Heard on – 14.06.2016
Judgement on – Monday, 20th day of June, 2016.
PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
JUDGEMENT
Challenge in this Appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the judgement dated 30.07.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur (for short, Ld. District Forum) in consumer complaint no. 16/2014 whereby the consumer complaint initiated by the respondent herein u/s 12 of the Act was allowed on contest with a direction upon the Appellant to give return the vehicle bearing Regd. No.WB-33X/1235 in favour of the Respondent upon due service of demand notice for arrear instalments towards the loan within 30 days.
The Respondent no.1 herein Shri Gopal Saha initiated the consumer complaint u/s 12 of the Act stating that he is the registered owner of the vehicle being No. WB-33X/1235 and he purchased the same after obtaining loan from the Appellant and was going on paying monthly premium regularly but due to some family problem, he approached the Appellant for arrangement of easy instalments. However, all on a sudden on 23.11.2013 few musclemen as per direction of Appellant snatched the vehicle of him at N.H. 6 near Rupnarayanpur, District- Paschim Medinipur. On 25.11.2013 Appellant sent a letter to him with heading Final Reminder. The Respondent no.1 has alleged that on several occasions he visited the office of Appellant to settle the matter but it yielded no response. Hence, the complaint with a prayer for direction upon OP no.1/Appellant to return the vehicle to him in order to enable him to repay the loan amount.
The Appellant being OP no.1 by filing a written version has stated that on the request of the Respondent no.1, they agreed to grant loan of Rs.1,00,000/- which was payable by way of 35 consecutive equated monthly instalments commencing from 16.02.2012 to 21.12.2014. In terms of the said Agreement, the total amount to be repaid by the Respondent no.1 to the Appellant was Rs.1,42,100/- together with accrued interest thereon but the Respondent no.1 has miserably failed to make payment and as such they repossessed the vehicle after giving due notice. It has further been stated that the vehicle was a commercial one for the purpose of hiring and as such the Respondent no.1 does not fall under the category of Consumer.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with the direction as indicated above, which prompted the OP no.1 to come up with this appeal before this Commission.
We have considered the submission made by Mr. Saptarshi Datta, Ld. Advocate for the Appellant. None appears for the Respondent no.1 in spite of receipt of notice. Therefore, under compulsion, appeal was heard ex-parte.
Having heard the Ld. Advocate for the Appellant and on going through the materials on record, it would reveal that on 16.02.2012 the Respondent no.1 herein had entered into an Agreement for loan with the Appellant as borrower and the Appellant had agreed to grant a loan of Rs.1,00,000/- for the purpose of purchase of a vehicle. It was stipulated that the said amount of loan would be repaid by 35 consecutive equated instalments of Rs.4,060/- p.m. payable in between 16.02.2012 to 21.12.2014. In accordance with the terms of the said Agreement, the total amount to be repaid by the Respondent was a sum of Rs.1,42,100/- including principle loan amount together with accrued interest thereon. The Respondent no.1 utilised the said loan by purchasing a three wheeler vehicle for commercial purpose.
Be that as it may, the Respondent no.1 could not make payment as per terms of the Agreement and as such he approached the Appellant for easy instalments. Now Clause 15.3 of the Loan Agreement by and between the parties dated 16.02.2012 clearly stipulates that upon occurrence of an event of default, the borrower shall be bound to return the Assets to the Lender at such location, as the Lender may designate, in the same condition in which it was originally delivered to the Borrower, ordinary wear and tear excepted. The Borrower shall not prevent or obstruct the Lender from taking possession of the Assets. The materials on record indicate that on 12.11.2013, the Appellant had given final notice to the Respondent no.1 and the same was duly received by the Respondent no.1 himself by putting his signature with date of the said Final Notice. Thereafter, on 23.11.2013 at 12:20 P.M., the vehicle in question was repossessed by the Appellant in presence of Respondent no.1. The Repossession Inventory List bears the signature of the Borrower/Respondent no.1 which means and indicates that at the time of repossession, the Respondent no.1 was present there. Thereafter, on 25.11.2013 the Appellant had issued a notice asking the Respondent no.1 to make payment of entire dues within 15 days, otherwise they will be compelled to sell the vehicle in question.
Mr. Saptarshi Datta, Ld. Advocate appearing for the Appellant has submitted that in spite of admitted fact that Respondent no.1 committed default in making payment of instalments, the Appellant well within its rights to repossess the vehicle and may sell the same after due notice to the Respondent no.1 and in that view of the matter, the Ld. District Forum committed error in allowing the complaint. In support of his contention, Ld. Advocate for the Appellant placed reliance to a decision of National Consumer Commission reported in I (2015) CPJ 244 (NC) (Axis Bank Ltd. & Anr. –Vs – S. Venugopal Naidu).
Admittedly, the Respondent no.1 obtained the loan of Rs. 1,00,000/- from the Appellant for purchase of a vehicle which was payable in 35 consecutive equated monthly instalments of Rs.4,060/- from 16.02.2012 to 21.12.2014 which was payable before 21st day of every succeeding English calendar month. It is not in dispute that Respondent no.1 could not repay the amount of loan as per terms of the Agreement. It is also undisputed that as per terms of the Loan Agreement, in the event of default on the part of the Respondent no.1, the Appellant was entitled to recover the entire dues of the loan and take possession of vehicle. Needless to say, the parties are bound by the Agreement and neither of the parties can resile their own agreement. When the Agreement itself provides a Clause of repossession in case of non-payment of instalments of loan by the Borrower, it cannot be said that the Appellant has committed any wrong and there was deficiency any services on the part of the Appellant/Bank.
Therefore, on evaluation of the materials on record and taking into consideration the proposition of Law, we have no hesitation to hold that the Ld. District Forum has mis-directed itself in passing the order impugned. In other words, the impugned order being not sustainable either in facts or in Law, we are constrained to interfere with the order impugned.
Consequently, appeal is allowed ex-parte but without any order as to costs.
The judgement/final order dated 30.07.2014 passed by the Ld. District Forum in CC/16/2014 is hereby set aside.
Resultantly, the CC/16/2014 stands dismissed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur for information.
