JUDGMENT

Sri A.K.Patra,President

1.  Brief fact of the complaint are that the complainant had availed an agriculture term loan of an amount for  Rs.4,57,000/- from the O.P for purchasing of Tractor repayable in 18 Nos. of half yearly installment @ Rs.2600 /-. He had initially paid Rs.83,200/- against the said loan. Since Oct 2010 till 2016 the Tractor remaining off-road due to draught and ill health of the complainant/Borrower, matter of which was intimated to the O.P/Bank authorities. As on date of 13.10.2010 he had already repay Rs.2,76,440/- against the said loan other then earlier  payment of Rs.83,200/-. It is further averred during 2010 he personally meet to the O.P and his officials attached to sanction of loan with a requested to do need full as the petitioner is not in a position to run the Tractor in view of sluggish period of business and his remaining in disposal of health but O.P preferred to remain mum and heedless . All of a sudden in the month of November .2012 the O.P without taking the petitioner in to confidence clandestinely appeared in the house of the complainant in his absent and without intimating the inmates of his  house forcefully lift up the said loan tractor from the house of the complainant. Neither intimation by orally nor through letter was accorded to the petitioner before said forceful lifting of the  tractor amounts to illegal  act of the O.P. It is further stated that the complainant has not allowed to continue the possession of the said tractor for the entire period of loan to use the same for which the arrear of the Tractor loan has been enhanced considerably. It is further averred that being notice the complainant had attended the National Loak Adalat held on 14.09.2019 at Bhawanipatna and ventilate all his grievance that  interest has been imposed upon him though he remind the O.P  right from the day that, the finance tractor was off the road because of his ill health & draught  . The O.P being defiant did not heed the plea of the complainant rather demanding Rs.3,08,717/- imposing interest upon the complainant arbitrarily without calculating the money deposited and down payment of the complainant.With this contention the complainant has prayed for an order directing the O.P to exonerate the Interest imposed upon him against the said loan of Tractor .
2. On being notice the O.P contested the complaint and took preliminary objection on the maintainability of the complaint stating therein that there is no cause of action against the O.P as the complainant himself has admittedly being negligent to repay the loan. It is admitted by the O.P in his written version that the complainant has availed loan from SBI, Bhawanipatna for purchasing of the Tractor by executing loan agreement as such the complainant is solely responsible to repay the loan amount with future interest as per the terms of the said loan agreement. The finance Tractor with Trolly was hypothecated with the O.P against the said loan .The O.P has no knowledge about any drought or ill health of the Borrower/Complainant. It is further contended that after repeated requested by the O.P the complainant/Borrower did not turn-up hence  at last the O.P has taken the step to seize and sold it on auction following the  process of law , the auction amount is deposited in the loan account of the complainant . The rest balance amount of the loan with future interest is to be paid by the complainant. It is further contended that O.P has initiate for compromise of ascertain but the complainant did not agree to pay for which compromise failed. The OP claimed that there is no negligence or deficiency of service or any Unfair trade practice on the part of O.P , rather complaint is not maintainable and the complainant is not entitle for reliefs as claimed  hence complaint need to be drop with cost. The averment of written version is supported by an affidavit of the present Chief Manager(SBI,Bhawanipatna) Sri Soumik Somya Ranjan Pradhan. So also field certain documents as per list to substantiate their claim are taken in to record.
3. Heard the parties. We have our though full consideration on the submission learned counsel for the parties and carefully perused the material available on the record.
4. Facts admitted in this case are that, the complainant is a borrower of O.P availed Agricultural Term Loan of Rs.4,57,000/- for purchasing of Tractor and Trolley which was hypothecated with the O.P but default to repay the loan within the stipulated time hence the vehicle was seized by the O.P/Bank and the loan amount was adjusted by Sale it  on auction process .However, it did not exhaust the loan , there is some dues still remain against the complainant for which the O.P proposed for a settlement in the National Lok Adalat held on 04.09.2019 at Bhawanipatna Court premises demanding Rs.3,08,717/- from the complainant towards  full and final settlement of the loan.
5. It is observed form the Application Form for Agricultural Credit of the complainant, Letter or Arraignment ,Hypothecation Agreement ,Deed of Guarantee, Acknowledgement of Loan that the major source of income of the borrower/complainant was agriculture and the Agricultural Term Loan(ATL) of Rs.4,57,000/- @11% interest per annum was advanced by the O.P to the borrower/complainant for purchasing Tractor and Trolly repayable in 18 halfyerly installment of @25400/-,the first repayment installment was due on 31.09.2016, the 15% of the cost of the vehicle was to be deposited by the borrower hence complainant has deposited Rs.83,200/- on 31.10.2006 i.e. on the date of sanction of the loan . The term and condition in the hypothecation agreement is that if the loan remain outstanding & if required by the Bank the security shall be immediately delivered to the Bank and on the occurrence of any circumstance in the opinion of the bank and endangering the security, the bank shall take possession or recover and/or sell by public auction or private contract or otherwise deal with the security and appropriate the proceeds to the outstanding loans. Apply towards the outstanding loan and money in its hand belonging to the borrower and to recover the balance if any of the loan not withstanding that all or any of the security may not have been realized.

6. Here in this case nothing placed on record the that the loan ever recalled by the O.P due to default of repayment or any notice in writing informing the complainant about the defaults & asking him to repay the outstanding was serve to the complainant/borrower prior to the seizer of the vehicle or even after the said seizer, the O.P has placed nothing particular to show that any demand notice has been served to the complainant. The O.P has placed nothing particulars of the seizer and inventory of the Tractor which could have prepared at the time of seizure of the alleged vehicle. There is no paper of assessment of value of the alleged vehicle at the time of seizer and even for fixation of upset price for auction sale of the sized vehicle is place on the record it is clearly proof that the finance Tractor was seized in hurry mode forcible.
7. It is evident from the application Form of complainant for loan that agriculture is the major source of the complainant and Tractor was finance for agriculture purpose. The complainant submission due to drought and his illness the Tractor was off road is not considered by the O.P which clearly show the intention of the borrower to surrender the alleged vehicle but at that time the O.P could not take any action to possess the vehicle and later on took action to seized the vehicle from the resident of the complainant  in his  absence no doubt frustrated the very purpose of said agriculture loan, if the complainant could able to pay the entire sum price of the Tractor there was no chance of taking a loan from the O.P. Further the loan was to repay in 18 nos. of half yearly installment of Rs.25,200/- . The first installment was due on 31.09.2007 and the last installment of Rs.25,200 plus interest there on was fixed on 31.09.2016. It is evident from the loan account statement available on the record that, the complainant was repaying the loan as an when he had surplus though not as per the repayment norms fixed in the agreement and said repayment had been accepting by the O.P time to time. Last repayment of Rs.11,000/- in cash was accepted  on 13.12.2010 as such requirement to give notice prior to forceful seizer of the financed vehicle is implicit from the conduct of the parties in this case.
8. A notice  draws the attention of the borrower to the breach of agreement on his part ,on the basis of which the Bank claims to be entitle to take possession of the Hypothecated vehicle .Such notice could have gives the borrower an opportunities to show the cause for why vehicle should not be sized . Accordingly submission of the learned counsels of the O.P that the Tractor was seized and sold  for repayment of loan as per the terms of the  loan agreement is not acceptable .
9. Law is  well settled  in Magma Leasing Limited Vrs. Prasn Mohapatra reported in 2011 NCJ 667 (NC) where  Honble National Commission held that “though the bank is entitle to recover the amount due but taking the possession of the vehicle forcefully is a hasty act and cannot be condoned without rhyme and reason “
10.     In a tiring hurry, the Tractor was seized causing great hardship to the complainant merely base on apprehension that the borrower would become defaulter in future cannot be a valid ground for seizure and auction of the tractor. Tractor Seized and auctioned the same on the basis of assumption and surmises without serving prior demand notice in writing is not proper. So all so action was taken to seize and auctioned the vehicle to release the due without giving opportunity to uses it for the purpose of agriculture till the period of loan agreement ignoring the collateral security made by way of equitable mortgage (EM) of Ac 9.41 acre of land with third party guarantor ship of Sri. Jameswar Majhi  furnished by the borrower/complainant as it is  apparent in  the letter of arrangement placed on the record is nothing but arbitral and Unfair Trade Practice & deficient service of  the O.P which certainly frustrated the very purpose of Agricultural Term Loan (ATL) advance to the complainant  caused financial hardship and mental agony cannot be ruled out as such O.P is found to be deficient in providing services liable to compensate the complainant.(Reliance placed on Kodak Mahindra Bank Ltd vrs Dheeraj Singh Beldar & others reported in 2021 NCJ 62 (NC)).
11. The forceful seizure of tractor and sale it on auction in hurry mode   by the O.P/Bank   is found to be arbitrary and unfair trade practice caused financial hardship and mental agony to the complainant as such there is sufficient cause of action against the Ops  to present this complaint. This complaint is presented on 01.03.2021 before this Commission within the jurisdiction where the complainant is reside being aggrieved upon  the notice for his appearance in the National Lok Adalat held on 14/09/ 2019 as such the complaint is in time, maintainable under C.P.Act,2019.  Hence, the preliminary objection raised by the Op on maintainability of this complaint is rejected.
12. Based on the above discussion, we are of the opinion that ,the op/Bank is  not entitle to collect further  loan due if any from the complainant for their deficient service & Unfair Trade Practice .Hence it is ordered.

.                                    ORDER

The Op/Bank is directed to abstain from   further collecting of  loan due if any from the complainant under Loan  A/C NO. 11083694137 and further directed to release all the collateral/securities to the complainant within 45 days of receiving of this order. There shall be no order as to cost.

This  consumer complaint is partly allowed in above term.

Pending application if any is also stands disposed of accordingly.

This complaint could not be decided within the prescribed period of time due to Covid-19 situation and in want of quorum of this Commission.

Pronounced in open forum today on this 25^th day of August,2022 under the seal and signature of this Commission.

A  copy of judgment be provided to the parties free of cost and be uploaded    on the website of the Commission of the perusal of the parties.

Ordered  accordingly.

Dictated & corrected by ‘me.

        Sd/-

President

I agree

Sd/-                                           Sd/-

Member                                       President