JUDGEMENT
The present complainant by filing this complaint has submitted thatcomplainant being a poor unemployed person and being influenced by lucrative offers placed by the agent of the op applied for availing of a loan in the month of May 2011 and at that time finding no other alternative relied upon the agent and agent collected signatures from some blank papers and some documents which were supplied by the agent and complainant was also compelled to handover 48 blank cheques bearing No. 792006 to 792053 od State Bank of India, Birnagar Branch for the purpose of purchasing a vehicle being TATA LPT 2518 at a cost of Rs. 19,75,363/- and op disbursed the loan of Rs. 15 lakhs and balance purchase price of the vehicle including expenses for building of the body of vehicle was paid by the complainant after arranging from his friends and relatives and complainant was asked to pay 48 EMIs at the rate Rs. 42,029/- under the said agreement and complainant got the said vehicle registered in his name being No. WB15B-4286 and complainant after purchase began to use the said vehicle for his earning livelihood by plying the same.
Thereafter complainant began to pay regularly the EMI without any fail till 26.10.2012 but in the last quarter of 2012, complainant due to his family problems could not concentrate on his work and as such no income was earned and for which complainant faced financial crunches. But fact remains from 20.07.2011 to 26.02.2013 19 EMIs were paid. But op knowing fully well about financial crunches forcefully and with the help of musclemen seized the vehicle on 24.02.2013 at about 08:30 A.M. near Naihati, Birbhum where it was plying from Baharampur and they also snatched all documents of the vehicle and further threatened to sell the vehicle if their arbitrary demand was not fulfilled and about that incidence complainant lodged a complaint at local police station. Burt police station asked the complainant to bring appropriate order from the Court.
Though complainant was willing to clear the entire outstanding dues and requested the op to release the vehicle, but they did not pay any heed. Being compelled complainant served a notice on 14.03.2013 through their Advocate calling the op to accept the overdue amount and to release the vehicle but op by its purported reply dated 14.03.2013 kept on demanding the arbitrary amount without any basis and explanation and thereafter complainant visited the office of the op and deposited a cheque bearing No. 792024 amounting to Rs. 42,029/- with a request to present the same. But complainant did not deposit the said cheque so question of making request to present the same does not and cannot arise. Op without any intimation to the complainant presented the same cheque being one of the cheques taken by the op as security deposit at the time of sanction of loan and encashed but did not release the vehicle.
But ultimately op by its letter dated 04.04.2013 informed the complainant that the vehicle had been sold at a cost of Rs. 10,15,000/- but sale shall not make without intimation to the complainant and it was sold illegally and op knowing fully well that complainant was willing to get back the vehicle on payment of overdue amount but op illegally sold it because complainant is a poor fellow and he invested already Rs. 12,41,770/- and it was his source of income for earning livelihood and due to seizure of the vehicle, complainant suffered huge loss for op’s negligent manner of service and adopting unfair trade practice complainant has prayed for directing the op to refund the entire amount and also for compensation etc.
On the other hand op by filing written statement submitted that complainant was a habitual defaulter for payment of monthly EMI on several occasion he defaulted of payment as a result of which huge amount became outstanding and op on repeated occasion called upon the complainant to clear up the outstanding installment. But complainant failed to pay it for which as per agreement clause it was seized and subsequently complainant failed to pay the same for which the same was sold away and further submitted that it is a case of hire purchase and there is no element of service against the owner and therefore, such a present complaint is not maintainable and practically the instant case is frivolous, vexatious and harassive and not maintainable in law before this Forum and practically suppressing all material fact, complainant submitted his false case and fact remains complainant purchased the vehicle for transport business and he has a transport business having his another business and it was not for his livelihood. So, they have prayed for dismissal of this case.
Decision with reasons
On proper study of the complaint it is clear that complainant no doubt has a hire purchased in respect of the vehicle. Truth is that complainant paid Rs. 7,66,407/- by 19 installments and installment was up to 26.02.2013. But thereafter he failed to pay any installment. Truth is that it is no doubt a hire purchase agreement for which as per agreement clause op seized the vehicle on 24.02.2013 and it is admitted by the complainant that the said vehicle was sold prior to 04.04.2013 at a cost of Rs. 10,15,000/- and truth is that in view of the settled principal of law any case of hire purchase owner is the financer and lonee member is the trustee. In the present case that relationship is here and there as per hire purchase agreement and it is hypothecated goods. So, complainant after selling of the said vehicle cannot claim that he is a consumer under the op. But fact remains the vehicle had already been sold at Rs. 10,15,000/- and that sale is legal or illegal that cannot be decided by this Forum because complainant has failed to substantiate his part of liability to pay legal EMIs.
On the contrary complainant has admitted that he failed to pay the EMIs after 26.02.2013. Then complainant is proved a defaulter and it is settled principal of law that a defaulter member who has hire purchase of any goods through any financer cannot get any benefit when the legal accept in question has already been sold and complainant has prayed for directing the op to refund such amount. But question of refund of such amount cannot be considered by this Forum and agreement in question is a subject matter in any decision by Civil Court when there is arbitration clause and other clauses.
Anyhow Ld. Lawyer for the complainant by referring a ruling reported in II (2013) CPJ 54 (NC) and also II (2013) CPJ 256 tried to convince that complainant is a consumer under the op. But after proper study of this ruling and also relying upon the present fact and circumstances, we find that the said ruling is not applicable in the present case. But truth is that same had been sold without complying the provision of the agreement of hire purchase in view of the fact that it was not sold in auction by calling any bit for sale of the same and no doubt such an action is arbitrary in nature on the part of the op and when op has already sold away the vehicle and realized the amount without refunding anything to the complainant in that case it can safely be said that in respect of the said hire purchase agreement has already been ended to final death of the said agreement.
So, in any circumstances, complainant cannot claim any sort of further claim against the op and at the same time op have their no legal right to keep the blank cheques bearing No. 792006 to 792053 of State Bank of India, Birnagar Branch which is collected by the op from the complainant which is granted loan as security deposit. So, in view of the present position at best it can safely be said that the hire purchase agreement in between the complainant and the op has lost his legal validity in the eye of law and when op without taking legal course sold away the purported vehicle and realized the amount without adopting legal procedure for sale of the articles and so under any circumstances, op cannot claim any further amount from the complainant for the said loan as said loan account shall be treated as finally closed and op shall have to return all the blank cheques bearing No. 792006 to 792053 of State Bank of India, Birnagar Branch because same were not security deposit and complainant is entitled to get back it and accordingly in respect of that evidence complainant is no doubt a consumer.
So, necessary order is being passed directing the op to issue of NOC in favour of the complainant in respect of the said hire purchase agreement in between the complainant and op in respect of the said vehicle and it shall have to return all 48 blank cheques bearing No. 792006 to 792053 of State Bank of India, Birnagar Branch, Kolkata within 15 days from the date of this order and op shall not be able to claim any further amount in respect of the said agreement from the complainant.
Op is directed to comply the order and if they do not comply with this order in that case penal action shall be taken against the op for which op shall be penalized.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the op with cost of Rs. 5,000/-.
Ops are directed to return 48 blank cheques ad described in the body of the judgement to the complainant within 15 days from the date of this order and handover NOC in respect of the close chapter of the hire purchase agreement as per observation of the body of the judgement and same shall be complied by the op within 15 days from the date of this order failing which legal action shall be taken against them for which op shall have to charge penalty and fine u/s 27 of C.P. Act 1986.
