(Delivered on 28/02/2019)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This Revision Petition is filed by the original opposite party (for short O.P.) feeling aggrieved by an interim order dated 04/02/2019 passed by the District Consumer Forum, Nagpur by which direction has been given on the application of the original complainant /respondent herein to the original O.P./ petitioner in consumer complaint No. 661/2018 not to sell four wheeler bearing registration No. M.H.-17/AJ-0382 of Tavera and not to cause any damage to it and not to sell any of its parts and to deliver its possession to the original complainant/ respondent herein within 15 days from the date of the said order and that the said order will be in force till final decision of the aforesaid complaint.
2. We have heard Advocate Mr. Manish Meshram appearing for the revision petitioner and Advocate Snehal Pakhide appearing for the original complainant/respondent herein. We have perused the record and proceedings of the present revision petition.
3. The learned advocate of the revision petitioner submitted in brief that the original complainant /respondent herein has not paid seventeen (17) monthly installments, total amounting to Rs. 4,01,056/- and therefore, the said amount was outstanding against him and as it was not paid after service of notice, the revision petitioner /original O.P. has taken back possession of that vehicle as per agreement. Moreover, the said vehicle was used by the complainant for commercial purpose and hence, the complaint is not maintainable before the Forum under the Consumer Protection Act, 1986. According to him the Forum has not considered in right prospective the submission of the O.P. /revision petitioner and erred in holding that out of 39 installments, the complainant has paid 36 installments, whereas he did not pay 17 installaments and most of the cheques submitted by him have been dishonored by the bank. Thus, his main submission is that even though the E.M.I. from January-2017 was due from the complainant, the Forum erred in passing the impugned order as above directing the revision petitioner to return the vehicle. Hence, he requested that the impugned order may be set aside by allowing the present revision petition.
4. The learned advocate of the revision petitioner relied on the decisions in the following cases.
i. Laxmi Engineering Works Vs. P.S.G. Industrial Institute , reported in AIR 1995 Supreme Court 1428. In that case proprietory concern established under employment guarantee scheme purchased machine for carrying on business of manufacture of machine parts. It entered into agreement with company for supply of certain parts to be used by company in its product. Machinery was supplied beyond stipulated time and was also defective. The complaint was filed by purchaser. It is held in facts and having regard to nature and character of machine, the machine purchased was not goods purchased by purchaser for use by himself exclusively for purpose of earning his livelihood by means of self employment. Thus complaint is not maintainable.
ii. Orix Auto Finance (India) Ltd. Vs. Jagmander Singh & Another, reported in (2006) 2 Supreme Court Cases 598. In that case there was hire purchase agreement & possession of vehicle was taken back. It is held that there cannot be a generalisation about mode of taking possession and the decision would depend upon the facts of the case. Due to default of payment of instalments, financer retook possession of the financed truck and then hirer filed suit against the financer for permanent release of the truck on payment of the defaulted amount plus interest. However, according to the financer a large amount remained still due to it by the hirer. In such circumstances, it is held that besides the loss of value of the truck in case of non user thereof, security of the financer’s dues also ought to be taken into consideration. Hirer meanwhile paid the amount as directed by trial Court and also pre deposited a certain amount as directed by Supreme Court. The truck was directed to be released on payment of a further sum as specified. Moreover, hirer was directed to give an undertaking before trial Court to return the vehicle to the financer in case of dismissal of the suit unless the trial court fixed some other terms. Merit of the case was left to be decided by trial Court.
iii. Charanjit Singh Chadha and Other Vs. Sudhir Mehra, reported in (2001) 7 Supreme Court Cases 417. In that case there was Hire Purchase contract & hirer took possessioin of goods. It is held that such an agreement is an executory contract of sale , conferring no right in rem on the hirer until the conditions for transfer of the property to him have been fulfilled. On facts, it is further held that where respondent hirer had defaulted in instalment payments of motor vehicle and agreement specifically provided that appellant/ financer was entitled to repossess the vehicle in case of default and their agents were authorised to enter any premises for the purpose, and appellants had actually recovered possession of the vehicle. Hence, no offence was made out against the appellants. It is also held that High Court erred in dismissing their petition under section 482 Criminal Procedure Code challenging issue of summons on complaint filed for the offences under sections 406, 420,120-B and 379 of IPC. It is also held that said offences are made out against financers in hire-purchase agreement.
iv. Jogender Singh Vs. Cholamandalam DBS Finance Ltd. & another, reported in I (2011) CPJ 264 (NC). In that case complainant took loan for purchasing four turcks. It is held that purchasing more than on vehicle for doing transport business amounts to commercial purpose. Thus order of Fora below was upheld.
v. Surendra Kumar Sahoo Vs. Branch Manager, Indusind Bank Ltd., Bharatia Tower, reported in 2012(4) CPR 313 (NC). In that case loan was given for vehicle. Then said vehicle was seized without any notice for default in repayment of instalmemnts of loan. The complaint was dismissed by State Commission. As per agreement there was no need to give prior notice. Petitioner had waddled out of his commitments and he was defaulter. It is held that the moment he did not pay instalment it gives legal right to financer to repossess vehicle & mere fact that possession was taken by respondents cannot be ground to contend that hirer is prejudiced. Hence, Revision petition was dismissed.
5. On the other hand, the learned advocate of the respondent supported the impugned order and submitted in brief that the revision petitioner /original O.P. has no power or right to seize the vehicle without following due procedure of law and particularly by engaging muscle man. She further submitted that no prior notice was served to the respondent herein before taking possession of the vehicle by the revision petitioner. Thus, according to her the Forum below has rightly passed interim order vide section 13(3B) of the Consumer Protection Act, 1986. Thus, the learned advocate of the respondent requested that as there is no merit in the revision petition, it may be dismissed.
6. The learned advocate of the respondent relied on decision in the following cases.
a. Manager ICICI Bank Ltd. Vs. Prakash Kaur & others, reported in AIR 2007 Supreme Court 1349. It is held in the said case that the recovery of Bank loans or seizure of vehicles could be done only through legal means. The banks cannot employ goondas to take possession of vehicle by force. The procedure adopted by the bank in removing the vehicle from the possession of the petitioner-loanee cannot be appreciated. The practice of hiring recovery agents, who are musclemen, is deprecated and needs to be discouraged. The bank should resort to procedure recognised by law to take possession of vehicles in case where the borrower may have committed default in payment of the instalments instead of taking resort to strong arm tactics.
b. I.C.I.C.I. Bank Vs. Shanti Devi Sharma & Others, reported in 2008 (2) Bankers’ Journal 382. In that case it is held that recovery of loans or seizure of vehicles can only be done through legal means.
c. Amir Ali Tharani Vs. Rajesh Sukhtnkar & Another, reported in II (2011) CPJ 23. It is held in the said case that consumer Fora being a statutory body does not have inherent power to exercise powers under Code of Civil Procedure.
d. Abhijit Mrrutrao Bedake & Others Vs. Dwarkanath Dagduram Karwa & Others, reported in (( (2011) CPJ 106. It is held in the said case that the Forum exercise jurisdiction of Civil Court and decides complaint in quasi-judical manner.
7. On careful perusal of the consumer complaint filed before the District Consumer Forum, Nagpur by the respondent, we find that the respondent purchased the vehicle in question by taking loan on 17/02/2016 from the revision petitioner. It is the contention of the respondent in the said complaint that the petitioner applied excessive interest to the said loan and then seized the vehicle with force by engaging unsocial & gunda elements. It is the question of evidence as to whether the said vehicle was seized by force.
8. The copy of the agreement filed on record by the revision petitioner shows one of the condition that in case of default in payment of installments , the revision petitioner will have right to take back possession of the vehicle without notice to the respondent /borrower. The advocate of the revision petitioner produced copy of notice along with copy of postal slip before this Commission to show that before taking possession of that vehicle, the said notice was issued by the revision petitioner to the respondent.
9. In our view, the question of service of prior notice to respondent can be considered and decided after evidence about the same is adduced by both parties before the Forum below. The complainant in complaint has not made it clear as to how many installments were paid and how many installments were due from him at the time of seizure of the vehicle by the revision petitioner. On the contrary it is specific case of the revision petitioner that the respondent did not pay installments regularly and cheques submitted by him were also dishonored and huge amount of Rs. 4,01,056/- was due from him. The O.P. also produced copy of account statement about the said transaction. It prima facie shows that many of the installments were not paid on time by the respondent. It will be decided after evidence only as to how many installments were due and what were the arrears of loan at the time of seizure of vehicle by the revision petitioner & as whether vehicle was seized by force by petitioner for default in payment of installments. Thus, under these facts and circumstances we find that no interim direction can be given to the O.P. /revision petitioner to release the seized vehicle before final decision of the complaint.
10. The original complainant /respondent herein has also not come with specific case that he is ready to pay balance monthly installments for getting released the seized vehicle. Hence, directions given under interim impugned order to the O.P./revision petitioner to return seized vehicle to the original complainant /respondent herein cannot be sustained under law. The aforesaid decisions relied on by the learned advocate of the respondent are of no assistance to the respondent while considering application made for interim relief. The said decisions can be considered at the time of deciding the complaint finally, after opportunity of adducing evidence is given to both the parties on issues involved in the complaint.
11. Thus, we hold that the impugned order to the extent of returning the vehicle by the revision petitioner to the respondent herein during the pendency of the complaint deserves to be set aside. But rest of the impugned order about giving direction to petitioner not to dispose of vehicle or not to sell its part or not to cause any damage to it till the decision of the complaint deserves to be confirmed. Accordingly, we proceed to pass the following order.
ORDER
i. The revision petition is partly allowed as under.
ii. The operative part of the impugned order by which the direction has been given to the original O.P./revision petitioner to return the seized vehicle to the original complainant /respondent herein is set aside.
iii. The rest of the direction given under impugned order to the original O.P. /revision petitioner not to dispose of the seized vehicle and not to cause any damage to it and not to sell its any part till final decision of the complaint is maintained.
iv. No order as to cost in revision petition.
v. It is directed that the District Consumer Forum, Nagpur shall decide the complaint finally as early as possible & preferable within a period of three months form the date of receipt of copy of this order by it.
vi. Copy of order be furnished to both the parties free of cost and its one copy be also forwarded to the District Consumer Forum, Nagpur for information.
