Chandigarh

DF-II

CC/164/2014

Deepak Kumar Sharma - Complainant(s)

Versus

Cholamandalam DBS Finance limited - Opp.Party(s)

Damandeep Singh,Adv

30 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

======

Consumer Complaint  No	:	164 of 2014
Date  of  Institution	:	01.04.2014
Date   of   Decision	:	30.03.2016

 

 

 

 

 

Deepak Kumar Sharma, aged about 32 years, son of late Sh.Surinder Kumar, resident of Gandhi Nagar, Gali No.2, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib.

                …..Complainant

Versus

 

1]  Cholamandalam DBS Finance Limited, Branch Office at SCO No.106, Chhotti Baradari, Patiala, through its Manager.

 

2]  Cholamandalam DBS Finance Limited, registered office at Dare House, No.2, (Old No.234), NSC Road, Chennai.

 

3]  Cholamandalam DBS Finance Limited, Regional Office at SCO 23, 24, 25, 3^rd Floor,  Sector 34-A, Chandigarh.

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

Argued by:-

Sh.Mandeep Singh, Proxy Counsel for Sh.Daman Deep Singh, Counsel for the complainant.

Sh.Ammish Goel, Counsel for the OPs.

 

 

PER PRITI MALHOTRA, MEMBER

 

 

         As per the case, the complainant purchased Truck No.HR-58/8181 in the year 2004, to earn his livelihood, entered into a Hire Purchase Agreement, after getting it financed from the OPs.  It is averred that the complainant was regularly paying monthly installments of Rs.16,000/- approximately per month and paid it upto July, 2008.  However, due to domestic & other problems, the complainant could not pay installments of four months after July, 2008.  It is averred that on 20.10.2008, the OPs forcibly took away the said vehicle from the complainant. On approaching OPs, they told that they will sell the vehicle otherwise the complainant should pay advance installments, charges for taking possession, fine, late fee etc. and only then the vehicle will be delivered. Thereafter, the complainant filed a consumer complaint No.409 of 23.10.2008 in District Consumer Forum, Fatehgarh Sahib, which was allowed on 14.5.2009 and against this, the OPs preferred First Appeal No.1246 of 2009 on 31.8.2009, which was decided on 16.12.2013 and was allowed on the ground of jurisdiction with observation that the court at Fatehgarh Sahib had no jurisdiction  and the order of the District Forum, Fatehgarh Sahib was set-aside without prejudice to the rights of the complainant for filing complaint before appropriate forum.  However, during the pendency of the said complaint, the OPs without any right or authority sold the vehicle in question for a consideration of more than Rs.9.5 lacs.  Hence, this complaint has been filed alleging the above acts & conducts of the Opposite Parties as gross deficiency in service and indulgence into unfair trade practice.

 

2]       The Opposite Parties have filed reply and admitted the providing of loan/finance of Rs.5.50 lacs to the complainant for the purchase of truck in question, execution of loan agreement between the parties, seizure of the vehicle due to non-payment of installments as well as its sale.  It is submitted that the complainant had not paid the installments regularly and consequently, had become defaulter in making the payment of the loan installment, as per the terms and conditions.  It is denied that on 20.10.2008 the Opposite Parties forcibly took away the vehicle from the complainant.  It is submitted that answering Opposite Party got issued a notice dated 30.5.2008 (Ann.OP-1/3) to the complainant prior to taking the possession of the vehicle in question, but he failed to pay the due installments of outstanding amount. It is also submitted that the vehicle in question was seized by the answering OPs as per the terms & conditions of the agreement dated 29.1.2007 and no force was used therein as the same was taken away in peaceful manner. Claimed that the complainant never requested the Opposite Parties for deposit of outstanding amount, rather the Opposite Parties issued reminders to the complainant, but he did not pay any heed. Further, averred that the vehicle in question had been sold by the answering OPs for an amount of Rs.3,22,000/- and after selling the said vehicle, the answering OPs had suffered a loss of Rs.1,84,391/-. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3]       Rejoinder has also been filed by the complainant thereby reiterating the assertions as made in the complaint and controverting that of the Opposite Parties made in their reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the record as well as written arguments.

 

6]       At the outset, it needs to mention that the complainant had earlier filed this complaint against the Opposite Parties before Consumer Forum, Fatehgarh Sahib, wherein he was successful and on the basis of appeal filed by the Opposite Parties, the Hon’ble Punjab State Commission, Chandigarh set aside the order of the Consumer Forum, Fatehgarh Sahib, for want of territorial jurisdiction.  The complainant has filed the present complaint and appended the orders of the Consumer Forum, Fatehgarh Sahib as well as Hon’ble Punjab State Commission, Chandigarh, where the Hon’ble Punjab State Commission, Chandigarh vide order dated 31.8.2009 while dismissing the complaint of the complainant, permitted the complainant to file complaint before appropriate Forum and also excluded the time spent by the complainant while prosecuting the complaint and also the time spent in appeal before that Commission in order to commute the period of limitation.  Record reveals that the complainant has filed the present complaint within the limitation period. The complainant has filed the present complaint before this Forum on the ground that the OPs have not acted as per the terms of the agreement and caused him loss, which according to him has been assessed as Rs.11.50 lacs with interest @24% p.a. from 20.10.2008 till actual and final realization of the said amount. 

 

7]       The ld.Counsel for the complainant while reiterating the facts of the complaint submitted that the complainant purchased a Truck bearing Regd.No.HR-58/8181 in the year 2004 for earning his livelihood and got his vehicle financed from Opposite Parties at Mandi Gobindgarh through one Rajvir Singh, the collection agent of OPs. It is claimed that the complainant paid the installments regularly up till July, 2008 and thereafter, due to domestic problem as well as financial constraints, could not pay the installments for four months only after July, 2008.  It is further claimed that to the dismay of the complainant, the Opposite Parties due to non-payment of installments forcibly repossess the vehicle from the complainant on 20.10.2008 and later on it was sold by the OPs causing loss to the complainant.

 

8]       The ld.Counsel for the OPs submitted that the complainant took a loan of Rs.5.50 lacs on 29.2.2007 from the OPs, which he was supposed to repay in 48 installments out of which 46 installments were amounting to Rs.15,849/- and last two installments amounting to Rs.15,866/-.  It is further claimed that the complainant failed to repay his loan as per the schedule and it is also admitted that the complainant stopped repaying his loan from July, 2008 onwards.  The ld.Counsel for the Opposite Parties submitted that the complainant was duly served with the legal notice dated 30.5.2008 wherein he was asked to repay the due installments and was cautioned for the repossession of his vehicle in question in case the dues are not paid.  It is further claimed that as the complainant failed to repay the due installments, so the OPs took over the possession of the vehicle in question in terms of clause No.10 & 11.2 and 11.6 (C)(1) of the loan agreement dated 29.1.2007 on 10.10.2008 and inventory list thereof had been prepared by the Balaji Enterprises who was authorised by the OPs, which was duly signed by the driver of the vehicle in question.  

 

9]       In the light of the admitted facts pertaining to the taking of loan from the OPs on 29.1.2007 and its repayment being stopped by the complainant from July, 2008, the repossession of the vehicle in question and its sale thereof by the Opposite Parties, it is to find out that whether the OPs rightly exercised their right to recover the outstanding loan amount from the complainant as well as to see that while exercising the right to recover the outstanding amount, the Opposite Parties acted as per the terms & conditions agreed upon by the parties while signing the loan agreement dated 29.1.2007 (Ann.OP-1/1). In our considered opinion, the answer to this is in negative for the reasons recorded hereunder.

 

10]      The ld.Counsel for the OPs putforth justification that the repossession of the vehicle was made by complying the requisite formalities and only after following the due procedure the auction of the said vehicle was made.  It is further claimed that against the due payment of Rs.4,96,905/- against the complainant, the OPs succeeded to fetch only Rs.3,22,000/- by selling the said vehicle in question and by adjusting the said amount, the demand of Rs.1,84,391/- is still pending recoverable from the complainant.

 

11]      To adjudicate the matter in dispute, we have meticulously gone through the terms & conditions of the agreement entered into between the complainant and the Opposite Parties and particularly also gone through the referred clauses No.10 & 11.2 and 11.6 (C)(1) of the loan agreement dated 29.1.2007, whereby the OPs tried to justify the repossession of the vehicle in question to recover their dues.  No doubt the OPs before repossession of the vehicle issued legal notice to the complainant and also intimated to the authorities concerned about the repossession of the vehicle in question, but simultaneously, they failed to honour other conditions of the said agreement in question.  We are of the considered opinion that the Opposite Parties sold the truck/vehicle in question in violation of the terms & conditions of the loan agreement entered into between the parties, wherein under Article 17 of the said Agreement, it was obligatory for the Opposite Parties, before taking any action for the recovery of the amount due, to move before the Arbitrator.

 

12]     For the sake of convenience, we reproduce the said Article 17 as under:-

17.1  All disputes, differences and/or claims arising out of this Agreement whether during its subsistence or thereafter shall be settled by Arbitrator in accordance with the provisions of the Arbitrator and Conciliation Act, 1996 or any statutory amendments thereof and shall referred to the Sole Arbitration of an Arbitrator nominated by the Vice President of the Company. The award given by such Arbitrator shall be final and binding on all parties to this Agreement.  In the event of an appointed arbitrator dying or being unable or unwilling to act as arbitrator for any reason, the Vice President of the Company, on such death of the arbitrator or his inability or unwillingness to act as arbitrator…………”

 

13]      It is clear from the record that the Opposite Parties had not appointed any Arbitrator, as per the requirement of Article 17 of the Loan Agreement, dated 29.1.2007 (Ann.OP-1/1) entered into between the parties at the time of advancing of the loan to the complainant. 

 

14]      We feel that in the present case, the Opposite Parties have bye-passed the provisions (terms & conditions) of the loan agreement in question as it is apparent on record that the OPs directly after issuing notice of due payment to the complainant dated 30.5.2008, recovered the Truck in question and sold it at a throwaway price without giving notice to the complainant about the said sale.  We feel that this act of the OPs is illegal as without justification because disposing of the truck/vehicle in question for the failure of the complainant for not paying the installments of loan, without giving any opportunity to the complainant further tantamounts to unfair trade practice on the part of the OPs.

 

15]      Going through the above, we are of the opinion that the OPs should have offered for the appointment of Arbitrator instead repossessing the vehicle and then selling it without giving any notice to the complainant about the sale. It seems that the Opposite Parties have acted in a haste to dispose of the vehicle and recover the amount as calculated by them with their own wishes, which in our opinion is not only against the principle of natural justice but also an act of unfair trade practice to burden the borrower with arbitrary claim, as happened in this case.  After applying mind to the given case, we feel that the act of the OPs is not considered as a case of proper services rendered, who also failed to give proper chance to the complainant to witness the sale of the vehicle in question. Under these circumstances, we are of the opinion that the OPs rendered deficient services to the complainant and also indulged into unfair trade practice, which certainly caused great mental agony, physical harassment besides causing him financial loss, therefore, the OPs are bound to compensate the complainant. 

 

16]      In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The Opposite Parties are jointly & severally directed as under :-

1.   To pay a sum of Rs.2,00,000/- (Two lacs Only) as compensation to the complainant on account of causing him mental tension, agony, physical harassment as well as financial loss.
2. To pay Rs.15,000/- as litigation expenses.

         This order shall be complied with by the Opposite Parties jointly & severally within one month from the date of receipt of its certified copy, failing which, they shall be liable to pay the compensation amount of Rs.2.00 lacs along with  interest @12% p.a. from the date of filing this complaint till its realization, besides paying costs of litigation.

        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30.03.2016                                                                   Sd/-                                                                              

 (RAJAN DEWAN)

PRESIDENT

 

 

          Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

 

          Sd/-

 (PRITI MALHOTRA)

MEMBER