DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 1441 of 2009 Date of Inst: 16.11.2009 Date of Decision:28.07.2010 Surjan Dass s/o Dalip Singh r/o # 93/7, Shiv Shakti Colony, Nalagarh Road Pinjore, Tehsil Kalka, District Panchkula. ---Complainant V E R S U S HDFC Bank Ltd., SCO No.76-77, 1st Floor, Sector 8-C, Madhya Marg, Chandigarh through its Branch Manager. ---Opposite Party QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER PRESENT: Sh.Pavinder Singh, Adv. for complainant Sh.Sandeep Suri, Adv. for OP. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Surjan Dass has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) hand over the possession of the truck in the same condition as it was at the time of re-possession by OP. ii) Pay a sum of Rs.2 lacs as compensation for depreciation of tyres and body of the truck. iii) Pay a sum of Rs.28,000/- on account of loss of transportation charges. iv) Pay a sum of Rs.1 lac on account of loss of income due to forcibly repossession of the truck. v) Pay a sum of Rs.50,000/- as compensation for mental agony and harassment. vi) Pay a sum of Rs.5,000/- as costs of litigation. vii) Any other relief which this Forum may deems fit proper. 2. Admittedly, the complainant took a loan of Rs.6,29,885/- from OP on 12.08.2008 for purchase of the truck. The said loan was to be repaid in 47 monthly equated installments of Rs.17,830/- each commencing from 01.09.2008. On 26.07.2009, the truck was repossessed by OP for non-payment of installments and the same was sold by it for Rs.6,18,000/- on 23.09.2009. According to the complainant, he is a poor person and had purchased the truck in question for earning his livelihood. He had been paying the installments regularly. He could not pay two installments i.e. installment for the month of November, 2008 and April, 2009 due to personal difficulties. On 26.07.2009, he was going from Pune to Hamirpur with a consignment. On the way, he was intercepted by the musclemen of OP who asked him to hand over the truck as the complainant has failed to pay the installments. It has been pleaded by complainant that he requested the said musclemen of OP not to take the possession of the truck and that he would pay the outstanding installments on reaching Chandigarh. However, his request was not acceded to and the truck was forcibly taken into possession by the musclemen of OP. It has further been pleaded that the complainant contacted the officials of OP at Chandigarh on mobile but to no effect. According to the complainant, because of the forcible possession of the truck, the complainant had to unload the consignment at Ajmer and another truck was engaged for sending the consignment to its destination. According to the complainant, the possession of the truck was taken forcibly by the musclemen of the OP which amounts to deficiency in service on its part. It has further been pleaded that the truck was sold by OP without intimating him about the date of sale or otherwise making proper advertisement. In these circumstances, he is entitled to the reliefs mentioned above. 3. On the other hand, the case of OP is that the said truck was hypothecated with OP. As per the terms and conditions of the loan agreement, OP had authority to take possession of the truck in case the installments are not paid regularly. According to OP, the complainant was irregular in payment of the loan installments. It has been pleaded that two installments i.e. for the month of June, 2009 and July, 2009 were outstanding on the date of re-possession of the vehicle. The complainant was a defaulter in repayment of the loan. Therefore, the said truck was taken into possession by the bank as per the terms and conditions of the loan agreement. It has further been pleaded that on the date of repossession of the truck, a sum of Rs.6,18,000/- was outstanding against the complainant and the said truck was sold on 23.09.2009 for Rs.6,18,000/-. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 5. It is admitted case of the parties that the complainant took a loan of Rs.6,29,885/- from OP on 12.08.2008 for purchasing the truck, He had been paying the installments. Only two installments were outstanding on the date of repossession of the truck i.e. on 26.07.2009. The truck was re-possessed for non-payment of the said two installments. 6. It was vehemently argued by the learned counsel for the OP that the Bank has authority to repossess the truck in case of non-payment of the loan installments as per the terms and conditions of the loan agreement. Our attention has been drawn to clause No.17 of the loan agreement which reads as under:- “17. ENFORCEMENT 17.1 If the Borrower fails to perform any of the obligations herein and the same (if capable of remedy) is not remedied to the satisfaction of the Bank within the period to be specified by the Bank; or 17.2. any of the "Event of. Default" pursuant to the terms of Clause 13 arise {whether demand for repayment is actually made or not) then and in such case and at any time thereafter, the Bank through its officers, agents or nominees shall have the right (without prejudice to the right in Clause 7) to take any one or more than one or the following actions without, the specific intervention of a Court or any Court Order; i) without any notice and assigning any reason and at the risk and expense of the Borrower and if necessary as Attorney for and in the name of the Borrower take charge and / or possession of seize, recover, appoint receiver of and remove the Hypothecated Asset- The Bank will be within its rights to use Tow-van to carry away the Asset/and/or ii) enter into or upon any place or premises where the Hypothecated Asset may be kept or stored and inspect, value or ensure the same at the costs and expenses of the Borrower, and/or, ii) sell by auction or by private contract or lender, dispatch or consign for realization or otherwise dispose of or deal with the Hypothecated Asset in the manner the Bank may think fit”. 7. Relying upon the said clause and the ratio of the cases titled below: i) Neelam Puri Vs.ICICI Bank and others passed in Revision Petition No.4212 of 2008 decided on 24.11.2009 by the Hon'ble National Commission. ii) Sunera Kumar Agarwal Vs. Telco Finance Ltd. and Anr. reported in I(2010) CPJ 163 (NC). iii) The M.D., Oris Auto Finance (I) Ltd., Vs. Shri Jagmander Singh and Anr. Reported in (2006-1) PLR-601 (SC). it has been argued by the learned counsel for the OP that OP-bank has right and authority to repossess the truck and to sell the same for realizing the outstanding amount. In the case titled The M.D., Oris Auto Finance (I) Ltd.’s case (supra), the Hon’ble Supreme Court of India has held that the financer has right to repossess in case there is a clause to this effect in the agreement. Similar view has been expressed in Neelam Puri’s case (supra) and Sunera Kumar Agarwal’s case (supra),However, in the above said cases, it has not been held that the financer has right to take forcible possession of the vehicle. In Sunera Kumar Agarwal’s case (supra), it has been specifically held that it is not proved that the vehicle was repossessed forcibly. Similarly in Neelam Puri’s case (supra), it has been held by the Hon'ble National Commission that the financer has no authority to take forcible possession of the vehicle. Possession can be taken only through due process of law. 8. Faced with this situation, it was argued by the learned counsel for the OP that no force was used for taking the possession of the truck by the agents of OP. So the re-possession of the truck in question is not forcible. 9. On the other hand, it has been argued vehemently by the learned counsel for the complainant that from the material on record it has been duly proved that the truck was forcibly repossessed by the agents of OP. Our attention has been drawn to the deposition made by the complainant to the effect that the truck was repossessed while it was on its way from Pune to Hamirpur with consignment to be delivered at Hamirpur. It has further been deposed that the requests were made to the agents of OPs not to take forcible possession of the vehicle. The complainant assured that all the outstanding dues would be paid by him soon after reaching Chandigarh. It has also been deposed that the officials of the bank were also contacted on mobile with a request not to take forcible possession of the vehicle. Despite it, the truck was re-possessed by the agents of the OP against the wish and consent of the complainant. Even the truck was unloaded and the complainant had to spend a sum of Rs.28,000/- for transporting the consignment to its destination by hiring another truck. Re-possession of the truck in these circumstances, to our mind, is forcible, therefore, the arguments advanced by the learned counsel for the OP to the effect that the re-possession of the truck is not forcible has no force. 10. In a number of judgments, the Hon'ble National Commission as well as Hon'ble State Commission have held that forcible re-possession of the vehicle amounts to deficiency in service. For ready reference, reference may be made to the following cases: i) Standard Chartered Bank Vs. H.S.Saini reported in 2010(1) CPC-279 (NC). ii) Tata Finance Ltd. Vs. Francis Soeiro reported in 2008(3) CPC-197 (NC) iii) Indusind Bank Ltd. and Others Vs. Iqbal Singh 2010(1) CPC -345 (U.T. State Commission). iv) Shri Ram Tpt. Co. Ltd. Vs. Bir Singh reported in 2009(3) CPC-599 (H.P.State Commission) 11. In these circumstances, the act of forcible re-possession of the vehicle amounts to deficiency in service. Furthermore, admittedly no notice regarding the date of sale of the truck was given to the complainant. So he was deprived of participating in the bid. It also amounts to deficiency in service. 12. The truck was purchased by the complainant on 25.07.2008 for Rs.7,90,000/-. It was sold by the OP on 23.09.2009 for Rs.6,18,000/-. During this period, the value of the truck had depreciated @ 10% p.a. i.e. Rs.79,000/-. So on the date of sale its actual value was Rs.7,11,000/- whereas the truck was sold for Rs.6,18,000/-, causing loss of Rs.93,000/- to the complainant. Thus, the complainant is entitled to Rs.93,000/- on account of loss suffered by him because of sale of the truck in non-transparent manner. 13. Further more as per the Annexure R-1 on 31.03.2010 a sum of Rs.5,76,742/- was outstanding against the complainant. The truck was sold for Rs.6,18,000/- So the sale price is in excess to the outstanding amount against the complainant by Rs.41,258/-. So the complainant is entitled to this amount also. 14. According to the complainant, the truck was unloaded at Ajmer at the time of forcible re-possession. The complainant had to arrange another truck for transporting the consignment to Hamirpur. Thus, he spent a sum of Rs.28,000/- for transportation of the consignment to its destination. So he is also entitled to this amount. 15. In view of the above findings, this complaint is allowed with the following directions to OP to pay to the complainant:- i) Rs.93,000/- for the loss caused to the complainant by selling the truck in the manner which is not transparent and which is below the depreciated price of the vehicle on the date of its sale. ii) Rs.41,258/- being the surplus amount kept by the OP after sale of the truck. iii) Rs.28,000/- being the transportation charges spent by the complainant for transporting the consignment to its destination. iv) Rs.50,000/- as compensation for mental agony and harassment. v) Rs.5,000/- as cost of litigation. 16. This order be complied with by OP within 45 days from the date of receipt of its certified copy, failing which OP shall be liable to pay Rs.2,12,258/-to the complainant along with penal interest @ 18 % p.a. from the date of seizure of the vehicle i.e. 26.07.2009 till its realization besides costs of litigation. 17. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced sd/- 28.07.2010 (LAKSHMAN SHARMA) PRESIDENT cm sd/- (ASHOK RAJ BHANDARI) MEMBER C.C.No.1441 of 2009 PRESENT: None. --- Arguments heard on 22.07.2010. The case was reserved for orders. As per separate detailed order of even date, this complaint is 28.07.2010. After compliance file be consigned. Announced. 28.07.2010 Member President Member
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
