Order No. 14 dt. 30/06/2017
The case of the complainant in brief is that the complainant is an educated and unemployed youth and in order to get self-employment he wanted to purchase a motor van manufactured by Mahindra from Shree Automative Pvt. Ltd. On 30/09/2011 the total price of the car was Rs. 3,39,800/-. Out of the said amount the o.p.s provided finance to the amount of Rs. 2,50,000/-. The o.p.s issued the loan sanctioned order along with a scheduled mentioning therein the loan agreement. It was decided that the complainant will have to pay the said amount in 46 installments of Rs. 7,623/- each. The complainant paid the EMIs from time to time but some of the EMIs were not paid within the due time. The o.p.s never informed the complainant regarding the actual liability of the complainant after payment of the EMIs. Subsequently all on a sudden the vehicle while carried the luggage was stopped near Singur bridge and took forcible possession of the vehicle. The father of the complainant visited the office of the o.p.s and the o.p.s demanded the amount of Rs. 52,959/- for overdue installments and Rs. 32,432/- against additional financial charges. The complainant agreed to pay the amount of Rs. 52,959/- but requested to accept the additional financial charges of Rs. 22,432/- in place of Rs. 32,432/-.
Since the o.p.s did not accept the proposal of the complainant the complainant had to file this case praying for direction upon the o.p.s for acceptance of the amount of Rs. 52,959/- and to release the vehicle and refund of the value of the goods of Rs. 40,000/- and allow the complainant to continue with the EMIs as per the agreement and also prayed for compensation of Rs. 2,00,000/- and litigation cost of Rs. 20,000/-.
The o.p.s contested the case by filing w/v denying all the material allegations of the complaint. It was stated that on numerous occasions the complainant was requested to update his dues as per his contractual and legal liability – both through personal visits as well as through written communication. As per the agreement the complainant was duty bound to effectuate payment of the EMIs without any reminder whatsoever. The complainant at the time of obtaining loan entered into a loan agreement and on failure to pay the amount due to the o.p.s, the financer has / had every right to take possession of the vehicle. The complainant in order to make out a false case made wild allegations against the o.p.s. in view of the facts and circumstances above the o.p.s prayed for dismissal of the case.
On the basis of the pleadings of the respective parties following points are to be determined :-
- Whether the complainant took loan from the o.p.s ?
- Whether the complainant paid the EMIs as per the agreement ?
- Whether the o.p.s can take possession of the vehicle on failure to pay the amount ?
- Whether there was deficiency in service and unfair trade practice on the part of the o.p.s ?
- Whether the complainant will be entitled to get relief as prayed for ?
Decision with reasons :-
All the points are taken up together for the sake of brevity and for avoidance of repetition of facts.
The Ld. Lawyer for the complainant argued that the complainant in order to purchase a motor van obtained loan from the o.p.s. It was decided that the loan shall be repayable at 46 number of EMIs amounting to Rs. 7,623/- each commencing from the month of November, 2011 to October, 2015. As per the loan agreement the complainant paid the EMIs regularly but because of financial stringency complainant failed to pay some EMIs for which the o.p.s took possession of the vehicle while the vehicle was carrying the articles for delivery on the way near Singur bridge the o.p.s took the possession of the vehicle. On the basis of the said fact the complainant filed this case praying for direction upon the o.p.s for acceptance of the balance amount dues as well as payment of compensation and cost.
The Ld. Lawyer for the o.p.s argued that the complainant failed to pay the EMIs regularly and he was asked to pay the due EMIs but he failed to take repeated plea of the o.p.s for clearing of the dues. The said fact was informed to the complainant by issuing notice as well as through the concerned staff of the o.p.s but no effective step was taken on behalf of the complainant. Finding no other alternatives the o.p.s took the possession of the vehicle. In this respect the Ld. Lawyer for the o.p.s emphasized that the various Fora including Hon’ble SCDRC, NCDRC and Courts in various judgements held that financier has every right to take possession of the vehicle on failure to pay the dues to the financier. In view of such background of the case the Ld. Lawyer prayed for dismissal of the case.
Considering the submission of the respective parties it is an admitted fact that the complainant took loan from the o.p.s for purchasing a vehicle. It is also an admitted fact that before the sanction of the loan amount an agreement was entered into between the parties. The complainant being the borrower agreed to repay the loan amount @Rs. 7,623/- each in 46 installments. It is also an admitted fact though the complainant claimed that he paid the amount as per the loan agreement but in the petition itself he admitted that he failed to pay some of the installments. From the said materials on record it is an established the fact the complainant was defaulter in payment of installment to the o.ps, towards the liquidation of the loan amount obtained by him. Though the complainant manufactured a case that at the time of taking possession of the vehicle of the o.ps. the vehicle had the goods worth of Rs. 40,000/-. The o.ps denied the said fact. The complainant in order to proof the said fact failed to adduce any evidence to that effect at least driver of the vehicle could have sworn an affidavit to the effect that at the time of taking possession of the vehicle the vehicle had the goods worth of Rs. 40,000/-. In absence of any cogent evidence to substantiate the claim of the complainant it is not believable that at the time of taking possession of the vehicle carrying goods worth of Rs. 40,000/-. It is an admitted fact that the complainant failed to pay the EMIs regularly. It is not believable that the complainant was not informed of the said fact by the o.ps that so much amount was remaining due to the o.ps. in this respect we can rely on a decision as reported in 2017(2) CPR 1995 (NC) where it was held that taking possession of vehicle on ground of non-payment of installment is legal right of financier. On the basis of said judgement it can safely be held that the o.p. financier did not commit any unfair trade practice by taking possession of the vehicle and this Forum can not interfere with the loan agreement admittedly entered into between the parties of this case.
Having regard to the facts and circumstances of the case we hold that the case filed by the complainant has got no merit and the same is liable to be dismissed.
Hence,
ordered,
that the case no. 570/2013 is dismissed on contest without cost.
Certified copy of this order be supplied to the parties free of cost.
