Orissa

Dhenkanal

CC/26/2018

Sri Rabinarayan Pradhan - Complainant(s)

Versus

The Branch Manager Daimler Financial Services India Pvt Ltd. And Others - Opp.Party(s)

19 Jul 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                C.C.Case No. 26 of 2018

 

Sri Rabinarayan Pradhan, aged 62 years

S/o late Iswar Chandra Pradhan,

Resident of village/PO: Korian,

P.S: Town, District: Dhenkanal                         …………………..Complainant

                                                                Versus

1) The  Branch Manager,

     Daimler Financial Services India Pvt. Ltd.,

     At: Bharat Motors Building, Pahal,

     PO: Pahal, Dist: Cuttack.

2) The Business Head,

     Daimler Financial Services India Pvt. Ltd.,

     Unit-202, 2^nd Floor, Campus 3B,

     RMZ Millennia Business Park,

     143, Dr. M.G.R.Road, Perungudi, Chennai-600096  …………Opp. Parties

Present: Sri Badal Bihari  Pattanaik, President,

                Miss Bijayalaxmi Satapathy, Member

                 Sri Purna Chandra Mishra, Member

Counsel: For the complainant : Pradip Kumar Mishra

                  For the Opp. Parties: Lalit Madhab Duytta & Associates

Date of  hearing :  16.7.2018

Date of order: 19.7.2018

                                                                                JUDGMENT

Sri Purna Chandra Mishra, Member

            The  present complaint is filed by the complainant against the Opp. Parties U/s 12 of Consumer Protection Act, 1986 alleging deficiency in service on the part of the Opp. Parties  and claimed for a direction to the Opp. Parties to release the vehicle bearing No. OD-06-4730 along with compensation and cost of the litigation of Rs. 2,20,000/-.

            1) Very briefly, the case of the complainant stated are that2 the wife of the complainant namely Indulata Pradhan (since dead) in order to earn her livelihood had purchased a Truck of BHARAT BENZ make  vide registration No. OD-06-C-4730 by availing financial assistance from the Opp. Parties.  The complainant was the co-borrower for the said loan incurred by his wife. The truck met with an accident for which it took more than three months for its repair and the complainant sustained a huge loss . The wife of the complainant was suffering from cancer and she died on 16.8.2016.  After the death of the principal borrower, the complainant requested the Opp. Parties to transfer the ownership of the truck to his name and to execute a fresh agreement with him with fresh repayment schedule but the Opp. Parties did not take any steps  over the matter and asked the complainant  for payment of the entire loan dues after which they would transfer the ownership of the truck to his name.   As the ownership was not transferred to the name of the complainant after the death of the principal borrower, the truck was kept idle without any return.  The complainant was always ready and willing to repay the loan dues  but due to non-transfer of the ownership of the truck to the name of the complainant  the outstanding dues  in the loan account increased day by day  and till filing of the case the outstanding was around Rs. 15,00,000/-. It is further alleged that on 28.3.2018 the Opp. Parties repossessed the truck from the complainant at Dhenkanal although the complainant was ready and willing to repay the loan dues which amounts to unfair trade practice and deficiency in service on the part of the Opp. Parties.  The complainant on 2.4.2018 received a Pre-Sale notice dated 31.3.2018  from the Opp. Party No.2 wherein the complainant was directed to clear up the entire balance loan dues within a period of fifteen days  from the date of issue of the notice or else the truck shall be disposed of.  Therefore, the complainant has come up before this Forum seeking the reliefs as claimed for.

            2) The Opp. Parties appeared and filed written version.  In the version it is stated that the case is not maintainable as the complainant is not a consumer as per the provisions of the Consumer Protection Act, 1986.  The complainant had purchased the truck for commercial purpose for which  the complainant is also not a consumer and the case is liable to be dismissed. .  The Opp. Parties provided loan facility of Rs. 26,80,686/- on the approaches of the complainant.  The said loan was to be repaid alongwith interest in 59 Equated Monthly Installments of Rs. 64,880/- each subject to the terms and conditions agreed under the loan agreement for purchase of Bharat Benz vehicle.  Both the complainant and Opp. Parties entered into LOAN AGREEMENT FOR THE FACILITY FOR PURCHASE OF/AGAINST PRODUCTS AND UNATTESTED DEED OF HYPOTHICATION (borrower) bearing Number 20124006.  The complainant was the co borrower in the agreement.  The complainant is under the obligation to pay the monthly EMI regularly as stipulated under the terms of the agreement.  The complainant failed to pay the EMIs as stipulated under the terms of the Agreement and resultantly the Opp. Party issued a Loan Recall Notice dated 13.9.2017 calling upon the complainant to make payment of Rs. 31,20,196.37  as outstanding and payable as on 6.10.2016 together with accrued interest and expense till the date of realization within 7 days from the receipt of the notice.  It is further stated that as on 18.4.2018 total outstanding was Rs. 37,79,400.79 and there are 24 EMIS overdue as complainant has not paid EMIs from last 2 years.  The Opp. Party left with no other option for which approached the Hon’ble High Court of Madras and the Hon’ble High Court was pleased to appoint Mr. Pravash Chandra Swain as Receiver to seize and take possession of the Vehicle from the premises of the complainant with police aid and break open of premises if necessary vide order dated 13^th February, 2018 in A No. 1228/2018.  Accordingly the vehicle in question was already taken in peaceful custody  on 28.3.2018 by Mr. Pravash Chandra Swain duly appointed receiver in compliance of the order dated 13.2.2018 of the Hon’ble High Court of Madrass.  As per the terms of the executed agreement,   it was agreed by the parties that the dispute arising out  in connection with the Loan Agreement  shall be resolved by way of Arbitration.  As the parties are bound by the said Arbitration clause contained in the loan Agreement and as disputes and differences have arisen between the parties, this Forum has no jurisdiction to adjudicate upon the dispute.  As per the order dated  26.2.2018 Arbitration proceedings  are also initiated and Mrs. Meera Gnanasekar is appointed as arbitrator  on 26.2.2018 which is subjudice before the arbitrator.  Further the matter is subjudice before the Hon’ble High Court of Madras and this District Forum should not interfere in the matter. .  The Opp. Parties would bear irreparable loss  if the vehicle in question will not be sold as Opp. Party has Rs.  37,79,400.79 dues as on date.  Accordingly it is pleaded to dismiss the complaint.

            3)   That the only prayer of the complainant is for a direction to the Opp. Parties not to repossess the truck  bearing No. OD-06C-4730 if it is released by the interim orders of this Forum at the time of final hearing     alongwith compensation as claimed for.  This Forum has already directed the Opp. Parties vide its order dated 30.5.2018 passed in Misc. case No.16 of 2018 for release of the vehicle on  receipt of Rs. 24 Nos of EMIs of Rs. 64,880/- each from the complainant and to co-operate with him for ensuring correction of the documents essential for running the vehicle.  During course of argument learned counsel appearing for the Opp. Pastries  informed the Forum to comply with the orders passed by this Forum in the aforesaid Misc. case and further submitted  that  the petitioner has not turned up to comply his part of the order  as per the order. So when this Forum  has already passed necessary orders for release of the vehicle and the vehicle is yet to be released, at this stage it will be premature to issue a direction to the Opp. Parties not to repossess the vehicle when it is already there in the custody of the Opp. Parties.  Since a order has already been passed in the Misc. Case  we  deem it just and proper to direct the petitioner to get his vehicle released within two months as per the orders dated 30.5.2018 passed in the Mis. Case No. 16 of 2018.  Under the peculiar facts and circumstances of the case parties to bear their own cost.   Accordingly, the complaint is disposed of.

 

(Miss Bijayalaxmi satapathy)    (Sri Badal Bihari Pattanaik)  (Sri Purna Ch. Mishra)

                  Member                              President                                Member

 

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