A. K. BHATTACHARYYA, PRESIDENT
Briefly stated the facts as averred in the complaint are that the complainant purchased a Tata Truck bearing Registration no. WB-33/7063 with the financial assistance of OPs for a sum of Rs. 2,75,000/- after executing an Agreement on 06-05-2008, copy of which was not provided to the complainant by the OPs. As per said Agreement, she was supposed to repay the loan by 10-02-2011 @ Rs. 11,496/- p.m. Complainant also stated that during the fag end of 2009, her husband suddenly fallen ill and underwent operation on 19-12-2009 for which she faced tough time in running her truck business. Therefore, she again applied before the OPs for according further loan and considering her satisfactory payment record, the OPs sanctioned a further loan of Rs. 1,12,237/- on 27-05-2010. It is alleged by the complainant when she asked for the Repayment Schedule in respect of the second loan from the OPs, they did not provide the same and simply advised her to pay Rs. 14,000/- p.m. in order to repay the entire loan by 05-03-2012. It is claimed by the complainant that she does not owe any amount to the OPs, yet on 18-06-2012 the OPs without any rhyme or reason forcibly seized the truck from her driver from NH-6 near Kharagpur. Subsequently, as per the order of ld. CJM, Paschim Medinipur the complainant got back the truck from the OPs. It is stated by the complainant that the OPs repossessed the vehicle without issuing any prior Demand/Legal Notice or Default Notice upon her. Moreover, as she has fully repaid her loan, there was no cause of action on the part of the OPs to seize the vehicle in question behind her back. Yet, as a result of such illegal action on the part of the OPs not only the complainant’s sole source of income got dried up for several months, but also it caused immense mental pressure/agony to her, hence the instant case.
In support of her contention, the complainant submitted several money receipts, Repayment Schedule issued by the OPs in respect of the first loan, Bank Statement of AXIS Bank, Pass Book of Canara Bank, Photocopy of pass book of PNB, Repossession Inventory List, Default Notice dt. 05-06-2012 issued by the OPs along with envelope, Tax Invoice of M/s Asian Tyres dt. 18-08-2012, Correspondences exchanged between the parties, Photocopies of treatment sheet in respect of her husband, Photocopies of two different Monthly Installment Schedules in respect of the same Agreement–one being submitted before this forum and another alleged to have been submitted before the Hon’ble High Court by the OPs etc.
OPs, on being served notice, appeared and filed their written version jointly resisting inter alia all the material allegations as made out by the complainant. The primary objection raised by the OPs is about the maintainability of instant case on the ground that the complainant is not at all a consumer as she used the vehicle purely for commercial purpose and it was not the only source of her income as claimed by the complainant and that the relationship between the complainant and the OPs were/are purely that of a debtor and creditor and above all, in terms of the Loan cum Hypothecation Agreement executed between the parties, all disputes/differences arising out of the contract ought to be settled under the Arbitration and Conciliation Act, 1996. It is also stated by the OPs that in terms of the Hire Purchase Agreement executed in between the parties the complainant was supposed to repay the entire loan along with interest as per the Repayment Schedule handed over to the complainant at the time of execution of the Agreement. However, on several occasions the complainant defaulted in adhering to the said payment schedule. Despite such poor payment history, at the request of the complainant not only the OPs restructured the payment schedule but also enhanced the loan amount. However, despite their wholehearted cooperation to stand by the complainant to help her tide over the difficult financial situation, the complainant again defaulted in making timely payment. Therefore, finding no other alternative, the OPs repossessed the vehicle in question in terms of the Hire Purchase Agreement after serving due notice upon her. Therefore, the OPs cannot be held responsible for deficiency in service as alleged by the complainant.
In their defense, the OPs submitted photocopy of Hire Purchase Agreement dt.28-05-2010 along with Monthly Installment Schedule and alleged Default Notice.
We have carefully gone through the materials on record including the Written Version, WNA etc., heard and considered the submission of ld. lawyers of both sides. To arrive at a decision, we frame the following points.
Points for consideration
- Whether the instant case is maintainable under the Consumer Protection Act?
- Is there any deficiency in service on the part of the OPs?
- Whether the complainant is entitled to any relief as sought for?
Decisions with reasons
Point No. 1;
The first and foremost objection raised by the OPs is that the complainant is not at all a consumer since she used the vehicle in question for commercial purpose and it was not her only source of income. However, OPs have neither adduced any cogent evidence nor produced any materials on record to lay bare the alleged other source of income’ of the complainant in support of such contention. In so far as it is the cardinal principle of law that a party who makes an allegation is duty bound to prove the same, in absence of any convincing evidence to drive home such contention on the part of the OPs, we are constrained to reject the objection of OPs in this regard.
Another ground of OPs objection about the maintainability of the instant case is that the in terms of the Loan-cum-Hypothecation Agreement executed by and between the parties, relationship between the complainant and OPs are nothing but that of a debtor and creditor which cannot be adjudicated under the Consumer Protection Act.
It is to be stated that sec. 2(c) of the Hire Purchase Act, 1972 stipulates that hire-purchase agreement means an agreement under which goods are let on hire and under which the hirer has an option to purchase them in accordance with the terms of the agreement and includes an agreement under which
- possession of goods is delivered by the owner thereof to a person on condition that such persons pays the agreed amount in periodical instalments,
It is, thus, evident that under a Hire Purchase Agreement, the possession of the goods rests with the owner who in turn bequeaths such right in favour of the transferee. Simply put, under a Hire Purchase Agreement, the owner of the goods transfers his ownership right in favour of the hirer. In the instant case, however, we have not come across a single document viz Blue Book, Registration Certificate, Insurance Certificate which stands in the name of the OPs. On the other hand, admittedly, the OPs are not dealing in purchase and thereafter, hiring of vehicles. Undisputedly, the said vehicle was purchased by the complainant with the financial assistance from the OPs after executing an agreement. In our considered view, when a banker/financier/banks helps a person to purchase something by lending money, the nature of such an agreement would be altogether different, lending money in such cases would simpliciter begiving loan to a consumer which is very much the subject matter of adjudication under the Consumer Protection Act, 1986.
Under such circumstances, we do not find any merit in the objection raised by the OPs.
Section 3 of the Consumer Protection Act, 1986 provides that the provisions of the Act are in addition to and not in derogation to provisions of any other law for the time being in force. It may well be that the Agreement executed between the parties spells out settlement of dispute under the Arbitration and Conciliation Act, but it does not mean that such additional remedy provided under the Consumer Protection Act cannot be availed of by the complainant.
In our considered view, therefore, the complainant is a bona fide consumer under the OPs and for that matter; the instant case is maintainable in its present form. In this view of the matter we find that the OPs objection about the maintainability of instant case is not tenable in law.
This point is, thus, disposed of against the OPs.
Point nos. 2 & 3:
Both these points are taken up together for the brevity of discussion.
Admittedly, the complainant was supposed to repay the OPs a total sum of Rs. 3,79,339/- by 10/02/2011 against the initial principal loan amount of Rs. 2,75,000/- at an equated monthly installment of Rs. 11,496/-. From the money receipts on record it transpires that the complainant repaid a sum of Rs. 3,02,300/- in cash till 30-04-2010 i.e. prior to taking loan for the second time from the OPs, while complainant’s pass book of Canara bank shows a total payment of Rs. 82,664/- during the said period and the money receipt of OP shows another payment of Rs. 8,000/- through cheque no. 951434 dt.30-04-2010 drawn on PNB, Panskura branch. Taken together, there can be no dispute as regards payment of Rs. 3,92,964/- by the complainant to the OPs till 30-04-2010. The complainant submitted another money receipt dt. 12-10-2009 showing a payment of Rs. 14,600/- vide Cheque no. 557841 dt.07-10-2009 drawn on Canara Bank, Bhimtala Pratappur branch. However, on going through the Passbook of the said bank as provided by the complainant we have not come across any debit entry in respect of that cheque. Therefore, we have not taken the same into our consideration. In any case, from the money receipts and pass book it is clear that the complainant repaid more than what she was supposed to pay to the OPs (Rs. 3,92,964 – Rs. 3,79,339 = Rs. 13,625/-) and that too almost 10 months in advance. Therefore,we find no merit behind OPs claim as regards outstanding to the tune of Rs. 1,81,000/- as on the date of execution of Second Agreement i.e. 28-05-2010 and they are, thus, debarred from claiming the same from the complainant.
It is stated by the OPs that they restructured the loan account of the complainant by executing a second loan agreement of Rs. 3,00,000/- on 28-05-2010 after adjusting outstanding amount of Rs. 1,81,000/- together with Rs. 4,000/- being upfront charge and Rs. 2,763/- as Credit Shield (premium against loan amount) and the balance amount of Rs. 1,12,237/- was paid to the complainant by cheque.
We find from the money receipts on record that the complainant repaid Rs. 1,07,600/- in cash during the period from 20-07-2010 to 15-03-2012 and from the photocopy of Passbook of Complainant’s account with PNB, Panskura branch it transpires that a total sum of Rs. 40,000/- was paid to the OPs during the period from 07-10-2011 to 23-11-2011 i.e. during the period from 20-07-2010 to 15-03-2012 the complainant repaid a total sum of Rs. 1,47,600/- to the OPs which goes to show that the complainant repaid extra (Rs. 1,47,600 – Rs. 1,12,237)Rs. 35,363/- besides the principal loan amount much before the due date in respect of her second loan.
It is alleged by the ld. lawyer for the complainant that the OPs have resorted to falsehood and have not come up with a clean hand before this forum. Drawing our attention to the photocopies of two sets of Monthly Installment Schedules in respect of the Loan-cum-Hypothecation Agreement dt. 28-05-2010 – one being submitted before this forum showing the repayment schedule as 33 months and another being allegedly submitted before the Hon’ble High Court showing the repayment schedule as 45 months, ld. lawyer wondered how there could be two different sets of repayment schedule in respect of the same Loan agreement with further contention thatthe OPs did so with a malafide intention to impede/undermine/obstruct the free flow of the unsoiled stream of justice through submission of doctored document. Surprisingly neither the OPs placed the original Agreement Copy and Repayment Schedule in respect of the second loan before us nor could come up any satisfactory explanation to come clean in respect of such anomaly.
Now coming to the issue of repossession of the vehicle in question we find that it has been claimed by the OPs that since the complainant defaulted in making payment of monthly installments on several occasions, as per express term of the Agreement, they were fully justified in repossessing the vehicle. It is further claimed by the OPs that they repossessed the vehicle in question after serving due notice upon the complainant. However, we find from the postal endorsement on the envelope that although the Default Notice issued by the OPs mentions the date as 05-06-2012, but the said letter was posted on 22-06-2012 which the complainant received on 23-06-2012. By their said letter the OPs called upon the complainant to pay the outstanding arrear of Rs. 1,58,566/- within 7 days from the date of receipt of said notice. We, however, find that the men of OPs intercepted the said vehicle from the driver of the complainant on 21-06-2012 i.e. before posting and service of such alleged backdated notice. The OPs has not placed any cogent material to support their contention that due legal notice was served upon the complainant before repossessing the vehicle. In any case, it is the settled position of law that stipulation of self-created one sided provision does not empower a Financier to possess a hypothecated vehicle by use of force. The guideline of RBI in this regard in fact, support and makes a virtue of the conduct of a financier. If any action is taken for recovery in violation of such guidelines or the principles as laid down by the Hon’ble Apex Court, such an action cannot but be struck down. The very fact that the sand loaded vehicle was seized by the men of OPs midway near Kharagpur, it leaves no room for any ambiguity as regards forceful repossession of the vehicle without serving any prior notice. OPs action in this regard is, thus, totally illegal and against the provisions of law which tantamount to gross deficiency in service on the part of the OPs.
Due to illegal repossession and detention of the case vehicle by the OPs, despite repayment of excess amount towards the loan as would be found from the materials on record as discussed above, the complainant certainly suffered loss to her business which is stated to be her sole source of income for the purpose of maintenance of livelihood. Considering the facts and circumstances of the case and having regard to the various unethical/illegal acts on the part of the OPs – as discussed hereinabove – we debar them from claiming further amount in any from from the complainant, if any, stands outstanding in the name of the complainant (as alleged by the OPs)as on this date in respect of the loan accounts in question, rather the OPs are to return the excess payment which they have received from the complainant as discussed hereinabove. Besides, taking into consideration the illegal act on the part of the OPs and resultant harassment, mental stress/pain/agony, financial loss etc. of the complainant thereof, we direct the OPs to pay a compensation of Rs.65,000/-to the complainant together with litigation cost Rs. 5,000/-.
Both these points are, thus, disposed of in favour of the complainant.
Hence, it is
ORDERED
that the instant C. Case No. 25/2012 be and the same is allowed on contest against the OPs. OPs are debarred from claiming any amount as alleged from the complainant in respect of the loan accounts in question. OPs are jointly and severally further directed to return Rs. 13,625/- which they have received in excess from the complainant together with compensation Rs. 65,000/- and litigation cost Rs. 5,000/- to the complainant within 45 days from the date of communication of this order i.d. the complainant is at liberty to execute the order in accordance with law in which case the OPs shall be liable to pay interest @ 10% p.a. over the total awarded amount from this day till full and final settlement.
