Orissa

Cuttak

CC/46/2021

Md Majid - Complainant(s)

Versus

Bajaj Finance Ltd - Opp.Party(s)

B M Mohapatra

17 May 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.46/2021

 

           Md. Majid,

           S/O:Md. Nawazis,

           At:Aparna Nagar,P.O:Nayabazar,

           P.S:Chauliaganj,Dist:Cuttack-753004.                     ... Complainant.

          Vrs.

 

1.       Branch Head,

Bajaj Finance Ltd.,

Sreema Construction Building,

                  3^rd floor,Naya Chowk,Madhupatana,Dist-Cuttack-753010

 

 

2.       R.T.O-II,Bhubaneswar,

                        At/PO:Patia,Dist:Khordha.                              ...Opp. Parties.

 

 

Present:            Sri Debasish Nayak,President.

                             Sri Sibananda Mohanty,Member.

 

 

Date of filing:    04.03.2021

Date of Order:  17.05.2023

 

For the complainant:                    Mr. B.M.Mohapatra,Adv. & Associates.

For the O.Ps  no.1     :                  Mr. R.K.Rout,Adv. & Associates.

For the O.P no.2        :                           Self.

 

Sri Debasish Nayak,President                        

          Case of the complainant bereft unnecessary details as made out from the complaint petition in short is that he had purchased one Bajaj Pulsar two-wheeler bearing Regd. No.OD-33L-6386 by obtaining finance for an amount of Rs.71,000/- from the O.P no.1 vide loan Agreement No.12WBHUO462808 on 6.3.17 and it was agreed thereon to repay the said loan in 36 number of E.M.Is @ Rs.2757/- effective from 6.3.2017 till 6.2.2020.  The complainant had cleared 33 number of E.M.Is but on 8.11.2020 at about 11.00 A.M. the O.P No.1 had seized the vehicle of the complainant at Kalyaninagar Area without even issuing any prior notice to him.  When the complainant enquired about the same he came to know that as because he had defaulted in paying the last three number of E.M.Is his vehicle was seized.  It is for this, the complainant has filled this case claiming a sum of Rs.1,00,000/- from the O.P no.1 towards compensation for his mental agony and harassment, another sum of Rs.1,00,000/- towards loss of his prestige, a sum of Rs.50,000/- towards his litigation expenses and further a sum of Rs.50,000/- towards compensation for the unfair trade practice of the O.P No.1.

In order to further his case, the complainant has filed copies of several documents alongwith his complaint petition.

2.       Both the O.Ps have contested this case but have filed their respective separate written versions.   According to the written version of O.P no.1, he had financed the complainant for purchasing a Bajaj Pulsar two wheeler vide loan agreement No.12WBHU04862808 and had financed a sum of Rs.99,252/-which was agreed to be repaid by the complainant in 36 number of E.M.Is @ Rs.2757/- effective from 6.3.17 to 6.2.20.  Each instalment was to be cleared on or before the 6^th day of the respective months.  But O.P no.1 has stated that the complainant had bounced on 6.12.17, 6.1.18, 6.3.19 to 6.6.19, 6.8.19 to 6.12.19 and on 6.1.20 mandate.  Ofcourse the complainant had remitted 33 number of E.M.Is and had thereby paid a sum of Rs.90,990/- towards his loan account as on January,2021.Still then an outstanding amount of Rs.8262/- alongwith overdue charges of Rs.13,230/- is lying to be repaid.  O.P no.1 had issued loan recall notice to the complainant on 28.11.2019 specifying the total outstanding amount of Rs.20,337/- therein.  As because the complainant had defaulted in repaying the loan within the due time, O.P no.1 had taken peaceful possession of the vehicle alongwith keys on 4.12.2020.  The O.P no.1 had also sent the pre-sale notice dt.5.1.2021 to the complainant thereby informing him to remit the outstanding dues thereby of Rs.21,492/- and to take back the vehicle from his custody but the complainant had never responded to the O.P no.1.  It is for this, the O.P no.1 through his written version has prayed to dismiss the complaint petition which according to him is not maintainable.

Together with the written version, the O.P no.1 has also filed series of copies of documents in order to prove his stand including the copies of letters sent to the complainant on various occasions.

The O.P no.1 has relied upon a catena of decisions as cited in his written version out of which some relevant decisions are as follows:-

i.        In the case of Charanjeet Singh Chaddha Vs. Sudhir Mehra [AIR 2001 SC 3721(3722 and 3724) Hon’ble Supreme Court has held that, “if the loanee is repaying the EMIs in continuity, is authorised only to use the vehicle hypothecated, until the loanee repay the whole outstanding amount” the finance company is the bonafide owner of the vehicle.”

ii.       In the case of Manipal Finance Corpn. Vs. T Bangarappa [194 Supp. (1) SCC 507] the Hon’ble Supreme Court has held that, “in case of default in the repayment of the amount due, the financier is entitled to repossess the hypothecated vehicle”.

iii.      2008(2) Supreme 596 Bharat Mehta Vs. State by Inspector of Police Chennai. The Apex Court held in this matter that in case of default to repayment of EMIs by the bonifide owner of the hypothecated vehicle is the financer till the repayment of the last and final E.M.I.”

iv.      U.G Sampat Vs. Sh. Ram Investment Limited III (1995) CPJ524: Tamil Nadu State Consumer Dispute Redressal Commission held “As per the Hire Purchase Agreement/Hypothecation Agreement terms and conditions, in the event of failure to repay the arrears of dues, and if the financer repossess sell the said vehicle without prior notice to the hirer does not come within the purview of deficiency in service”.

v.       In Surender Kumar Agrawal Vs. Telco Finance Ltd. & Anr. II(2010) CPJ 163 (NC). The Hon’ble National Consumer Dispute Redressal Commission held that: “if any dispute arises as per the Hire Purchase Agreement/Hypothecation Agreement in the event of the default of the repayment of the outstanding dues EMIs, consequently if the financer repossess the vehicle, does not fall within the bracket of deficiency in service”.

vi.      Sheela Kumari Vs. Tata Engineering and locomotive Company & Anr. 2007 (NC): II 2007 CPJ 92 NC.  The Hon’ble National Consumer Dispute Redressal Commission held that:-“In the event of the default of the repayment of the dues repossession of the hypothecated vehicle is not the deficiency in service”.

 

             Though the O.P no.2 has filed his single page written version, as it appears therefrom, he admits about the registration of the Bajaj Pulsar two wheeler bearing No.OD-33L-6386 of the complainant and mentions that  the ownership has not been transferred till he had  filed his written version on dt.9.4.21.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable ?

ii.         Whether there was any deficiency in service on the part of the O.Ps and if they have practised any unfair trade ?

          iii.        Whether the complainant is entitled to the reliefs as claimed?

Issue no.ii.

Out of the three issues, issue no.ii being the pertinent issue is taken up first to be considered here in this case.

The complainant had purchased one Bajaj Pulsar two-wheeler bearing Regd. No.OD-33L-6386 after obtaining finance from the O.P no.1 vide loan Agreement No.12WBHUO462808 on 6.3.17 for an amount of Rs.71,000/- and it was agreed between the parties that the complainant would repay the said loan in 36 number of E.M.Is @ Rs.2757/- effective from 6.3.2017 till 6.2.2020.  Admittedly, the complainant became a defaulter in repaying the loan dues and he admits that he had defaulted in paying three number of E.M.Is.  According to the O.P no.1, an outstanding amount of Rs.8262/- alongwith overdue charges of Rs.13,230/- is still lying to be repaid by the complainant.It is the case of the O.P no.1 that inspite of pre-sale notice dt.28.11.2019 sent to the complainant specifying the outstanding amount of Rs.23,307/- against him, the complainant had not turned up for which the O.P no.1 taken peaceful possession of the vehicle from him on 4.12.2020.    When there is deviation to the terms and conditions of the loan agreement and when the complainant became a defaulter and had not turned up even after getting pre-sale notice and even after several requests as made to him, the claim of the complainant that there is deficiency in service on the part of the O.P no.1 by taking the hypothecated vehicle to their custody as well as practice of unfair trade by them does not hold good here in this case.  Accordingly, this issue goes in favour of the O.P No.1.

Issues no.i& iii.

          From the discussions as made above, it can never be said here that the case as filed by the complainant is maintainable and the complainant is entitled to any of the reliefs as claimed by him.  Hence it is so ordered;

 

ORDER

          Case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 17^th day of   May,2023 under the seal and signature of this Commission.          

                                                                                                                           Sri DebasishNayak

                                                                                                                                     President

 

 

                     

                                                                                                        Sri SibanandaMohanty

                                                                                                                                   Member