Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant has filed the  instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that the complainant has purchased the second hand Truck bearing Registration No.UP85Z9526, which was changed in the year 2014 in the Punjab State as PB-29R-9078. The said Truck was financed by HDB Financial Services, Moga for Rs.9,98,000/-. The complainant fulfilled all the formalities of the opposite parties. The said loan amount was to be repaid in easy installments. The complainant was repaying the loan installments regularly. The complainant could not deposit some loan installments due to financial crisis. All of sudden employee of opposite parties came to the house of the complainant and taken away the said truck of the complainant forcibly, illegally and unjustly and in contravention of prescribes rules and regulations. The complainant was earning his livelihood with the income of said truck. Due to illegal work of opposite parties, complainant was deprived off its earning and suffered a huge loss. The complainant also served a legal notice dated 20.07.2007 upon the opposite parties, but to no effect. Due to the aforesaid act and conduct of opposite parties, the complainant has suffered mental tension, harassment and financial loss. Vide instant complaint, the complainant has sought the following reliefs.

i)       To direct the opposite parties to return the Truck bearing registration no.PB-29R-9078 and to pay a sum of Rs.50,000/- on account of compensation, damages and mental tension to the complainant.

ii)      Or any other relief may kindly be granted as this Commission may deem fit and proper. 

Hence, this complaint.

2.       Upon notice, opposite parties appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that complaint is false, frivolous and vexatious and is liable to be dismissed. Rather the complaint is filed nothing but a flagrant and blatant abuse of the process of law and has been filed with an ulterior motive to harass, humiliate the opposite party company. The opposite parties are non-banking financial public limited company registered under Companies Act. Its business is governed as per rules and regulations framed in conformity with Reserve Bank of India applicable to the NBFCs. It cannot act like a private individual. Its acts are done in written form on day to day basis in routine course of business; that the complainant is not a consumer within the meaning, definition and scope of “consumer” as defined in Consumer Protection Act, as complainant has taken loan amounting to Rs.9,98,000/- from the answering opposite parties for the purchase of TATA LPT 3118 TC BS II COWL 52 having registration no.PB-29R-9078 which he agreed to pay in total 34 monthly installment alongwith financial charges. The amount was disbursed on 31.03.2014 and the first installment date was 04.05.2014. The complainant never paid the installments on time and considerable sum stand due against him and later on the vehicle was re-possessed from the complainant as the complainant company being the legal owner of the vehicle has first legal charge over the same and similarly as per the agreement also, on default the answering opposite parties has full right to protect its right and article financed. The vehicle was hypothecated with the answering opposite parties. After the vehicle was re-possessed the same was sold to highest bidder and the sale amount was adjusted with the account balance of the complainant. The complainant is not entitled for any claim as prayed. Further the relationship between the complainant and opposite parties is that of borrower and debtor/lender as it is clear from loan agreement. Further it is stated that most importantly the present complaint is hopelessly time barred on the ground of limitation. The vehicle was re-possessed from the complainant in the month of September 2014 and the same was sold and the amount was adjusted in the loan account in October, 2014. Hence, any grievance, if any, by the complainant cannot be entertained by this Commission on ground of barred by limitation. Further it is stated that complainant has not come to this Commission with clean hands and has suppressed the true facts knowingly, intentionally and deliberately to get favour of this Commission in an illegal and wrongful manner by concealing the true facts. Hence, the complaint is liable to be dismissed with special costs. It is further stated that the complainant also entered a Hire-Purchase Agreement inter-se at Ludhiana and as such this Commission has no jurisdiction to entertain, try and decide the present complaint. Mere averments of complainant being resident in distinct place and the averment of complainant working for gain does not give any right to the complaint to file/institute the proceedings before this Commission. As such, the complaint is liable to be dismissed being lack of jurisdiction; that the present complaint is prima facie frivolous and vexatious and liable to be dismissed under section 26 of the Act, by imposing heavy punitive costs; that the complaint is liable to be dismissed, as the complaint is not filed in a proper form, as per guidelines. On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with costs has been made.

3.       In his bid to prove the case, the complainant tendered in evidence his duly sworn affidavit Ex.C-1 in support of the allegations made in the complaint and copies of documents Ex.C-2 to Ex.C-28 and closed the evidence.

4.       On the other hand, the Opposite Parties tendered in evidence the affidavit of Sh.Sukhjit Singh, Area Legal Manager, HDB Financial Services, Moga Ex.OPs-1 and copies of documents Ex.OPs-2 to OPs-5 and closed the evidence.

5.       We have heard the Ld. counsel for the parties, gone through the written arguments placed by the Opposite Parties and have carefully gone through the evidence on record.

6.       Ld.counsel for the complainant has  mainly reiterated the facts as narrated in the complaint and contended that  the complainant has purchased the second hand Truck bearing Registration No.UP85Z9526, which was changed in the year 2014 in the Punjab State as PB-29R-9078. The said Truck was financed by HDB Financial Services, Moga for Rs.9,98,000/-. Further contended that the complainant has fulfilled all the formalities of the opposite parties and the said loan amount was to be repaid in easy installments. The complainant was repaying the loan installments regularly. The complainant could not deposit some loan installments due to financial crisis. All of sudden employee of opposite parties came to the house of the complainant and taken away the said truck of the complainant forcibly, illegally and unjustly and in contravention of prescribes rules and regulations. The complainant was earning his livelihood with the income of said truck. Due to illegal work of opposite parties, complainant was deprived off its earning and suffered a huge loss.

7.       On the other hand, ld.counsel for the Opposite Parties  has repelled the aforesaid contention of the ld.counsel for the complainant  and contended that    the complainant is not a consumer within the meaning, definition and scope of “consumer” as defined in Consumer Protection Act, as complainant has taken loan amounting to Rs.9,98,000/- from the answering opposite parties for the purchase of TATA LPT 3118 TC BS II COWL 52 having registration no.PB-29R-9078 which he agreed to pay in total 34 monthly installment alongwith financial charges. The amount was disbursed on 31.03.2014 and the first installment date was 04.05.2014. The complainant never paid the installments on time and considerable sum stand due against him and later on the vehicle was re-possessed from the complainant as the complainant company being the legal owner of the vehicle has first legal charge over the same and similarly as per the agreement also, on default the answering opposite parties has full right to protect its right and article financed. The vehicle was hypothecated with the answering opposite parties. After the vehicle was re-possessed the same was sold to highest bidder and the sale amount was adjusted with the account balance of the complainant. The complainant is not entitled for any claim as prayed. Further the relationship between the complainant and opposite parties is that of borrower and debtor/lender as it is clear from loan agreement. Further it is stated that most importantly the present complaint is hopelessly time barred on the ground of limitation. The vehicle was re-possessed from the complainant in the month of September 2014 and the same was sold and the amount was adjusted in the loan account in October, 2014. Hence, any grievance, if any, by the complainant cannot be entertained by this Commission on ground of barred by limitation. Further it is stated that complainant has not come to this Commission with clean hands and has suppressed the true facts knowingly, intentionally and deliberately to get favour of this Commission in an illegal and wrongful manner by concealing the true facts. Hence, the complaint is liable to be dismissed with special costs. It is further stated that the complainant also entered a Hire-Purchase Agreement inter-se at Ludhiana and as such this Commission has no jurisdiction to entertain, try and decide the present complaint. Mere averments of complainant being resident in distinct place and the averment of complainant working for gain does not give any right to the complaint to file/institute the proceedings before this Commission. As such, the complaint is liable to be dismissed being lack of jurisdiction; that the present complaint is prima facie frivolous and vexatious and liable to be dismissed under section 26 of the Act, by imposing heavy punitive costs; that the complaint is liable to be dismissed.

8.       It is not disputed that the complainant  has took loan from the Opposite Parties  for the purchase of the vehicle in question against the hypothecation of the said vehicle and the loan was repayable in 34 regular EMIs starting w.e.f 4.5.2014 and in this way, the last installment was to be paid by the complainant  on 4.3.2017 to which he failed to repay and hence, the complaint is filed by the complainant  on 29.11.2017  which was well within limitation of two years as per Consumer Protection Act.    The case of the Opposite Parties  is that   complainant has failed to pay the installments on time and considerable sum stand due against him and later on the vehicle was re-possessed from the complainant as the complainant company being the legal owner of the vehicle has first legal charge over the same and similarly as per the agreement also, on default the answering opposite parties has full right to protect its right and article financed. The vehicle was hypothecated with the answering opposite parties. After the vehicle was re-possessed the same was sold to highest bidder and the sale amount was adjusted with the account balance of the complainant. The complainant is not entitled for any claim as prayed.

9.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the Opposite Parties  have not issued any prior notice before issuing the threat of repossession of the vehicle in dispute nor the Opposite Parties  ever declared the complainant a defaulter so far. Both these requirements were a condition precedent for  repossessing the vehicle in dispute. The act of the Opposite Parties  in threatening the complainant  to repossess the vehicle in dispute without issuing prior notice or declaring him a regular defaulter is illegal and nonest. Reliance in this connection can be had on  L & T Finance Ltd. & Anr.-Petitioners Vs. Rampada Maity-Respondent 2016(2) CLT page 343 (NC) , wherein it has been laid down that:-

“in our view when a transporter finance company such as the petitioner before us, finances a vehicle and there is a default on the part of the borrower in servicing the loan taken by him, it must necessarily issue a notice to him expressing its intention to repossess the vehicle in exercise of the power conferred upon it under the loan agreement before the vehicle is actually repossessed by it. The purpose behind insisting upon such a notice being given to the borrower is to give him an opportunity to approach the financer and either bring the payment if already made by him to the knowledge of the financer or to convince the financer that it was on account of reasons beyond his control that he could not service the loan and, therefore, the default committed by him may be condoned. It is quite possible that the financer may get convinced from the circumstances so explained by the borrower and may not insist upon repossessing the vehicle, his primary objective being to recovery of loan given to the borrower and not to repossess the vehicle financed by it. If a vehicle is repossessed, without giving such a notice to the borrower, not only it has the potential to disrupt the business or profession in which the borrower is engaged using the vehicle, it may also result in his image and reputation in the society being lowered on account of the abrupt, sudden and forcible seizure of the vehicle by the financer. If a notice expressing intention to repossess the vehicle on the default of the borrower is given to him, he gets ample opportunity to prevent the proposed seizure by approaching the financer and either paying the amount which he has unable to pay alongwith appropriate interest and/or penalty on that amount or to dispose of the vehicle at his own level and repay the loan taken by him. Therefore, in all fairness, the financer must given a reasonable notice to the borrower before repossessing the vehicle financed by it and in no case the vehicle should be repossessed by use of force. In our opinion, the seizure of the vehicle in such circumstances constitutes deficiency in service causing tremendous mental torture and stress to the borrower who all of a sudden finds himself without the vehicle which he had purchased albeit with the financial assistance taken from the lender. The borrower in such circumstances does not get an opportunity to arrange the requisite finances to repay the  amount which he defaulted in paying to the lender before the vehicle comes to be repossessed by the lender. The mental torture and agony would be greater when the vehicle is  repossessed in his absence. We are of the considered view that since there was a deficiency on the part of the company in rendering services to the complainant/respondent, the said company ought to pay suitable compensation to the complainant”.

10.     Ratio of the judgement supra is fully applicable to the facts of the present case. From the aforesaid discussion, it transpires that Opposite Parties have wrongly repossessed  and sold the vehicle in dispute. Since the  Opposite Parties  have  not declared the complainant a ‘defaulter’ nor they have issued any prior notice to the complainant expressing their intention to repossess the vehicle in dispute. As such, Opposite Parties  were  not entitled to repossess the vehicle in dispute forcibly.  But however, since the Opposite Parties  have already repossessed the vehicle and sold the same to higher bidder and the sale amount was adjusted with the account balance of the complainant forcibly and illegally at throw away price even without the consent of the Complainant , we are of the view that there is certainly deficiency in service on the part of the Opposite Parties and on this count, the Opposite Parties  must be burdened with reasonable amount to compensate the loss of the complainant which we tentatively assessed at Rs.50,000/-.  The  rulings cited by the Opposite Parties  are not applicable/ relevant to the facts of the present case.  

11.     Keeping in view the aforesaid facts and circumstances of the case, the complaint filed by the complainant  is allowed partly and the Opposite Parties  are directed to make good the loss of the complainant  by making lump sum amount of Rs. 50,000/-  on account of loss occasioned by the complainant  in the hands of the Opposite Parties, alongwith interest @ 8% per annum from the date of repossession of the vehicle in dispute by the Opposite Parties i.e. w.e.f. 16.09.2014  till its actual realization. The compliance of this order be made by Opposite Parties  within 45 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

12.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bathinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.  

Announced in Open Commission.

Dated: 16.04.2021.