  learned counsel for the Ops on the maintainability of the complaint taking plea of jurisdiction & arbitration clause of the loan agreement is admissible rather rejected.
11. Here, in this case it is not disputed that, the complainant has availed financial assistances of Rs.13,00,000/-  on dt.29/10/2029 vide contract No. 6553146 for purchasing of the vehicle and it  is also not disputed that, the first instalment payable was due on 10/01/2020 and last instalment due date was 10/07/2023.
12. The loan repayment scheduled placed on the record by the complainant duly authenticated as true by the learned counsel of  the  complainant remain unchallenged which clearly proved that under Customer ID No.60001013025, the finance amount:- Rs.13,00,000,finance charge:- Rs.4,83,600/-,Agreement Value :-17,83,600/-, Tenure(month): 48, Instalment frequency:- Quarterly, Number of Instalments:-14, Instalment fixed: @ Rs 1,27,400/-First Instalment date:-10/01/2020,Last Instalment Date:-10/04/2023 Maturity date:09/01/2024 remains undisputed. .
13.  The statement of account as on 28 April  2023 filed by the complainant under Customer ID No.60001013025 shows differently that, finance charge is 5,80,502/- ,Agreed Value is 18,80,502/-,Last  instalment date is 10-July-2023 though the finance amount is 13,00,000/- remain unchanged. It also contents  the loan summary which shows that, as on 28 April 2023 the borrower/complainant has  paid 12 instalment out of 14 instalment which amounts to  14,05,874 against the due amount of Rs.15,80,334/- remaining balance of Rs.1,74,459.54/- with additional interest of Rs.54,624 against which Rs 41504 is already received and balance interest of Rs. 13,120/-is payable by the complainant .This document also shows the moratorium period  for two quarter i.e 30 April 2020 and 31 July 2020,however ,  Rs.100/- & Rs 127400/- respectively was received by the Ops during this moratorium. It also shows the details of received payment on deferent date amounting Rs.15,09,669/-  .On careful perusal it is found that ,this  document  shows two different receipt amount i.e 14,05,874  and Rs.15,09,669/-  creating  confusion which is not clarified either by the complainant or by the Ops/finance company during hearing of this case. As such reliance cannot be placed on these document .The complainant has solely relied on this photo copy documents which is  not authenticated  either by the complainant or by his learned counsel as such it is not acceptable as evidence.
14. The ops, to substantiate their pleadings, filed the evidence affidavit of their conducting advocate Sri.Manas Ranjan Mohanty who has reproduced the loan details and contended that, as per the loan agreement the complainant was to repay the agreed value of Rs.18,80,502/- in 14 instalment but as the complainant has  availed the moratorium, the loan tenure was deferred for which said amount was to be repaid in 15 instalment while loan tenure was for 51 months. And that, as on 02/11/2023 the complainant is default of three EMIs amounting to Rs. 3,50,261/- along with late fine charge of Rs.65,583/-.And that, there is no deficiency of service or unfair trade practice on the part of the Ops as alleged by the complainant . He has solely relied on account statement as on dt.20 September 2023 of the subject loan account placed here on the case record.    .  
15. The account statement as on dt.20 September 2023 of the subject loan account under Customer ID No.60001013025 there in the name of the complainant Tejraj Sahu shows the  agreement date:- 29 October 2019, the finance amount is 13,00,000/-, finance charge is 5,80,502/- ,Agreed Value is 18,80,502/-, first instalment date is  10 January 2020 ,last instalment date is 10 July-2023. It also contents  the loan summary which shows that, as on 20 September 2023 the borrower/complainant has  paid 12 instalment out of 15 instalment which amounts to  14,05,874/- against the due amount of Rs.17,56,135.40/- remaining balance of Rs.3,50,260.54/-with additional interest of Rs.92,232/- payable by the complainant .This document also shows the moratorium period  for two quarter i.e 30 April 2020 and 31 July 2020,however ,  Rs.100/- & Rs 127400/- respectively was received by the Ops during this moratorium. It also shows the details of received payment on deferent date amounting Rs.15,09,669/-  and, further shows that, 15(fifteen)  number of Instalment due out of which 12(twelve) numbers of instalment is paid and balance 3(three) instalment is to be paid by the complainant as on 20 September 2023. This document also shows two different receipt amount i.e Rs.14,05,874  and Rs.15,09,669/-  creating  confusion which is not clarified either by the complainant or by the Ops/finance company during hearing of this case. As such reliance cannot be placed on these document .The Ops have solely relied on this photo copy documents which is not authenticated  either by the authorised personnel of the Ops  or by his learned counsel as such it is not acceptable as evidence.
16. The ops, again to substantiate their pleadings, filed additional evidence affidavit of one Sri.Santosh Prasad Mohanty,the Manager Defence at Mahindra and Mahindra Financial Service Ltd, Bhubaneswar  which is nothing but copy paste of the evidence affidavit of above named witness Sri.Manas Ranjan Mohanty Sri. However, Sri  Santosh Prasad Mohanty  has filed &  relied on additional  account statement of subject loan account as on 2 November  2023. 
17. This Commission has perused the additional account statement subject loan account as on 2 November 2023 which represent the same contention as it was on  20  September 2023. As such reliance cannot be placed on this document .The Ops have solely relied on this photo copy documents which is not authenticated  either by the authorised personnel of the Ops  or by his learned counsel as such it is not acceptable as evidence.
18. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record   as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
19. During hearing of this complaint, the complainant has filed a memo on dt.04/11/2023  stating there in that, the complaint petition is supported by an affidavit of the complainant may be treated as evidence of the complainant and that, the complainant does not want to adduce further evidence in this case is taken in to the record . However, after receiving of the copy of evidence affidavit of ops witness Sri.Manas Ranjan Mohanti on dt.04/11/2023 and Sri.Santosh Prasad Mohanty, the complainant vide his application dt. 27/12/2023 , seeks permission to adduce his additional evidence affidavit to rebut the evidence of the Ops which was allowed  but no additional affidavit of the complainant is  filed though sufficient opportunities has been granted by this Commission. Thus, the complainant has failed to prove the allegation made  there in his complaint petition against the Ops.
20. Neither the complainant nor the Ops has produced clear picture of the subject loan account. This Commission is of the opinion that , the Ops, being the custodian of the subject loan account is duty bound to produce clear & easily understandable account statement of the subject loan account so also duty bound to depute competent personal to assist this Commission but have killed  the valuable time of this Commission  clearly proved the unfair trade practice of the Ops who are personally & severely   liable to be penalise by way of awarding punitive damage not less than  one lakh  jointly payable to the State Consumer Welfare Fund, Odisha so that they shall not behalf as such in future.
21. The undisputed  loan repayment scheduled placed on the record by the complainant duly authenticated as true by the learned counsel of  the  complainant clearly proved that, under Customer ID No.60001013025 the finance amount is  Rs.13,00,000,finance charge is  Rs.4,83,600/-,Agreement Value is 17,83,600/-, Tenure(month) of repayment of the agreed loan value is  48 months , Instalment frequency is  Quarterly, Number of Instalments payable is -14, Instalment fixed : @ Rs 1,27,400/-,the first Instalment date:-10/01/2020,Last Instalment Date:-10/04/2023 , Maturity date:09/01/2024  and, based on the   admission of the complainant that, he has to pay only two instalment i.e Rs 1,27,400/-each to the Ops and, in absence of cogent evidence to hold that, the complainant as on  02/11/2023 is default to pay of three EMIs amounting to Rs. 3,50,261/- along with late fine charge of Rs.65,583/- liable to pay the same to the Ops/Finance Company ,this Commission is of the opinion that,  the complainant is duty bound to pay two instalment  i.e Rs 1,27,400/-X 2 = Rs.2,54,800/- only to the Ops/Finance company towards full & final settlement of the subject loan account ..
22. The complainant, pending disposal of this complaint and in complacence to the interim order dt.19/10/23   has already paid 1,00,000/- on 28/11/2023 and Rs. 74,660/- on dt. 27/12/2023 i.e total amount of Rs 1,74,660/-  to the Ops who have received the same without protest. Accordingly, this commission is of the opinion that , the complainant is to pay Rs 80,140/- more to the Ops towards full & final settlement of the subject loan account. And on receiving od said amount the ops/Finance company shall issued “NO DOE CERTIFICATE” to the complainant with respect to the subject loan account.
23. Based on above facts & circumstances and in the light of above discussion this Commission is of the considered view that, there is unfair trade practice on the part of ops/Finance Company . Hence this complaint is allowed in part against the Ops with following orders.-

ORDER

The Ops are hereby directed to issue “NO DUES CERTIFICATE” to the complainant on receiving of Rs 80,140/- only towards full & final settlement of the subject loan account of the complainant. This order is to be complied within  four weeks from the date of receiving of this order failing which section 72 of C.P Act 2019 shall be attract against the defaulting party . No order as to cost .This consumer complaint is disposed off accordingly.

Dictated and corrected by me.

                             President

                                      I   agree.

                                                     Member    

Pronounced in open Commission today on this 05 June 2024  under the seal

       and signature of this Commission. The Pending application if any is also disposed off accordingly. This complaint could not be decided on time in want of quorum of the CommissionFree copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.