Orissa

Jajapur

CC/85/2017

Bhramarbar Sahoo - Complainant(s)

Versus

Magma FinCrop Ltd. - Opp.Party(s)

Badri Narayan Panda

24 Jan 2020

ORDER

 IN  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:       1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                                                                         

                                              Dated the 24th  day of January,2020                                                   

                                                          C.C.Case No. 85  of 2017

Bhramarbar Sahoo, S/O Paramananda Sahoo ,

Vill. Ramchandrapur , P.S.Binjharpur     

Dist. Jajpur  

                                                                                                                  ……....Complainant .                                                                       

                                                  (Versus)

1.Magma Fin crop .Ltd, Regd. Office at Magma House,  

24 park street ,Kalkata.

2.Magma Fin Crop Ltd, Nirmala plaza,A-1 ,Forest park

3.Magma Fin Crop Ltd, Chorda By pass ,Jajpur Road

P.S.Jajpur Road, Dt .Jajpur

                                                                                                                                ……………..Opp.Parties.                                                                                                                                                             

For the Complainant:                              Sri B.N.Panda , Advocate  .

For the Opp.Parties :                                Sri A.K.Pahil, Advocate.   

                                                                                                     Date of order:  24 .01. 2020.

MISS  SMITA  RAY , LADY MEMBER   .

Deficiency in financial service is the grievance of the petitioner.

            The facts as stated by the petitioner in the complaint petition shortly are that the petitioner  is an unemployed youth and to  maintain his livelihood  has purchased a vehicle i.e   Backhol loader vide Regd.No. OD-04-E-6873 with financial assistance of the O.Ps .  As per hypothecation agreement  the petitioner is required to  pay the monthly EMI regularly but due to financial hardship the petitioner has not paid the EMI  and  defaulted  the EMI due to facing a road accident  on  05.07.17 . Hence   the petitioner requested the O.Ps  to pay the outstanding amount as soon as possible but the O.Ps    tried to seize the alleged vehicle  without giving prior notice . Accordingly finding no other alternative the petitioner knocked the door of this Fora with the prayer to direct the O.P not to seize the alleged vehicle till disposal of the present dispute.

            After receipt of the notices the O.ps have appeared through their learned advocate and subsequently filed their written version  taking  the stand that :

The petitioner is not a consumer within the meaning as defined under section.2(I) (d) & (ii) of C.P.Act . It is pertinent to mention here that the complaint is not maintainable as the complainant has signed the loan agreement with the O>p which was contains the clause for Arbitration  where all the disputes, differences claims and questions whatsoever arising out of the said agreement shall be referred to the sole arbitrator.  It is also pertinent to mention here that the transaction between the parties is a contract where both parties have to perform their part of obligation . As per the contract in which an amount of  18,00,000/- was financed by the O>P. The petitioner has agreed to pay Rs.24,57,500/-  which was contract value including the financial charges . The said contract value was to be repaid in 47 equated  monthly installments  which was to be paid before 01.10.18 . The petitioner has agreed to pay the installments in the stipulated time failing which the petitioner has further agreed to pay the delayed payment charges on the respective installment amount . That as per the agreement the O.Ps  have performed their part of obligation  but the petitioner has defaulted in  repaying the loan dues as per agreement . Time is the essence of contract of this nature which both parties are expected to observe. But the complainant never made payment of the installments as per agreed terms and conditions for which a huge amount of loan remained unpaid and as on 24.01.2018 . The petitioner failed to pay 9 nos of installments and a sum of Rs .4,26,400/- is due and payable by the petitioner. Due to non payment of the monthly installments the O.ps finding no other option except to refer the matter to ld. Arbitrator but prior to that the petitioner cunningly obtained a restrain order from this ld forum by suppressing the material fact . In this regard the O>ps also referring the order of Hon’ble Supreme court in the case of Bharati Knitting Company Vrs. DHL Worldwide Express Courier (1996) 4 SCC-704 , whereby it was held that :

When the petitioner signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms & the circumstances in which he has signed the contract. It is settled principles of law that a person who claims equity, must do equity.”

            Reason stated above the dispute is liable to be dismissed with cost.

            On the date of hearing we heard the argument from the learned advocate for the petitioner. No step is taken on behalf of the O.P . After perusal of the record and documents in details filed from both the sides it is observed that :

It is undisputed fact that the petitioner has  purchased the alleged vehicle  with the financial assistance of the O.Ps   on the strength of hypothecation agreement.

            It is also undisputed fact that the petitioner became a defaulter to pay the monthly EMI  to the O.ps as per the terms and conditions of the hypothecation agreement. .

            The petitioner only approached this Forum to pass appropriate order for not seize  the alleged vehicle by the O.Ps. On the other hand the petitioner is a chronic defaulter and not paying the EMI regularly as per the terms and conditions of the hypothecation agreement . As per the observation of the Appex court / Appellate Forum  the petitioner has to pay the loan amount within the stipulated period . But  the petitioner never followed the terms of the agreement. Accordingly it is our considered view there is no merit in the present dispute since as per observation of Hon’ble Supreme Court reported in 2006-CTJ-209-SC( MD Orix Auto Finance India Ltd Vrs. Joginder Singh & another).The O.Ps are empowered to seize the vehicle as per hypothecation agreement .

Hence this Order

            The dispute is dismissed without cost .                     

            This order is pronounced in the open Forum on this the 24th  day of  January,2020. under my hand and seal of the Forum.