Present complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date has been filed by complainant Avtar Singh against opposite party i.e. ICICI Bank, Honda Market, Phagwara, District Kapurthala through its Branch Manager seeking direction against opposite party to return impounded vehicle Tata Indica car on market price thereof with further monetary compensation on account of deficiency in service on the part of opposite party.<br /> 2. In nutshell the facts in the complaint are that complainant got purchased and financed for the amount of Rs.3,20,000/- out of total Rs.3,76,553/- of the value of the new car Tata 207 D1 vehicle Model 2005 from the opposite party and same was got registered vide registration No.PN 09 G 9125, The said loan amount was repayable in 46 monthly equal instalments for each instalment amounting to Rs.8145/- per month . It is alleged that he has paid approximately Rs.1,46,610/-. However, due to sudden illness and financial constraints he could not pay few instalments in time. When he went to deposit the instalments he was informed by the official of the opposite party that concerned Manager of loan department was not available and later on asked him tod eposit the entire outstanding loan amount on account of default in payment of EMIs which was contrary to the terms an conditions of the agreement. He was compelled to deposit penal interest and office misc. charges from the date of default till its payment . It is further alleged that some of the officials of the opposite party alongwith some musclemen committed forcibly entry to his house without any notice and took away car/vehicle in question illegally despite his protest. He then went to the office of opposite party and he was handed over copy of seizure memo that vehicle has been impounded by the Agency which is illegal and contrary to the principle of natural justice. The officials of the opposite party instead of returning the vehicle and accepting the deposit of arrears of instalments slapped a demand of Rs.97043/- on the pretext of adjustment of sale proceeds as per opposite parties accounts by illegally sale of the vehicle without any pre-sale notice to him. It is therefore, alleged that action of the opposite party Bank is absolutely illegal, null and void and that he is not only entitled to return of the vehicle illegally impounded by the opposite party or its sale price but also monetary compensation on account of deficiency in service on the part of opposite party.<br /> 3. Opposite party appeared and controverted the allegations of the complainant and resisted his claim. The factum of advancement of loan amount of Rs.3,20,000/- by the opposite party to the complainant for the purchase of TAta Indica Car and repayable in 46 monthly instalments is not disputed. It is however, denied that complainant suffered from any sudden illness or financial constraints to repay the monthly instalments of loan in time nor the complainant had ever come to deposit arrears of instalments alongwith penal interest. It is however denied that officials of the opposite party accompanied with muscleman to the house of complainant and forcibly without any notice to the complainant illegally trespassed his residence and took away the car in question. The complainant himself was showing inability to make payment and as such the vehicle was surrendered by him voluntarily. Even several notices were issued to the complainant for repayment of arrears of loan instalments but he failed to comply with. Consequently pre-sale notice for sale of the vehicle under hypothecation was also issued to him but in vain and as such opposite party Bank was compelled to sell the vehicle in auction for Rs.1,35,000/- and sale price was adjusted towards outstanding loan amount . Opposite party is therefore, still entitled to recover balance amount of Rs.97043/- from the complainant under terms and conditions of the agreement. Opposite party Bank has refuted the allegation of forcible seizure of the vehicle in questions from the possession of the complainant and asserted its right to repossess the vehicle under terms and conditions of the loan agreement on the utter failure of the complainant to pay loan instalments in time and consequented its sale. Therefore, there is no question of any deficiency in service on the part of opposite party for recovery of outstanding loan amount by lawful means.<br /> 4. In support of his version complainant Avtar Singh has produced in evidence affidavit Ex.C1 and copy of passbook and bank account ex.C2.<br /> 5. On the other hand opposite party has produced in evidence affidavit and documents Ex. R1 to R14.<br /> 6. We have heard arguments of learned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for the complainant has vehemently urged before us that opposite party ICICI Bank is guilty of deficiency in its financial service and also terms and conditions of loan-cum-hypothecation agreement inasmuch as it has not only impounded the financed vehicle TATA 207 DI from his custody forcibly but also sold the same and slapped amount of Rs.97043/- as due as outstanding loan amount arbitrarily. On the other hand it has been counter argued by learned counsel for the opposite party Bank that ICICI Bank is perfectly justified to repossess the financed vehicle from the complainant on account of breach of terms and conditions of loan-cum-hypothecation agreement in payment of scheduled instalments of loan amount of Rs.3,20,000/- payable in 46 monthly equal instalments. Complainant is estopped from raising plea of forcible seizureof TATA Indica vehicle when the same was surrendered by him on account of his financial constraints without any protest and vehicle had to be sold in auction after serving pre-sale and post sale notices to the complainant for recovery of balance amount of rs.97043/-. He further urged that there is no question of any deficiency in service on the part of opposite party.<br /> 7. We have considered rival contentions of counsel for the parties. We do not merit in the contentions of learned counsel for complainant. These broad facts about advancement of loan amount of Rs.3,20,000/- for the purchase of TA Indica vehicle vide agreement dated 4/10/2005 payable in 46 equated monthly instalments for each instalment of Rs.8145/- on the said application ex.R14 dated 30/9/2005 annexed therewith are not disputed. This fact is also not disputed that complainant had committed default in payment of instalments as mentioned in para-6 of the complaint and also as per statement of account Ex.R2 though he has paid total amount of rs.1,46,610/- and also as per entry in the bank account Ex.C2 till June 2006 Complainant, no doubt, has stated vide affidavit Ex.C1 that he had gone to the office of opposite party to deposit arrears of defaulted instalments alongwith penal interest but they failed to receive the same. However, Ashwani Kumar attorney of ICICI Bank vide affidavit Ex.R1 corroborated his version that complainant had come to the office for payment of defaulted instalments alongwith interest. On the other hand complainant was served with notice dated 16/5/2007 to make payment of defaulted EMI or else surrender vehicle vide Ex.R3 and postal receipt Ex.R4 and also notice Ex.R5 and receipt Ex.R6. He was approached time and again to make the payment of defaulted instalments but he had not come forward. He failed even to response pre sale notice dted 19/7/2007 Ex.R7 and receipt Ex.R8 and also post sale notice dated 30/10/2007 Ex.R9 and postal receipt Ex.R10. Even the seizure memo was handed over to the complainant for repossession of the vehicle and same was surrendered voluntarily. It is also apparent from the notice Ex.R3 dated 20/7/2007 served upon the complainant that in case of failure to make repayment, he was under obligation to return the vehicle by producing the same physically at the office of Bank or else ICICI Bank opposite party is empowered to initiate legal action including repossession of the vehicle in terms of power of attorney executed by him in favour of the Bank. . Clause- 48 of the Agreement empowers the Bank to enter upon and take possession of the assets in accordance with provisions of loan term and also to transfer the same by way of lease, leave, licence, sale or otherwise in accordance with provisions of loan term. The auction notice Ex.R12 dated 18/7/2007 further proves that vehicle was duly sold in auction at sale price of Rs.1,35,000/- and post sale notice dated 3/10/2007 Ex.R9 was duly served upon the complainant for payment of amount of Rs.97043/- as outstanding loan amount after adjustment of sale price and recovery of Rs.1,46,610/- paid by way of various instalments. On the other hand complainant had not produced any iota of evidence to establish violation of terms and conditions of loan/hypothecation agreement by ICICI Bank or even plea of forcible seizure/repossession of the vehicle in unlawful manner because no protest letter nor even any complaint was moved against ICICI Bank with the concerned Police Station from which reasonable inference can be drawn that vehicle was surrendered by the complainant voluntarily on account of financial constraints resulting in default in payment of loan instalments on the scheduled time. There is only bald version of the complainant in his complaint and also in the ffidavit that vehicle in question was forcibly taken away from his residence by official of the ICICI Bank and that later on seizure memo was handed over to him. He visited the Bank alongwith payment of dues payable. No doubt, only Apex Court has deprecated tendency of Banks and financial Institutions and practice of hiring recovery agents who are muscleman in forcibly removing the vehicle from the Lonee as held in a case reported as ICICI Bank vs. Parkash Kaur & Ors. 2007 (2) SCC 711 but otherwise upheld validity of loan agreement providing for repossession of financed vehicle by Financing Corporation/Bank legally as per terms of the contract as it was clearly ruled by Hon'ble Apex Court in case reported as Managing Director Orix Auto Finance (India) Ltd. vs. Jagmander Singh & Ors. II (2007) CPJ 45. In another case reported as ITCHU Finance Ltd. vs. Ramesh chand II (2007) CTJ 325 Hon'ble National Commission also ruled that re-possession of the vehicle by Finance Company in the event of failure to pay instalments is permissible as per clause 2(a) (i) of the Higher Purchase Agreement while relying upon the earlier cases reported as Manager Mary Hire Purchase vs. N.A. Jose III (1995) CPJ 58 and also case Charanjit Singh Chandra vs. Sudhir Mehra III (2001) CCR 232 (SC) . Therefore, while relying upon the ratio of aforesaid cases and in the light of facts of the present case, since re-possession of the vehicle has been taken without implying any force but on voluntary surrender of the vehicle by the complainant himself, we hold that there is no deficiency in service on the part of opposite party ICICI Bank in exercise of its power under the terms and conditions of Hire Purchase Agreement. Opposite party Bank is, therefore, perfectly justified to recover the outstanding loan amount of Rs.97043/- from the complainant vide its notice Ex.R9 dated 3/10/2007 in accordance with law. This fact cannot be ignored that complainant had used the vehicle for a period of about two years since its repossession by opposite party Bank. Consequently complaint is dismissed with no order as to costs. <br /> Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced : ( Surinder Mittal ) * A.K. Sharma )<br /> 19-6-2008 Member President.