BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,BHIWANI.
Complaint No.515/19.
Date of instt.: 09.07.2019.
Date of Decision:22.10.2019.
Bal Bhawan High School, Talu, Tehsil & District Bhiwani through its Manager and authorized signatory Sh.Ram Niwas.
……….Complainant. Versus
1.Cholamandalam M/s Finance and Loan Branch, 2nd Floor, Plot No.SCF 53 & 54 Urban Estate-2, Shopping Complex, above PNB Bank, Jindal Chowk, Hisar 125001, through its Branch Manager.
2.Cholamandlam M/s Finance & Loan Branch and vehicle parking yard, Tosham Bye-pass, in front of Dinod Road, Bhiwani, Tehsil & District Bhiwani through its Yard Manager/authorized signatory/agent.
3.Chokamandlam Investment and Finance Company Limited, Dare House 2, NSC Bose Road, Parrys, Chennai 60001 (India), through its authorized agent/Manager.
..………Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: SH.NAGRENDER SINGH, PRESIDENT. SH.PARMOD KUMAR, MEMBER.
Present: Shri A.K.Vashistha, Advocate for complainant.
Shri R.K.Verma, Advocate for Opposite parties.
ORDER
PER NAGENDER SINGH, PRESIDENT
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that vide agreement No.SVFPHSR00001407363 the complainant got vehicle bus Traveler bearing registration No.HR61C-6713 financed through Op no.1 on a monthly installment of Rs.26858/- per month and the complainant had to deposit Rs.10,02,800/- i.e. principal amount with interest in the shape of 47 monthly installments. The complainant has deposited Rs.12,62,326/- with the Op No.1 but despite that the Op No.1 has suddenly seized the vehicle on 10.04.2019 without giving any prior notice in arbitrarily manner and also got served a notice demanding Rs.1,05,046/- within seven days and also extended a threat to sell the vehicle in case the amount is not deposited. No such dues were due against the complainant and seizing of vehicle by the Opposite parties is deficiency in service on their part. The complainant also got served legal notice upon the Opposite parties but to no avail. Hence, this complaint. In evidence, the complainant has tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C9.
2. On notice Opposite parties appeared and filed their joint reply wherein several preliminary objections such as cause of action, locus standi and concealment of material facts etc. have been taken. It is further submitted that a loan of Rs.10,02,800/- was sanctioned by Op No.1 in favour of complainant for the purpose of school bus and as per agreement the complainant had to deposit the said amount in 47 monthly installments (Rs.26,858/- per month) commencing from 01.05.2015 to 01.03.2019. The installment period has been completed but the complainant has failed to clear the dues of loan amount and a sum of Rs.1,15,046/- is due against it on 13.04.2019. The vehicle was taken into possession by the officials of Branch Office at Hisar in terms of agreement as the complainant has failed to clear the outstanding dues. The value of the vehicle was got assessed to the tune of Rs.3,80,000/- but the quotation from open market were sought and highest bid of Rs.4,95,000/- was received from Ravi Raheja. Letter dated 13.04.2019 was sent to the complainant but the complainant did not comply with the same, therefore, due process of sale of vehicle was completed in accordance with law. Moreover, letter dated 13.04.2019 is binding upon the complainant being legal one. After receiving a sum of Rs.4,95,000/- from the purchase, a sum of Rs.2 lac have been credited in the loan account of the complainant and excess amount of Rs.2,52,017 in the account of the complainant vide cheque No.905846 dated 08.05.2019. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, learned counsel for the Opposite parties have tendered documents Annexure R1 to Annexure R14.
3. We have heard learned counsel for the parties and gone through the material available on the case file very carefully.
4. Learned counsel for the complainant has argued that the complainant has deposited Rs.12,62,326/- with the opposite party No.1 but despite that the opposite party No.1 without any prior notice, seized the vehicle forcibly in violation of the terms and condition of the agreement. He further argued that vide notice dated 13.04.2019, the Opposite parties had demanded Rs.1,05,046/- and even threat to sell the vehicle without giving any notice, if the said amount is not deposited. The complainant is not a defaulter but the opposite parties have taken over the possession of the vehicle forcibly in arbitrarily manner despite the fact that major part of the loan amount has been paid. It has been further argued that no notice before taking over the possession of the vehicle or before sale of the vehicle has been given to the complainant which is clear cut violation of the terms and conditions of the agreement. In support of his arguments learned counsel for the complainant has relied upon case laws titled as Magma Fincorp ltd. Vs. Samarendra Nath Roy 2011 (3) CPJ 427, (NC), Cholamandalam Investment and Finance Company Vs. Kamal Singh 2001 latest HLJ (H.P), Satya Naran Adhikari Vs. Moyank Poddar & Ors. 2017 (2) CPJ 561 (NC) and Parteek Finance Company Vs. Jasbir Singh and another 2015 (1) CPJ, 454 (NC).
5. On the other hand learned counsel for the Ops has argued that a sum of Rs.1,15,406/- was due against the complainant and that amount was demanded from the complainant vide Annexure R3/Annexure C3 but when that amount was not paid by the complainant, the possession of the vehicle in question was taken by the OPs in accordance with the terms and conditions of the agreement and regarding this post seizure intimation was sent to the police station (Annexure R12). It has been further argued that before selling the vehicle in question, the Opposite parties sent final call letter dated 27.02.2019 to the complainant (Annexure R1) to pay a sum of Rs.1,26,312/-. Learned counsel for the opposite parties has argued that the Opposite parties have followed the required procedure in sequence from beginning i.e. from taking possession of the vehicle till its selling the same to the buyer and in support thereof, learned counsel for the opposite parties have drawn the attention of this Forum towards statement of account Annexure R4, vehicle finance Forum Annexure R5, loan agreement Annexure R6, schedule of agreement Annexure R7, pre-seizure memo Ex.R8, quotation for purchase of vehicle Annexure R9, Sale Acceptance Letter duly accepted by Ravi Raheja as Annexure R10, inventory of the vehicle in question Annexure R11, post seizure intimation Annexure R12 and letter of indemnity Annexure 13. It has been further argued that out of the total sale proceeds i.e. Rs.4,95,000/- an amount Rs.2,52,017/- was refunded to the complainant vide cheque No.905846 dated 08.06.2019 being excess amount. There is no deficiency in service on the part of the Ops.
6. The contentions put forth by the learned counsel of the complainant have weight because it is proved on the case file that major amount of the loan amount has already been paid by the complainant because the document Annexure C3 reveals that an amount of Rs.1,15,046/- was outstanding against the complainant and Annexure R1 shows that an amount of Rs.1,26,312/- was outstanding against the complainant. Though both these documents have been issued by the opposite parties but it does not mean that the final call letter dated 27.02.2019 was served upon the complainant because the opposite parties have failed to prove on the case file that by which mode the said letter was got served upon the complainant.
7. Learned counsel for the opposite parties has stressed that all the due procedure has been adopted before taking over the possession of the vehicle, after taking over the possession and selling of the vehicle but there is nothing on the case file to show that complainant had surrendered the vehicle, therefore, it can be easily presumed that the possession of the vehicle was taken forcibly for the recovery of meager amount, which creates a doubt on the act and conduct of the opposite parties that no violation of the terms and conditions of the agreement has been made. On this point learned counsel for the complainant has rightly relied upon the case law titled as Magma Fincorp ltd. Vs. Samarendra Nath Roy (supra) wherein Hon’ble National Commission has held that Motor vehicle-Hire Purchase Agreement- Default in repayment installments delayed- Repossession- plea of deficiency in service- Complaint allowed by Forum- Appeal- Dismissed- Revision- Plea that the vehicle surrendered by complainant- not accepted- Forcible possession of the vehicle is not in accordance with agreement. Moreover, on the case file it is established that no notice was ever given before re-possession of the vehicle, therefore, the Annexure C3 whereby the complainant was asked to clear the dues is also not helpful to the opposite parties. On this point learned counsel for the complainant has rightly relied upon the case law Cholamandalam Investment and Finance Company Vs. Kamal Singh (supra) wherein Hon’ble H.P. State Commission in para No.15 has held that As such re-possession of the vehicle is not legally warranted as no notice was ever given to the complainant before re-possessing the vehicle. Even Annexure R2 is dated 11.03.2005 whereby the complainant was asked to clear the outstanding dues within 7 days, whereas the vehicle was repossession on 22.02.2005 as such this notice is not helpful to the OPs and hence we are of the considered view that the OPs have re-possessed the vehicle illegally without giving any opportunity of being heard to the complainant.
8. The opposite parties have also failed to prove on the case file that before the sale/auction of the vehicle in question prior notice was ever served and an opportunity for repayment of the balance meager amount was given to the complainant. On this point learned counsel for the complainant has rightly relied upon the case law titled as Satya Naran Adhikari Vs. Moyank Poddar & Ors. (supra) wherein Hon’ble National Commission has held that As per guidelines issued by Reserve Bank of India final change to be given to the borrower for repayment of loan amount before the sale/auction of the property and the procedure for giving repossession to the borrower and further the procedure for sale/auction of the property should find clear mention in the terms and conditions of the agreement, in the case in hand, the petitioners have neither provided for such term in the agreement nor have they given any such opportunity to the respondent/complainant.
It is clear that even, if the right to repossess the vehicle is mentioned in the hypothecation agreement, its procedure as loan down under the guidelines issued by the Reserve Bank of India should also be mentioned in the agreement, which is not clearly mentioned in the hypothecation agreement in question. A last opportunity should have been given to the complainant before the sale of the vehicle, which has not been given in the present case.
9. From the above discussion, it is clear that the opposite parties have taken the possession of the vehicle forcibly and even sold/auctioned the same without following the due procedure in order to recover meager amount of Rs.1,15,046/- (Annexure C3). Therefore, we find the opposite parties deficient in providing service besides indulging in unfair trade practice.
10. Undisputedly, the vehicle in question was sold/auctioned for a sum of Rs.4,95,000/- and the opposites parties have paid Rs.2,42,983.76 to the complainant being excess amount but when this Forum in the above mentioned paragraphs has opined that no requisite procedure was adopted by the opposites parties before taking over the possession of the vehicle, after taking over the possession of the vehicle and before selling of the vehicle, therefore, this sale/auction carries no value in the eyes of law being done in illegal and suspected manner. As per Annexure C9, the cost of the vehicle was Rs.14,61,000/- (after discount). The vehicle in question was purchased by the complainant in the year 2015. Hence, the value of the vehicle ought to be not less than Rs.7 lacs, if, we deduct 50 % of the total amount as depreciation. In the present case, the opposites had sold the vehicle in question to the tune of Rs.4,95,000/- but the act and conduct of the opposites parties show that the vehicle in question had been sold in a lesser amount than the actual market value, which has not only caused financial loss to the complainant besides mental agony and harassment.
11. Thus, as a sequel of above discussion we allow the complaint and the Opposite parties are directed to pay Rs.2 lac to the complainant alongwith interest @ 9 % per annum from the date of order till its realization, on account of selling of vehicle in question in a lesser amount than the actual market value. The opposite parties are further directed to pay Rs.1 lac as compensation for deficiency in service and for causing mental agony and harassment to the complainant. The opposite parties are also directed to pay Rs.10,000/- as compensation on account of litigation expenses to the complainant. The order be complied within thirty days from the date of order. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Announced in open Forum.
Dated: - 22.10.2019
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
