Orissa

Jajapur

CC/13/2016

SK.Ayub - Complainant(s)

Versus

Asst.Manager Recovery Chandikhole Recovery Cell. - Opp.Party(s)

Pratap Kumar Ray

11 Sep 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                                                      

                                              Dated the 11th day of September,2017.

                                                            C.C.Case No.13 of 2016

SK.Ayub  S/O Magubul

Vill. Chahata P.O./P.S.Dharmasla

 Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

1.Asst. Manager, (Recovery) chandikhole recovery cell ,At. Chandikhole

  P.S. Dharmasala, Dist. Jajpur.

 

2.Orissa state financial corporation , Madhupatana, represented through its

Branch manager,cuttack-11,branch, Madhupatana, Cuttack..

                                                                                                                            ……………..Opp.Parties.                  

For the Complainant:                           Sri P.K.Ray, R.K.Mohanty, advocates.

For the Opp.Parties : No.1                   None.

For the Opp.parties : No.2                   Sri B.B.Sahoo,advocate.                                                                                                 

                                                                                                           Date of order:   11.09.2017.

SHRI  PITABAS  MOHANTY,  MEMBER  .

Deficiency in financial service is the grievance of the petitioner.

            The fact relevant for  the present dispute shortly are that the  petitioner is an unemployed youth and to  maintain his livelihood purchased a mini truck bearing Regd. No.0R-04-6186  at the cost of  Rs. 1,93 ,000/- taking financial assistance from O.P.No.2. .After purchasing the above vehicle the petitioner  spent Rs.83,000/- from his own pocket to make it fit  to ply on the road. The petitioner has regularly was paying the installment but some miscreants loaded some woods in the Truck forcibly during absence of the petitioner for which it was seized on 25.01.94 by the Range officer, Khandagiri. Subsequently the petitioner released his vehicle in his favour as per order of the Hon’ble High court bearing O.J.C. No.6582/95 having  certain conditions .

a.That the petitioner will furnish property security of Rs. 1,00,000/to the satisfaction of the authorized officer-cum-Asst. Conservator of Forest, Puri Division, Khurda .

b.That the petitioner shall also file an under taking to produce the vehicle as and when required by the authorized officer.

c.That the petitioner  shall also  furnish an undertaking not to alienate the vehicle without leave of the authorized officer.

            That it is pertinent to mention here that while  the vehicle was kept in locked near the house of the petitioner,  the O.P  is seized the vehicle at Jaraka ,Dist. jajpur  and took it  into their possession without providing  any seizure list to the petitioner as well as   without giving any prior intimation . Thereafter the petitioner ran to  the O.P  for release of the vehicle as the petitioner had given an undertaking before the forest authorized officer  not to alienate the vehicle without his leave but the O.Ps  playing  hide and seek game with the petitioner slept over the matter .

            That the petitioner has tried his  level best to convince the O.P  to release  the alleged vehicle in his favour, in view of the order of  Hon’ble High court Odisha passed in O.J.C No.6582/95    but the O.Ps did not listen to him and finally 20.02.16 the O.P disclosed that they  have sold the vehicle on public auction . The  aforesaid action of the O.Ps  not only amounts to illegal unfair trade practice but also gross deficiency  of service, for which the petitioner  sustained mental agony and financial  loss.

            Accordingly the petitioner filed the present dispute with the prayer to direct the O.P to pay compensation of 3,00,000/ to the petitioner deficiency of service

            After notices , notice returned against O.P.no. 1 as postal remark  “left”. The O.P.no.2  though appeared through  their learned advocate but did not choose to contest the dispute by  filing   written version   and  objection. Hence the O.PNo.2  set- exparte vide order dt. 02.06.17

            On the date of hearing we heard the argument from the learned advocate from the side  of the petitioner  .After perusal of  the documents along with  decisions  filed from the side of the petitioner  it is observed that :

*it is undisputed  fact that the petitioner purchased the alleged Mini Truck taking financial assistance from the O.P.No.2.

* it is also undisputed fact that i.e on 25.1.94 the alleged vehicle was seized by the Range officer, Khandagiri  and subsequently released  by the order of the Hon’ble High court of Odisha                vide O.J.C No.6582/95  having certain conditions.

            Thereafter  the vital allegation raised by the petitioner in the complaint petition is  that  the O.Ps without giving any prior notice and  seizure list has seized the vehicle and subsequently  sold the same without giving any presale notice . But the petitioner has not mentioned   in the complaint petition  the date of the seizure of the vehicle .On the other hand the O.P.no.2 though appeared through their learned advocate  but did not file any written version  or objection . Hence we accept the uncontroverted  statement  of the petitioner made in the complaint petition  as per observation of the Hon’ble State Commission, Odisha reported in 2003-Vol-96p,15 C.D. Case No.37/02 wherein it is held that :

            In absence of the W/V by the O.P this Forum is bound to accept the uncontroverted statement  of the complaint petition  .

And

2013 (1) CPR-507.NC wherein it s is that :

            In  case W.V not filed after  several opportunity it has no defence on merit.

            As regards the merit of the dispute,  It is alleged by the petitioner that the O.Ps have unauthorizedly and illegally  seized the vehicle and subsequently sold the vehicle without giving any pre-sale notice . In this contest it is our considered view that though the O.P  is entitled to exercise its right when if the petitioner to seize and sale the vehicle became as defaulter but  such seizure and sale in auction must be as per law . In this present  case   the O.P  has  not intimated to the petitioner on which date the alleged vehicle shall be put to  auction sale  as a  result the petitioner lost an opportunity  to take part in the auction sale  to purchase the vehicle . In our opinion the O.P  ought to have intimated the date of intended sale to the petitioner so that he would have been able to participate in the said auction sale .

            Further there is no evidence of any public notice having been given by the O.P  in a news  paper before selling of the vehicle  . Therefore it can not be said that the vehicle was sold by following  the proper process of law . This was not only another act of deficiency  on the part of the O.P  but also patient unfair trade practice .

            The next aspect comes to consider is whether the mode of seizure of the  alleged vehicle is tenable in the eye of law.  In this context after perusal of the observation of Hon’ble supreme court reported in 2006-CTJ-209-SC(M.D Orix Auto Vrs. Joginder Singh) we are inclined to hold that though the O.Ps are empowered as per term and condition of the agreement to seize and sale the financed vehicle in case of default of monthly installments towards the loan but such seizure and sale must be as per law in view of the  observation of Hon’ble Supreme Court reported in 2007(36) OCRCSC-815(Manager ICICI Bank Ltd, Vrs .prakash Kaur & Otrs). , 2016(1)310-N.C(Kotak Mahindra ltd, vrs. M.D sarif ) wherein it is held that  the vehicle repossessed by the financer is illegal.

 In this context we make it clear that no wherein  the hypothecation agreement of the alleged vehicle empowers the O.Ps. to take such action  violating the  guide line of Hon’ble Supreme Court ,National Commission and State Commission Delhi reported in 2012 (2) CLT-72 S.C, 2007(3)-CPR-191, 2005-CTJ-522 respectively   ( Citi crop Maruti Finance Ltd  Vrs. S.Vijay Laxmi) wherein it is held that :

                                “ seizure of the vehicle must be through court .”

We also verify the observation of  Hon’ble N.C reported in 2016(2)-CLT-31-N.C, (A.V Finance Pvt. Ltd vrs. Ramdas Raghunath patil) wherein it is held that repossessed vehicle can not be sold without notice to owner and 2016(2) CPR-342-N.C ,General Manager, LNT Finance Ltd vrs. Rampoda Mity ,wherein it is held that repossession of   the vehicle must be a fair and transparent   process.

                        In view of the above  factual aspects  we are inclined to  hold  that the O.Ps have committed  the gross negligence and patent deficiency in service as well as unfair trade practice by selling  the above  vehicle   without following  the proper procedure of law, for which the law consiclusively  is in the petitioner’s  favour and consequently the dispute must succeed and hereby allowed against the O.Ps. last but not least the vehicle was released in favour  of the petitioner vide  Hon’ble high Court, Odisha  OJC No.6582/95    and now the seized  Truck is the property of the forest department which should not have been lost sight of    by the o.P.no.2.

O R D E R

In the net result the dispute is allowed against O.P.no.2 .  The O.P.no.2 is directed to pay compensation of Rs.30,000/-(thirty thousand ) to the petitioner within  one month after receipt of this order, failing which the petitioner is at liberty to take shelter  as per law for realization of the awarded amount.

This order is pronounced in the open Forum on this the 11th day of September,2017. under my hand and seal of the Forum.