Ld. Advocate(s)

                        For Complainant: Safikul Aalam

                        For OP/OPs  :Subhasis Ray

Date of Filing          : 03.12.2019

Date of Disposal    : 28.12.2023

: FINAL ORDER  dtd.  :28.12.2023

The pith and substance of the case of the complainant it that the complainant Majnu Mahaldar purchased Eicher Tractor  5660 Super DI bearing Registration No. WB 51B 5116 Engine No. 525026419150 Chasis no. 925015102241   from OP no. 2 Isha Tractor (Green Agro Centre)  Palpara ( Near Bhatjangla) P.O. Krishnagar, P.S. Kotwali, on 11.03.2017 for  cultivation work. OP no. 1 Mahindra Finance  Company Limited  P.O. Krishnagar, P.S Kotwali. District Nadia is the Finance Company  and OP no. 2 Isha Tractor  is he seller of the said Tractor .

 OP no. 1 had given  financial assistance to the complainant to purchase the said Tractor . Complainant paid Rs. 50,000/-  to the OP no. 2 and OP no. 1 paid the rest  amount of Rs. 8,48,420/- to the OP no. 2 as the sale  price  of the said Tractor.

            The total price of the said Tractor is Rs. 8,98,420/-. There was 59 instalments for Rs. 14,380/- of which the complainant  paid every instalment to the OP no. 1. The first instalment was paid on 15.04.2017 and last instalment on the maturity date of 14.04.2022 was paid. The complainant paid last instalment up to November 2019 .The OP no. 2 did not give any registration number and insurance paper of the said tractor till date. OP no. 2 had given all sale charge including insurance amount from the complainant but the OP no. 2 demanded more money. Due to not getting the said documents the complainant could not run the said Tractor. The complainant requested to both the OPs for said RTO registration paper and insurance documents. Due to not return the said tractor the complainant could not pay the monthly instalment to the OP no. 1 properly but the OP did not respond to the request of the complainant. The statement of account of OP no. 1 is filed with the case.  Despite payment of monthly instalment of October and November 2019. OP no. 1 did not give money receipt.

Complainant went to office to the OP no. 1 and OP no. 2 on 15.11.2019 for getting the documents of the said tractor but both the OPs refused to give the said documents.

So the present case is filed.

 Cause of action with the present case arose on 15.11.2019 .

            Complainant prayed for an award with the direction to the OP no.2 to hand over TRO  registration certificate and insurance paper , further direction to OP to take easy instalment from the complainant and not to take the tractor from the possession of the complainant and Rs. 50,000/- towards mental pain and agony  to be paid  by the OP and cost of litigation .

            OP no. 1 preferred not to advance any argument at the final stage despite contesting the case . OP no. 2 further contested the case at every stage OP no. 1 deny most of the allegations and challenge the case  as not maintainable in  law and fact  and that the case is bad for defect of parties.  The positive defence  case of OP no. 1  in brief  is that the complainant purchased  tractor to which   to give financial  assistance  for purchasing the said tractor on hypothecation. After verifying the credentials  loan  of Rs. 5,60,000/- along with finance charges of Rs. 2,88,400/- at the total agreement value was sanctioned the vide loan agreement no. 4682680 after executing  loan agreement  on 11.03.2017. As per the said loan agreement complainant was supposed to pay 60 number of monthly instalment with EMI amount of Rs. 14,380/- per month. But the  complainant failed to pay the instalment since September 2019 as per the statement of loan amount and total outstanding due  is Rs. 4,60,140/- with additional interest of Rs. 2,49,833/-as on 27 September 2022. As per the said agreement  whatever  be  the condition , the obligation to repay the loan will not be  changed. The said account was referred to arbitration  in February 21.  Complainant did not participate in the said proceeding so the  ex-parte award was passed on 20.1.2021. OP no. 1 claimed that the case liable to be dismissed. OP no. 2 Isha Tractor( Green Agro Centre) denied the allegation against them and challenged  that the complainant is a consumer and  there is no cause of action. The positive defence case of OP no. 2 in  brief is that the OP no. 2 being dealer Eicher tractor   used to sale tractor. Complainant decided to purchase the said tractor  model Eicher Tractor  5660 Super DI bearing Registration No. WB 51B 5116 Engine No. 525026419150 Chasis no. 925015102241 . Accordingly, total consideration price was fixed at Rs. 7,90,000/-. The complainant initially paid Rs. 40,000/- as advance and took loan of Rs. 5,60,000/- from OP no. 1 against the Tractor. The OP no. 2 received total sum of Rs. 6,00,000/- and sum of Rs. 1,90,000/- is  still outstanding  from the complainant. Thereafter, OP no. 2 called the complainant has several occasion  for his due ultimately on 30.03.2017 the complainant paid further Rs. 4,000/-  through Bank and returned one cultivator  valued for Rs. 25,000/- . OP no. 2 is still entitled to get Rs. 1,70,000/-  from the complainant . Complainant failed to represent the case to evade his due to the OP No.2. Complainant  is not a consumer as he purchased  tractor for commercial used. So the OP no. 2 claimed that the case is liable to be dismissed with cost.

The different points involved in the present dispute  between parties led this Commission to  the following points proper  adjudication of the case.

Points for determination

Point No.1.

            Whether the case is a consumer and the present case  maintainable  in its present form and prayer.

Point No.2.

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

Point No.3.

To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.                                                 

             Both the parties challenged the case as not maintainable .OPs denied the status of the complainant as the consumer under the C.P.Act.

 The OP no. 2 claimed that complainant is not Consumer as the dispute tractor was purchased by the complainant for commercial purpose.

 After perusing the pleading of the complaint it appears that the complainant Manju Mahaldar categorically stated in his complainant that the said tractor is used for cultivation  work of the petition .

 There is no averment within the four corners of the complainant that the complaint purchased for commercial purpose.

  So also the OPs could not adduce any evidence or prove any documents that the complaint hired the said tractor to earn money by using the tractor commercially.

 Thus having assessed the  evidence of the case record and the pleading of the parties commission is of the view  that complainant  is a consumer under the CP Act.

 Despite challenging the case that it is bad for defect of parties, Ops could not establish sufficient ground that who are the proper and necessary party other than OP no. 1 and 2 .

 Thus  the fact and  circumstance of the case cannot be considered as bad for defect of the party.

 Accordingly, points no. 1 is answered in favour of the complainant.

 Points no. 2 and 3.

Both points relates to ascertainment of entitlement of relief by the complainant.

 It is admitted fact that the complainant purchased said tractor  bearing no. Tractor  5660 Super DI bearing Registration No. WB 51B 5116 Engine No. 525026419150 Chassis no. 925015102241 from the OP no. 2 in respect of OP no. 1 agreed t o finance as the financer.

 In  the present case it is disclosed that the agreement  value of the said tractor is Rs. 8,48,400/-, assets cost Rs.7,90,000/- the finance amount Rs. 56,000/- Accounting date 11.03.2017  customer  Majnu Mahaldar i.e complainant.

 OP no2 filed the invoice of the said tractor dtd. 06.03.2018 where in the price was fixed at Rs. 7,90,000/-. OP no. 1 fixed the agreement value for Rs.  8,48,000/-.

 Thus additional amount of Rs. 50,000/- was charged but the there  is no documents as to under which head the extra price of Rs. 50,000/- was charged. As per the said statement of account loan was sanctioned for Rs. 8,48,400/- with 89 instalment at the rate of 14,380/- per instalment .

Op no. 2 categorically admitted that he received Rs. 40,000/- from the complainant and  Rs 5,50,000/- as loan amount from the OP no. 1. But the OP no. 2 further claimed that the sum of Rs. 1,90,000/- is still outstanding .

 The Ld. Adv for complainant argued that the complainant proved the money receipt where from it would be revealed that complainant has already paid major portion of the total price of the vehicle .

 However, if there is not due, complainant is agreed to pay loan amount in easy instalment. It is thus specific pleading of the complainant that due to not handing over the registration document of RTO and  the insurance paper, the complainant could not ply the said tractor. As such the entire money could  not be paid which he agreed to pay by easy instalment.

 After perusing the W/V of both the ops it is crystal clear that Ops never contended that they supplied the RTO documents like registration certificate and insurance paper of the disputed vehicle.

 It is important to  consider that unless the documents like registration certificate and other RTO paper and insurance documents are not issued, vehicle cannot be plied on the road . Therefore,  it is the bounden duty of both the ops to take proper steps for supplying the said documents to the complainant. If there  is no outstanding money from the complainant they have right to recover  the due under the due process of law but under no circumstance they can withhold the said registration certificate and insurance documents.

 Complainant also proved Annexure 2 to Annexure 34 where from it is revealed that the complainant paid good number of instalment . OP no. 2 filed one Xerox copy  of loan due for Rs. 1,71,000/- but the said documents was not proved in course of evidence. So Ld. Advocate for the complainant challenged the said documents. However, it appears that neither of the parties put  any  interrogatories   against evidence  by both the parties.

 Since the complainant admitted that he is willing to repay outstanding money in easy instalment so the claim of the OP for Rs. 1,71,000/- as outstanding due is duly considered on the condition that the Ops shall hand over the registration certificate and other RTO documents along with insurance certificate to the complainant.

 Thus having assessed  the  entire evidence in the case record and in the back drop of the aforesaid  observation the Commission comes to the finding that the complainant successfully proved the case against Ops .

 Accordingly, Points no. 2 and 3 are answered in positive  in favour of the complainant .

 Consequently, the complainant case succeeds on contest with cost.

Hence,

it is

Ordered

                                                                        that the  complaint case being No.CC/ 380/2019  be  and the  same is allowed  on contest with cost of Rs. 10,000/(Rupees Ten thousand)-. The complainant do get an award with direction to the Ops to give RTO registration certificate and insurance papers to the complainant within the 30 days the from the date of passing final order , direction to Op no. 2 to recover from the said complaint, outstanding sum of  Rs. 1,71,000/- (Rupees One lakh seventy one thousand) with monthly installment of EMI of Rs. 15,000/- (Rupees fifteen thousand) per month after issuing the aforesaid documents to the complainant, Rs. 20,000/- (Rupees twenty thousand) as compensation with mental pain and agony.

 Ops are directed to pay Rs. 30,000/- (Rupees thirty thousand) to the complainant  and hand over all the RTO documents  and insurance certificate  to the complainant within 30 days  from the date of passing final order  and after carrying of the said order Ops  shall be entitled  to recover outstanding money of Rs 1,71,000/-(Rupees One lakh seventy one thousand) in instalment of Rs. 15,000/-  (Rupees fifteen thousand) per month failing which  the entire award money shall carry interest @ 8 % p.a from the date of its final order till the date of its realisation.

All Interim Applications (I.A) stand hereby disposed of.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.                 

         Dictated & corrected by me

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            SHRI HARADHAN MUKHOPADHYAY

                                    PRESIDENT

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           PRESIDENT

SHRI HARADHAN MUKHOPADHYAY

    I concur,

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SHRI  NIROD BARAN ROY CHOWDHURY                  

                 MEMBER