Orissa

Cuttak

CC/117/2018

Umasankar Panda - Complainant(s)

Versus

Manager,Indusind Bank - Opp.Party(s)

N K Dash & associates

03 Jan 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.117/2018

 

Umasankar Panda,

S/O:Sitanath Panda,At:Sarapada,

P.O:Bodhanga,P.S:Nischintakoili,

Dist:Cuttack.                                                                          ... Complainant.

 

                                                             Vrs.

1.  Manager,Indusind Bank,

Finance Division,Old No.115,116,New No.34

G.N.Chetty Road,T.Nagar,Chennai-600017.

 

2. Manager,Indusind Bank,

Finance Division,Chandikhole Branch,

At/Po-Chandikhole,Dist-Jajpur

 

3. Manager,Indusind Bank,

Finance Division,At:Bajrakabati Road,

           Town/Dist-Cuttack

 

 

Present:    Sri Debasish Nayak,President.

                    Sri Sibananda Mohanty,Member.

 

   Date of filing:     11.12.2018

Date of Order:    03.01.2023

 

For the complainant:           Mr. N.K.Dash,Adv. & Associates.

For the O.Ps.               :         Mr. P.K.Ray,Adv. & Associates.

 

Sri Debasish Nayak,President. 

               Case of the complainant as made out from the complaint petition in short is thatin order to purchase a TATA LPT 3118 he had obtained financial assistance from the O.Ps to the tune of Rs.24,00,000/- which was to be repaid by him @ Rs.58,140/- in 55 number of E.M.Is effective from 21.2.17 till 21.8.21.  The complainant was paying the E.M.Is regularly but had defaulted on three occasions.  He wanted to clear the said outstanding amount if reasonable opportunity was given to him but without listening to him the O.Ps had repossessed his vehicle on 29.11.18.  When the complainant approached the O.Ps in this regard, they demanded a total balance amount of Rs.20,81,743.16p.  The matter was referred to the Arbitration wherein a sum of Rs.23,59,961/- was demanded from the complainant.  It is for this, the complainant has come up with this case seeking compensation towards deficiency in the service of the O.Ps. 

He has filed certain copies of documents in order to prove his case.

2.            All the three O.Ps have contested this case and have filed their written version together.  As per the written version of the O.Ps, the case of the complainant is not maintainable.  The matter has already been referred to Arbitration and the Arbitrator has passed final award on 6.2.19 against the complainant.  They have relied upon the decision of our Hon’ble Supreme Court in the case of Sonic Surgical Vrs. National Insurance Company Ltd. Vide Civil Appeal No.1560 of 2004 reported in 2010(1) CPC 379 and as such they have prayed that this complaint petition as filed is liable to be dismissed.  They have admitted to have executed a loan-cum-hypothecation agreement with the complainant and have financed him a sum of Rs.24,00,000/- and also had charged interest thereon to the tune of Rs.7,98,000/- which was to be paid by the complainant in 60 number of instalments @ Rs.58,140/- per month.  The complainant when defaulted in paying the regular E.M.Is, he thereby had vitiated the terms and conditions of the loan-cum-hypothecation agreement as executed in between himself and the O.Ps, as a result of which the hypothecated vehicle was repossessed by the O.Ps.  Thus, according to the O.Ps, there was no deficiency in their service and the complaint petition is liable to be dismissed. 

3.            Keeping in mind the averments as made in the complaint petition and the contents of the written version of O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.P?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issues no.II.

Out of the three issues, issues no.ii  being the pertinent issue is taken up  first for consideration here in this case.

Admittedly, the complainant had availed finance from the O.Ps to the tune of Rs.24,00,000/- in order to purchase a TATA LPT 3118 vehicle and had executed a loan-cum-hypothecation agreement with them to that effect.  As per the terms and conditions of the said loan-cum-hypothecation agreement, the said loan was to be repaid together with interest thereon at a monthly instalment of Rs.58,140/-.But according to the complainant, he was to repay the said loan with interest in 55 number of instalments whereas the O.Ps had mentioned in their written version that the complainant was to repay the said loan with interest in 60 number of monthly instalments.  Be that as it may, admittedly, the complainant had defaulted in paying the regular E.M.,Is on three occasions for which the financed vehicle was repossessed.  Law is well settled that the financier is never a service provider and in a case of loan agreement, the terms and conditions of the same when executed between the borrower and the financier, is binding upon both of them and breach of any of the said terms and conditions will entitle the other to act as per law.  Here in this case, when the borrower/complainant defaulted in paying the E.M.Is on three occasions, the O.Ps had repossessed the financed vehicle from the possession of the complainant’s driver/helper as per law.  Moreso, the matter had already been referred to the Arbitration.  In this context, the O.Ps through their written notes of submission have been relied upon the decisions in the cases of(i)  Chandresh Kumar Vrs. Kotak Mahindra Bank Ltd. I(2017) CPJ 121(NC), (ii) Vishnu Chandar Sharama Vrs. Sriram Finance Company Ltd. And another, 2017(2) CPR 277(NC), T. Srinivas & Another Vs. Srija Constructions, I(2016)CPJ 552(NC), (iii) Magma Fincorp Ltd. Vs. Gulzar Ali: II(2016) CPJ 231(NC) and all these cases have been referred and quoted in (2019)ICPJ 98, B.M,HDFC Bank Vrs. Chandra Sekhar decided by Chhatishgarh SCDRC.  When there was breach to the terms and conditions of the loan-cum-hypothecation agreement as executed in-between the complainant and the O.Ps here in this case, the repossession of the financed vehicle can never be said to be illegal and accordingly this Commission finds no deficiency in service on the part of the O.Ps here in this case. This issue thus goes in favour of the O.Ps.

 

Issues no.i & iii.

From the discussions as made above, it can never be said here in this case that the case of the complainant is maintainable and the complainant is entitled to any of the reliefs as claimed by him. Hence it is so ordered;

ORDER

Case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 3^rd day of January,2023 under the seal and signature of this Commission.       

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                                                                                                                                                              Sri Sibananda Mohanty

                                                                                                                      Member