Orissa

Jajapur

CC/67/2016

Dibakara Mohanta - Complainant(s)

Versus

Dy.General Manager ,Grievance Redressal Officer,Network-1 SBI - Opp.Party(s)

Badri Narayan Panda

30 May 2018

ORDER

            

IN  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                     

                                             Dated the 30th day of May,2018.

                                                      C.C.Case No.67 of 2016

Dibakara Mohanta     , S/O Bidyadhara Mohanta   

Vill. Hudi sahi,P.O.San sailo ,P.S.Sukinda  ,

Dist.- Jajpur .                                                                            …… ……....Complainant .                                                                   .                                     

                                                  (Versus)

1.Dy General Manager ,Grievance Redressal Officer ,Net work -1

 STATE BANK OF INDIA, Local Head Office, J.N.Marg, Bhubaneswar

2. Chief Manager,State Bank Of India, Sukinda,Jajpur.

                                                                                                                                                         ……………..Opp.Parties.                 

                                                                                                           

For the Complainant:                      Sri B.N.Panda, Advocate.

For the Opp.Parties :                       Sri P.K. Daspattnaik, Advocate

                                                                                                                                        Date of order:   30.05.2018.

MISS  SMITA  RAY  , LADY   MEMBER .

Deficiency in banking service is the grievance of the petitioner.

                The fact relevant  as per complaint  petition is that the petitioner is an agriculturist for  the purpose of agricultural activity  who purchased a Tractor & Trolly  bearing Regd. No.  0R-04-G-8987 with   the  financial assistance of O.P.no. 2  a sum of Rs.4,92,000.  As per hypothecation agreement the petitioner is required to repay  the said loan along with interest in  18 installments .  Accordingly the petitioner from 09.02.2008 to 21.11.2011 has paid an amount of Rs1,32,000/  and there was  an   outstanding  amount of  Rs4,92,000/- .

That all on a sudden without any intimation /prior notice the O.Ps  seized the loaded vehicle i.e  on 08.9.12.  Thereafter the petitioner rushed to office of O.Ps to settle the dispute but all are in vain . Due to  arbitrary action of the O.Ps the petitioner has suffered  mental  agony and financial loss . Lastly without any pre-sale notice,  the O.P  sold  the vehicle in lower   price  . That the Govt.of odisha introduced  the scheme under Debt Waiver Scheme  and in the scheme  the Agriculturist are  waive out the Agricultural  loan  under scheme  - 2008 and waive out the loan amount . But the O.Ps did not take into consideration the loan amount of the petitioner under the scheme Accordingly the petitioner has filed the present  dispute with the prayer  to pass appropriate direction to release the vehicle under Debt Waiver Scheme  .

After notice  the O.Ps  have appeared through  their learned counsels  and filed the written version taking the stand that  the  case is not maintainable in the eye of law and has got no prima facie case to initiate  the proceeding . The petitioner is an agriculturist by  profession  and to carry on his agricultural operation required the O.P bank for financial assistant to purchase  a Tractor / Trolley  . The O.P  bank sanctioned the agricultural term loan amount of Rs. 4,92,000/- in favour of the petitioner  for purchase of a Tractor .  After  security  of  documents   in  banks standard format and after creation of equitable mortgage money was advanced  to him for purchase of the Tractor /Trolley etc. It  is mutually agreed  in between the O.P bank and the petitioner that  the loan amount  will  carry on  interest  at the rate of 12.75.%  with half yearly rest  and the installment was fixed  at the rate of Rs.54,500/- for EMI rebate of 18 equal half yearly installment . But the petitioner could not repaid to the O.P bank loan  dues .

Further instead of  several approaches the  demand notice was issued   by the field function arises of the O.P bank  to regularize the loan account   but the petitioner has substantially  failed to do so. Hence the O.P  bank has  got no  alternative  choice  other than lawfully seized the hypothecated articles  on 08.11.12 . After seizure of the hypothecated  Tractor it was kept in the  stock yard for its safe  up -keepment . Thereafter the filed  functionary  of the O.P bank made contact to  the petitioner to regularize the loan account but he did not turn  up .  Hence after due compliance of the statutory formalities the O.P  bank auctioned the hypothecated Tractor in a public auction and the amount received from the process of the auction of the vehicle has been deposited in the loan account of the petitioner  .  After adjustment of all debts and credits the O.p bank is now entitled to realize an amount of Rs.7,91,934/- from the petitioner and the interest on the said amount has been calculated up to 30.01.2012.  Hence finding no other ulternative    the O.p bank has filed a civil suit  No. 224/2013    before the civil judge ,Sr.division, jajpur Road for realization of the loan amount . Hence the O.P  bank is no way deficient to provide any services to the petitioner rather the petitioner has   substantially failed to perform his duties in this regard .  The petitioner is no way illegible to get any such relief under the Debt Waver Scheme . As such the loan account never comes under the purview of said Act.2007-2008 .

As such the dispute  is  liable to be dismissed with cost .

                We heard the arguments from both the counsels  and perused the   documents available on record  and  It is observed that :

It is undisputed fact that the petitioner has  purchased the tractor and Trolley  with the financial assistance of the O.Ps.

2 It is also undisputed fact that the petitioner is a chronic defaulter for repayment of loan dues of the o.ps .Thereafter the O.P repossessed the alleged vehicle on 08.09.12 and subsequently sold  the same. After adjustment  of the same amount of the alleged vehicle now the o.ps demand Rs.7,91,934/- from the petitioner including interest till 30.1.12 and for  this purpose  the o.p bank has filed the Civil Suit before   bearing  Civil Judge, Sr. division vide  case no.224/2013 .

                There are vital issues raised by the petitioner that the O.P  has illegally seized the loaded vehicle by using muscle man . As again  such grievance of the petitioner the O.ps have taken the stand since the petitioner is chronic defaulter and did not repay the loan amount in time ,  the  O.P  was entitled to seize the vehicle .Thereafter the O.P sold  the vehicle by following  due procedure as per law .On the above allegation and counter allegations we are on opinion that the O.P  is  entitled to exercise its  right since the petitioner is a chronic defaulter to repay the loan amount in time .

                Further it is alleged by the petitioner without giving any repossession and pre sale notice the O.P  after repossessing  the vehicle had sold the alleged vehicle at lower price . As against such grievance the petitioner,  the O.ps have taken the stand that the o.ps have issued the notice to the petitioner for repayment  of outstanding dues but the petitioner remained  silent after receipt of the repossession notice . On the other hand the petitioner categorically  denied that the plea of the O.Ps .Owing to such situation we do not come across with  a single scrape of paper which will support that  the O.P has issued  such as pre sale notice, since the O.P did not file  the  postal receipt  though  several opportunity given by this Fora  for filing  the same . It is also surprised  that the o.ps are silent about the date of auction of the vehicle as well as procedure adopted by the O.Ps in auction of the said vehicle and the actual price of the vehicle the o.ps have also not intimated to the petitioner in which date the vehicle will be put to  auction sale . As a result the petitioner  lost the opportunity to participate in auction and to take part to purchase the vehicle . In our opinion if the O.Ps ought to have initiated the date of sale of the vehicle to the petitioner so that he would have been able to participate the auction  . Besides  that it is further alleged by the learned counsels  for the petitioner  that the petitioner  has not been  intimated  that the O.ps  are going to  dispose of the vehicle by way of auction since no notice was sent to him regarding auction sale of the vehicle. There is no public notice given by the o.ps in news paper before selling the vehicle .  Thereafter it can not be said  that  the vehicle was sold by following a fare and transparent  process .  This was not only another act  of deficiency on the part  of the O.Ps  rendering  service to the petitioner but also unfair trade practice .

The next aspect comes for consideration is whether the ,mode of seizure and sale of the alleged vehicle is tenable in eye of law .

                                In this contest after perusal of the observation of Hon’ble Supreme Court reported in 2006-CTJ-209 (SC)( M.D Orix Auto Vrs. Josvinder Singh)  we are inclined to hold that though the O.P. is empowered as per term and condition of the agreement to seize and sale the financed  vehicle in case of default of monthly installments of the loan but such seizure and sale must be as per law in view of the observation of Hon’ble National Commission reported in 2016(2)CLT-31-N.C (A.V.Finance India Pvt.Ltd Vrs.Ramdas Raghunath Patil) wherein it is held   by the of Hon’ble Supreme Court reported in 2007(36) OCRCSC (Manager ICICI Bank Ltd Vrs. Pravash Kour & Others) 2016(1)CLT-310-N.C(Kotak Mahindra Bank Ltd Vrs.M.D. Sarif Ansori)  wherein it is held that:

                                “ vehicle repossessed and sold by financer without notice illegal “.

                                In this contest we make it clear that no wherein  the hypothecation agreement of the alleged vehicle empowers,   the O.P to take such action violating the guide line of Hon’ble Supreme Court ,Hon’ble National Commission and Hon’ble State Commission Delhi reported in 2012(2)-CLT-72-SC, 2007(3)CPR-191, 2005-CTJ-522 respectively (Citi Crop Maruti Finance Ltd Vrs.Vijaya Laxmi) wherein it is held that:

                                “ Seizures  of the vehicle must be through court.”

                                “Repossessed vehicle can not be sold without notice to owner”.

                                           and

  2016 (2)CPR-342(N.C) (General Manager L & T Finance Ltd Vrs. Rampada  Maity) wherein it is held that:

                                “repossessed vehicle must be sold by following a fair and transparent process.”

Similarly we are also inclined  to verify whether the selling of the above vehicle was a bonafide one. In this contest it is alleged by the petitioner that without giving an opportunity to the petitioner,  the O.Ps.  have  sold the vehicle at their sweet will. In such situation we do not  come across with any   documents from the side of O.Ps  regarding the date of auction of the said vehicle which violates the  guide line of appellate  Forums reported in 2010(1) CPR-118-A.P,2004(3) CPR-154-Odisha, wherein it is held that:

‘Auction  sale must be bonafide one and date of auction of vehicle must be intimated to hirer / loanee .  

And

2006-CPJ-438-Chhatisgarh State commission   (Bikram sah thakur  vrs. I.C.I.C.I Bank ) wherein it is held that    

Vehicle sold without issuing pre-sale notice to complainant deficiency in service proved –o.p liable to refund the entire amount paid by the complainant”.

Along with 2008(3) –CPR-45-N.C(Tata Finance ltd, Vrs. francies  Soeiro )

2015(2)-CPR-584-N.C(Magma finance ltd. Vrs Tikeswar Barik) wherein it is held that

                                “ Financer can not resort to extra legal means to repossess vehicle “.   

       2015 (2)CPR-901(S.C) ( Citi  Crop Maruti Finance Vrs. S.Vijay  Laxmi) wherein it is held that :

“ even in case of mortgage goods subject to hier purchase agreement recovery process has to be in accordance with law “.

And 2015(2) CPR-375 N.C   STIFAN  Tigga  Vrs. Cholomondalam Investment and Finance ltd, wherein it is held that :

                “Financer can not  resort to extra legal means to recover loan amount “.

In view of the above observation from our side it is crystal clear that the O.Ps have committed gross negligence and patient deficiency of service as well as unfair trade practice by selling the above vehicle without following the proper procedure of law  for which the petitioner suffered irreparable loss . Accordingly  the law is conclusively in the petitioner’ favour and consequently the dispute must succeed and hereby allowed.

Hence this order.

 

                In the net result the dispute is allowed against the O.P  on contest as per observation of our own  State Commission  in vide C.C. Case no 76/2007.   The O.Ps  are debarrded not to recover the outstanding amount if any against the alleged vehicle from the petitioner . No cost

                                This order is pronounced in the open Forum on this the 30th  day of  May,2018. under my hand and seal of the Forum.