Karnataka

Bidar

CC/115/2016

Mohd Hasan Sab S/o Mohd Ameeruddin Bidar - Complainant(s)

Versus

Hinduja Layland Fince Ltd. Basavakalyan - Opp.Party(s)

Padma Maharaj

22 Aug 2017

ORDER

 

 

 

::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.115/2016

                                                                          Date of filing: 03.12.2016

                                                                   Date of disposal: 22.08.2017

 

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                  B.A., LL.B.,

                                                                                                President

 

                              (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

 

COMPLAINANT/S:             Mohd. Hasan Sab S/o Mohd. Ameeruddin,

                                                Age :Major, Occ:Driver,

                                                R/o H.No.13/54, Dhargir Street,

                                                Basavakalyan, Dist. Bidar.

 

            (By Smt. Padma Maharaj, Adv.)

 

                                                         VERSUS

 

OPPONENT/S:                      HindujaLayland Finance Ltd.,

                                                1^st Floor, Masgalli Complex,

                                                Beside Karnataka Bank,

                                                Main Road,

                                                Basavakalyan.

 

                                 (BySri. S. Wilson, Adv.)

 

 

::   J UD G M E N T  ::

 

By Shri. Jagannath Prasad Udgata, President.

 

1. The complainant is before this Forum alleging deficiency of service in the part of the O.P by filing a complaint U/s.12 of the C.P. Act., 1986.

 

2. The gist of the case of the complainant is as hereunder:

                        The complainant was unemployed and for his self-employment and to maintain his family he had intended to purchase the vehicle.  The complainant had obtained loan of Rs.6,00,000/- to purchase a lorry brg.No.MH-25/B-9390 from the O.P. and agreed to pay monthly installment of Rs.22,700/-, which was to be started from 21.9.2015.  The complainant is the driver cum owner of the said vehicle.  The complainant has paid Rs.3,00,000/- which is nearly half of the loan amount.  The complainant planning to take All India Permit, fitness certificate and  Insurance besides minor repair works of the lorry, could not  pay the installments of September and October.   The complainant visited the O.P and narrated these facts, for which O.P agreed and allowed the complainant to pay installment subsequently and assured that installment would be rearranged at Rs.15,000/- per month.    All of a sudden on 27.10.2016, the O.P seized the vehicle of the complainant by using muscle power.   Thereafter on 16.11.2016 complainant visited the O.P. and offered cheque of Rs.45,000/-, but the O.P refused the same and intimated that the vehicle would be sold for  recovery of the amount.  The vehicle is worth more than Rs.10,00,000/- and dues are only for 02 months, and the complainant apprehended that the O.P. would sale the said vehicle to their own person and get illegal gain.    If the vehicle/lorry was sold, the family of the complainant would starve and come on the road.   The O.P has not issued any notice or demand notice prior to seizing of the vehicle.  If the notice was issued, the complainant would have paid installments by taking loan from others etc.  Hence, the complaint for direction to release the vehicle etc. 

 

 

3. Notice was  served upon O.P.,  Though vakalath was filed on 03.01.2017, no version was filed.  The O.P. all along remained absent from the proceedings, no documents, evidence affidavit were submitted or arguments were ever addressed.  However at the fag end an effort was made to file W.V., affidavit and written arguments on 21.08.2017 but th attempt was scoffed up by us and the papers were expunged vide order of even date.

 

4. The complainant has filed documents, detailed at the end of this order, so also the complainant has filed evidence affidavit justifying his side.  He has filed is evidence affidavit as P.W.1 and further has filed affidavit of one Iqbaluddin as P.W.2.

 

 

5.         Considering contention of the complainant, the following points arise for our consideration:-

 

1. Whether the complainant has proved that there is deficiency in service on the part of the O.P.?
2. What order?

 

 

6.         Our answers to the points stated above are as follows:-

 

1. In the affirmative.
2.  As per final orders owing to the following:

 

 

:: REASONS ::

 

7.         Point No.1 :-  In the absence of any viable defence raised by the opponent, we have to accept the canvassment of the complainant on its’ face value.

 

8.         The complainant claims that, he had paid a sum of Rs.3,00,000/- in regular E.M.I.s and having incurred massive expenditures to obtain all India permit, fitness certificate, Insurance and miscellaneous repair works could not pay instalments due for the month of September and October 2016. Nevertheless, he had approached the O.P. narrating the problems and was allowed (orally) to pay the E.M.I.s later and even was promised reduced E.M.I. @ Rs.15,000/- .  Inspite of the promises, the Lorry was seized by the O.P. on 27.10.2016 and thereafter the complainant visiting the office of the opponent offered to pay a sum of Rs.45,000/-.  then and there and further sought time to pay the third instalment soon.  But the O.P. finance company refused to receive the payment.

 

9.         The facts above discussed are reflected in the affidavits of P.W.1 (complainant) and another eye witness Iqbaluddin (P.W.2).  The testimonies of both remain uncontroverted.

 

10        The complainant further claims that, presently the Lorry would be worth Rs.10,00,000/- and the designs of the opponent is to illegally seize the vehicle without any notice and sell it to same person (s) connected with the O.P.

 

11.       In this context, we have to examine as to whether the seizure date: 27.10.2016 was legal and proper (though vide a letter of the O.P. date: 01.11.2016- Ex.P.3 O.P. claims about peaceful seizure).

 

12.       There is no evidence led before us to prove that, any notice of seizure was ever issued.  Per contra, the complainant has successfully proven that, he was ready and approached the O.P. to pay the dues and the same was declined by the O.P.  The chain of events rather substantiate the assertion of the complainant that, the O.P. was bent upon seizing the vehicle illegally and sell it to some party of his choice.

 

13.       The Hon’ble Supreme court in its judgement reported in 2001 (1) S.C.C. 481-ICICI Bank Ltd. v/s Prakash Kaur has been pleased to hold.

            “Practice of hiring recovery agents who are musclemen is deprecated and needs to be discouraged”.

 

14.       The Hon’ble National Commission in its’ judgement reported in 2014(4) CPR 724 (NC)- M/s Sundaram Finance Ltd. v/s  Sh. Atulkumar has been pleased to hold as follows:-

            “Musclemen cannot be allowed to interfere with peace of society and vehicle cannot be possessed without intervention of Court”.

 

15.       The same stand was also taken by the Hon’ble Apex Court in another case reported in 2012 (1) S.C.C.1- Citicorp Maruthi Fi. Ltd. v/s Vijayalaxmi.

 

16.       From the corollary of events, it is surprising that, the O.P. refuses payments when offered, which indicates certain hidden agenda in the minds of the O.P., and the deficiency of service coupled with unfair trade practice is forthcoming.  We therefore answer point No.1 in the affirmative and proceed to pass the following:-

                       

                                                     ::ORDER:: 

1. The complaint is allowed in part.
2. The O.P. is hereby directed restructure the loan account of the complainant giving Credit of all the amounts already received and release the vehicle to the custody of the complainant subject ot such restructured loan agreement.
3. There would be no order as to cost or otherwise.
4. Four weeks time granted to implement this order.

 

   

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 22^nd day of August-2017).

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                         

                                                                          

 

 

 

Documents produced by the complainant

1. Ex.P.1-  Copy of Driving licence.
2. Ex.P.2– Copy of R.C. Book.
3. Ex.P.3 – Letter of the O.P. date: 01.11.2016 (original).
4. Ex.P.4—Copy of schedule of repayment.
5. Ex.P.5- Authorisation Certificate of N.P. (Goods ) of Transport 
                  Deptt.
6. Ex.P6- Copy of Parking yard receipt.

 

Document produced by the Opponent.

 

-Nil-

 

Witnesses examined.

1. P.W.1- Mohd Hasan Sab (complainant).
2. P.W.2- Iqballudin.

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.