Orissa

Cuttak

CC/145/2019

Rashmi Rekha Swain - Complainant(s)

Versus

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

P K Mohanty & associates

12 Sep 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                   C.C.No.145/2019

Rashmirekha Swain,

W/O:Kunal Kumar Swain,

At:Kamalpur,P.O:Arundayomarket,

P.S:BadambadiDist:Cuttack-12.                                                  ... Complainant.

 

                                                Vrs.

1.        HDFC Bank Ltd.,

Represented through its Branch Manager,

At:A/62/1,Unit-8,Nayapalli,

Bhubaneswar,Odisha-751012.

 

2.        HDFC Bank Ltd.,

Represented through its General Manager,

At:A/62/1,Unit-8,Nayapalli,

Bhubaneswar,Odisha-751012.

 

3.        HDFC Bank Ltd.,

Represented through its Recovery Manager,

At:A/62/1,Unit-8,Nayapalli,

Bhubaneswar,Odisha-751012.

 

4.        RTO,Cuttack.

Regional Transport Office,Chandini Chouk,

Dist:Cuttack,Pin-753002.                                                                       .... Opp. Parties.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    05.11.2019

Date of Order:   12.09.2022

 

For the complainant:          Mr. P.K.Mohanty,Adv. & Associates.

For the O.Ps   1,2 & 3  :      Mr. N.K.Dash,Adv. & Associates.

For the O.P No.4:                 R.T.O(self).

 

Sri Debasish Nayak,President.

Case of the complainant in short is that on 30.6.16, the complainant had obtained loan from the O.Ps no.1,2 & 3 for a sum of Rs.43,131/- out of which an amount of Rs.39,667/- was disbursed and the E.M.I was fixed to be of Rs.1582/- per month.  She had purchased a Honda Activa Scooter bearing Regd. No.OD-95-V-1247.  On 31.8.19 the O.Ps had filed a Pre-Litigation dispute case bearing no.16672 of 2019 before the Civil Court of Cuttack praying for reconciliation and realisation of the outstanding amount of Rs.29,129/- against loan Account no.40829794.  The matter was referred to the Lok Adalat on 14.9.2019 where the complainant was instructed to deposit a sum of Rs.12,000/- for closing the loan account.  The complainant could not deposit the said amount as instructed for which her Honda Activa Scooter was forcibly taken away by the henchmen of the O.Ps and the complainant was demanded a sum of Rs.30,000/- for releasing her vehicle.  Having no other way out, the complainant has filed this case claiming a sum of Rs.1,00,000/- towards her mental agony and for her harassment another sum of Rs.1,00,000/- and further cost of Rs.20,000/- towards her litigation expenses.

            She has filed copies of documents in order to prove her case.

2.         The O.Ps no.1,2 & 3 have jointly filed their written version  whereas O.P no.4 has separately filed his written version.  The O.Ps no.1,2 & 3 in their written version has stated that the complainant had obtained loan to the tune of Rs.43,131/- vide her loan account no.40829794 in order to purchase one Honda Activa Scooter and she had agreed to all the terms and conditions of the agreement.  She was to repay the loan @ Rs.1582/- per month but since because she had defaulted in repaying, an outstanding amount of Rs.21,173/- was due from her as on 6^th of April,2021. According to these O.ps, the cost of the said vehicle was of Rs.58,845/- and after the initial down payment as paid by the complainant, the balance of Rs.43,131/- was financed by them with an agreed interest @ 19.05%. The complainant had agreed to clear the loan with interest in 36 number of instalments @ Rs.1582/- which she was suppose to pay with effect from 5.8.16 to 5.7.19 as per the terms of the agreement executed in between the complainant and the O.Ps at clause-8 of the loan agreement, sub-clause-2 “lf any of the evidence that defaulted at any time thereafter, the bank shall declare all sums for the full term of the loan immediately due and payable and upon the borrowers failing to make the said payment within 7 days thereof, the bank may it, it is sole discretion to take immediate possession of the financed vehicle”.  Thus, when the complainant became a defaulter by not clearing the dues as per the agreed instalments, the O.Ps had repossessed the vehicle of the complainant.

In order to support their stand, the O.Ps.1,2 & 3 have relied upon a catena of decisions.

In the case of Suryapalsingh Vs. Sidha Vinayak Motors & Anr. III (2012) CPJ 4 (SC) (Rp No.2771 of 2001) 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.  In Surendra Kumar Sahoo Vs. Branch Manager, Indusind Bank Judgement(R,.P.No.3319 of 2012 where it is held that defaults in making payment of the dates when it was due, financier can repossess the vehicle as per the Hire Purchase Agreement.  In the case of M/s. Magma Fincorp Ltd. Vs. Rajesh Kumar Tiwari in a Civil Appeal No.5622 of 2019 of SC the Hon’ble Apex court held that financier is the real owner of the vehicle till all the instalments are paid by the borrower and in default financier can take possession of the vehicle.  In the case of Bharti Knitting Company Vs. DHL Worldwide Express Courier(1996) 4 SCC 704 wherein it is held that when the complainant signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and the circumstances  in which he has signed the contract.  In the case of Karnataka State Financial Corporation Vs. Mrs. Sheela S,Kotecha in R.P. No.488 of Hon’ble National Commission it is held that when there has been a contract between the parties that being a bilateral action, both parties are bound by the terms and conditions as stipulated therein.  In the case of Managing Director,Maharashtra State Financial Corp[oration  & Others Vs. Sanjay Shankarsa Mamarde in Civil Appeal no.7189 of 2002 the Hon’ble Supreme Court held that where borrower has no genuine intention to repay and adopts pretexts and plays to avoid payment, then no grievance can make out against corporation.  In the case of Rashpal Singh Bahia & Othes Vs. Surinder Kaur and others 2008(2) in Civil Forum cases 778(P&H) that one who comes to Forum must come with clean hands.  A person whose case is based on falsehood has no right to approach the Forum.  In the case of Lt col S.K.Bhatia Vs. Punjab Financial Corpn, II(2001) CPJ 40(NC) it was held that since no violation of agreement by Financial Corporation had been alleged the petitioner cannot take umbrage under deficiency of service.

So according to the O.Ps.1,2 & 3 they were not deficient in their service and have not practised any unfair trade and thus they have prayed through their written version to dismiss the complaint petition of the complainant.

They have filed copies of certain documents in order to establish their case.

            O.P No.4 has filed a separate written version wherein he has mentioned that according to him the financier had not followed the provisions as laid as per Sec-51(5) of M.V.Act,1988 and rule-61(2) of C.M.V Rules 1989 but has mentioned that he has no rights to intervene into the business of the financier or owner of the vehicle towards seizure of it.

3.         Keeping in mind the averments as made in the complaint petition as well as contents in the written version of the contesting O.Ps, this Commission is of a view to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

            ii.         Whether there was deficiency in service on the part of the O.Ps 1,2 & 3 ?

            iii.        Whether the O.Ps 1,2 & 3  have practised unfair trade ?

            iii.        Whether the complainant is entitled to the reliefs as claimed ?

Issues no.ii & iii.

Out of the four issues, issues no.2 & 3 being pertinent issues are taken up together first for consideration here in this case. 

Admittedly, the complainant had obtained a loan from the O.Ps 1,2 & 3 for purchasing Honda Activa Scooter bearing Regd.No.OD-95-V-1247 on 30.6.16.  She had entered into an agreement for the said finance and had executed the same thereby making herself abide to the terms and conditions therein.  It is not in dispute that the complainant became defaulter for which the O.Ps no.1,2 & 3 had taken away her Honda Activa Scooter from her possession.  It is a fact that the complainant had violated the terms and conditions as envisaged in the agreement as executed in between herself and the financier bank.  Thus, when the complainant became a wilful defaulter, the financier bank had repossessed the vehicle as per law and to support their case they have filed a series of the citations of the Hon’ble Superior Courts.  Thus, it cannot be held here that there was deficiency in service on the part of the O.Ps.1,2 & 3 and that these O.Ps had practised any unfair trade.  Accordingly, these two issues are answered against the complainant.

Issues no.i & iv.

From the above discussions, it can never be said here that the case of the complainant is maintainable and that the complainant is entitled to any of the reliefs as claimed by her.  Hence it is so ordered.

 

                                                             ORDER

            The case is dismissed on contest against all the O.Ps and as regards to facts and circumstances of the case without cost.

Order pronounced in the open court on the 12^th day of   September,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                                   Sri Sibananda Mohanty

                                                                                                                                                       Member