Jharkhand

Bokaro

CC/18/57

Abdul Kudus Sultan - Complainant(s)

Versus

Branch Manager, Chola Mandalam Ivestment And Finance Co. Ltd. - Opp.Party(s)

Anand Prakash

19 Apr 2022

ORDER

1. Complainant has filed this case with prayer for direction to O.Ps. to pay Rs. 4,00,000/- on account of taking possession of the vehicle and for payment of Rs.1,00,000/- and Rs. 30,000/-  as compensation and litigation cost respectively to him.
2. Complainant’s case in brief is that he purchased one second hand Safari Vehicle on Rs. 4,00,000/- having registration No. JH09K-2850 which was financed to the tune of Rs. 2,99,000/- by O.P. Chola Mandalam Investment and Finance Co. Ltd. Further case is that complainant was regularly paying loan installments and had paid Rs. 1,20,000/- but due to serious illness of his wife he went to Vellore where remained for 6 month and due to it he could not paid loan installments of nine months, meanwhile on 28.09.2016 O.Ps. forcibly taken possession of the vehicle inspite of the fact that complainant was ready to pay the rest of the loan amount. Inspite of sending of Advocate’s Notice matter was not settled hence case was filed before this Commission.
3. O.Ps. appeared and they have filed W.S. mentioning therein that complaint petition is not maintainable and this Court is having no jurisdiction to entertain it. Further reply is that complainant has not approached this Forum with clean hands. Further reply is that as per agreement matter was to be referred to arbitrator but it has not been done and as per law in Hire Purchase Finance Agreement the financer is the real owner of the vehicle and loanee is simply bailee/trusty of the vehicle hence taking possession of the vehicle on the ground of nonpayment of installments is the legal right of the financer and during discharge of legal right possession of the vehicle has been taken by these O.Ps.  Further it is reply that complainant never paid monthly installments on or before schedule date fixed for the payment rather huge amount became dues upon him, hence after issuance of notice, possession of the vehicle was taken by the O.Ps. thereafter, notice to the complainant was issued for deposit of the loan amount but it was not deposited, hence on 30.09.2016 vehicle was sold on Rs. 1,60,000/- which has been adjusted against the loan amount. Further reply is that contents of para 1,2 and 3 of the complaint petition are admitted and other contents have been denied.
4.   On the basis of the pleadings of the parties it is apparent that only question for determination is that :-

1. whether the act done by the O.Ps. in this case is illegal land against the loan agreement ?
2. Whether complainant is entitled to get any relief as claimed ?

5.   Fact related to taking loan from the O.Ps. vide Hire Purchase Agreement dt. 28.02.2015 is not in dispute. It is also admitted fact that complainant has defaulted in payment  of the loan amount for a period of nine months and more continuously. Fact related to taking possession of the vehicle by the O.Ps. is also not in dispute.
6. Learned Counsel for the O.Ps. refer para 10 (a), para 11 (a),

(ii),(iii) & (vii) of the Loan Agreement executed between the parties and submits that all act has been done in accordance with said agreement.

7       We  would like to reproduce the provisions of para 10 (a), para 11

(a), (ii),(iii),(vii) of the loan agreement which are as fallow :-

10- EVENTS OF DEFAULT-

The Following events shall constitute and “Event of Default :-

1. The borrower or Guarantor failing to perform obligations, repay the loan or any installment, fee, charges or costs or any other amount due to the company in the manner herein content as and when it becomes due whether demanded by the company or not.

11 REPOSSESSION, TERMINATION AND COMPANY’S OTHER RIGHTS-:

a)On the occurrence of any of the Events of default contents in Article 10, the rights of the Borrower over the Asset shall stand determined void Ipso Facto without any notice and the Borrower shall be bound to deliver forthwith the Asset to the company in the same condition in which it was originally received by him with all accessories/modifications done by Borrowers whatsoever (in the case of vehicle), ordinary wear and tear excepted. Failure or refusal of the borrower to surrender the assets shall constitute unlawful retention for which the company shall be entitled to initiate criminal action without prejudice to other rights/legal remedies available to the company.

i)Repossession:- In case the Borrower fails to make payment of the dues or surrender the asset to the Company and/or rectify the breach of the terms of the contract in compliance with the notice mentioned above, to the satisfaction of the Company, without prejudice to it other rights available under the Agreement, the Company may be entailed to take possession of the Asset {referred to as “repossession”} and for the said purpose, enter any place or places where the Asset may then be or is likely to be, remove or take possession of the same. The Borrower agrees and undertakes not to prevent or obstruct the Company from exercising its right of repossession of the Asset in the event to default by the Borrower.

3. Post Repossession: Upon taking possession of the vehicle, as a final chance to rectify the default, a 7 days notice shall be caused upon by the Company to the Borrower to repay termination price (Which includes the charges and expenses incurred for taking possession of the vehicle including the legal expenses). 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

Vi) Upon sale of the Asset and adjustment of the sale proceeds towards the Loan dues (which includes the expenses/charges incurred for parking, sale of vehicle, in addition to the termination price) there is any shortfall amount due and payable the same shall be made good by the Borrower and/or the Guarantor.

7. On perusal of above mentioned provisions of the loan agreement it appears that all acts have been done by the O.Ps. as per agreement and non of the act is beyond the purview of it. Since it is admitted fact that complainant himself has defaulted in payment of the loan installments continuously for nine months hence it was within domain of the O.Ps. to take possession  of the vehicle concerned. It has been brought on record by the O.Ps. have given  notice to the complainant regarding payment of the dues prior to taking possession of the vehicle but there was no action by the complainant. It has also been brought on record that after taking possession of the vehicle concerned complainant was given opportunity to pay the dues amount of loan but he failed to comply it. Pre auction notice was also given to the complainant but he has not paid the dues. In this way O.Ps. have followed the norms as per agreed terms and conditions of the loan agreement and contrary to it there is no evidence of the complainant. It is also apparent that inspite of several opportunities complainant failed to deposit the loan amount hence he has not proved any fact that O.Ps. have acted beyond the purview of the loan agreement.
8.  In light of above discussion we are of the view that complainant has failed to prove his case related to deficiency in service by the O.Ps. hence he is not entitled to get any relief as claimed. Accordingly, both issues are being answered against the complainant and in favour of the O.Ps.
9.  Hence this case is being dismissed with cost.