IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.
Present: 1.Shri Biraja Prasad Kar, President,
2.Sri Pitabas Mohanty, Member,
3.Miss Smita Ray, Lady Member.
Dated the 8th day of January ,2015.
C.C.Case No.22 of 2014
SK.Raheman S/O SK.Sahid
Vill.Goleipur, P.O. Hatasahi,
Dist. Jajpur. ……………… ……....Complainant .
(Versus)
1.L& T Finance Ltd,City-2 Building ,plot No.177,CST Road,Vidyanagari Marg,
Kalina,Santacruz (East) Mumbai.
2. L & T Finance Ltd, Plot No.428/3818,2nd floor,Jayadev Nagar,Bhubaneswar.
3. L & T Finance Ltd, Nayak building,1st floor, Near Cuttack Co-Op-Bank,
Sunguda,Chandikhole,Dt.jajpur. .. …………………………Opp.Parties.
For the Complainant: Sri B.N.Panda, P.K. Sejapada, D.K. Nath , Advocates.
For the Opp.Parties : Sri Deepak Kumar, Sri B. K. Tripathy, Advocates.
Date of order : 08.01.2015
SHRI PITABAS MOHANTY, MEMBER .
This is a dispute which has been filed by the petitioner alleging negligence on the part of the O.Ps. due to non-cancellation of agreement as well as non-issuance of the N.O.C against the financed vehicle.
The facts as stated by the petitioner in the complain petition shortly is that the petitioner purchased a vehicle bearing No.04-M-5572 by availing loan from the O.Ps. on the strength of hypothecation agreement only to maintain his family and partly lively hood since the petitioner is a small scale farmer. As per term and conditions of the agreement after availing the loan though the petitioner has paid Rs.1,10,000/- at the intial stage and subsequently Rs.40,152/- on 06.08.2011, Rs.40,152/- on 05.11.2011 and other installments but due to closer of mining operation could not able to pay the monthly installments . Accordingly the petitioner requested the Authority to take back the vehicle and after cancelling the agreement issue N.O.C.. In this context though the petitioner has made several correspondence but the O.Ps. without taking any action to the approach of the petitioner subsequently has suggested for one time settlement by paying Rs.6,76,920/- . In view of the above narrated situation the petitioner has filed the present dispute in the Fora for appropriate relief to direct the O.Ps. to issue N.O.C after cancelling the agreement of the alleged above cited financed vehicle.
After appearance the O.P no.1 and 2 have filed the written version wherein the O.Ps. have taken the following defence:
The dispute is liable to be dismissed against the O.Ps. since
- The petitioner is using the vehicle for commercial purpose since there is no specific pleading in the complaint petition that he was using the vehicle to earn his lively hood . According to O.Ps. the petitioner has availed a loan of Rs.14,34,000/- for purchasing the above cited vehicle in executing the loan-cum-hypothecation agreement. As per term and conditions of hypothecation agreement the petitioner is required to repay the loan in 45 installments having each monthly installments of Rs.40,152/- and in case of default the petitioner is liable to pay 36% penal interest. Further as per term and condition of hypothecation agreement .
As per Clause 3.1 of the loan agreement expressly states that the Borrower shall pay the loan dues punctually on their due dates.
As per Clause 9.1 of the loan agreement expressly states that the Borrower declares that the right of the payment of all the loan installments, interest and all other charges and monies under the Loan Agreement shall be absolute and unconditional.
As per Clause-12.1 defines that in case the customer / borrower defaults in repaying the loan amount in time / due date the same shall be construed as an act of default.
As per Clause-13.2 also empowers the financer to recover from the borrower the arrears of money due and unpaid up to the date of termination and such other installments for the unexpired period, had this agreement continued.
As per Clause-13.3 empowers the financer to initiate appropriate legal action under applicable laws.
As per Clause-13.4 gives power to the financer to repossess, sell or otherwise dispose of the asset in the event of default.
As per Clause-17.1 states that any question, dispute or difference that arises between the parties shall be settled through Arbitration.
In the present case since it is undisputed facts as per para-6 of the complain petition that the petitioner has violated the term and condition of loan-cum-hypothecation agreement, the O.Ps. finding no other way after taking possession of the above cited vehicle sold the same in auction and recovered Rs.7,55,000/- . At present the balance outstanding amount of Rs.7,34,980.99/- is laying against the petitioner to which the petitioner is liable to pay as per term and condition of the agreement. In addition to it further it is stated by the O.Ps. that as per specific request of the petitioner a settlement letter was issued to the petitioner but the petitioner did not clear up the loan amount as per the settlement letter . Accordingly the settlement letter has been withdrawn . As such the dispute is liable to be dismissed owing to the above narrated clarification since there is no deficiency in service on the part of the O.Ps.
After perusal of the record along with the relevant documents of both the parties , it is cristal clear that the petitioner has purchased the above cited vehicle on availing loan from the O.Ps. by executing hypothecation agreement . It is also not disputed vide para-5 of the complaint petition that after payment of Rs.1,10,000/- at the initial stage of availing the loan and subsequently Rs.40,152/- on 06.08.2011 and Rs.40,152/- on 05.11.2011 and other installments the petitioner became defaulter. In such defaulted situation we are unanimously in the considered view that O.Ps. are empowered to re-possess the vehicle as per clause-13.4 of the hypothecation agreement as stated by the O.Ps in their written version. Such repossession of financed vehicle in case of default of payment of installments is also supported by Hon’ble Supreme Court and National Commission reported in 2006-CTJ-209-SC(Managing Director Orix Auto (India) Pvt. Ltd. Vrs. Jagmandar Singh and 2011(3) CPR-113-NC, 2012(1)CPR-197-NC (Mahindra & Mahindra Vrs. Sankatha )
As regards the prayer from the side of the petitioner for a direction to O.Ps. for cancellation of agreement as well as for issuance of N.O.C, we are not inclined to grant such prayer since as per observation of Ranchi State Commission reported in 2012(1)CPR-317-Ranchi (Ashish Financer Vrs Anaj ku. Sinha) the petitioner is not entitled for NOC unless financed amount is paid back as well as the petitioner is bound by term and condition of hypothecation agreement since it is a contract as per observation of Hon’ble Supreme court reported in 1996(II) CPJ-25-SC-vide para-5 (Bharati knitting Vrs. Dil world wide . Accordingly the dispute is liable to be dismissed against the O.Ps.
O R D E R
In the result the dispute is dismissed against the O.Ps. having no cost.
This order is pronounced in the open Forum on this the 8th day of January ,2015. under my hand and seal of the Forum.
(Shri Pitabas Mohanty)
(Shri Biraja Prasad Kar ) Member.
President. Typed to my dictation & corrected by me
(Miss Smita Ray) (Shri Pitabas Mohanty)
Member. Member.
