Punjab

StateCommission

FA/1454/2013

Shriram Transport Finance Co. Ltd. and another - Complainant(s)

Versus

Chander Shekhar - Opp.Party(s)

Kavita Sharma

05 Mar 2015

ORDER

PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1454 of 2013

                                                           

                                                      Date of institution:   26.12.2013

                                                      Date of decision    :  05.03.2015

 

1. Shriram Transport finance Co. Ltd. SCF No. 101-102, Phase-XI, SAS Nagar, Mohali through its authorized signatory.

2. Branch Manager, Shriram Transport Finance Co. Ltd. SCF No. 101-102, Phase-XI, SAS Nagar, Mohali

    

                                                         …..Appellants/opposite parties

                                      Versus

 

Chander Shekhar resident of House No. 130, Khudda Jassu, U.T. Chandigarh.

                                                                 ..Respondent/Complainant

 

First Appeal against the order dated 27.11.2013 passed by the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali.

Quorum:-

 

          Hon’ble Mr. Justice Gurdev Singh, President

          Mr.  Baldev Singh Sekhon, Member

 

Present:-

 

          For the appellant             :          Ms. Kavita Sharma, Advocate

          For the respondent          :          None

         

 

JUSTICE GURDEV SINGH, PRESIDENT

 

                                     

                   This appeal has been preferred by the appellants/opposite parties against the order dated 27.11.2013 passed by the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short, “District Forum”), vide which the complaint filed by Chander Shekhar, respondent/complainant under Section 12

of the Consumer Protection Act, 1986, was allowed and the OPs were directed to refund the sum of Rs. 1,63,786/-, alongwith interest @ 9% per annum with effect from 31.10.2012 and to pay lump sum of Rs. 25,000/-, as compensation on account of harassment and mental agony suffered by him and litigation cost.

2.       The complainant averred, in his complaint, that he purchased one three wheeler, bearing registration No. CH04J-8912 (in short, “the vehicle”) on 28.04.2009 from CMPL Motors Private Limited, Chandigarh, for a sum of Rs. 1,45,749/-, after taking a loan of        Rs. 1,10,000/- from the opposite parties; which was repayable in 36 monthly instalments.  He regularly paid those instalments upto 30 months.  In the month of August, 2012, OPs took forcible possession of the vehicle, without following the proper procedure laid down in the Hire/Purchase Agreement, with the help of 4-5 musclemen, from his house, by using criminal force.  After taking the possession thereof, they sold it, without any notice to him, for a fictitious amount.  They had no authority to sell the vehicle, when the same was in working condition and possession thereof was taken by them illegally.  Before selling the same, they utilized the vehicle for a period of 8 months.  This act of the opposite parties amounts to deficiency in service.  He is entitled to the refund of the amount deposited by him towards the loan amount.  He had deposited Rs. 1,27,996/- by way of instalments and had made the down payment of Rs. 35,790/- at the time of obtaining the loan.  Thus, he is entitled to the refund of Rs. 1,63,786/- and he is also entitled to the interest on that amount @ 18% per annum.  He is entitled to a compensation of Rs. 2 lac, for the harassment and mental agony suffered by him as well as litigation expenses.  He prayed for the issuance of the directions accordingly to the opposite parties.

3.       The complaint was contested by the opposite parties by filing the detailed joint written reply before the District Forum. In the written reply, they admitted that the vehicle was got financed from them by the complainant and he agreed to repay the loan amount in monthly instalments.  They also admitted that the possession of the vehicle was taken by them.  While denying the other allegations made in the complaint, they pleaded that at the time, the vehicle was financed by them, agreement dated 28.04.2009 was executed by the complainant for a sum of Rs. 1,51,494/- and he had undertaken to repay that amount in 36 equal monthly instalments; first instalment was of Rs. 4,214/- and the remaining 35 instalments were of          Rs. 4,208/-, each.  He failed to abide by the terms so settled between them and also failed to regularize the account.  Upto the filing of the complaint, he had paid Rs. 85,895/- against the instalments; Rs. 21,240.24P, as overdue interest; Rs. 14,846/-, as insurance charges; and Rs. 3,215/- as other expenses.  Thus, a sum of Rs. 65,598.24P is still due from him.  He failed to pay the due instalments in spite of repeated requests, reminders and correspondence.  The period for the clearance of the outstanding amount expired on 01.04.2012 as per the schedule, but he failed to clear the outstanding amount.  He himself sold the vehicle to one Rana without their consent, without clearing the outstanding amount and without getting NOC.  The vehicle was surrendered by said Rana of his own, when he came to know about the huge amount outstanding against the vehicle.  Thus, the complainant not only cheated them, but himself sold the vehicle to the 3^rd person against the terms and conditions of the agreement.  There was no forcible attempt on their part to take the possession of the vehicle.  No such criminal force was used.  The vehicle is in dilapidated condition and is lying parked in their yard.  The complainant as well as Rana were asked many a times to take back the vehicle after clearing the outstanding amount, but they failed to do so.  The vehicle was possessed by them in accordance with terms and conditions of the agreement and there was no such deficiency in service on their part.  The complainant himself was the defaulter and, as such, the complaint filed by him is not maintainable.  The vehicle was financed for commercial purpose and was being used for commercial activity.  Therefore, the complaint was not maintainable before the District Forum.  The complainant has not approached it with clean hands. As the vehicle was sold by the complainant himself, so, he has no locus standi to file this complaint. The complaint involves a number of civil issues and whole of the case is based upon mathematical calculations, so the same is not maintainable before the District Forum and the complainant be directed to approach the competent court of jurisdiction.  They also took the plea that the District Forum has no territorial jurisdiction to entertain the complaint, as the documents pertaining to the loan were executed at Chandigarh and vide agreement, executed between them, it was agreed that all the disputes arising between them shall be decided at Chandigarh itself.  They prayed for the dismissal of the complaint with costs.

4.       Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing the learned counsel on their behalf allowed the complaint, vide aforesaid order.

5.       We have heard the learned counsel for the appellants/opposite parties, as no one appeared on behalf of the complainant at the time of arguments.  We have also carefully gone through the record of the District Forum.

6.       It was argued by the learned counsel for the appellants/opposite parties that from the evidence produced by the opposite parties before the District Forum, it stands proved that the vehicle was taken into possession by them while exercising their right of repossession under Hypothecation Agreement, being the owner thereof.  As per that agreement, they were to continue to be owner till whole of the loan amount was cleared by the complainant.  The same was never cleared by him.  It was wrongly concluded by the District Forum that the contradictory stand has been taken by the opposite parties on the ground that there is no mention of the fact in the written reply that the vehicle was sold to one Rana.  That plea was specifically taken by the opposite parties in the written reply.  They specifically pleaded that the complainant himself sold the vehicle to Rana and said Rana handed over the vehicle to them, having failed to clear the loan amount.  Cogent and convincing evidence was produced for proving that fact, in the form of affidavit of Rakesh Kumar, Branch Manager Ex. OP-1/1 and letter written by Rana dated 31.10.2012 Ex. OP-5 and letter of surrender Ex. OP-6.  It stands proved on the record that it was not a case of re-possessing of the vehicle with force, but the case of voluntary surrender.  In these circumstances, it cannot be said that there was deficiency in service on the part of the opposite parties.  Therefore, the District Forum erred while allowing the complaint.  They prayed that the appeal be allowed, order of the District Forum be set aside and the complaint filed by the complainant be dismissed.

7.       So far as proposition of law, as has been propounded by learned counsel for the opposite parties, there is no dispute regarding the same.  It was held by the Hon’ble Supreme Court in 2011 (4) RCR (Civil) 877 “Citicorp Maruti Finance Limited Vs. S. Vijaylaxmi” that even in case of mortgaged goods subject to Hire/Purchase Agreement, the recovery process has to be in accordance with law and recovery process referred to in the agreement also contemplates such recovery to be effected in due process of law and not by use of force. Till such time, as the ownership is not transferred to the purchaser, the hirer normally continues to be owner of the goods, but that does not entitle him on the strength of the agreement to take back possession of the vehicle by use of force. 

8.       Therefore, in order to succeed in the complaint, the complainant was required to prove that the possession of the vehicle was taken from him forcibly against the terms and conditions of the agreement.  In support of the allegations made in the complaint, he proved on record his affidavit Ex. CW1/1. He deposed therein that the opposite parties have taken the possession of the vehicle in his absence without following the procedure laid down in the Hire/Purchase Agreement, with the help of 4-5 musclemen and by using criminal force.  To rebut this evidence of the complainant and in support of averments made in the written reply, the opposite parties proved the affidavit of Rakesh Kumar, Branch Manager Ex. OP-1/1.  That affidavit cannot be considered as evidence, as it is only a written reply filed by the opposite parties which has given the form of an affidavit.  The deponent has not specifically deposed about any fact therein. 

9.       No witness was examined, nor affidavit of any such witness was proved on the record by the opposite parties for proving that the letter dated 31.10.2012 Ex. OP-5 was written by said Rana.  If that letter is read alongwith the letter of surrender Ex. OP-6, it becomes very much clear that these are fabricated documents.  In the letter, it was never mentioned by Rana that he had undertaken to repay the loan amount on behalf of the complainant after the purchase of the vehicle from him, whereas in the letter of surrender, he mentioned that he has defaulted in the payment of instalments. The fact that these documents are fabricated also stands proved from the other evidence produced by the complainant.  He proved on record the letters dated 03.02.2013 and 04.03.2013 Ex. C-6 & Ex. C-7, which were received by him from the opposite parties.  In these letters, they themselves mentioned that the demand notices were sent to the complainant, but he was careless to make the payment of instalments and, as such, they were authorized to re-possess the vehicle through their employees as per the terms and conditions of the agreement.  Had the vehicle been sold by the complainant to Rana and the same having been surrendered by that Rana to the opposite parties, they must have mentioned in these letters/notices that it was so sold to Rana and surrendered by him. From the evidence produced on record and from the circumstances, it  becomes clear that after coming to know that the complainant has filed the complaint regarding the forcible possession of the vehicle, the opposite parties coined a false story that the vehicle was sold by the complainant to Rana and he surrendered the same to them.  The letter Ex. OP-5 and letter of surrender Ex. OP-6 are fabricated documents and on the basis of those documents, it cannot be held that the complainant had sold the vehicle to Rana and it was that Rana, who surrendered the vehicle to the opposite parties.  Had that been the position, they had not been issuing the above said letters to the complainant and his guarantor and would have addressed those letters to said Rana.  From the evidence produced by the complainant, which has remained un-rebutted, we conclude that the opposite parties took forcible possession of the vehicle from his possession with the help of musclemen.  This clearly amounts to deficiency in service on their part.

10.     According to the opposite parties themselves, the vehicle is lying parked in their yard in the dilapidated condition.  If they had re-possessed the vehicle, they were required to sell the same in accordance with the terms and conditions of the Hire/Purchase Agreement, after giving the notice to the complainant.  The retaining of the vehicle and allowing the condition thereof to be deteriorated by passage of time also amounts to deficiency in service on the part of the opposite parties.  Correct findings were recorded by the District Forum, though different reasoning has been given; which is not being endorsed by us.  The District Forum on its own assumed that the vehicle has been sold by the opposite parties.  No such plea was taken by them.  In such circumstances, there is no question of deduction of the amount collected by them by way of sale from the amount due from the complainant.  Once the opposite parties have re-possessed the vehicle forcibly, they are bound to refund the amount paid by the complainant either towards the instalments or as down payment.  Correct finding was recorded by the District Forum to that effect.         

11.     In view of the above discussion, we conclude that there is no merit in the appeal and the same is dismissed.

12.     The sum of Rs. 25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them. 

13.     The arguments in this case were heard on 25.02.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.

14.     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

              (JUSTICE GURDEV SINGH)

                                                                   PRESIDENT

 

                                                                                                 (BALDEV SINGH SEKHON)                            

                                                               MEMBER

 

 

                                                      

 

March 05, 2015

Rupinder