Orissa

Kendujhar

CC/39/2016

Niranjan Mallik - Complainant(s)

Versus

1. Cholamandalam Investment & Finance Company Limited - Opp.Party(s)

Sri A.C. Sahoo & Sri G.N. Jena

24 Mar 2017

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 39 OF 2016

    Niranjan Mallik, aged about 24 years,

    S/o: Jagannath Mallik,

    At/P.O: Bileipada, P.S: Joda,

    Dist: Keonjhar………………………………………….Complainant

                             Vrs.

1. Cholamandalam Investment &

    Finance Company Limited,

    At: 4^th Floor, Shree Shyam Kunj,

    Above S.B.I. Evening Branch,

    Barbil-Joda Highway, P.O: Barbil-758035,

    Dist: Keonjhar

2. Cholamandalam Investment &

    Finance Co. Ltd.

    Head Office at No.2, NSC Bose Road,

    Chennai-600001, Tel. No. 91-44-300007172

3. Owner of the Mitrabhanu Stock-yard,

    At/P.O: Bhadrasahi, P.S: Barbil,

    Dist: Keonjhar ………………………………………….Op. Parties

 

PRESENT:

   SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

   SMT. B. GIRI, MEMBER (W)

   Advocate for Complainant: Sri A.C. Sahoo & Sri G.N. Jena

   Advocate for OP1 & OP2: Sri A.K. Pattnaik & R.R. Rana

   Advocate for OP3: None

________________________________________________________________________________________

Date of Filing: 14.09.2016                                                                                        Date of Order: 24.03.2017                                                                              

 SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

1. In adumbrate, the complainant in maintain of his livelihood, purchase one Bolero SLX Vehicle being financed by Cholamandalam Finance Company.

2. It is averred the loan amount is Rs.6,33,000/-. The down payment is Rs.1,78,788/-. The registration No.OD-09B-3789. The repayment schedule is 47 installment, the EMI being Rs.18,550/-.

3. It is further averred the vehicle while going from Rungta to Barbil, the OP ceased the vehicle and in approach to pay the installments not heeded and not provided the seizure list, thrashing the driver out of the vehicle in utter disregard to the laws of the land.

4. Also submitted, the settled principle says without service of notice nor giving any opportunity to the complainant and not receiving the EMI on spot, forcibly snatching the vehicle and demanding exorbitant amount along with highhandedness, arbitrary action amounts to deficiency of service.

5. Prayed direction be passed to release the vehicle and pay the loss sustained due to such seizure, cost and litigation expenses that deemed fit under the law. Made reliance on payment receipts, invoice of Utkal auto, letter of finance, seizure list and R.C. Book in photocopies & affidavit.

6. In pursuant to notice, the OP contested the case in admission that Cholamandalam Investment & Finance Co. (hereinafter) OP, the Branch office located at Keonjhar, the customer is a deserving customer availing finance of Rs.6,33,000/- to purchase Bolero SLX/4WD vide loan agreement No.XVFPBBL 00001109868.

7. The OP submitted as per the clause of the loan cum Hypothecation Agreement. This OP is legally entitled to repossess the vehicle to recover the loan amount, the borrower’s continuous defaults in installments compel the OP to make public auction or by private contract at the best available prices at prevailing market condition.

8. Further submitted the possession is within procedure of law and as per the terms and conditions in the agreement, issued pre-sale notice terminating the agreement demanding the fore-closer amount and this OP forced to sold the vehicle as through live auction sale on dt.18.08.2015. The auction was made to recover loan dues.

9. And vehemently contended the OP has not made any mistake, the complaint is not sustainable no deficiency of service emerged to note, complainant not a consumer, the complainant failed to turn up to repeated notice and reminder and under the hypothecation agreement. The available procedure has been in application and it is false to say that till 11/2015 the petitioner paid the installments and also willing to pay the defaulted amount, the complainant comes under the doctrine of “Suppressio Very and Suggestion Falsi” and deserve to dismissed on same score.

10. Heard the counsel at extensive length and perused the materials on record & written arguments.

11. In the outset we can say in availing the financed service, the complainant is a consumer and as to the denial, the complaint is a consumer complaint and admittedly the OP resides here. Thus the case has jurisdiction and maintainable.

12. The complainant submitted due to some ill health constraint the loan installments have been defaulted and the default amount has been denied to receive, and where the settled principle has not been abided with as to the procedure.

13. Perusal of record reveals, it is admitted the vehicle has been repossessed without any notice and employing extra muscular force while en-route to pre-contra spot.

14. In post-repossess, it is admitted the vehicle has been made auction and the proceed thereof has been adjusted towards dues accumulated in default.

15. On the other hand it is submitted by the complainant even as per the Hypothecation Agreement Clause 11 (a) that reads -

REPOSSESSION:

(a) (i) Notice: Incase of any default in repayment including an occurrence of any of the aforesaid Events of Default and/or failure to surrender the Asset as mentioned herein above, the Company shall cause a 7 day notice to be issued to the Borrower at his address as registered with the company. The notice shall be deemed to be served on the Borrower within 24 hours of posting the notice by the Company even if the notice so served returns unserved for whatever reason and the confirmation from any authorized officer of the Company for having posted the notice to the Borrower shall be final and binding in this regard.

(iii) Post Repossession: Upon taking possession of the vehicle, as a final chance to rectify the default, a seven days notice shall be caused upon by the Company …………………………………………………………………….........................................................shall be final and binding in this regard.        

16. The Company has not caused a notice and as per same clause (iii) Post-repossession to rectify the default, no notice has not been effected. No evidence has been adduced by the OP in controvert of same. Again the authorization letter to seize the vehicle, Pre-sale letter to the customer and Pre-seizure intimation to Police station is not supported by any dispatch intimation, no dispatch register has been furnished in corroboration of same so we treat they are made & managed to counter the charges leveled only and not believable.

17. Again, it is admitted presale notice has been effected personally, no piece of evidence lies to establish, when presale notice has not been effected and subsequent auction has been made and the auctioned also effected not heeding to the interim order issued by this forum in restraint, so under the above noted circumstances, it is amply evidential repossession is no more appear to be transparent so to say the auction of the vehicle at throwaway undisclosed price, in utter disregard to the direction of the forum on dt.20.09.2016 justify the OP committed illegality in neck deep fathom and making the fact in shrouded mystery.

18. Evidently, the OP admitted sanction of finance to the tune of Rs.6,33,000/- vide loan agreement No.XVFPBBL 00001109868, against 47 EMI costing Rs.18550/- only. No Arbitration award has been passed. In default of loan repayment, repossessed the vehicle and online public auction on dated 18.08.2015 fetching the best available prices.

19. As per the material available on the record, the vehicle bearing No.OD-09B-3789 forcibly repossessed on dt.01.03.2016 where as auction made on 18.08.2015 as advanced by the OP. Even if that be the case, repossessed date not furnished before this forum, again suppressing the auctioned price that the vehicle fetched and the auction procedure adopted along the documentation entered into and adjusted towards full and final settlement, not issued with any “NOC” to the petitioner is no more believable transparent & white but shrouded in mystery which effected the petitioner severally.

20. Again as per the record, in obedience to the direction made on 20.09.2016, the petitioner smartly  offered to pay Rs.55,500/- on demand, which is denied by the OP to receive the same and thus deposited in the forum. When 3 nos. EMI amounting to Rs.55,500/- has been defaulted and 2 nos. of EMI paid on spot & denied we failed to convinced, such manner does not warrant a forcible repossession and end up in auction. So entire gamut of story did not need any prove, in view of the admission that not controverted by any document in contrary which amplify the OPs action is arbitrary, irrational and illegal to the utmost extent & core and making obfuscate in willful manner. Each ingredient of this case makes the financer liable on such elusive score.     

21. Not a single note of fact as pleaded by the OP corroborates that unlawful and unethical procedure has been mistakenly acted upon rather the adamantly in repossession to auction establish the policy & procedure of the OP is thrived upon on such deprecate values which is against public policy and also against the protection of public interest and matter of condemnation we strongly disapproves such manner of auction and involvement.

22. Our same view is fortified with two nos. of decision that we placed reliance and the petitioner counsel relied upon.

(I) Khirod Kumar Behera Vs. Branch Manager, ICICI Bank Limited & Anr. - 2007 (1) OLR (CSR) - 62

(II) IndusInd Bank Ltd. Versus Birendra Kumar Sinha - 2011 (2) CPR 18 (NC)

Under above noted discussion, we hold the repossession is not effected under due process of law and further illegality committed -

In disregard to the interim direction issued to receive the installment and not to make any auction without the knowledge of this forum and makes mockery of law. So all the OPs are liable for the commission of willful negligence at their end. Which is transparently discussed on the cases that referred in the supra authorities.

Cases refered -

(i) Orix Auto Finance (India) Ltd. Vs. Jaymander Singh - 2006 (2) SEC 598

(ii) Citicrop. Maruti Finance Ltd. Vs. S. Vijaylaxmi - (ii) 2007 CPJ (NC)

(iii) ICICI Bank Ltd. Versus Prakash Kaur - 2007, 2SCC, 711.

 

O R D E R

   The OP1 &2 is directed to return the down payment i.e. Rs.1,78,000/- (Rupees one lakh seventy eight thousand) only to the petitioner along with Rs.1,00,000/- (Rupees one lakh) only towards professional loss, harassment & mental agony sustained, further to pay a penalty of Rs.50,000/- (Rupees fifty thousand) only in disregard of the direction made on dt.20.09.2016 inclusive of cost within 40 days of this order, failing @9% interest per annum will accrue on the entire amount from the date of application till complete realization.

(ii) Further directed to issue NOC to the petitioner.

(iii) The OP3 is directed to pay the petitioner a sum of Rs.3,000/- (Rupees three thousand) only in non-heeding to the call of the forum and omitting the notice in careless manner, within the above time frame, non-compliance of same will attract @Rs.20/- penalty per day till realization. 

Copy of the Order be made available to the parties as per rule.

File be consigned to record room.        

Pronounced, 24^th March 2017.

                                                                                                                                             

                 I agree                                             

     (Smt. B. Giri)                                                                                          (Shri Purushottam Samantara)                                                                          

     Member (W)                                                                                                             President                                                                                                                                                                                                                

 DCDRF, Keonjhar                                                                                                   DCDRF, Keonjhar                                                                 

                                                             

                                                                            Dictated & Corrected by me

                                                                          (Shri Purushottam Samantara)

                                                                                     (President)                                                         

                                                                               DCDRF, Keonjhar