MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the Complainant assailing the judgment and order dated 10.10.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Burdwan, in D.F.Case No. 166/2012, dismissing the Complaint on the ground of the same being devoid of substance.
The facts of the case, which are relevant and pertinent for adjudication of the case on hand, are, in short, that the Appellant/Complainant obtained refinance-loan of Rs. 5,60,000/- on 30.10.2010 from the Respondents/OPs against her bus bearing Registration No. WB-41C-2127 with the terms and conditions, among others, of repayment of the said loan by 45 instalments, as referred to in the Welcome Letter, starting from 1.1.2011 upto 1.9.2014. But after repayment of Rs. 1,69,682/- upto 30.9.2011 the Appellant/Complainant defaulted in repayment of the outstanding amount of loan. Then the Appellant/Complainant by a letter dated 30.3.2012 surrendered the bus in question to the Respondents/OPs empowering the Respondents/OPs to sell the bus and adjust the sale proceeds against the dues of the loan. After such surrender, the Respondents/OPs repossessed the vehicle on 30.3.2012 from the Appellant/Complainant and issued Notice dated 30.3.2012 to the Appellant/Complainant requesting the Appellant/Complainant to repay the total outstanding dues of Rs. 6,97,748/- as on 30.3.2012 within 7 days and get back the bus, failing which the Respondents/OPs shall take steps as per terms and conditions of the Loan Agreement dated 30.11.2010 for putting the bus in sale as also for adjustment of the sale proceeds against the outstanding amount of loan. Ultimately, the repossessed bus, the value of which was assessed by the valuer M/s. Ghosh Surveyors & Valuers Pvt. Ltd. at Rs. 1,50,000/- against which quotation for Rs. 2,10,000/- as purchase price of the bus was received by the Respondents/OPs, was sold out as appearing from the Money Receipt No. 9916095 dated 30.4.2012, as available on records, leaving no sale proceeds payable to the Appellant/Complainant-Borrower. With this factual background, the Ld. District Forum passed the impugned judgment and order dismissing the Complaint. Dissatisfied with such impugned judgment and order the Complainant has preferred the instant Appeal.
The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum erred in dismissing the Complaint without properly appreciating the facts and evidences on records.
The Ld. Advocate further submits that for the default in repayment of the outstanding loan due to financial loss the Respondents/OPs forcefully repossessed the bus in question and sold out the same without effective service of Pre-sale Notice and thus contrary to the terms and conditions of the Loan Agreement.
The Ld. Advocate continues that the Pre-sale Notice dated 30.3.2012, which the Respondents/OPs claimed to have issued on 3.4.2012, remained unserved, indicating thereby the breach of terms and conditions of the Loan Agreement.
The Ld. Advocate also submits that the Appellant/Complainant was not served any information about the highest bid of the sale amount to enable the Appellant/Complainant to participate in the sale transaction of the repossessed bus in question and thus the Respondents/OPs committed deficiency in service and unfair trade practice.
The Ld. Advocate finally submits that in view of the aforesaid submission the Appeal should be allowed and the impugned judgment and order be set aside restoring the Complaint to its original number for adjudication afresh.
On the other hand, the Ld. Advocate for the Respondent No. 1/OP No. 1 submits that the instant case being related to transportation business is indicative of commercial purpose and the said transportation business is not for the exclusive purpose of self-employment of the Appellant/Complainant as is indicated in absence of averment in the Petition of Complaint to that effect and thus the commercial purpose in question is not covered by inclusive Explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986 and hence, the Appellant/ Complainant does not fall within the definition of ‘Consumer’ under the Act.
The Ld. Advocate further submits that it is well-settled that in case of Loan-cum-Hypothecation Agreement the financier is the owner of the vehicle and the borrower retains the same as a bailee/trustee and, therefore, repossession of the vehicle on the ground of default in repayment of outstanding loan as per terms and conditions of the Agreement is a legal right of the financier, i.e. the Respondents/OPs herein. In this connection, the Ld. Advocate refers to the following decisions:
- Surendra Kumar Sahoo Vs. Branch Manager, Indusind Bank Ltd., decided on 1.10.2012 in Revision Petition No. 3319 of 2012.
- Managing Director, Orix Auto Finance (India) Ltd. Vs. Jagmander Singh, reported in (2006) 2 SCC 598.
The Ld. Advocate finally submits that in view of the aforesaid submission and the decisions referred to above, the instant Appeal should be dismissed and the impugned judgment and order be affirmed.
The Ld. Advocate for the Respondent No. 2/OP No. 2 adopts the aforesaid submissions of the Ld. Advocate for the Respondent No. 1/OP No. 1.
We have heard both the sides, considered their respective submission and perused the materials on records.
Paragraph-5 of the Petition of Complaint reveals the admitted position of the Appellant/Complainant about her default in repayment of the outstanding amount of loan in question from October, 2011 (Running Page 13 of Memo of Appeal). ‘Final Call Letter To The Customer’ dated 6.3.2012 issued by the Respondent No. 1/OP No. 1 to the Appellant/Complainant, as available on records (Annexure-1, Running Page-23 of Memo of Appeal), reveals that the Appellant/ Complainant was given final opportunity to repay the outstanding loan amount before exercising the right by the Respondent No. 1/OP No. 1 as per the terms and conditions of the Agreement. ‘Surrender Letter’ dated 30.3.2012 by the Appellant/ Complainant addressed to the Respondent No. 1/OP No. 1, as available on records (Annexure-2, Running Page-26 of Memo of Appeal), also reveals that the Appellant/Complainant ‘voluntarily’ surrendered the vehicle in question to the office of the Respondent No. 1/OP No. 1 empowering the Respondent No. 1/OP No. 1 to sell the vehicle in question and adjust the sale proceeds against the outstanding amount of loan. There is no documentary evidence on records in support of forceful repossession of the vehicle in question as alleged.
It is a well-settled principle of law that under Loan-cum-Hypothecation Agreement it is the financier who is the owner of the vehicle and the person who takes the loan against the vehicle is a bailee/trustee and, therefore, taking possession of the vehicle in case of default in payment of instalments of the loan as per terms and conditions of the Agreement is within the legal right of the financier, i.e. the Respondents/OPs herein. In this connection, reliance is placed on a decision of the Hon’ble Supreme Court in Suryapal Singh Vs. Siddha Vinayak Motors & Anr., reported in III (2012) CPJ 4 (SC), wherein it was held, “Under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retains the vehicle only as a bailee/trustee. Therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier”. The same view was echoed in K.A.Mathai @ Babu & Anr. Vs. Kora Bibbikutty & Anr., reported in 1996 (7) SCC 212, Charanjit Singh Chadha & Ors. Vs. Sudhir Mehra, reported in III (2001) CCR 232 (SC), Surendra Kumar Agarwal Vs. TELCO Finance Limited & Anr., reported in II (2010) CPJ 163 (NC).
On the above facts and evidences on records and also respectfully following the decisions of the Hon’ble Supreme Court and the Hon’ble National Commission, as referred to hereinbefore, we agree with the conclusion of the Ld. District Forum and affirm the impugned judgment and order which appears to have been passed upon considering the settled principle of law in this matter and the evidence on records.
Consequently, the Appeal is dismissed. The impugned judgment and order is affirmed. No order as to costs.
