DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _90_ OF ___2016
DATE OF FILING : 26.8.2016 DATE OF PASSING JUDGEMENT: _8.5.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Subrata Chatterjee, vill. Hariharpur (Hospital Para) , P.O Mallikpur, P.S Baruipur, Kolkata – 700 144, South 24-Parganas.
O.P/O.Ps : 1. Ajay Kr. Paul, Indus Ind Bank, Baruipur Shibani Pith Branch ( Car Loan), Kolkata – 144.
2. Arindam Bose, Indus Ind Bank, Baruipur Shibani Pith Branch (Car Loan, Kolkata – 144.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The facts leading to the filing of the instant case run in its abbreviated form to the effect that the complainant purchased one four wheeler ,having taken a loan of Rs.3,90,000/- (inclusive of interest) on 31.5.2012 from the Indus Ind Bank of O.P nos. 1 and 2. He also agreed to repay the said loan by 48 monthly installments of Rs.8,297/- each. Repayment of loan by installment was made smoothly by the complainant. The trouble ,however, erupted in the month of February, 2016 when the complainant demanded statement of account of his loan from the O.Ps. The O.Ps did not furnish the statement of account to the complainant. They first demanded payment of Rs.60,831/- from the complainant and did not furnish any statement of account of his loan. Thereafter they i.e the O.Ps sent one legal notice dated 3.8.2016 to the complainant and thereby directed him to pay Rs.41,479/- within five days of the receipt of the said notice, in default the vehicle , it was warned, will be repossessed by them. On August 20, 2016 the O.Ps came to the house of the complainant with police and took away the vehicle of the complainant forcibly. Now the complainant has approached this Forum with prayer for issuing a direction upon the O.Ps to refund Rs.3,50,000/- paid by him to them and for payment of Rs.90,000/- as compensation for harassment and mental agony caused to him by the O.Ps. Hence, this case.
The O.Ps have been contesting the case by filing written statement ,wherein it is contended by them that they advanced a loan of Rs.3,90,000/-(inclusive of interest) to the complainant for purchasing a car on hire purchase agreement. The vehicle was hypothecated to the Bank by the complainant; loan was not repaid by him in terms of the agreement and the complainant incurred a default by not repaying the loan in terms of the agreement. Legal notice dated 3.8.2016 was ,therefore, served upon the complainant demanding payment of Rs.41,479/- as on 3.8.2016 within five days of the receipt of the notice. It was also warned to the complainant that the vehicle would be repossessed if the aforesaid payment was not made within that period. No payment was made by the complainant in terms of the notice. So, one Receiver i.e Amitava Roy was appointed by Ld. Second Bench, city Civil Court, Calcutta, in Misc.case no. 2950 of 2016 and the vehicle was seized on 20.8.2016 by the said Receiver in compliance of the order of the Court. The car is lying in the custody of the Receiver at present. The case filed by the complainant is malafide and frivolous and as such it deserves to be dismissed in limini.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Have the O.Ps made themselves guilty for deficiency in service by retaking the possession of the vehicle forcibly?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the parties have led their Evidences on affidavit which are kept in the record for consideration. The questionnaires, replies , BNAs filed by the parties are also kept in the record for consideration.
DECISION WITH REASONS
Point no.1 & 2 :-
Already heard the submissions of Ld. Lawyers ,appearing for both the parties. Perused the complaint, written version and the evidences cited on behalf of the parties. Also perused the questionnaires, replies and BNAs filed on behalf of the parties .
Considered all these.
It is to be seen now whether the complainant has been able to establish deficiency in service on the part of the O.Ps.
It has been stated by the complainant time and again both in his complaint and also in the evidence filed by him that he demanded statement of account from the O.Ps in order to make repayment of the entire dues. But the O.Ps did not provide any statement of account to him. He demanded the statement of account on February, 2016 and thereafter on May, 2016. He met the Branch Manager of the O.P Bank on July, 2016. He also submitted a letter ( copy filed herein ) before the Branch Manager of the O.P Bank on 23.7.2016 and thereafter on9.8.2016. But no one attached any importance to the cries of the complainant. He cried and cried in the wilderness; no statement of account was ever supplied to him by the O.Ps. Why are the O.Ps acting in hush-hush manner? Is it not lack of transparency on their part? The O.Ps are bound by the terms of the agreement. Clause 2.7of the agreement lays down inter alia thus, “On request, the statement of account shall be provided to the borrower”. But the borrower is so unfortunate that he has not been provided with the statement of account by the O.Ps, although he is entitled to get it in terms of the agreement. That the statement of account has been furnished to the complainant is not stated by the O.Ps in their written statement. They have not been able to say in the written statement that such statement of account was given to the complainant in compliance with the letters of the complainant. A fact not denied by the O.Ps in the written statement is always deemed to be admitted by them. So, regards being had to the facts which are not denied by the O.Ps , we feel no hesitation to hold that the O.Ps did never furnish any statement of account to the complainant inspite of repeated demand by the complainant for that thing. The O.Ps have not even complied with the terms of the agreement as referred to above ; they have violated the provisions of clause 2.7 of the agreement. The violation of the terms of agreement on the part of the O.Ps is considered to be a serious deficiency in service, for which, the O.Ps are held liable.
Next comes the question whether the repossession of the vehicle by the O.Ps constitutes any deficiency in service on their part. The vehicle has been repossessed by the O.Ps on20.8.2016. It is also found from the record that the complainant repaid almost all the installments of the O.Ps; he was liable to pay only Rs.41,479/- and he was also ready to make this payment, but the O.Ps have left no stone unturned to give any opportunity to the complainant so that hecan make payment of the paltry sum i.e Rs.41,479/-. By their legal notice dated 3.8.2016 the O.Ps have given only five days from the date of receipt of this letter to enable the complainant to repay the said amount. Period of five days is considered to be very much inadequate and the O.Ps should have given a reasonable time to the complainant to enable him to repay the meager amount of loan falling due to them. But they did not give such opportunity to the complainant; they repossessed the vehicle from his garage by resorting to the abuse of the process of law. Repossession of the vehicle by the Financer is possible only when such possession is taken in accordance with the procedure of Law and this has been reiterated from time to time by the Hon’ble Apex Court and also by Hon’ble National Commission. In the case of Citi Corporation Maruti Finance Ltd. Vs. Vijay Laxmi, AIR 2012 SC 509, it has been held that even in case of mortgage goods, subject to hire purchase agreement, recovery process has to be in accordance with the Law and the recovery process referred to in the agreement also contemplates such recovery to be effected in due process of law and not by use of force.
Clause 15.3 of the agreement lays down that the lender may take possession of the asset on the happening of Event of Default and for this purpose the lender’s authorized representative by due process of law will have unrestricted right of entry into the premises, garage etc. to take possession of the asset. This provision of the agreement also makes it clear that the possession of asset i.e the vehicle herein can be taken by the lender of loan in conformity with due process of law. The Hon’ble Apex Court has also issued guidelines to the effect in the above Ruling that the recovery process has to be in accordance with law.
Let us see now whether the O.P Bank has acted in compliance with the provisions of law. The provision for retaking a vehicle by a secured creditor is contained in SARFAESI Act which has come into force on and from 21.6.2002. Section 14 of the said Act requires the creditors to take assistance of C.M.M or D.M in taking possession of secured asset. But coming to the facts of the instant case ,it is found that section 14 of the said Act has been given a clear go-bye by the O.Ps. The reason is best known to them. They have not filed any petition either before the CMM or DM, praying for their assistance in the matter of repossession of the vehicle from the complainant. They have adopted another process to bypass the process laid down under section 14 of the said Act. What is the process adopted by them; they have filed a case before the ld. Second Bench, City Civil Court and have somehow managed to get an order regarding appointment of Receiver for taking possession of the vehicle. Accordingly possession of the vehicle has been retaken by the Receiver in that case , as goes the submission of O.Ps.
A copy of inventory list is filed herein and on perusal of such list it is found that no case number is mentioned in the inventory list. It is also not found that possession of the vehicle was taken by the Receiver. No copy of writ is also filed herein by the O.Ps to prove that Receiver was actually appointed for taking possession of the vehicle. That apart, Section 34 of SARFAESI Act makes it abundantly clear that Civil Court has no jurisdiction to enforce security interest and the enforcement of security interest can be made only under the provision of SARFAESI Act.
Upon scrutiny of all these facts and circumstances of the case, it stands established that the O.Ps resorted to abuse of the process of Law by procuring a favourable order from the Civil Court which has no jurisdiction at all in so far as retaking of possession of the vehicle is concerned and thus they succeeded to retake the possession of the vehicle from the complainant. They did not follow the legal procedures as mentioned above and that without following such legal procedure, they took over the possession of the vehicle unlawfully from the complainant, inspite of the fact that the complainant already paid the lion’s share of the dues of the bank with only a meager sum i.e Rs.41,479/- to be paid by the complainant to the O.Ps. The unlawful repossession of the vehicle of the complainant by the O.P has certainly caused tremendous harassment and mental agony to him. The complainant has prayed for return of the money paid by him to the O.Ps.
It is undisputed fact that the possession of the vehicle has been taken over by the O.Ps on 20.8.2016 i.e about two years before. During this period vehiclehas been kept idle and there is likelyhood of the vehicle suffering much more damage by this period due to its idleness. In these circumstances, we do think that it will not be wise enough to order the return of the vehicle to the complainant; instead , justice demands, as we think, that the money received by the O.Ps from the complainant from time to time should be refunded to the complainant.
Point nos. 1 and 2 are thus answered accordingly.
In the result the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.5000/- to be paid by the O.Ps to the complainant.
The O.Ps i.e O.P nos. 1 and 2 , who will remain jointly and severally liable to the complainant, are hereby directed to refund the money paid to them by the complainant by way of installments in terms of the agreement and also to pay a sum of Rs.50,000/- as compensation for causing harassment and mental agony to the complainant along with cost of litigation as referred to above within a month of this order, failing which, all the amounts as referred to above will bear interest @9% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
