DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JHARSUGUDA
CONSUMER COMPLAINT CASE NO. 19 OF 2016
Purna Chandra Patel ( 68 Years),
S/O: Jogeswar Patel,
R/O: Badbanga, Sundargarh,
PS: Lephripada,Sundargarh,
Dist- Jharsuguda, Odisha……………………………………………….……. Complainant.
Versus
- Branch Manager,
State Bank of India, Darlipali Branch,
At/PO: Darlipali, PS: Lephripada,
Dist: Sundargarh, Odisha.................................................................. Opp. Party.
Counsel for the Parties:-
For the Complainant Shri N.K.Naik, Adv. & Associates.
For the Opp. Parties Shri P.K.Behera, Adv. & Associates.
Date of Order: 26.10.2016
Present
1. Shri S.L. Behera, President.
2. Shri S.K.Ojha, Member.
Shri S. L. Behera, President :- The brief facts of the complaint’s case are that the complainant namely Purna Chandra Patel is a resident of village Badbanga, Lephripada Police Station under the district of Sundargarh, who has purchased a Tractor and Trolley for agricultural purpose and to maintain his livelihood by means of same self-employment, The complainant obtained financial assistance for the purpose of a Tractor and Trolley vide Regn. No. OR-16B-6402 and OR-16B-6403 respectively from the Branch Manager,State Bank of India, Darlipali Branch amounting to Rs.4,85,000/- only during July,2006, repayable by 18 numbers of half yearly installments @ Rs.26,945/- only per month each. While the payment of the loan was going on by the complainant the O.P repossesses the finance vehicle of the complainant on dt.01.03.2011 at Durlaga in the district of Jharsuguda forcibly by applying muscles power without taking recourse of law. The complainant went to the O.P to take possession of the said vehicle but the O.P refused to returned the same. Thereafter the complainant receipt a demand notice from the O.P for payment of Rs. 4,94,278/- only was outstanding dues on dtd. 31.03.2016. Hence the present case is filed before this Forum challenging the high hand action of the O.P and prayed for release of the said vehicle, exemption of outstanding dues and for payment of compensation due to deficiency in service on the part of O.P. On notice being issued to the O.P. appeared and filed his written statement wherein it was categorically stated that the complainant avail loan but defaulted in repayment for which the O.P sent demand notice dtd. 11.01.2011, dt.29.09.2011 and dt.23.01.2012. The O.P claimed that the complainant was having outstanding loan amounting to Rs.4,94,278.37P only as on dtd. 30.09.2015. The O.P’s contention is that when the complainant did not turn up to pay the EMIs. outstanding amount in time as per the agreement, the seizure of the vehicle was proper and due to non-compliance of the undertaken given by Shishir Kumar Patel within time fix auction proceeding was also not illegal with a prayer to dismissal of the complaint case.
The O.P in order to prove his contention have produce Xerox copies of (1) Loan application dtd. 22.07.2006. (2) Agreement letter dtd. 22.07.2006. (3) Hypothication Agreement dtd. 22.07.2006. ( 4) Deed of Guarantee, ( 5 ) Forwarding letter of the O.P dtd. 24.07.2006. ( 6 ) Dealer Money Receipt. ( 7 ) Demand Notice dtd. 11.01.2011, 21.09.2011 and 23.01.2012, ( 8) Statement of Account. ( 9) Repossessed vehicle dtd. 01.03.2011. (10) Letter of Complainant dated Nil.(11) Release Order. (12 ) Inventory List dtd. 22.11.2012. ( 13 ) OTS letter dtd. 21.01.2016.
3. We have gone through the complaint petition affidavit by the complainant and one Parameswar Naik and the written statement as well as materials, documents available on record. We have also heard the learned counsel argued on behalf of the parties.
4. The complainant claim that, he used to pay monthly installment regularly but when almost all the installments were being paid only 03 numbers of installments have to be paid, which he could able to pay, the O.P. take the said vehicle in possession on dtd. 01.03.2011 at Durlaga with in the District of Jharsuguda. He along with his friend namely Parameswar Naik of village Badbanga now the Sarpanch of the Badbanga Gram panchayat went to the office of the O.P so many time but the O.P or any of the official did not respond to them. And also no demand notice nor any auction notice regarding the auction of the vehicle has received by the complainant nor any notice was send by the O.P to the complainant. The complainant stated that, neither any News Paper Publication regarding the auction sale nor valuation certificate of the vehicle from a competnent authority has been filed by the O.P..To that effect the complainant and one Parameswar Naik has filed affidavit. But the O.P did not rebutted the same. It is also found from the demand notice send by the O.P to the complainant were not acknowledged by the complainant. Hence the O.P have failed to prove whatever demand notice sent to the complainant were acknowledged by the complainant.As to our openion the auction sale conducted by the O.P. is illegal and arbitrary. The O.P also challenge the territorial jurisdiction and limitation of this Forum. The vehicle was seize at Durlaga in the district of Jharsuguda and the complainant received demand notice from the O.P on 31.03.2016 for payment of Rs.4,94,278/- only towards outstanding dues and filed this case, hence this case is well within the territorial jurisdiction and limitation of this Forum to adjudicate the same. It is to be noted that all the documents filed by the O.P are Xerox copies and the original of the said documents were not produce before this Forum. Neither there is evidence nor any documents have been proved required under the law. We do not find any materials on record to show that the documents produce on record by the O.P have admitted by the complainant.
5. Furthermore, there is absolutely no evidence whatsoever to demonstrate the version of the O.P. The O.P have reply but not produced any evidence in spite of that we have go into the document produced by the O.P. mainly demand notice. Those documents are not supported by any evidence, whatsoever. Furthermore these documents have simply be placed on record and even if for the sake of argument, these documents are not proved on record, their truth or correctness or otherwise has to be ascertain from the evidence as a whole and the contents thereof cannot be accepted, as it is. Furthermore, even the original have not been shown that those documents are be proved copies of original. It is settled law that the opinion of the doctor-and-expert-unless he is subjected to test of examination and cross-examination in a court, such evidence cannot be considered as authentic and such evidence cannot be relied upon and form the basis of a finding. Merely the complainant has availed the loan and not repaid the same in spite of demand notice does not established at all he is defaulter.
6. However it is admitted to be true that there was some default in regular payment of the equated monthly installments by the complainant to the O.P Bank and whatever the grounds of problem as to default of repayment it may be, the vehicle would not have to be repossesses and sale it without knowledge and consent of the complainant that he suffered for harassment. The Hon’ble Apex Court in his finding in the case of Maruti Finance Ltd. Vrs. S. Vijalaxmi it has been reiterated that, “even in case of mortgage goods subject to higher purchase agreement, the recovery process has to be in accordance with the law and the recovery process referred to in the agreement also contemplate such recovery to be effects in due process of law and not by use of force. In such time as the owner of the Ownership is not transferred to the purchaser, the hirer normally continue to be the owner of the goods, but that does not entitled him on the strength of agreement to take back possession of the vehicle by use of force”. In the case of M/s Magma Fincrop Ltd. Vrs. Tikeswar Barik decided by the Hon’ble National Commission Reported in 2015 (2) CPR 584(NC) it is held that, “it is an admitted case that the vehicle in question was neither surrender by the complainant to the O.P company nor was it repossessed with his consent. No order from a competent court of law was obtained before repossessing the vehicle. The agency appointed by the company for such purpose seize the vehicle without the direct knowledge of the complainant in aforesaid manner, it is bound to cause tremendous harassment and mental agony to the owner of the vehicle beside damaging his reputation. Therefore, grant of appropriate compensation on account of such gross deficiency in service would eminently justified”. An another decision as the Hon’ble Apex Court in Gurgaon Gramin Bank Vrs. Smt. Khajjni & Ors. Reported in 2013( 4) CPR 377(SC) has observed that Gramin Bank like the appellant should stand for benefit of the Gramin who sometimes avails of loan for buying Buffaloes, to purchase agricultural implements, manure, seeds and so on. Repayment, to large extend, depends upon the income which they get out of that crops failure, due to the damage or natural calamities, disease to the cattle or their death may be cause difficulties to the Gramin to repay the amount. Rather than coming to their rescues, Banks offence drive them to the litigation leading them extreme penury. Assume that the Bank is right, but once an authority like District Forum take view, the Bank should graciously accept it rather then going for further litigation and even to the level of Supreme Court. Driving poor Gramin to the various litigations Forum should be strangely deprecated. Because they have also to spent large amount for conducting litigation. We Condon this type of practice, unless the stake is very high or the matter affected large number of person or affected a general public of the bank which has far reaching consequences. Let God save the Gramin”.
The O.P. had been rendered deficiency in service in respect to the complainant by deprived him to give any opportunity of payment of outstanding amount if any and also had put irreparable loss as the vehicle were purchase for agricultural purpose only.
In view of the above discussion we hold the O.P to be guilty of deficiency in service in respect to the complainant, hence the complaint is allowed. The O.P is hereby directed to issue No Dues Certificate along with mortgage document if any to the complainant weaving out the entire outstanding amount, if any, and to pay a sum of Rs.50,000/- ( Rupees fifty thousand) only towards compensation due to financial loss, mental agony and unnecessary harassment to the complainant, within 45 days from the date of receipt of this order failing which interest @ 10% per annum shall be charged on the awarded amount till realization.
Accordingly the case is disposed of.
Order pronounced in the open court today on this the 26th day of October, 2016, copy of this order shall be communicated to the parties as per Rule.
I Agree.
S.K.Ojha, Member S.L.Behera, President
Dictated and corrected by me.
S.L.Behera, President
