West Bengal

Paschim Midnapore

CC/96/2016

Sk. Akhtar Ali - Complainant(s)

Versus

HDB Financial Service Ltd. - Opp.Party(s)

Asim Kumar Dutta

12 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

 Bibekananda Pramanik, President,

and 

Pulak Kumar Singha, Member.

 

Complaint Case No.96/2016

 

             SK. Akhtar Ali, S/O Sk. Nasar, Village Dakshindhekia, P.O. Janardanpur, P.S. Kharagpur,    

             District - Paschim Medinipur. …………..………..……Complainant.

                                                                              Vs.

             HDB Financial Service Ltd, Notice to be served Branch Manager, Kharagpur Branch

             Office, M/S SAI Complex, 1^st floor, O.T. Road, Inda, P.O. & P.S. Kharagpur,

             District- Paschim Medinipur, PIN-721305....……….….Opp. Party.

                                                    

              For the Complainant: Mr.  Asim Kumar Dutta, Advocate.

              For the O.P.               : Mr. Somnath Guin, Advocate.

 

Decided on: -12/05/2017

                               

ORDER

                          Bibekananda Pramanik, President – This is a case u/s 12 of the C.P. Act, filed by the complainant Sk. Akhtar Ali, against the O.P.-H.D.B. Financial Service Ltd. 

                         Facts of the case, in brief, are that the complainant is a professional driver and an unemployed person.  For self-employment, the complainant obtained loan of Rs.17,30,000/- on 10/02/2014 by a loan agreement from the O.P. for the purpose of transport business.  After obtaining such loan, the complainant purchased a heavy goods vehicle which was subsequently registered vide no.WB-33C/1622 on 26/03/2014.  In terms of the said loan agreement, the complainant was under an obligation to pay the said loan in 46 monthly equal installments of Rs.48,450/- each and the first installment was

Contd…………………..P/2

 

 

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settled to be started on 4/04/2016 and the last installment was settled to be paid on 4/01/2018.  The complainant deposited monthly installments total amounting to Rs.11,79,200/- in 25 installments last of which was paid on 31/03/2016.  Thereafter due to illness of his mother, the complainant was unable to deposit two installments as per agreement.  On 01/05/2016, the son of the complainant was driving the said vehicle and when the said vehicle reached at  Bankadaha under  Bishnupur police station, the Manager of the O.P. stopped the vehicle with the help of muscle men and repossed the vehicle under a seizure list.  It is stated that without due process of law, the O.P. has illegally repossessed the vehicle and due to such illegal act of the O.P., the complainant lost his income by way of self-employment.  He made a representation to the O.P. on 29/06/2016 for release of the vehicle and also expressed his willingness to deposit Rs.1,00,000/- at a time towards installment  but the O.P. refused to return the vehicle and threatened the complainant that they will sell  the vehicle  within a very short time.  Thereafter the complainant received  one letter dated 09/07/2016 from the head office of the O.P. thereby intimating the complainant that outstanding amount of Rs.1,32,565.72/- with all charges has to be paid within 7 days  failing which they will have the right to sell the vehicle without any  further notice. Such act of the O.P. is illegal and hence the complaint on the ground of  deficiency in service praying for directing the O.P. to hand over the vehicle in question and to pay Rs.1,00,000/- with interest as harassment cost.

              The opposite party has contested this case by filling a written objection.    

                Denying and disputing the case of the complainant, it is the specific case of the opposite party that the present complaint is not maintainable in it’s present form and prayer, that the complainant availed loan facility for commercial purpose and as such the present dispute does not fall under the purview of the C.P. Act, that this Forum has no jurisdiction to try this case and that the complaint is liable to be rejected.  Denying and disputing each and every statement of the petition of complaint, it is also the case of the O.P. that the O.P. sanctioned loan to the tune of Rs.17,30,000/- to the complainant under a loan agreement being no.596339 on certain terms and conditions. As per terms and condition of that loan agreement, the vehicle was remained hypothecated in favour of the O.P. unless the total loan amount under the said agreement is fully paid.  The said loan was required to be repaid by the complainant in 46 equal monthly installments of Rs.48,450/- each. As per terms of agreement on any default by the complainant in the repayment of his dues, the said agreement would stand terminated if so facto and the O.P. would be entitled to recover possession of the vehicle and to sell the same.  It is stated by the O.P. that the complainant failed/neglected to make payment of contractual dues as per the terms and

Contd…………………..P/3

 

 

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conditions of the agreement and he has not paid the installments on stipulated due dates and  consequently delayed payment charges has been levied from time to time.  Most of the installments, paid by the complainant, were beyond the stipulated due dates and as such as per terms and conditions expressly agreed between the parties under that contract of agreement, the complainant is liable to pay delayed payment charges and a sum of Rs.562659/- as on 16/11/2016 as due.  O.P. called upon the complainant to repay dues and sent several notices to the complainant but he did not pay any heed to the same.  The complainant committed defaults in payment of the loan installments and despite  repeated reminders, the complainant has failed to pay the loan installment and no steps were taken on the side of the complainant to pay the outstanding dues.  In view of non- payment of the loan installments, the O.P. became entitled to repossess the said vehicle in excise of their right under Clause 14 of the said agreement and accordingly the O.P. sent a final call letter to the complainant on 14/09/2015. On account of the complainant’s defaults in payment of the loan installments, the O.P. repossessed the said vehicle on 1/5/2016.  Even after repossessing the vehicle, the O.P. sent a pre-sale letter to the complainant on 6/5/2016 but the complainant did not take any steps to clear the outstanding dues of the loan. O.P. therefore claims that the present complaint is not maintainable in law and the same is liable to be dismissed.

                 To prove his case, the complainant has examined himself as PW-1 by tendering a written examination-in-chief supported by affidavit and during his examination on oath few documents were marked as Exbt.1 to 8 respectively and during his                      cross-examination, one document was marked as Exhibit-A on admission.  On the other hand, O.P. adduced no evidence.              

 

                                                                 Points for decision

1)Is the case maintainable in it’s present form and prayer?

2)Is the complainant  a consumer of the O.P.?

3)Is there any deficiency in service or unfair trade practice on the part of the opposite party?

4)Is the complainant entitled to get the reliefs, as sought for?    

                   

Decision with reasons

     For the sake of convenience and brevity, all the above points are taken up together for consideration.

      Regarding maintainability of the case it has been stated by the O.P. in their w/o

Contd…………………..P/4

 

 

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that the complainant took financial loan for purchasing the vehicle in question for commercial purpose and as such the complainant is not a ‘consumer’ under the purview of the Consumer Protection Act.  On this score, we find that the complainant in his petition of complaint as well as in his evidence has stated that he took loan for purchasing the said vehicle for commercial purpose for earning his livelihood by way of self employment as he himself is an unemployed person.  At the time of hearing of argument, Ld. Lawyer for the O.P. submitted that on the date of occurrence, the vehicle in question was being driving not by the  complainant but by his son and as such, it should be presumed that the complainant used that vehicle by engaging another driver.  Since the son of the complainant was driving the vehicle, so it cannot be held that the complainant engaged his son for driving the vehicle particularly when there is no evidence at all from the side of the O.P. that the said vehicle was regularly being run by another driver other then the complainant himself.  We have already stated that in his petition of complaint as well as in his evidence, the complainant has specifically stated that he is unemployed and for the purpose of earning his livelihood, he purchased that vehicle by way of self employment.  So in view of  explanation clause of section 2(d) of the C.P. Act, the present complainant is a ‘consumer’ as he purchased the vehicle in question for the purpose of earning his livelihood by means of self-employment.

    Maintainability of the case has also been questioned by the O.P. on the ground that the present complaint is not maintainable as the loan agreement (exhibit A) contains the clause for Arbitration where all the disputes, differences, claims and questions whatsoever arising out of the said agreement shall be referred to the sole Arbitrator.  It has been submitted that in view of the said clause, the present petition of complaint is not maintainable.  In support of such contention, Ld. Lawyer for the O.P. at the time of hearing of argument referred the decisions of the Hon’ble State Commission and National Commission respectively reported in RP 97 of 2012 on 16/7/2013 by the Hon’ble State Commission, Odisha and RP no.2363/2002 decided on 5/10/2006 by the Hon’ble N.C.D.R.C.  We have gone through the said rulings of the Hon’ble Commission and found that in those said rulings it was held that if the dispute have been decided by arbitrator, subsequent complaint is not maintainable. Here in the present case, it is nobody’s case that the matter in question was at all referred to the Arbitrator.  So in the present facts and circumstances of the case, the said rulings of the Hon’ble Commission do not help the O.P.  Since the matter was not at all referred by the parties to the Arbitrator, so this Forum has ample jurisdiction to try the present complaint under the provision of C.P. Act.

              It is not denied and disputed that the complainant purchased the vehicle in question after obtaining financial loan of Rs.17,30,000/- on 10/2/2/14 from the O.P. by virtue of a

Contd…………………..P/5

 

 

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loan agreement.  It is also not denied and disputed that the O.P. admittedly defaulted in repayment of loan.  According to the complainant, after obtaining such loan he deposited monthly installments total amounting to Rs.11,79,200/- in 25 installments and the last installment was paid by him of 31/3/2016 but due to illness of his mother, he could not deposit  two installments as per agreement. So, admittedly the complainant failed to repay at least two installments as per agreement.  The said loan agreement in question has been marked as exhibit A on admission during the cross-examination of PW-1 Sk Akhtar Ali, the complainant.  Relying upon the said loan agreement  (exhibit A), Ld. Lawyer for the O.P. submitted that since the complainant defaulted in payment of loan installments, so the OP is entitled to repossess the vehicle in excise of their right under Clause 14 of the loan agreement.  We have gone through Clause 13 & 14 of the said loan agreement and found that in case of default of payment of loan, the O.P. in entitled to repossess the vehicle after prior notice of seven days to the complainant.  In their w/o, the O.P. has stated that they sent a final call letter to the complainant on 14/09/2015 and since thereafter the complainant defaulted in payment of loan installments, the O.P. repossessed the vehicle on 1/5/2016.     On this score, Ld. Lawyer for the O.P. referred a decision of the Hon’ble N.C.D.R.C., passed in Revision Petition no.3319/2012 on 1/12/2012 and submitted that it has been held by the Hon’ble National Commission as well as the Hon’ble Supreme Court of India that the financier can repossess the vehicle if the agreement permits the financier to take possession of the financed vehicle. As against this, Ld. Lawyer for the complainant referred a decision of the Hon’ble Supreme Court reported in (2012)1WBLR (SC) 1 and submitted that in the said ruling, Hon’ble Supreme Court has been pleased held that recovery of vehicle should be in pursuance of the due process of law and use of muscle power is not permitted.  We have gone through the rulings of the Hon’ble Commission and  Hon’ble Supreme Court and found that it has been held that the financier can  very well repossess the vehicle in case of default in  payment of loan amount but such recovery of vehicle should be in pursuance of due process of law.  Here in the present case, we find that under Clause 12 & 14 of  the loan agreement (Exhibit-1) the O.P.-financier can very well repossess the vehicle in case of default in payment of installment of loan but prior to such repossession, seven day’s notice is required to be sent to the complainant.  Although in their w/o, the O.P. has stated that they sent a final call letter to the complainant on 14/9/2015 and as even thereafter the complainant defaulted in payment of loan installments, so the O.P. repossessed the vehicle on 1/5/2016.  In his cross-examination, Sk. Akhtar Ali, the complainant has denied that any such notice dated 14/9/2015 was sent to him by the O.P.  In view of such denial, the O.P. produced no scrap of paper to show that before such repossession of the vehicle, they sent

Contd…………………..P/6

 

 

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 any such notice to the complainant.  The O.P. has also not examined any person to say and to prove that any such notice before repossession was sent to the complainant.  Therefore it appears that although the complainant has defaulted in payment of installments of loan but the O.P. before such repossession of the vehicle sent no notice in compliance of Clause 13 & 14 of the loan agreement  (Exhibit-A)  to the complainant.  Therefore such act of repossession of the vehicle without observing due process of law amounts to high handed action and it also amounts to deficiency in service on the part of the O.P.  In the above facts and circumstances of the case and the discussions, made above, we are of the view that the act of  repossession of the vehicle in question of the complainant by the O.P. is unlawful and such act amounts to deficiency in service on the part of the O.P. The petition of complaint is therefore deserves to be allowed.

  All the points are accordingly disposed of in favour of the complainant.

  In the result the complaint case succeeds.

 

                                            Hence, it is,

                                                     Ordered,

                                that the complaint case no.96/2016  is allowed on contest with cost against the O.P.  O.P.-HDB Financial Services Ltd. is directed to return the vehicle in question to the complainant within a month from this date of order and the O.P. is also further directed to pay a sum of Rs.50,000/- as compensation to the complainant and  further sum of Rs.10,000/- as litigation cost within a month from this date of order.

                               Let plain copy of this order be given to the parties free of cost.

             Dictated and Corrected by me

                          Sd/-B. Pramanik.                     Sd/- P.K. Singha                          Sd/-B. Pramanik. 

                               President                                   Member                                       President

                                                                                                                                 District Forum

                                                                                                                             Paschim Medinipur