IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.
Present: 1.Sri Pitabas Mohanty, Member,
2.Miss Smita Ray, Lady Member.
Dated the 9th day of December ,2021.
C.C.Case No.83 of 2018
Bijaya Laxmi Nayak D/O Ghanashyam Nayak
At. Padmeswarpur, Unit-7 P.O. Debidwar ,
P.S/ Dist.-Jajpur. …… ……....Complainant .
(Versus)
1.Branch Manager,Indusind Bank, Chandikhole Branch
At/P.O. Chandikhole , Dt.Jajpur
……………..Opp.Parties.
For the Complainant: Sri G.R,Mohanty, Advocate.
For the Opp.Party: Sri B.B.Sahoo, Advocate.
Date of order: 09.12.2021
MISS SMITA RAY, MEMBER(w) .
Deficiency in financial service is the grievance of the petitioner.
The fact as per complaint petition as stated by the petitioner is that the petitioner is an unemployed diverse lady for earning her livelihood by means self employment purchased a Auto bearing Regd. No. OD-04-H-2867 from the O.P on the strength of hypothecation agreement . The petitioner also stated in her complaint petition that the Auto is the only way to maintain her day to day life . The petitioner did not pay 2/3 installment due to business loss. Hence the O.P i.e on 12.02.18 repossess the vehicle of the petitioner. Thereafter after lapse of 15 to 20 days when the petitioner arranged some money and went to the office of the O.P to repay the outstanding Emi as well as to release the vehicle from the custody of the O.P. The O.P replied that they have already sold the vehicle i.e on 20.2.18 .The petitioner also stated in the complaint petition that she is a lady and time to time long after going to the financial office .In the mean time i.e on 10.07.18 there is a letter from Head office of Chenai instructing the petitioner to meet the authority at Chenai Head office . But it is not possible on the part of the petitioner.
Accordingly finding no other alternative the petitioner knocked the door of this commission with the prayer to given the petitioner legal aid assistant as well as direct to the O.Ps to solve the matter be amicably settled between the parties.
After notices the O.Ps appeared through their advocate and subsequently filed their written version taking the following stands :
The petitioner applied for sanction of Auto ( Goods vehicle) loan for her commercial business to the Indus Ind Bank ,Chandikhole Branch. Accordingly the same was sanctioned vide loan agreement No.OBC00996G dt. 17.02.2016 . and the vehicle was delivered to the petitioner.
When the petitioner failed to pay the loan outstanding as per agreement with the INDUS IND Bank Chandikhole Branch the O.P being the branch manager of the said branch had given letter of demand to the petitioner to liquidate the aforesaid loan amount as per agreement . The petitioner at her own sweet will and without any coercion from any comer, in any manner had surrender the said Auto bearing Regd.No.OD-04-H-2867 on dt.26.02.2016 before O.P. Accordingly the said vehicle was accepted and put in to sale thereafter by adopting legal procedure. So there is no deficiency of service by the O.P, as alleged by the petitioner in the petition.
The allegation made by the petitioner in the petition are false and denied by this O.p, the petitioner willfully has filed this case only to put the O.P in to mental and financial harassment. It is pertinent to mention here that the petitioner is not a consumer as per definition of the C.P.Act,1986. So this Hon’ble Forum has no jurisdiction to entertain the present case as per law. It may be noted here that the petitioner knowingly has filed this case and playing hide and seek with the O.P. The O.P has informed to the petitioner about disposal of the alleged vehicle by proper procedure. The aforesaid consumer dispute is suffering from mis-joinder and non-joinder of necessary and proper parties. The INDUS IND Bank being a public limited company and being registered under company’s Act. The petitioner ought to have added the said bank as party to this case. Hence without impleading the INDUS IND Bank as party to this case the present consumer case is not maintainable in the eye of law.
The advocate for O.P also stated on the point of argument that the petitioner is not a consumer as per definition as defined U/S 2(1)(d) of C.P.Act,1986. The vehicle in question is a commercial vehicle. It is pertinent to mention here that the plea of the petitioner is not that the same is used as his earning of livelihood, so the petitioner is not entitled to any relief as claimed.
That when the petitioner has surrendered the alleged vehicle ,there is no necessity to give prior notice to the O.P for selling of the said vehicle, but this O.P had given information to the petitioner for selling of the vehicle . There is no deficiency of service as alleged by the petitioner on the part of the O>p. That the INDUS IND Bank being a limited company and being registered under company’s Act the petitioner ought to have added the said Bank as party to this case. Hence without impleading the INDUS IND Bank as party to this case the present consumer case is not maintainable in law.
On the date of hearing we heard the learned advocate from both the sides. After hearing we have perused the record along with the documents in detail and inclined to frame the following issues so as to come to our conclusion
To frame the following issues.
1 Whether the petitioner is a consumer who is entitled to entertain the dispute in this commission ?
2.Whether this commission gets jurisdiction to adjudicate the dispute ?
3.Whether there is any deficiency in service on the part of the O.Ps ,If so whether the petitioner is entitled to any relief ?
Answer to issue no 1 and 2
It is undisputed fact that the petitioner purchased the alleged vehicle for self employemt for maintain her day to day livelihood .It is also undisputed fact that the petitioner is paying interest of such loan to the O.p which is covered in the expression of service and the interest so paid by the petitioner in repayment of loan is consideration . As such the petitioner is a consumer as per C.P.Act, 2019 as well as per observation of Hon’ble Supreme court reported in 1995-2-SCC-150 ( consumer unit and Trust society Vrs Chairman M.D Bank of Baroda) , II (2000) CPJ-II(SC) ( Vimal ch. Grover Vrs Bank of India) . Hence this commission gets jurisdiction to adjudicate the present dispute.
Answer to issue no. 3
These are the vital issues wherein we have to verify whether there is any deficiency in service on the part of O.Ps and if so whether the petitioner is entitled for any relief . It is alleged by the petitioner without giving any pre-requisition notice and pre-sale notice the O.Ps after repossessing the vehicle and sold the vehicle . As against such grievance of the petitioner the o.p taken the stand in their written version that the petitioner herself has surrendered the said auto bearinbg Regd No.OD-04-H-2867 dt.26.2.18 before the O.P. Accordingly the said vehicle was accepted and put into sale eafter adopting legal procedure. So there is no deficiency in service on the part of the O.P as alleged by the O.P .
In such situation we are in the considered view that against such stand from the side of the O.P to prove by reliable / relevant evidentiary document which will prove that the above vehicle had been surrendered by the petitioner . In this regard we verify the letter filed by the o.p reference no.OBC00996G dt.28.2.18 wherein the o.p stated that “ consequently in order to recover our dues we are constrained to take possession of our asset on 27.2.18 and the same is parked in our yard at Santilata Stock yard ,Jajpur “. The O.P also stated in the letter we hereby call upon you to settle the contract in full by pay Rs1,87,241/- before 7.3.18 and get the vehicle released .In case you fail the settle the contract before the above mentioned date we will be disposed of the asset in as is where in condition . The O.P mentioned in that letter that such letter send to the petitioner by Regd post with due acknowledge but the o.p did not filed any evidence/ document that such letter was sent to the petitioner by Regd. post or those letter have been received by the petitioner as per observation of Hon’ble State Commission U.P reported in 2000(II) CPJ-89-U.P wherein it is held that “ post office is the agent of sender but not the addressee unless the letter proved to have been delivered sender not absolved his liability .”
Next aspect comes to consideration in one hand the o.p taken in their stand in the written version that the petitioner herself surrender the alleged vehicle . On the other hand the letter dt.28.2 18 filed from the side of O.P clearly establish that the O.P himself in order to recover the dues we are constrained to take possession the asset ( alleged vehicle)
The next aspect comes for consideration whether the made of seizure and sale of the alleged vehicle is tenable in the eye of law.
In this context after perusal of the observation of Hon’ble supreme court reported in 2006-CTJ-209-SC(M.D Orix Auto Vrs. Joginder Singh) we are inclined to hold that though the O.Ps are empowered as per term and condition of the agreement to seize and sale the financed vehicle in case of default of monthly installments towards the loan but such seizure and sale must be as per law as per observation of Hon’ble Supreme Court reported in 2007(36) OCRCSC-815(Manager ICICI Bank Ltd, Vrs .prakash Kaur & Otrs) In this context we make it clear no where the hypothecation agreement of the alleged vehicle empowers the O.Ps. to take such action violating the guide line of Hon’ble Supreme Court ,National Commission and State Commission Delhi reported in 2012 (2) CLT-72 Sc,2007(3)-CPR-191,2005-CTJ-522 respectively ( Citi crop Maruti Finance Ltd Vrs. S.Vijay Laxmi) wherein it is held that
“ seizuring of the vehicle must be through court .”
3.Similarly we are also required to verify whether the selling of the above vehicle bonafide one. In this context it is alleged by the petitioner that without giving an opportunity to the petitioner the O.ps. have sold the vehicle at their sweet will. In such situation after verification the notice dt.28.02.2018 after taking valuation report from the valuer without inviting bidders from the local market as per observation of Hon’ble National Commission reported in 2008(3)-CPR-45-N.C.( Tata Finance Ltd Vrs. Franus) have sold the vehicle which is not tenable in the eye of law .
O R D E R
The dispute is allowed against the O.p. The O.P is directed to refund the EMIs amount paid by the petitioner .The outstanding amount if any is hereby quashed. The O.P is also directed to pay compensation of Rs.50,000/- to the petitioner. The above direction shall be complied within 45 days after receipt of this order , failing which the petitioner is at liberty to take action as per law.
This order is pronounced in the open Forum on this the 9th day of December,2021. under my hand and seal of the Commission .
