State Consumer Disputes Redressal Commission
Madhabi Das vs The Manager, M/S. Todi Investors on 16 July, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1230/2014 (Arisen out of Order Dated 29/09/2014 in Case No. Complaint Case No. CC/55/2012 of District Kolkata-I) 1. Madhabi Das Vill. - Puratan Bazar, Ward No.14, P.O. & P.S. - Diamond Harbour, Dist. - South 24 Pgs. 2. Debabrata Das Vill. - Puratan Bazar, Ward No.14, P.O. & P.S. - Diamond Harbour, Dist. - South 24 Pgs. ...........Appellant(s) Versus 1. The Manager, M/s. Todi Investors 225 D, AJC Bose Road, Kolkata - 20, P.S. - Maidan. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER For the Appellant: Mr. Debesh Halder, Advocate For the Respondent: ORDER
Date: 16-07-2015 Sri Debasis Bhattacharya This appeal is directed against the Order dated 29-09-2014 in C. C. No. 55/2012, passed by the Ld. District Forum, Unit-I, Kolkata whereby the complaint case has been dismissed on contest against the OP. Being aggrieved by and dissatisfied with the same, the OP thereof has preferred this appeal.
Case of the Complainants, in brief, is that they entered into three hire purchase agreements with the OP in respect of their vehicle no. WB-19A-4422 and have repaid the entire loan amount in respect of first two loans and in respect of the third loan, out of 23 instalments, they have repaid the amount of 21 instalments and only two instalments were left unpaid. All on a sudden, they received a letter dated 30-07-2011 from the Ld. Advocate of the OP stating that a sum of Rs. 68,256/- stood outstanding in their name. After receiving the letter, Complainant No. 2 visited the office of the OP and as per their advice, paid Rs. 28,130/- as full and final settlement of the outstanding due. Despite this, the OP has not issued NoC. Legal notice served upon the OP in this regard also did not yield any positive result. Hence, the case.
OP contested the case by filing W.V. by which they raised preliminary objection challenging maintainability of the complaint case stating inter alia that the instant case involves complicated question of fact and law and therefore, the Ld. Forum sitting in a summary trial cannot adjudicate the same which require lengthy hearing. The hire purchase agreements executed between the parties are commercial in nature. The allegation of wrong statement of accounts, wrong and arbitrary calculation of interest and other charges can only be adjudicated in a civil court. Moreover, as per the Hire Purchase Agreements, it has been mutually settled and agreed by and between the parties that all matters, questions, disputes, differences relating to the said agreements has to be referred to the sole Arbitrator, Mr. Pulin Behari Das, Advocate, Calcutta High Court, under the provisions of the Arbitration and Conciliation Act, 1996.
The Ld. District Forum dismissed the complaint case holding that the Complainants have failed to substantiate and prove the case and hence not entitled to the relief.
We are to consider in this appeal whether the impugned order suffers from any factual and legal infirmity, or not.
Decision with reasons Ld. Advocate for the Appellants has submitted that the instant dispute arose over an arbitrary and illegal demand of Respondent in respect of the loan taken by them from the latter. They took loans from the Respondent under three hire purchase agreements and have repaid the entire loan amount more or less within the schedule period of payment, but despite repeated requests, the Respondent has not issued NoC in favour of the Appellant No. 1. This is a clear act of deficiency in service on the part of the Respondent and a complaint of this nature is, therefore, very much maintainable under the Consumer Protection Act, 1986. Yet, the Ld. District Forum dismissed the complaint case which has caused great prejudice to them. As such, in the interest of natural justice, the impugned order be set aside. He has relied upon three decisions of the Hon'ble Supreme Court reported in IV (2005) CPJ 29 (SC), 2001 (1) CPR 1 (SC) and AIR 2004 SC 184.
It is the settled law that Section 8 of the Arbitration and Conciliation Act, 1996 is no hindrance for a Consumer Forum to entertain a dispute under the Hire Purchase Agreement given the fact that Sec. 3 of the 1986 Act makes it amply clear that the provisions of this Act is in addition to and not in derogation of the provisions of any other law for the time being in force.
If both sides appear before the Ld. Arbitrator for remedy through arbitration and most importantly, such an option is explored before filing a case in the Consumer Forum, it is still understandable that subsequent consumer complaint is not maintainable, but in this case none of the parties opted for remedy of arbitration. So, in view of Section 3 of the 1986 Act, being additional remedy available before the Appellants, the objection of the Respondent in this regard does not hold any water. In this regard, the decision of the Hon'ble National Commission, as reported in 2013 (2) CPR 756 (NC) is also a pointer.
Although the Respondent has claimed that the dispute involves complicated question of fact and law, most surprisingly, however, they stopped short of assigning any reason that prompted them to think so. As it appears from the documents on record that the Appellants took some loans from the Respondent and due to delayed repayment of loan, the Respondent imposed some charges under different heads. Now, whether imposition of such charges was in conformity with the agreements in question and also whether the same adhered to the law of the land, remains the bone of contention. It is for the Respondent to justify their claim by providing necessary documentary evidence, viz., legible copy of agreements, statement of accounts, detail calculation sheets of various charges in this regard. On the other hand, it is incumbent upon the Appellants to provide complete documentary evidence toward payment of EMIs and Misc. charges, if any, along with statement of accounts in respect of each of the loan accounts in order to enable the Ld. District Forum derive at a just and conclusive decision. By no stretch of imagination this can be treated as a complex issue at all, nor adjudicating such dispute involves complicated question of law. A District Forum is entitled to deal with such matters. As such, we deem it fit and proper to remand back the case to the Ld. District Forum to adjudicate the matter purely on merit after hearing both sides and thorough scrutiny of the documents on record.
In the result, the appeal succeeds.
Hence, ORDERED that the appeal be and the same is allowed ex parte against the Respondent, but without any order as to costs. The impugned order is hereby set aside and the case is remanded back to the Ld. District Forum, Unit-I, Kolkata for decision afresh in accordance with law. The District Forum is directed to decide the consumer complaint expeditiously, and preferably within a period of three months from the date of this order, after giving fresh opportunity to the parties to adduce further evidence and/or by filing their respective documents. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER