Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                               President

                    (2)      Smt. Karishma Mandal,

                              Member

Date of Order : 31.03.2017

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite party no. 1 to 3 to return the documents namely, the original registered sale deed, 6 blank cheque of Madhya Bihar Gramin Bank, Jogipur, Hilsa Nalanda and the copy of identity card to the complainant.
2. To direct the opposite parties to pay the value of 20 quintal Masur i.e. Rs. 60,000/- ( Rs. Sixty Thousand only ) along with 18% interest.
3. To direct the opposite parties to pay the cost of accessories i.e. Rs. 15,900/- ( Rs. Fifteen Thousand Nine Hundred only ) and the charge of body making of the vehicle i.e. Rs. 68,580/- ( Rs. Sixty Eight Thousand Five Hundred Eighty only ) along with 18% interest.
4. To direct the opposite parties to refund the amount of Rs. 3,36,029/- ( Rs. Three lack Thirty Six Thousand twenty Nine only ) to the complainant along with 18% interest.
5. To direct the opposite parties to pay Rs. 5,00,000/- ( Rs. Five Lacks only ) as compensation.
6. To direct the opposite parties to pay Rs. 10,000/- ( Rs. Ten Thousand only ) as litigation costs.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that the finance company (opposite party no. 1) entered in an agreement with him ( complainant) on 27.09.2008 for the purpose of enabling him to purchase a vehicle but the copy of the aforesaid agreement was never served on the complainant. Thereafter, the complainant purchased a vehicle i.e. Bolero Pickup Van after obtaining loan from opposite parties and thereafter the aforesaid vehicle was registered vide annexure – 1 and insured with Bajaj Allianz general Insurance Company Ltd. As per annexure – 2 the loan amount with other charges were repayable in 35 monthly installment in a time span of 3 years commencing from 27.09.2008 and ending on 30.07.2011. The 34^th installment were of Rs. 12,700/- and the last 35^th installment was of Rs. 11,900/-. The initial amount i.e. Rs. 1,10,929/- was paid by the complainant and thereafter the installment was paid by him till 30.12.2009 as per annexure – 3 series.

It is further case of the complainant that on 11.01.2010 while the complainant was driving his vehicle loaded with Masur his vehicle was passing through Mithapur bus stand, it was stopped by muscleman and the same was forcibly taken in possession by opposite party no. 3 and 4 along with three muscleman. The complainant thereafter approached opposite party no. 3 to release the said vehicle loaded with Masur then he was asked to bring Rs. 50,000/-. Annexure – 4 is the loading advise which shows the loading of Masur. Thereafter, the complainant arranged Rs. 50,000/- and paid to opposite party no. 3 and thereafter opposite party no. 3 asked the complainant to come after a month for receiving payment receipt and collect the vehicle. Thereafter on 13.05.2010 the complainant visited opposite party no. 3 and 4 for receives payment receipt and the said vehicle, but he was directed to collect the said vehicle from the campus of the said company. The complainant went there for collecting the said vehicle which was empty. Then, complainant requested opposite parties to pay the price of Masur which was loaded on the said vehicle at the time of taking the same in possession. The opposite parties refused to pay the price of Masur i.e. 60,000/- and turned the complainant out and said that now the vehicle will not be handed over to him. Thereafter the complainant filed a complaint case bearing no. 1297/10 before learned C.J.M. in which the non – bailable warrant has been issued against opposite party no. 3.

The complainant has further asserted that from the reply of opposite party no. 3 in complaint case no. 1297/10 he came to know that the said vehicle has been sold to Vijay Kumar. The complainant has further asserted that the company has neither returned six blank cheque nor paid the price of accessories. The photocopy of bill of the accessories have been annexed as annexure – 6 series.

On behalf of opposite parties a show cause/ written statement has been filed stating therein that the entire dispute is a contractual dispute which cannot be decided with this learned forum with limited jurisdiction.

From perusal of Para – 6, 7 and 8 of the written statement it is crystal clear that the loan and purchase of vehicle has been admitted. In Para – 10 of written statement it is asserted that in clause – 12 of loan agreement it was mentioned that in case of default in payment it would be open for opposite parties to take the hypothecated vehicle in custody from the complainant and this clause in consonance with circular of Reserve Bank of India containing annexure – B.

In Par a- 13 of the written statement following facts have been asserted, “that therefore, the opposite party took custody of the hypothecated vehicle and sold the same on 07.05.2010 as per the terms of the agreement to realize the outstanding dues towards the loan account of the complainant.”

From perusal of Para – 14 it appears that the said vehicle has been sold to Vijay Kumar who made the higher offer of Rs. 2,85,000/-.

In Par a- 30 of written statement the averment made in Para – 10, 11, 12 and 13 of the complaint petition has been simply denied.

On behalf of opposite parties an application has been filed U/s 8 of the Arbitration and Conciliation Act 1996 praying therein to refer the present dispute for Arbitration as per Arbitration clause.

On behalf of the complainant a rejoinder has also been filed repeating the same fact and stating that this is complaint is maintainable. The complainant has denied several allegation of the opposite parties

We have narrated the facts of the parties in brief in the foregoing paragraphs.

Heard the learned counsel for the parties.

It is the case of the complainant that he had purchased the aforementioned vehicle after obtaining the loan granted by opposite party no. 1. The said vehicle i.e. Bolero Pickup has been purchased by the complainant for his livelihood.

The grievance of the complainant is that he had paid several installments as per agreement and due to certain difficulties he could not pay certain installments for some time and due to this the opposite party no. 1, 2 and 3 with assistance of muscleman forcibly taken the possession of the aforesaid vehicle which was loaded with Masur. The opposite parties have denied this fact but they have admitted the reselling of complainant’s vehicle to one Vijay Kumar for the price of Rs. 2,85,000/-.

We are conscious of the fact that for recovering of price of Masur etc. Criminal case is pending but the very admission of the opposite parties that the complainant purchased the aforesaid pickup after taking loan from the opposite parties and the said pickup had been sold to one Vijay Kumar by opposite parties clearly prove the case of the complainant that the aforesaid pickup was taken possession forcibly.

No any documents had been filed on behalf of opposite parties to prove that prior to taking delivery of aforesaid pickup any notice was served on the complainant or there was any order of the competent authority to take possession of the aforesaid pickup.

There is no assertion of the complainant that the aforesaid pickup was taken possession with assistance of police or state machinery.

It is needless to say that Hon’ble Apex Court of India in cantena of decision have been pleased to hold that bank or financer have no right to resort the help of muscleman for taking possession of any vehicle etc. from a citizen of India.

For the discussion made above we find and hold that taking possession of the said vehicle from the possession of complainant with assistance of muscleman has resulted in serious deficiency.

Hence we direct the opposite parties to pay the cost of accessories i.e. Rs. 15,900/- ( Rs. Fifteen Thousand Nine Hundred only ) as well as the amount in making the body of vehicle i.e. Rs. 68,580/- ( Rs. Sixty Eight Thousand Five Hundred Eighty only ) total Rs. 84,480/- ( Rs. Eighty Four Thousand Four Hundred Eighty only ) within the period of two months from the receipt of this order or certified copy of this order failing which opposite parties will have to pay 12% interest on Rs. 84,480/- ( Rs. Eighty Four Thousand Four Hundred Eighty only )till its final payment.

Opposite parties are further directed to refund the amount of Rs. 3,36,029/- ( Rs. Three Lack Thirty Six Thousand Twenty Nine only ) to the complainant within the same period failing which opposite parties will have to pay 12% interest on Rs. 3,36,029/- ( Rs. Three Lack Thirty Six Thousand Twenty Nine only ) till its final payment.

Opposite parties are further directed to pay Rs. 10,000/- ( Rs. Ten thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.

Accordingly this complaint stands allowed to the extent referred above.

                             Member                                                                              President