Ld. Advocate(s)
For Complainant: Saptashi Biswas
For OP/OPs :Swapan Ghosh/Safikul Alam
Date of filing of the case :01.10.2018
Date of Disposal of the case :31.01.2024
Final Order / Judgment dtd.31.01.2024
The concise fact of the case of the complainant is that the complainant Paltan Majumder had two bank accounts bearing no.08780510006795 and 08780510006859 and another two accounts in the name of his wife bearing no.08780510008041 and 08780210008027 had OP bank UCO bank Krishnagar Branch OP Chief Manager UCO Bank Krishnagar Branch sanction a truck loan to one Wazeb Mondal for purchasing truck bearing registration no.
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WB51A/5613. Subsequently the said loan account turned NPA for nor payment of instalments which was seized by OP on 30.05.2014 and kept in their custody subsequently the OP published news paper advertisement on 24.07.2014 for auction of the said vehicle to recover the outstanding dues. Thereafter, the complainant participated in the auction. Meanwhile on 23.12.2014 the OP bank sent a letter to the complainant to inform him that he was the higher bidder in the auction with a request to complete the process of the auction. The complainant became highest bidder and it was sold to him for Rs.7,75,001/- on 03.01.2015 by the OP bank and handed over all necessary documents on 07.04.2015 along with sales certificate on 09.04.2015. Thereafter, the complainant went to the Proforma OP, RTO. Krishnagar, Nadia for registering the said vehicle with relevant documents in the name of the complainant but the Pro-forma OP asked him to submit the form NO.36 duly signed by the registered owner and to appear in person before the Pro-forma OPs office otherwise, the bank (OP No.1) shall have to produce appropriate order of authority or court in respect of attachment or seizure or vehicle as hypothecated. Due to lack of necessary steps by OP bank it was not registered. So the complainant sent a letter to the OP on 15.06.2015 and 14.09.2015 but they did not reply. On 30.09.2015 the complainant again sent a letter for issuing fresh certificate of registration of that vehicle. The Pro-forma OP requested previous owner, Wazeb Mondal if he had any objection by 06.11.2015. The complainant also sent another notice to OP bank on 24.12.2015. On 15.02.2016 OP sent a letter to the Pro-forma OP but he left the address as per their record. On 24.02.2016 the complainant received a letter from Zonal office of OP Bank on 25.02.2016 the OP made an affidavit as per requirement of registration of the vehicle. Thereafter, the Pro-forma OP asked the complainant to deposit the road and other Tax on 29.02.2016. OP bank did not deposit the said money. Thereafter, on 29.03.2016 the complainant informed the matter to Zonal Manager of OP bank against which a reply was sent stating inter-alia that the OP had no liability towards any dues for the said vehicle . So the OP had sold the said vehicle for cheating the complainant. On 11.04.2016 the complainant sent a letter to Managing Director and CEO of UCO bank and Zonal Manager Burdwan of OP bank over that matter. On that 21.12.2016 the Pro-forma OP sent a notice to Wazeb Mondal to surrender the certificate of registration for cancellation and issue of fresh registration certificate in the name of financer. On 27.02.2017 the Pro-forma OP asked the OP to deposit transfer of ownership fees and other fees of the said vehicle but the OP did not comply. On 05.03.2018 OP No.1sent a legal notice to the complainant informed the matter to the DM on 28.05.2018 but did
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not get any relief. So the present case is filed. The cause of action arose on 23.12.2014 since the date of auction and is still continuing. The complainant, therefore, prayed for an award for a direction to pay Rs.7,75,001/- together with interests @25% p.a , Rs.2,00,000/- towards mental pain and agony and unfair trade practice and cost of this proceedings.
OP NO.1 UCO Bank contested the case by filing W/V wherein they denied each and every allegation. The Pro-OP No.1 challenged the case as not maintainable on the ground that the vehicle was purchased for commercial purpose and the complainant is not a consumer and the case is barred by limitation. The positive defence case of OP No.1 bank in brief is that the OP UCO bank Krishnagar Branch published advertisement in the Daily Newspaper stating description of TATA Truck HGV-Commercial with noting all related terms and conditions specially as noted in column no.1-8-9. Such as in column no.6 it was clearly noted that the successful bidder shall bear all the charges payable for conveyance , registration fees, stamp duty taxes statutory dues etc. as applicable. In column 7 it was clearly noted that the said auction is subject to confirmation by the bank , in column 8 it was also noted that the bank will not be held responsible for any charges, lien encumbrances , property tax or any other dues to the government or anybody in respect of the said auction , in column 9 it was noted that this is also a notice to the borrower and guarantor. That the UCO bank Krishangar Branch published auction notice for auction sales of vehicle hypothecated to bank stating the matter “as his where is basis” and “whatever there is basis” and “without recourse basis” mentioning the reserve price of the vehicle and date, time and place specifically mentioned in the said newspaper publication . Being satisfied in all respect the complainant as a highest bidder deposited the amount and the sales certificate was issued in the name of Paltan Majumder. The buyer Paltan Majumder accepted the said certificate of sales as per provision of law. So, there is no latches on deficiency in service . The SARFAESI Act empowers the bank to take action for enforcement of its security interest and taking possession thereof as well as to put the said security of sale through OP auction in which no order of court of law is required. The OP NO.1 claimed that the case is liable to be dismissed with cost.
The conflicting pleadings of the parties led this Commission to ascertain the following points for proper adjudication of this case.
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Points for Determination
Point No.1.
Whether the complainant is a consumer or not.
Point No.2.
Whether the present case is maintainable in law.
Point No.3.
Whether the complainant is entitled to get the relief as prayed for .
Point No.4.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1&2.
Both the points relate to the question as to maintainability of the case and as such these are taken up together for brevity and convenience of discussion.
The OP No.1 challenged the case as not maintainable on the ground that the complainant is not a consumer. The OP NO.1 categorically stated in its W/V that the disputed vehicle being TATA Truck HGV-Commercial was sold in auction to the complainant with specific description of the vehicle as commercial. The status of the said vehicle is purely commercial in nature and as such the complainant cannot be considered as a consumer. In this respect he referred to decision reported in (2018) CPJ 367 (NC) wherein it was held that as per section 2(1)d, 2(1)b consumer insurance claim – commercial purpose – petitioner hired services of OP NO.2 bank in connection with loan taken in its business. Petitioner cannot be termed as consumer of State Bank of Patiala complaint against OP No.2 is not maintainable .
Ld. Advocate for the OP No.1 also drew the attention of this Commission in regard to the newspaper publication of the auction notice wherein the status of the said vehicle is clearly mentioned as TATA Truck HGV-Commercial .
Ld. Advocate for the complainant counter argued that he categorically stated in the complaint that the complainant purchased the said vehicle for actual livelihood.
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As per para 9 of the complaint it appears that initially it was written as future gain and after pen through it is hand written by two words “actual livelihood” .
Ld. Defence Counsel strongly raised objection against the said pleading on the ground that there is no initial over the said correction and in the copy of the said complaint served to the OP there is no correction. So it was done just for the purpose taking undue advantage by the complainant.
It is fact that there is an overwriting in para 9 of the complaint wherein after pen through of the words future gain the words actual livelihood were written without any initial.
Without going into the said controversy the Commission finds that in the notice of the OP bank on the basis of which the complainant purchased the said vehicle, it is clearly written in the auction notice in the first column about the description of the goods to be auction that the subject matter is TATA Truck HGV-Commercial, date of auction 27.08.2014 reserve price Rs.10,50,000/- stands in the name of Wajeb Mondal (borrower) of UCO Bank , Krishnagar Branch.
Thus from the best document being Annexure-1 it is crystal clear that the disputed vehicle is a commercial vehicle, so it can ply only for commercial purpose and not domestic purpose. As per the C.P Act the consumer means and includes inter-alia a person who purchases goods for consideration but does not include a person who obtained such goods or resell for any commercial purpose .
The case law reported in (2018) CPJ 367 (NC) clearly held that in view of the inbuilt exception in definition of the consumer petitioner cannot be termed as a consumer of the State Bank of Patiala.
The said case law squarely applies here.
The complainant could not counter the said ruling.
For the sake of argument if it is presumed that the complainant stated that the said vehicle was purchased for earning his livelihood yet the vehicle itself is a commercial vehicle, so there is no ground to presume that it was used for earning his livelihood since the complainant did not file any document to show that it was running for earning livelihood. On the contrary the OP categorically stated in its W/V that the complainant is a renowned and top class businessman at Krishnagar town. The complainant did not cross-examine the OPW-1 over the said specific defence case.
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The OP No.1 put some interrogatories during cross-examination. As per question no.5 it was asked to the complainant as to how many vehicles are processed by you and how many years you are enjoying those vehicles . The complainant answered that “does not arise”.
It means that the complainant has suppressed the most vital question as to how many vehicles are under his possession. If he had answered rightly, this Commission could have arrived at a positive decision as to whether he is running the disputed vehicle for earning his livelihood or he had more vehicles as a businessman for commercial purpose. So by taking recourse to the provision The Evidence Act it can safely be held that despite having knowledge of a fact the complainant suppressed it for his personal gain, keeping this Commission in dark. So the allegation of the OP No.1 that the complainant is a businessman and the disputed vehicle was purchased for commercial purpose is accepted.
Again, the complainant was put a question under question no.8 as to how many years you are engaged in businessman. The complainant avoided the answer by answering “does not arise”.
So, it is found that the most relevant question put by OP to the complainant remains unanswered by the complainant.
Ld. Advocate for the complainant also referred to another decision reported in revision petition no.3510 of 2016 by Hon’ble N.C.D.R.C. wherein it was held that complainant was a consumer unless it was shown that it was purchased for any commercial purpose.
The case law does not apply in view of the fact the complainant deliberately avoided to answer against some questions as discussed in the foregoing paragraph to hold as to whether the said truck was purchased for personal use or commercial purpose.
Thus in the backdrop of the aforesaid discussion the Commission comes to the finding that the complainant does not come within the purview of the “consumer” as per provision of the C.P Act. So, the present case is not maintainable under the C.P Act.
Accordingly, point no.1&2 are answered in negative and decided against the complainant.
Point No.3&4.
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Both the points have close nexus between them and as such for the purpose of brevity and convenience of discussion these are taken up conjointly for discussion.
The complainant in order to substantiate the case proved the following in course of evidence.
No.1 Newspaper advertisement dated 24.07.2014.
No.2 Xerox copy of receipt of bid amount.
No.3 Copy of sales certificate.
No.4 Copy of letter by Chief Manager dated 07.04.2015.
No.5 Copy of issuing fresh certificate to the RTA.
No.6 Copy of issuing notice by RTA.
No.7 Copy of letter to the Chief Manager of UCO bank.
No.8 Copy of notice to the RTA by OP.
No.9 Copy of letter by Zonal head authorised to file affidavit.
No.10 Copy of affidavit by OP before first Class Magistrate.
No.11 Copy of notice from the RTO to the Senior Manager of OP Bank.
No.12 Copy of letter from complainant to the Zonal Manager OP Bank.
No.13 Copy of letter from Deputy Zonal Head to the complainant.
No.14 Copy of letter from the complainant to the Managing Director.
No.15 Copy of notice by RTA to the OP.
No.16 Copy of legal notice by OP to the complainant.
The OP also relied upon most of the documents filed by the complainant. The following documents are filed and proved on behalf of the OP.
No.1 Original newspaper advertisement of UCO bank dated 11.12.2014.
No.2 original letter of sale of Truck to the complainant dated 07.04.2015.
No.3 Confession letter by driver of the disputed vehicle dated 29.05.2014 by S. Biswas.
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No.4 Letter dated 30.05.2014 to the inspector in charge by the Chief Manager of OP Bank.
No.5 Letter to the RTA dated 15.02.2016 by the Chief Manager of OP No.1 Bank.
No.6 Three original letters to Wazeb Mondal letter written by Paltan Majumder dated 30.09.2015.
No.7 Letter dated 21.01.2016 by OP Bank to RTA.
No.8 Letter dated 03.07.2015.
The complainant alleged that despite due payment of the purchase price of the said vehicle the OP bank did not take proper steps for registration of the said vehicle in utter violation of RBI guidelines and the vehicle has been kept in open road side in garage for which he suffers damage. So, the OP is liable for deficiency in service . The complainant has not prayed for any relief against the Pro-forma OP.
It is the admitted position that the disputed vehicle bearing no. WB51A/5613 being a truck was sold to the complainant through auction.
The defence plea is that they have taken all steps for the purpose registration of the vehicle but it is not their liability to pay the tax and other dues as per the advertisement .
Ld. Defence Counsel further argued that the sales certificate was issued on 09.04.2015. It is the duty of the complainant to take appropriate steps before the RTA and to get it registered. The best document in this case is the paper publication on the basis of which the disputed vehicle was sold.
Ld. Defence Counsel for the OP drew the attention of this Commission in regard to annexure-1 and annexure-A over which both the parties relied on. As per annexure-1 being the newspaper publication. As per the said newspaper publication the TATA Truck HGV-Commercial Registration no.WB51A/5613 was sold and under the said advertisement as per clause 6 of terms and conditions the successful bidder shall bear all the charges payable for conveyance , registration fee, stamp duty, taxes statutory dues etc. as applicable.
As per clause 8 bank will not be held responsible for any charge, , lien encumbrance , property taxes or any other dues to the government or anybody in respect the asset auction.
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Ld. Defence Counsel rightly argued that the complainant participated in the said auction having agreed to the terms and conditions, aforesaid and as such the OP Bank has no liability to pay any charges.
The argument has reasonable force in as much as the complainant could not prove any document to show that the terms and conditions were not in his knowledge or that it is not applicable to him.
Annexure-2 further discloses that the OP bank issued a letter on 07.04.2015 wherein the original blue book ,original tax token , original insurance policy, duplicate key, original letter to I.C Kotwali P.S dated 03.04.2015 and the original national permit were handed over to him which he duly received on 07.04.2015. He also received the said disputed vehicle on 09.04.2015 .
Annexure-3 also discloses that the said truck was seized by the OP Bank since it was surrendered by the driver of the previous owner. The OP further proved the letter regarding possession of vehicle taken from Wazeb Mondal by the OP bank .
The allegation that the OP bank did not cooperate with the complainant is not tenable in as much as the OP bank issued a letter to the RTA for registering the vehicle in favour of Paltan Majumder as per rule.
Annexure-5 further discloses that the OP Bank issued letter to the RTA on 15.02.2016 for issuance of registration certificate in the name of the complainant in submitting all the forms and documents.
From the letter of the OP bank dated 21.01.2016 to the RTA it discloses that the OP again requested the RTA to register the vehicle in favour of Paltan Majumder as per rule since they have already submitted all the documents.
Thus the OP bank seems to have taken all the possible steps for registering the vehicle in the name of the complainant but the charges are not payable by them as per terms and conditions of the auction.
Regard being also had to the reply given by the OP No.1 against the interrogatories filed by the complainant. The OP bank answered against the question as to whether the OP Bank had taken any step for registration of the aforesaid vehicle in the name of the complainant.
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The competent witness of OP Bank stated in answer no.5 inter-alia that the OP bank took steps for the said auction sales of the commercial vehicle. There is no function of bank, it is the duty of RTA. There is no latches on the part of the OP Bank. The OP Bank published auction notice on “as is what is basis” mentioning the reserve price . Being satisfied in all respect the complainant as a highest bidder deposited the amount and a sales certificate was issued. The complainant Paltan Majumder accepted the said certificate as per provisions of law in respect of the said vehicle. So, there is no latches or deficiency in service or any liability on the part of the bank as per the provisions of liability.
Answer given in cross-examination has a special force. As such having assessed the evidence of both the parties the Commission comes to the finding that the complainant failed to establish that there was any latches on the part of the OP as alleged by the complainant.
One case law is filed by Ld. Adv. for the complainant being reported in civil appeal no.1217 of 2022 before the Hon’ble Supreme Court wherein it was held inter-alia that a financer of a Motor Vehicle under hire purchase or lease or hypothecation agreement is liable to tax from the date of taking possession.
The said case law does not match with the facts and circumstances of this case in as much as the disputed vehicle was sold by virtue of auction with certain terms and conditions. The said auction has not yet been declared as void or invalid . Before purchasing the disputed vehicle the OP agreed to abide by the terms and conditions of the said auction.
In the backdrop of the aforesaid discussion and the observation made in hereinabove the Commission comes to the finding that the complainant could not establish that OP has caused any deficiency in service or unfair trade practice.
In the result, it is held that the complainant failed to establish the case against the OP.
Consequently, the complaint case fails.
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Hence,
It is
Ordered
that the complaint case no.CC/162/2018 be and the same is dismissed on contest without cost.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
