Haryana

StateCommission

A/106/2019

INDUSIND BANK LTD. - Complainant(s)

Versus

MAHENDER - Opp.Party(s)

MANISH SHARMA

05 Jun 2024

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:25.01.2019

                Date of final hearing: 23.05.2024

                                                Date of pronouncement: 05.06.2024

 

First Appeal No.106 of 2019

 

 

IN THE MATTER OF

 

IndusInd Bank Limited,

Branch Office: Chikara Chowk, Near Deshwal Food Point, Jhajjar.

Registered Office: 2401, General Thimaiya Road, Cantonment Pune-411001 through its POA Holder/Authorized Signatory Mr. Sukram Pal.

.….Appellant.

 

Through Counsel Shri Saurabh Savara, Advocate

 

Versus

 

 

Mahender Pal S/o Shri Umed Singh, R/o House No.545, Ward No.12, Village Dawla, Tehsil & District Jhajjar, Haryana.

….Respondent.

 

Through counsel Shri Piyush Aggarwal, Advocate

 

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Shri P.M. Goyal, counsel for the appellants.

                   Shri Ajay Ghanghas, counsel for respondent.

 

O R D E R

 

S. C. KAUSHIK, MEMBER:

 

 

 

 

                   Present appeal is preferred against the order dated 17.12.2018 in Consumer Complaint No.08 of 2018, passed by learned District Consumer Disputes Redressal Forum, Jhajjar (now ‘learned District Commission’), vide which complaint filed by the complainant was allowed and opposite parties (‘OPs’) were directed as under:-

“So, in view of our aforesaid observations, we hold that there is negligence and deficiency in service on the part of respondent in auctioning the vehicle of complainant without prior notice to the complainant in an illegal and arbitrary manner. Therefore, we direct the respondent to refund the amount as deposited by the complainant i.e. Rs. 40,500/- (i.e. margin money + advance EMI) by making a deduct ion of 10% for depreciation which comes to Rs.36,450/ -along with interest of 9% p.a. from the date of re-possession of vehicle till its realization. The respondent is also directed to issue the N.O.C. qua the said loan account to the complainant. The respondent is further directed to pay a sum of Rs.11,000/-on account of mental agony, harassment etc. and a sum of Rs.5500/ - to the complainant on account of litigation expenses for the present unwanted and unwarranted litigation only due to the deficiency in service on the part of the respondent.”

 

2.                Brief facts of the complaint filed before learned District Commission are that the complainant was owner of a three wheeler which was duly financed by the OP for a sum of Rs.1,65,000/ - and the loan amount was to be returned by the complainant in 36 instalments of Rs.7000/- each. It was alleged that the complainant had paid the due instalments regularly w.e.f. July, 2016 to January, 2017 but could not pay the instalment of the month of February, 2017 and as a result of which, the OP bank has taken re-possession of vehicle of complainant without any prior notice to the complainant. It was further alleged that the complainant many times requested the OP to release the said vehicle and also offered due instalment, but OP paid no heed to the requests of complainant. It was further alleged that due to this act and conduct of OP, the complainant suffered huge financial losses as well as mental and physical harassment. Thus, there was deficiency in service on the part of OP.

3.                Upon notice, OP appeared before learned District Commission and filed its written version by submitting therein that the complainant along with one Ramesh Kumar R/o village Dawla had applied for loan amount and undertook to pay the amount as per schedule issued by the OP. It was submitted that when the complainant made default in repayment, then co-borrower Ramesh Kumar told the OP that the complainant was not in a position to refund the amount and hence, he surrenders the vehicle to the bank on behalf of complainant. It was further alleged that despite calling through various notices, the complainant and co-borrower failed to clear the outstanding dues and ultimately, the OP had to sell out the vehicle in question of complainant as per terms and conditions of loan agreement. It was further alleged that even after the sale of vehicle, huge amount was outstanding and hence, the matter was referred to the Arbitrator for recovery. Moreover, the financier does not render any services within the meaning of Consumer Protection Act, 1986 and hence, the complainant was not a “consumer” of the OP. It was further alleged that the vehicle in question was not re-possessed by the OP rather it was surrendered by the co-borrower of complainant. Thus, there was no deficiency in service on the part of the OP.

4.                After hearing the parties, learned District Commission accepted the complaint of complainant and issued directions as mentioned above in 1^st para (Supra).

5.                Aggrieved from the impugned order passed by learned District Commission, OP-appellant has preferred the present appeal for setting aside the impugned order by accepting the present appeal.

6.                The arguments have been advanced by Mr. Saurabh Savara, learned counsel for the appellant and Mr. Piyush Aggarwal, learned counsel for respondent. With their kind assistance, contents of the appeal have also been properly perused and examined.

7.                Learned counsel for appellant has argued that the respondent-complainant has availed loan facility from the appellant along with his co-borrower namely Ramesh Kumar and he made defaults in repayment. He further argued that his co-borrower visited the appellant and told that the respondent-complainant was not in a position to refund the amount and hence, he surrenders the vehicle to the bank on behalf of respondent-complainant. He further argued that respondent-complainant was called through various notices i.e. 08.06.2017 & 16.07.2017, but respondent-complainant and his co-borrower failed to clear the outstanding dues and ultimately, the vehicle was sold out in terms of loan agreement. Even thereafter, a huge amount was outstanding, so the matter was referred to the Arbitrator for recovery. Finally he argued that the financier (appellant) does not render any services within the meaning of Consumer Protection Act, 1986 and hence, the respondent-complainant was not a “consumer” of the present appellant.

8.                On the other hand, learned counsel for respondent-complainant has argued that present respondent-complainant availed a loan facility of Rs.1,65,000/ -from appellant-OP for purchase of a three wheeler and said loan amount was to be returned by the respondent-complainant in 36 instalments of Rs.7000/- each. He further argued that he paid the due instalments regularly w.e.f. July, 2016 to January, 2017 but could not pay the instalment for the month of February, 2017 due to which appellant-OP(bank) has taken re-possession of the vehicle in question without any prior notice to the respondent-complainant except notice dated 16.06.2017 i.e. for the settlement of loan account. He further argued that the respondent-complainant also offered payment of due instalment with the request to release the said vehicle, but of no use. He further argued that due to this act and conduct of appellant-OP, he suffered financial loss as well as mental harassment. In support of his versions, he also placed reliance in Revision Petition No.3354 of 2014, case titled as “HDFC Bank Ltd. Vs. R. Govardhan Reddy” passed by Hon’ble National Commission vide order dated 12^th September, 2014.

9.                It is an admitted fact that the respondent-complainant purchased a three wheeler which was financed by the present appellant-OP for a sum of Rs.1,65,000/- @ interest of 11.55% p.a. It is also an admitted fact that the loan amount was to be returned by the respondent-complainant in 36 instalments of Rs.7000/- each w.e.f. 23.06.2016 till 21.03.2019 from which total interest amount comes out to Rs.57,172/-. It is also an admitted fact that the respondent-complainant had paid the margin money of Rs.33,500/- with other misc. and insurance charges besides advance EMI of Rs.7,000/- and in all he had deposited a total initial money of Rs.53,051/- with the present appellant-OP at the time of availing loan facility. It is also an admitted fact that respondent-complainant paid the due instalments regularly w.e.f. July, 2016 to January, 2017 but could not pay the instalment for the month of February, 2017 due to which appellant-OP(bank) has taken re-possession of the vehicle in question.  

10.              After going through the contents of the matter, as discussed above and contentions of learned counsel for both the parties, it is established that the respondent-complainant had availed of loan facility for Rs.1,65,000/- @  11.55% interest p.a. and he paid the installments regularly from July, 2016 to January, 2017 but could not pay the instalment for the month of February, 2017 due to his poor financial conditions at that time. It is also established on record that thereafter, respondent-complainant was ready to pay the due installments with interest, but during that period present appellant-OP(bank) has taken re-possession of the vehicle in question and sold out the same. As per the appellant, notices dated 08.06.2017 & 16.07.2017 were issued to respondent-complainant, but he failed to clear the outstanding dues. However, as per respondent-complainant he never received any notice regarding sale of his vehicle except notice dated 16.07.2017 i.e. for settlement of balance loan amount. Moreover, reliance placed on record by learned counsel for respondent-complainant on HDFC Bank Ltd. case (Para 9 supra) is fully applicable in the present case in hand, wherein it has been held that:-

“8. Though the petitioner-bank claims to have sold the tractor in question in an open publication, there is no material or even an averment that before conducting auction of the tractor, a public notice was given by the petitioner-bank in a newspaper circulating in the area wherein the auction was allegedly held. In the absence of public notice, the proposed auction did not get adequate publicity and, therefore, it cannot be said with a fair amount of certainty, that the tractor fetched the prevailing market price in the auction, which the petitioner bank claims to have held. This was yet another act of deficiency on the part of the petitioner-bank in rendering services to its customer.”

 

In the present case also present appellant failed to prove that they had issued any public notice before conducting auction proceedings of vehicle in question. So, it is also established that the respondent-complainant never received any notice qua auction/sale proceedings of vehicle in question.

11.              As far as the question of refund of paid amount of Rs.49,000/-, which the respondent-complainant had paid as repayment of loan to the appellant is concerned, in this regard it is pertinent to mention here that for that period the vehicle in question was in the possession of respondent-complainant, so that amount cannot be allowed to be refunded. But it is also established as well as admitted that respondent-complainant had paid an amount of Rs.33,500/- as margin money and Rs.7,000/- as an advance EMI (in total Rs.40,500/-) and in considered view of this Commission, said amount of Rs.40,500/- should be refunded to respondent-complainant as the vehicle in question was sold out by appellant in auction proceedings and the same is no more in possession of respondent-complainant.

12.              Accordingly, in the absence of any evidence regarding any auction proceedings or sale proceeds, learned District Commission rightly observed that there is negligence and deficiency in service on the part of present appellant-OP in auctioning the vehicle of respondent-complainant without prior notice to respondent-complainant and rightly issued directions to the present appellant-OP.

13.              In view of the above observations and discussion, learned District Commission rightly allowed the complaint of the complainant. The impugned order passed by learned District Commission is well reasoned, based on facts and as per law, and therefore, there is no need to interfere with it. In view of this, present appeal is without merits and thus, stands dismissed.

14.              Statutory amount of Rs.25,000/- deposited at the time of present appeal be refunded to the appellat against proper receipt, identification and as per rules.

15.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

16.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

17.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 05^th June, 2024                                                 S.C. Kaushik           

                                                                                                            Member                                                                                                                                 Addl. Bench

 R.K