Orissa

Jajapur

CC/22/2020

Smt.Ritanjali Satpathy. - Complainant(s)

Versus

Branch Manager,HDFC,Bank Ltd. - Opp.Party(s)

Ramakanta Ghadai.

13 Dec 2021

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:    1.Sri Pitabas Mohanty, Member,

                                                                          2.Miss Smita Ray,  Member(w).                                                                     

                                      Dated the 13th day of December ,2021.

                                          C.C.Case No.22 of 2020

Smt. Ritanjali Sathpathy,   W/O Amulya Sathpathy   

At. Mirazapatana ,  P.O. Kacherigaon  ,

Dist.-Jajpur.                                                                                             …… ……....Complainant .                                                                       

                   (Versus)

1.Branch Manager,H.D.F.C Bank, At.Chorda Square Retail Loan service center    

P.O. Jajpur Road  , Dt.Jajpur .

2. Regional Manager,H.D.F.C Bank Ltd, Sahid Nagar,Bhubaneswar.

3.R.T.O,Bhubaneswar, At.Bhoinagar Basti,Acharya Vihar,Near Maharaj

Cinema Hall,Bhubaneswar.

                                                                                                               ……………..Opp.Parties.                                                                                                                                            For the Complainant:                Sri R. K.Ghadei , Sri S.Samal, Advocates.

For the Opp.Party:  1 and 2     Sri M.K.Panda, D.K.Bantha, M.Sahu, R.K.Panda,  Advocates.

For the Opp.Party No.3               None                                                                                                    

                                                                                                    Date of order:  13.12.2021

MISS  SMITA  RAY,  MEMBER(w) .                                                  

The petitioner has filed the present dispute against the O.Ps mainly against O.P.no.1 and 2  alleging deficiency in service as well as unfair trade practice since the O.p.no.1 and 2 illegally have seized  and sold the financed vehicle without following the proper procedure of law.

            The facts as stated by the petitioner in the complaint petition shortly are that the petitioner being an house wife as well as ailing person purchased a VOLKS Wagan Pole Car bearing Regd. No.0002-AL-7731 in the year 2017 by availing loan of Rs.6,72,590/- from O.P.no.2 ( HDFC Bank) Bhubaneswar on the strength of loan –cum-hypothecation agreement and as per term and condition of hypothecation agreement the petitioner is required to repay the above loan along with interest in 60 installments starting from 05.06.2017 to 05.05.22 . Accordingly the petitioner has paid 21 installments having each installment Rs.13,780/- which in toto comes to Rs.2,89,380/-. In addition to it at the time of disbursement of loan the O.P has collected one installment amounting to Rs.13,780/- as well as the petitioner also has paid Rs.85,000/- as down payment at the time of availing the loan for the alleged car . Subsequently on 07.01.2019 after collecting one installment amounting to Rs.13,780/- the O.P no.2 seized the vehicle on 11.01.2019  as well as sold the seized vehicle without giving pre-repossession and pre-sale notice to the petitioner. It is also the fact that after seizer of the above vehicle the petitioner though has approached the O.p.no.2 to release the vehicle  but the O.P.no.2  without giving any heed to the request of the petitioner  sold the vehicle at low price. More over prior to seizing the seized vehicle the O.p.no.2 should have given a pre-sale notice intimating the date of auction so as to enable the petitioner to release the vehicle by paying the outstanding due if any but the O.P.no.2 without doing  sold the vehicle at his sweet will as well as has changed 36%  DPC  instead of 9% violating the order of Odisha High court and without following the procedure of auction sale which comes within the purview of deficiency in service as well as unfair trade practice  for which the petitioner has filed the present dispute for  redressal  of his grievance with the prayer to direct  the O.Ps  to refund the entire amount  with 12% which has been deposited by the petitioner along with compensation of Rs.1,00,000/- and cost of Rs.20,000/- may be awarded in favour of the petitioner.

            After appearance the O.p.no.1 filed the written version denying the allegation of the petition. In the written version it is stated by O.p.no.1 that for purchasing Volks wagan pole car the petitioner has availed the loan of Rs.6,72,590/- vide loan account No.48104807  which is required to be repaid having each months installment amounting to Rs.13,780/- but after availing the loan though the petitioner has paid six installments but subsequently bounced 14 times due to insufficient fund. Accordingly the O.Ps have issued loan recall notice dt.14.08.2018  demanding Rs.609134.84 to pay and discharge her liability but without paying any heed to the letter of O.P the petitioner continued to default the EMIs. In such situation the O.P took possession of the vehicle and issued pre-sale notice to the petitioner on 14.01.2019 giving the chance to release her vehicle paying an amount of Rs.5,81,821.23 on or before 29.01.2019 but she did not respond to the notice. In such situation the above alleged vehicle was auctioned and sold on 19.02.2019 and the sale proceed amounting to Rs.3,32,000/- has been adjusted to the loan account of the petitioner and at present Rs.2,46,821.23 is outstanding  against the petitioner towards  loss on sale which shall be recoverable from the petitioner and for that post sale notice dt.20.02.2019 has been issued . In support the defence the O.Ps have filed relevant documents vide Annexture-1 to 7 and an affidavit dt.10.12.21.

            On the date of hearing we heard the argument from the side of the petitioner and O.p.no.1 .After hearing we have perused the record along with the documents in details as well as inclined to dispose of the dispute as per our observations below:-

1.Admittedly the petitioner has availed the loan of Rs,6,72,590/- for purchasing the above cited car bearing No.OD-02-AL-7731 on the strength of loan –cum-hypothecation agreement. As per term and condition of loan –cum-hypothecation the petitioner is required to clear up the loan amount in 60 installments starting from 05.06.17  to 05.05.22 having each monthly installment amounting to Rs.13,780/- .As against the term and condition of the loan it is stated by the petitioner that at the time of availing the loan the petitioner has paid Rs.85,000/- as down payment   the O.p has collected on 31.05.2017 Rs.13,780/- + the petitioner has paid 21 installments from 05.06.17 to 05.02.19 = 23 installments amounting to Rs.2,89,380/- has been paid by the petitioner at the time of seizure of the above vehicle  and there was no outstanding loan amount against the financed vehicle as stated by the petitioner .

            As against such contention of the petitioner the O.P.no.1 has stated that at the of seizure of the vehicle the petitioner was defaulter and after issuance several notices as per law the O.P has seized and sold the vehicle as per term and condition of hypothecation agreement. In support of such stand the O>P has cited the following citations in support of their defence.

A.2012(III)CPJ-4-(Surya palsingh Vrs Sidha Vinayak Motors & another) ( R.P.No.2771/2011) decided on 21.02.2012- Supreme court.

            “Financer is the owner of the vehicle and loaneee is the bailee/trustee .

   B.R.P NO.3319/2012-N.C decided on 01.102012

“ In case of default of repayment of loan the financer can repossess the financed vehicle “.

C. Civil Appeal No.5622/2019-SC decided on 01.10.2020

“ Financer is the real owner of the financed vehicle till loan amount is paid and in case of default the financer can repossessed the financed vehicle’.

1. In view of the above observation of Appex court and Appellant Forums though the O.P is entitled to repossessed the financed vehicle in case of default but after repossession/

seizure the auction sale of the financed vehicle must be bonafide one . As against such principle of law it is observed in the present case the O.P has not filed the postal receipt of loan recall notice, valuation report ,pre-sale notice and statement of account.

2. The valuation has not been done by approved valuer.
3. The O.P has not filed the track receipt of the postal Deptt. to prove that the above cited letters/ documents has been received by the petitioner .
4. The auction sale has not been published in the local news paper so as to give an opportunity to the public to participate in the auction sale of the alleged vehicle  as reported in 2015(3)CPR-584-N.C(Odisha case)
5. The O.P  has not intimated the date of auction of the alleged vehicle  to the petitioner so as to enable her to participate in the auction sale as well as to give an opportunity to release the vehicle paying outstanding amount if any in view of the observation of 2002(3)CPR-34-N.C, 2004(3)CPR-154-Odisha, 2018(3)CPR-367-N.C.
6. The O.P has not taken the order of any court to sale the alleged vehicle by auction as per observation of Hon’ble National Commission reported in 2020(3)CPR-169-N.C
7. As per guide line of RBI 60 days prior notice is mandatory to repossess the financed vehicle as per observation of Hon’ble National Commission reported in 2021(3) CLT-622-N.C (Sriram Transport Finance Vrs.Nikil Paba & Others. The said guide line has not been followed prior to repossession of the alleged vehicle .

                                 As such it is cristal clear that the O.Ps  have committed patent deficiency in service as well as unfair trade practice since the O.p.NO.1 AND 2 have sold the above financed vehicle in auction at low price  without following the proper procedure of law.

Hence this Order

The dispute is allowed against the O.P.no.1 and 2 and dismissed against O.p.no.3. The O.P.no.1 and 2 are directed to refund the total amount which has been deposited by the petitioner to  O.P.no.1 and 2 without insisting any further outstanding amount .As regards compensation we assessed the same Rs.50,000/- (Fifty thousand) and cost of Rs.10,000/-( ten thousand) which will be paid by O.P no.1 and 2 to the petitioner. The above direction shall be complied within 45 days  from the date of receipt of this order, failing which the awarded amount will carry 12% interest per annum from the date of filing of the present dispute till its realization .

       This order is pronounced in the open  commission on this the 13th day of December,2021. under my hand and seal of the Commission .