This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for an order directing the O.P./IndusInd Bank Limited to determine the actual market price of the three months’ old car after settlement of the loan amount for purchasing the said car and for order of compensation of Rs.70,000/- and Rs.20,000/- for harassment, mental pain and agony and for litigation cost of Rs.10,000/-.
Petitioner stated in the complaint that he took loan from O.P. No.2 of Rs.2,60,000/- to purchase a Maruti Suzuki Alto car, No. WB-60G/9305. He purchased the same on 05.05.2012 and paid Rs.43,912/- on 10.05.2012 to O.Ps. Afterwards due to some financial crises he failed to pay one installment to the O.Ps. Then on 28.08.2012 O.Ps. forcibly took possession of the car. Petitioner on several times requested the O.Ps. to take installments and return the vehicle, but with no result. Then on 09.09.2014 he received letter from O.Ps. that car was sold away by O.Ps. at Rs.1,10,000/- and O.Ps. demanded Rs.75,588.44 from the petitioner as outstanding due. Petitioner stated that he purchase the car with loan at Rs.3,36,757/-, but within three months after his use, O.P. took forcible possession of his car and sold it away at too low price without giving any information to him and further make a demand of Rs.75,588/- unlawfully. Therefore he filed this case with the above mentioned prayer.
After receiving the notice of this case O.P. No.1 and 3 appeared by filing Vokalotnama and filed W.V. But afterwards failed to take steps and remained absent and therefore the case was taken up for exparte hearing. Petitioner filed examination in chief. O.P. did not appear to cross examine and none appears on repeated calls and exparte hearing of the same was again fixed on 02.06.2016. On that day O.P. filed a petition praying for vacating exparte order along with questionnaires for the witness adduced as P.W.-1 and the prayer was allowed subject to payment of cost. Then argument was heard from both sides in full.
To establish the case of the complainant has relied upon affidavit-in-chief sworn in by him as P.W.-1 and relied upon some documents. O.P. also filed documents, filed questionnaires, against examination in chief of P.W.-1, 2 & 3 but did not adduce any evidence as O.P.W.
DECISIONS WITH REASONS
Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, arguments advanced by the lawyers of both sides, the Ld Forum has come to the findings as follows: -
Admittedly the complainant purchased the vehicle with the loan from O.P./ Bank of Rs.2,60,000/- on 05.05.2012. Petitioner submits that on 10.05.2012 he paid Rs.43,912/-. Petitioner further stated that on 19.06.2012 he paid Rs.7,050/- as installment. The statement of account filed by O.P./ Bank and installment receipt dated 19.06.2012 prove this fact of payment by complainant. That on 28.08.2012 the vehicle was forcibly repossessed by the O.P./ Bank due to failure of payment of EMI. This fact was also admitted in the written version. There is no correspondence from O.P./ Bank to complainant immediately after repossession asking complainant to obtain release after paying outstanding within, say “7 days etc”. O.Ps. stated that complainant surrendered that vehicle on 28.08.2012 and thereafter in an open online bid the vehicle was sold for an amount of Rs.1,10,000/- and remaining amount of loan, Rs.75,588/- is payable by the complainant to the O.Ps. O.Ps. served legal notice upon petitioner claiming the said money. The letter dated 09.09.2014 is filed by the complainant. Complainant in reply sent a letter dated 24.09.2014 alleging that within three months of the purchase of the car and without giving any prior notice the car was sold away after repossession illegally and with a minimum price, which is not believable to the complainant. Complainant asked O.P. to submit true market value, true sale price etc. in the said letter of reply. In the questionnaires filed by O.P. O.P. asked for receipts showing payment of Rs.43,912/- by complainant on 10.05.2012 and also put questions regarding surrender of vehicle on 28.08.2012 and suppression of fact of open online bid and selling of the vehicle at Rs.1,10,000/-.
We have gone through the complaint petition, written version, evidence on record, questionnaires filed by O.Ps. etc. The documents of repossession of the vehicle filed by the petitioner that the said car was repossessed on 28.08.2012. There is no evidence that petitioner was present at the time of repossession. One Chiranjeet Nandi signed on his behalf. O.P. also failed to produce any document to prove that the vehicle was surrendered voluntarily by the complainant. O.P. can exercise legal rights at the earliest without accepting request of granting of time for payment of installments due. No request from complainant in writing is filed. But for argument sake, we can believe that complainant went to the office of the O.P./ Bank and requested to release the car accepting installments etc. It is clear from the pleadings of this case O.P. never served any notice asking O.P. to pay outstanding dues with a caution to resell the vehicle if not EMI/ outstanding dues paid. O.Ps. stated that the vehicle in question was sold away in auction on 31.07.2014 as it appears from the letter dated 09.09.2014 by the O.P./ Bank. There is no whisper in the written version about the process of auction sale with full particulars. Certainly O.P. did not issue any presale notice to the complainant. More so the advertisement for sale of vehicle was ever published in any newsprint. There is no documents filed by O.P. showing receiving quotations and acceptance at highest bidder to prove that the car was actually sold on 31.07.2014 at Rs.1,10,000/-. Therefore, we can refer the decision of Hon’ble National Commission in this regard as reported in 2015 (1) CPR 297 (NC) that it is well within its rights to seize the vehicle and sold for highest amount but after due notice and following due process of such sale. But the bank did not follow this rule and it is deficiency in service.
The complainant admits that the vehicle was repossessed on 28.08.2012. Therefore why did he not take any steps and came to this Forum only after receiving notice of such sale? Curiously the said notice informing the sale in auction and demanding outstanding Rs.75,588/- was also issued on 09.09.2014 i.e. after about 2 years of such repossession. There is no correspondence between the parties during the period from repossession of the said vehicle and sale of the vehicle. The complainant also kept himself mum and came to this Forum only after receiving the said letter demanding outstanding of Rs.75,588/-. Therefore the petition is hopelessly time barred. The complainant prays for compensation and other reliefs etc. U/s 12 of the Act, but long after the statutory period of two (02) years of accrual his cause of action U/s 24(A) of Consumer Protection Act, 1986. The case is filed on 11.06.2015, when the incident of repossession of the vehicle took place on 28.08.2012. Hence this Forum is unable to give any relief to the complainant over the time barred petition of complaint.
Fees paid is correct. Hence, it is
ORDERED,
That the consumer complaint being No. CC-34/2015 be and the same is dismissed on contest against the O.P./ Bank without cost. Let copies of this order be supplied to the parties free of cost.
