Order dictated by:

Sh.S.S. Panesar, President

1.       Sh.Harbinder Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that  he purchased one Piaggio Auto Rickshaw bearing registration No.PB-46K-3230 from Opposite Party No.2 on 6.6.2011 for his self employment and earning  his livelihood and got the same partially financed from Opposite Party No.1. The complainant is consumder of the Opposite Parties  as provided under the Act and is competent to invoke the jurisdiction of this Forum as provided under the Act.  The complainant at the time of purchase of aforesaid vehicle from Opposite Party No.2 for Rs.1,61,000/- paid Rs.1 lac in advance to Opposite Party No.2 and rest of the amount has been financed by Opposite Party No.1 through Opposite Party No.2. The  complainant is regularly making the payment of installments to Opposite Party No.1 through Opposite Party No.2. lastly, when the complainant made payment on 15.3.2012 for Rs.45,000/-, the Opposite Parties  showed the remaining balance as Rs.28,020/-. Lateron the complainant paid Rs.9500/- to Opposite Parties. The complainant has been regularly approaching the ops has been regularly approaching the Opposite Parties  to make the balance payment, but the Opposite Parties  are not giving any detail of balance payment to the complainant, and rather Opposite Parties  are insisting to take over the vehicle in dispute and sending their muscle men to recover the aforesaid vehicle, but the complainant with the help of the neighbourers and friends always avoided their malafide intention. The complainant is ready and willing to make the balance payment to Opposite Parties, but they are not giving details of  the account. The aforesaid acts of the Opposite Parties for not accepting the genuine request of the complainant is an act of deficiency in service, unfair trade practice and mal-practice and are not sustainable in the eyes of law. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may kindly be directed not to take forcible possession of the vehicle in dispute.

b)      Opposite Parties  may kindly be directed to pay Rs.50,000/- as damages and compensation to the complainant for causing mental harassment.

c)       Opposite Parties  be also directed to pay complete costs of the present litigation.

Hence, this complaint.

2.       Upon notice, opposite parties No.1, 2  appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that the present complaint is not maintainable; that the present complaint is a malafide one as it has been filed by the complainant just to harass and pressurise the Opposite Parties  and to drag them into frivolous litigation, otherwise there is no merit in the same; that no cause of action arose to the complainant to file this complaint against the Opposite Party; that the complainant has not come to this Forum with clean hands and has rather concealed the true and hard facts from this Forum, therefore, he is not entitled to any relief. On merits, the sale of the vehicle in question by Opposite Party No.2 to the complainant is admitted. It is also admitted that  the vehicle in question was purchased for a sum of Rs.1,61,000/-, but the charges for the insurance and RC were separate and after adding the amount of insurance and RC, the total amount comes to Rs.1,85,000/-. It is also added here that the interest @ 24% per annum annual was to be charged from the complainant, but it is denied that the complainant is regularly making the payment of instalments to Opposite Party No.1 through Opposite Party No.2. In fact, the instalments were not paid by him timely after 15.3.2012. So far as the payments are concerned, it is a matter of record. The complainant committed default in the payment of instalments and  the Opposite Parties kept on informing him to pay the instalments timely and his balance was also duly informed to him from time to time by Opposite Parties. Now as on 1.6.2014 the balance amount outstanding against the complainant is Rs.36,930/- which he failed to pay inspite of repeated demands and requests from time to time. Even the complainant had also executed a document in the shape of Yaadashtnama on 10.2.2014 in favour of the Opposite Parties  undertaking to pay the balance amount to them. However, if the complainant fails to make the balance payment to the Opposite Parties, they have legal right to take possession of the vehicle in question. There is no malafide intention of the Opposite Parties  in any manner.  The Opposite Parties  are legally entitled to recover the balance amount from the complainant. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2  to Ex.C 12  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh. Amit Kumar Ex.OP1,2/1 alongwith copies of documents Ex.OP1/2/2 to Ex.OP1,2/4             and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       Ld.counsel for the Opposite Parties  has vehemently contended that vehicle in dispute was financed by Opposite Party No.1 through Opposite Party No.2 and the complainant was defaulter as per the Yaddashnama Ex.OP1.2/2. The complainant owe a sum of Rs.33,700/- as on 10.2.2014, whereas he was defaulter to the tune of Rs.36,930/- as on 1.6.2014 towards the loan facility availed by the complainant. In such a situation,    Opposite Party No.1 has full right to repossess the vehicle  in dispute. The complainant is a habitual defaulter. Opposite Party No.1 has not threatened the complainant to repossess the vehicle in dispute, but in case the complainant does not regularize the loan account, Opposite Party No.1 is within its legal right to repossess the hypothecated vehicle. The complainant has not approached the Forum with clean hands & he is guilty of suppression of material facts from this Court. As such, the complaint is liable to be dismissed  and the same may be dismissed with cost.      

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the opposite party has not issued any prior notice before issuing the threat of repossession of the vehicle in dispute nor the opposite party has declared the complainant a defaulter so far. Both these requirements  were a condition precedent for  repossessing the vehicle in dispute. The act of the opposite party in threatening the complainant  to repossess the vehicle in dispute without issuing prior notice or declaring him a regular defaulter is illegal and nonest. Reliance in this connection can be had on  L & T Finance Ltd. & Anr.-Petitioners Vs. Rampada Maity-Respondent 2016(2) CLT page 343 (NC) , wherein it has been laid down that in our view when a transporter finance company such as the petitioner before us, finances a vehicle and there is a default on the part of the borrower in servicing the loan taken by him, it must necessarily issue a notice to him expressing its intention to repossess the vehicle in exercise of the power conferred upon it under the loan agreement before the vehicle is actually repossessed by it. The purpose behind insisting upon such a notice being given to the borrower is to give him an opportunity to approach the financer and either bring the payment if already made by him to the knowledge of the financer or to convince the financer that it was on account of reasons beyond his control that he could not service the loan and, therefore, the default committed by him may be condoned. It is quite possible that the financer may get convinced from the circumstances so explained by the borrower and may not insist upon repossessing the vehicle, his primary objective being to recovery of loan given to the borrower and not to repossess the vehicle financed by it. If a vehicle is repossessed, without giving such a notice to the borrower, not only it has the potential to disrupt the business or profession in which the borrower is engaged using the vehicle, it may also result in his image and reputation in the society being lowered on account of the abrupt, sudden and forcible seizure of the vehicle by the financer. If a notice expressing intention to repossess the vehicle on the default of the borrower is given to him, he gets ample opportunity to prevent the proposed seizure by approaching the financer and either paying the amount which he has unable to pay alongwith appropriate interest and/or penalty on that amount or to dispose of the vehicle at his own level and repay the loan taken by him. Therefore, in all fairness, the financer must given a reasonable notice to the borrower before repossessing the vehicle financed by it and in no case the vehicle should be repossessed by use of force. In our opinion, the seizure of the vehicle in such circumstances constitutes deficiency in service causing tremendous mental torture and stress to the borrower who all of a sudden finds himself without the vehicle which he had purchased albeit with the financial assistance taken from the lender. The borrower in such circumstances does not get an opportunity to arrange the requisite finances to repay the  amount which he defaulted in paying to the lender before the vehicle comes to be repossessed by the lender. The mental torture and agony would be greater when the vehicle is  repossessed in his absence. We are of the considered view that since there was a deficiency on the part of the company in rendering services to the complainant/respondent, the said company ought to pay suitable compensation to the complainant.

8.       Ratio of the judgement supra is fully applicable to the facts of the present case. From the aforesaid discussion, it transpires that Opposite Parties have wrongly threatened  the complainant  for repossession of the vehicle in dispute. Since the  Opposite Parties  have  not declared the complainant a ‘defaulter’ nor they have issued any prior notice to the complainant expressing their intention to repossess the vehicle in dispute. As such, Opposite Parties  are not entitled to repossess the vehicle in dispute forcibly. Consequently, the complaint stands allowed to that extent accordingly, however, the Opposite Parties  shall be at liberty to repossess the vehicle in dispute after complying with the necessary requirements as stated above. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum