Case No. CC/09/2019
COMPLAINANT :1. Chinmoy Saha,
S/O. Late Nemai Chandra Saha,
Aged 42 years,
Resident of Shaktinagar,
Anjanapara, Annanta Hari Mitra Road,
P.O. Shaktinagar, P.S. Kotwali,
Dist. Nadia, Pin-741101.
V-E-R-S-U-S
OPPOSITE PARTIES / 1.Cholamandalam Investment and Finance
Company Ltd., Represented by Manager,
Having office at Dare House, 2, N.S.C. Bose
Road, Parrys, Chennai-600001.
2. Cholamandalam Investment and Finance
Company Ltd., Krishnagar Branch, Represented
by Branch Manager, having office at 32,
Biswamver Roy Road, 3rd Floor, Shrishti Lodge,
Challenge More, Krishnagar, Nadia -741101.
Ld. Advocate(s)
For Complainant: Tathagato Biswas
For OP/OPs : Raja Bhattacharya
Date of filing of the case :21.01.2019
Date of Disposal of the case :01.09.2023
(2)
Final Order / Judgment dtd.01.09.2023
Complainant above named filed this complaint u/s 12 of the Consumer Protection Act, 1986 against the aforesaid opposite parties.
He alleged that he had intention to purchase one Eicher 1059 PRO/LCV and visited the showroom of vehicle at Bhatjangla and they gave the reference of opposite parties and they arranged the finance. Complainant gave some down payment. Opposite parties gave some amount and thereafter, complainant purchased the said vehicle and it was duly registered with the RTO and said vehicle was registered as valuable no.WB51-B-5940. Thereafter, complainant started to make payment to the opposite parties. But due to loss in medical business an amount of Rs.45,679/- was fallen due in the said loan account. Opposite parties without any notice took the aforesaid vehicle in their possession and same was sold to third party without any notice to the complainant. Most illegally said vehicle of Rs.13,00,000/- was sold for 5 lakh without any notice to the complainant or without any discussion with the OP. No document of sale of aforesaid vehicle was provided to complainant. Only orally it was stated that vehicle was sold with the price of Rs.5,00,000/-. Even this fact was informed to the complainant on 07.01.2019. The age of the said vehicle was one year only.
Complainant had another vehicle vide no.WB51A 6082 which was 1109 model. Complainant purchased the said vehicle through finance of opposite parties. Same was running and no instalment was due. Suddenly on 07.01.2019 opposite parties took the possession of the said vehicle while it was coming from Burdwan loaded with three hundred bags cement. OP No.2 misbehaved with the complainant when he requested to release the vehicle. On that time OP No.2 told that previous vehicle has been sold and as there is deficit in the loan account, so vehicle vide No.WB51A 6082 was taken into possession. No document was given to the complainant. Aforesaid act of opposite parties are illegal. Complainant has filed an application praying for interim order, so that opposite parties cannot sale the vehicle no.WB51A 6082. Hence the complainant filed this case and prayed for direction to the Ops to pay Rs.9,00,000/- as compensation for deficiency of service.
Complainant had filed one petition praying for interim order restraining the opposite party number 2 from transferring the vehicle vide Registration Number WB51A 6082 till disposal of the case.
This Commission in respect of the aforesaid petition passed order number 3 dated 22.01.2019 and restrained the OP No.2 from transfer/dispose/alienate the alleged vehicle being number WB51A 6082 to any other party/third party till disposal of the instant case.
OP NO.1 & 2 contest the case by filing a W/V. They denied the entire allegations made in the petition. They further stated that complainant took two loans bearing number XVFPKRI00000882892 in respect of vehicle vide number
(3)
WB51A 6082 dated 31.12.2012 and loan being number XVFPKRI00002033844 for the vehicle bearing number WB51B 5940 dated 30.06.2017 but complainant defaulted to pay the EMI within the stipulated time and as such he became defaulter customer. In spite of several requests the complainant intentionally neglected and /or failed to pay the outstanding amount to the opposite parties in respect of vehicle number WB51B 5940. Complainant had total liability of Rs.98,246/-. In another loan account he had defaulted to Rs.63,627/- (Plus interest and other parties). To escape from the legal demand of the Ops, complainant filed this case with false allegations. Ops are the financer of the complainant’s vehicle and complainant is in duty bound as per the contract to pay the monthly instalments to the Ops within stipulated time. But OPs are not at all responsible in respect of any of the problem of the complainant. He further stated that it is settled proposition of law that where an applicant obtained an order by making misrepresentation or making fraud upon the competent authority, such order cannot be sustained in the eye of law.
Trial
During trial complainant filed affidavit in chief. Opposite parties filed questionnaire and complainant gave answer.
OP No.1 &2 did not adduce any evidence.
Documents
Complainant filed the following documents.
- Letter issued by OP No.1 & 2 in favour of the complainant dated 21.01.2019………(Two sheets)………(Xerox).
OP No. 1 & 2 filed one document with his BNA.
- Account statement as on 03.08.2023……….(One sheet)………(Computerised copy)
Brief Notes of Argument
Complainant filed BNA. OP No.1 & 2 filed BNA.
Decision with Reasons
On perusal of petition of complaint, affidavit in chief and documents filed by the complainant and documents filed by the OP No.1 &2, we find that admittedly complainant purchased one vehicle vide No.WB51B 5940 after taking loan from the OP No.1 &2. It is also admitted position that complainant had purchased another vehicle vide no.WB51A 6082 after taking loan from the OP No.1 & 2.
(4)
It is the allegation of the complainant that there was meagre amount due in the loan account relating to vehicle no.WB51B 5940 but OP No. 1 & 2 forcibly took the possession of the said vehicle and illegally and whimsically sold the same with Rs.5,00,000/- whereas on that time value of the vehicle was 13,00,000/- and said vehicle was one year old. Ld. Adv. for the complainant argued at the time of hearing that a vehicle valued at rupees more than Rs.13,00,000/- cannot be sold with Rs.5,00,000/- after one year. By this way OP NO.1 & 2 cheated the complainant. Moreover, OP No. 1 &2 did not give any notice before auction sale of vehicle no.WB51B 5940.
He further submits that OP NO.1 &2 forcibly took away the another vehicle vide no.WB51A 6082 from the custody of the complainant and OP No.1 & 2 took attempt to sale the same. Thereafter, complainant filed this case and prayed for ad interim order. This court granted the same and same is still in force.
Now the question comes before this Commission that OP NO.1 & 2 can sale the vehicle no.WB51B 5940 without giving any notice to the complainant or not.
In the context, we have carefully gone through The Security Interest Enforced Rules framed by Ministry of Finance and Company Affairs (Department of Economic Affairs) (Banking Division) dated 20.09.2018. Rule 4 have been framed relating to sale of movable secured asset. As per rule 4 one authorised officer will be entrusted for the said purpose. He shall take the possession of movable property. Authorised officer shall take possession of such movable property in presence two witnesses. After preparing Panchnama in appendix I. Authorized officer shall make or cause to be made an inventory of the property and copy of such inventory be handed over to the borrower . Borrower shall be intimated by notice. Authorized officer shall obtain the estimated value of the movable secured assets and thereafter, if considered Authorized officer, fix in consultation with the secured creditors the reserve price of the assets to be sold for realisation of the dues of the secured creditor. In rule 6 methods of sale has been described. Authorized officer shall serve to the borrower a notice of 30 days for sale of the movable secured asset under sub-rule (1). He shall cause a public notice in the format given in appendix II-A to be published in two leading news papers including one in vernacular language having wide circulation in the locality.
(5)
In the present case no such documents have produced before us in support of the fact that OP NO.1-2 complied the aforesaid directions as per aforesaid rules.
In absence of any such document we have no other alternative but to hold that OP NO.1-2 violated the aforesaid rules.
Accordingly, we find that OP No.1 & 2 did not follow the mandatory provision mentioned in Rule-6 of aforesaid Rules.
On perusal of record, we also find that OP NO.1 &2 took the possession of vehicle No.WB51A 6082 as per record said vehicle is lying with the custody of OP No.1 & 2. As per record, it is also clear before us that OP NO.1 & 2 not yet sold the same till date.
Complainant alleged that OP NO.1 & 2 sold the vehicle vide no.WB51B 5940 illegally at the value of Rs.5,00,000/- whereas on that time value of the said vehicle was Rs.13,00,000/- because it was one year old. OP NO.1 & 2 failed to produce any satisfactory document before this Commission against the said fact. Accordingly, we have no hesitation to hold that aforesaid. Act which have done by OP NO.1 & 2 relating to sale of aforesaid vehicle is nothing but whimsically Act and illegal Act. Their aforesaid act are nothing but deficiency in service.
On perusal of record, we find that complainant is the consumer and OP NO.1 & 2 are the service provider.
Having regard to the aforesaid discussion, it is clear before us that that OP NO.1 & 2 violated the law of the land and their aforesaid act are nothing but deficiency in service and complainant has able to established his grievance by sufficient documents beyond reasonable doubt and he is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against the OP No.1 & 2 with cost of Rs.5,000/- (Rupees five thousand) to be paid by OP NO.1 & 2 in favour of the complainant.
OP NO.1 & 2 are further directed to return the vehicle vide no.WB51A 6082 in favour of the complainant and he shall produce the fresh account statement relating to loan of the said vehicle excluding the interest from the date of possession of the aforesaid vehicle to till date and complainant is directed to repay the said loan amount being satisfied with the statement within 60 days from this date.
(6)
OP NO.1 &2 are further directed to pay compensation amounting to Rs.9,00,000/-(Rupees nine lakh) in favour of the complainant within 45 days from this date as they whimsically sold the vehicle vide no.WB51B 5940 without observing the illegal formalities as stated above failing which complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
