BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-24/2017
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).
Paramananda Mahapatra,aged about 38 years,
S/O-Suresh Chandra Mahapatra.
R/O- vill- Kunjamara, P.O- Batagaon,
P.S-Naktideol,Dist- Sambalpur. …..Complainant
Vrs.
The Branch Manager,
Cholamandalam Financial services Ltd,
Office at Ainthapali,P.S-Ainthapali, Dist- Sambalpur. ….O.P
Counsels:-
- For the Complainant:- Sri D. Hota, Advocate & Associates.
- For the O.P :- Sri A.K. Sahu,Advocate & Associates.
DATE OF HEARING : 08.03.2021, DATE OF ORDER :12.04.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant is a driver by profession who has availed a Heavy Goods vehicle loan from the O.P vide loan agreement No- XVFPSBR 0000173517. The Complainant has purchased the said Truck for the purpose of maintaining his livelihood and he himself drives the vehicle. He was paying the EMI regularly but due to some unavoidable circumstances he could not pay the dues for last two months. The O.P without giving prior intimation or service of notice all of a sudden came on dtd. 08.02.2017 and taken away the said vehicle from the possession of the Complainant at Keonjhar. Thereafter the O.P sent a letter on dtd.23.02.2017 to the Complainant and demanded Rs.13,43,701/-. The O.P took Rs.7,000/- in cash towards repossession charges. The O.P has several times visited the office of the O.P to pay the unpaid two instalments and take back the possession of the vehicle but the O.P did not respond the Complainant. Due to seizure of the said vehicle the Complainant earning has been stopped and leading a miserable life. As per the Complainant the acts of the O.P are amounts to deficiency in services and prayed to this Commission seeking certain relief as per the petition.
According to the O.P the Complainant has availed a Heavy Goods Vehicle loan for commercial purposes and the O.p has sanctioned a loan of Rs.12,89,965/- vide loan agreement no- XVFPSBR 0000173517. As there is an Arbitration clause and a Jurisdiction clause hence all the disputes if arises will be settled in Chennai. The Complainant was liable to pay 60 monthly instalments of Rs. 31,400/ per month. Commencing from dtd.28.08.2016 to dtd.28.07.2021 with interest thereon. Despite repeated notices, reminders and personal follow ups the Complainant was not in a mood to pay the instalment dues. The Collecting agency also made several requests to pay the same but the Complainant became deaf ear to the request and demand of the Collection agency. As a result the O.P constraint to repossess the vehicle after following the due procedure of law. As the Complainant did not pay the instalment dues to release the vehicle the O.P Finance Company has sent Pre-Sale notice terminating the agreement demanding the foreclosure amount to him. Again it is added that the plea of the Complainant that he has purchased the vehicle for earning his livelihood is purely false rather he is using it for commercial purposes hence he does not comes under the purview of Consumer. In spite of giving sufficient opportunity he has not turned up to pay the dues to the O.P. He again denied that he has not received any cash from the Complainant at the time of repossession of the vehicle. The O.P has relied on certain decision to defend his case and claim that the O.P has not committed any deficiency in service hence the petition deserves to be dismissed.
As the case is a “YEAR OLD CASE”, this Commission has rightly decided to dispose the case on merit basis.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a new TATA LPT 1109/LCV from JALAN AUTOMOBILES Sambalpur through finance by the O.P after payment of consideration/down payment. It is seen that in the event of default in payment of two EMI the O.P has repossessed the vehicle of the Complainant by engagement of repossession team at Keonjhar. They seized the said vehicle forcefully without prior intimation and notice for payment of outstanding dues. Again the O.P has taken repossession charges of Rs. 7000/- and thereafter issued Pre Sale, foreclosure notice for payment of Rs.17,67,000/- towards full and final settlement of loan amount which seems to be illegal. It is observed that “the Hon’ble Supreme court has warned financial institution and banks against forcible taking away of vehicles under hire purchase agreement when there is default of payment of loan and said they could be saddled with punitive cost if they do so”. Again it is said that even in case of mortgaged goods subject to Hire-Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force. If any financier of a vehicle resorts to take back the possession in violation of such guidelines or principle as laid down by the Supreme Court such an action cannot but be struck down. There are various guidelines framed by the Reserve Bank of India and the Bank themselves, were not followed and more often than not the hypothecated goods, mostly vehicles were forcibly taken possession of by Recovery Agents hired by the financiers. The methodologies adopted by the Recovery Agents were contrary to the guidelines laid down by the Banks themselves and in the decisions of this Court in several other matters, where it has been uniformly indicated that recovery would have to be effected in due process of law and not by the use of muscle power. Views are taken that even in case of mortgaged goods subject to Hire-Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force. Till such time as the ownership is not transferred to the purchaser, the hirer normally continues to be the owner of the goods, but that does not entitle him on the strength of the agreement to take back possession of the vehicle by use of force. In the case of Manager, ICICI Bank Ltd vs Prakash Kaur & Ors on 26 February, 2007 the Hon’ble Supreme Court has rightly decide the matter and directed that the recovery of loans or seizure of vehicles could be done only through legal means. The Banks cannot employ Goondas to take possession by force. In this instant case, since after the vehicle had been seized, the same was also sold and third party rights have accrued over the vehicle. This matter has been well settled in the case of on 14 November, 2011 decided on dtd by Supreme Court of India. Hence the O.P has committed deficiency in service u/s 2(11) of Consumer ProtectionAct,2019. Hence we order as under:-
ORDER
That the Complaint petition is allowed. The O.P is directed to receive the outstanding installments of Rs 62,800/- of the aforesaid vehicle and to give delivery possession of the said vehicle bearing registration no- OD-15-F-8653. Further the O.P is directed to pay an amount of Rs.1,00,000/-(Rupees One Lakh) by way of compensation to the Complainant for causing him mental, physical and financial loss and agony and Rs. 10,000/-(Rupees Ten Thousand) as litigation costs. This amount shall be paid by the OP to the Complainant within a period of one month from the date of receipt of a certified copy of this order, failing which the OP shall pay interest @ 9% per annum on this amount from the date of filing the complaint, i.e., 09.03.2017 till its realisation."
Order pronounced in the open Court today i.e, on 12th day of April 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-Sd/- -Sd/-
MEMBER(W) PRESIDENT
Dictated and Corrected
by
-Sd/-
PRESIDENT
