C.F. CASE No. : CC/10/86
COMPLAINANT : Sri Kanchan Das
S/o Narayan Das
of Segun Bagan, P.O. Krishnagar
P.S. Kotwali, Dist. Nadia
represented by his Attorney
Debashis Bagchi
S/o. Late Rabindra Nath Bagchi,
of Chandra Bhusan Bhaduri Lane,
P.O. Krishnagar P.S.Kotwali, Dist. Nadia
OPPOSITE PARTIES/OPs : 1) Manager,
I.C.I.C.I. Bank Ltd.
I.C.I.C.I. House,
3A, Gurusaday Road, 2nd Floor,
Kolkata – 700019
2) Manager,
I.C.I.C.I. Bank Ltd.
Kalyani Branch,
Central Park, P.O. & P.S. Kalyani,
Dist. Nadia
3) Sakti Biswas,
Authorised Agent
I.C.I.C.I. Bank, Natun Kalipur
P.O. Bhatjungla,
P.S. Kotwali, Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 23rd December, 2010
: J U D G M E N T :
In brief, the case of the complainant is that he purchased a truck bearing Regd. No. WB-23B/3393 after taking financial assistance of Rs. 10, 70,000/- from the OP bank. At the time of taking loan it was settled that the complainant would have to pay Rs. 26,070/- per month as instalment starting on and from 22.09.07 and to be ended on 22.04.12, i.e., by 59 monthly instalments. He used to pay the EMI amount from time to time up to 22.09.08. Thereafter he became ill, for which he failed to pay the EMI amount for the months of September, 08 to October, 08. As he failed to pay EMI amount for the above two months, so the OP seized the vehicle from Krishnagar and took possession of the same on 15.11.08 after handing over a seizure list to the driver of the vehicle to one Rabi Halder without any prior intimation to him. The complainant submits that by using the vehicle for his livelihood he earned Rs. 50,000/- per month as net profit after making all recurring and other expenditure. Soon after seizure the constituted attorney of the complainant went to the bank and requested to take the defaulted EMI amount and to settle the matter with the complainant. But the OP bank neither accepted the EMI amount nor gave any information about the whereabouts of the vehicle. By this act of the OPs the complainant suffered financial loss of Rs. 5,00,000/-. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
The OP No. 1 & 2 have filed a written version in this case, inter alia, stating that the complainant is not a consumer under the C.P. Act, and so this case is not maintainable in its present form and nature. They have denied all the material allegations of the petition of complaint. From the written version it is available that this complainant took a loan of Rs. 10,70,000/- from the OP bank to purchase a truck bearing No. WB 23B/3393 after executing a loan-cum-hypothecation agreement with the OP bank. As per the terms of the agreement the complainant had to repay the loan amount along with interest by 20 monthly instalments. The complainant was irregular in the making payment of instalments. The date of first instalment payment was on 22.09.07, but the complainant paid the said instalment amount on 21.09.07. The date of payment of second instalment was on 22.10.07, but the petitioner paid that instalment amount on 25.11.07. Thereafter, the OP issued a notice dtd. 03.08.08 to the petitioner thereby calling upon him to pay the outstanding amount, but the complainant did not pay any heed to the request of the OPs. So the OPs as per terms of the agreement took possession of the vehicle on 15.11.08 and after due service to the complainant the vehicle was sold in auction on 30.01.09 at a price of Rs. 8,20,000/- when the due amount to the petitioner was Rs. 1,52,018/- along with overdue charges @ 24% per annum. Notice was served upon the petitioner to make payment within 7 days from the date of receipt of this letter towards full and final settlement of the loan amount and for taking delivery of the assets. As the complainant failed to comply with that, so the vehicle was sold in auction on 30.01.09. After auction sale the due amount stands at Rs. 2,32,018/- which the complainant is still liable to pay. So no question of deficiency in service on the part of the OPs does arise. Therefore, the complainant has no cause of action to file this case and the same is liable to be dismissed with against them.
POINTS FOR DECISION
Point No.1: Is the complainant a consumer?
Point No.2: Has the complainant any cause of action to file this case?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written version filed by the OPs along with annexed documents filed by both parties and also after hearing the arguments advanced by the ld. lawyers of both sides it is the admitted case of both the parties that the complainant took a loan of Rs. 10,70,000/- from the OP bank for purchasing a truck No. WB 23B/3393. It was also fixed that the complainant had to repay the loan amount along with the interest @ tune of Rs. 26,070/- per month as per instalment by 59 monthly EMI starting from 22.09.07 to 24.04.12. It is available on record that the complainant paid monthly instalments since 22.11.07 to 22.09.08 i.e., 10 monthly instalments + Rs. 4,475/- on 22.09.07. Thus in total he paid Rs. 2,65,175/- out of the loan amount of Rs. 2,10,000/- + interest. From the petition of complaint it is also available that the complainant failed to pay the EMI amount for the month of September’08 to October’08 due to his illness due to which the OP bank seized the vehicle on 15.11.08 which is an illegal act and there is deficiency in service on the part of the OPs. So he has filed this case praying for the reliefs. On this point it is the submission of the OPs that as per terms of the agreement the complainant failed to pay the EMI amount for the months of September’07 to October’07 initially and thereafter, he also failed to pay the EMI amount for the months of September’08 to October’08. So as per terms of the agreement the vehicle was seized by him and thereafter notice was issued to him on 17.11.08 with a direction to repay the balance amount along with interest within 7 days from the date of receipt of this notice. In spite of receipt of the notice the complainant did not comply it. So as per terms of the agreement the vehicle was sold in auction on 30.01.09 at a price of Rs. 8,20,000/-. In the petition of complaint it is stated that after seizure of the vehicle the complainant along with his attorney met the OP bank and requested him to take the due EMI amount showing his reason of disability, but the OP bank refused to accept the said amount from the petitioner and to settle the matter with him. But to that extent no document is filed by the complainant. But from the documents filed by the complainant himself it is available that the complainant failed to pay the first instalment amount on 22.09.07 and on that date he only paid Rs. 4,475/- out of Rs. 26,070/-. The second instalment was due on 22.10.07 which he did not pay. Thereafter, he paid 10 instalments regularly and failed to pay the due EMI instalment for the months of September’08 to October’08 due to which the vehicle was seized by the OP bank as per the terms and condition of the agreement.
In this connection ld. lawyer for the OPs has cited a ruling from IV (2006) CPJ page 68 Chhattisgarh State Commission where the Hon'ble State Commission has decided that “Consumer Protection Act, 1986 – Section (2)(1)(g) – Banking and Financial Services – Hire Purchase Agreement – Vehicle purchased by obtaining finance from OP – Default in repayment of loan instalments – Agreement authorized financier to repossess vehicle in case of such default – Admittedly, default committed several times – Vehicle seized as per agreement – no deficiency in service proved.”
Ld. lawyer for the OPs has cited another ruling from IV (2006) CPJ page 309, where the West Bengal State Commission has decided that “Consumer Protection Act, 1986 – Section 2(1)(g) – Banking and Financial Services – Hire purchase agreement – Purchase of vehicle after availing car loan – Default in payment of instalments – Vehicle seized, repossessed by OP – Complainant alleging deficiency in service complainant earlier filed writ petition against seizure – Dissatisfied from decision whereof i.e., present complaint filed only after exhausting civil procedure – Act of seizure of vehicle in unison with terms of agreement between parties – Parties bound by terms of contract – no merit in complaint.”
On a careful perusal of the above two cited rulings of the Hon'ble State Commissions we hold that both the rulings are applicable in this instant case as in this case the complainant purchased the truck by taking loan from the OP bank by hire purchase agreement. Besides this the complainant violated the terms of the agreement in not depositing EMI amount in time. So we hold that in view of this there is no deficiency in service on the side of the OP bank in seizure of the vehicle.
From the petition of complaint we find that the complainant earned Rs. 50,000/- per month as net profit after making all recurring and incidental expenditure to run the said vehicle. He was in possession of the vehicle for more than 10 months and used to earn Rs. 50,000/- per month, thus in total he earned Rs. 5,00,000/- and enjoyed the said amount by using the said vehicle though during that period he only paid Rs. 2,65,175/- to the OP as EMI including interest of the loan amount. So we find that actually he did not suffer any loss in seizure of the vehicle by the OP as huge amount of EMI amount was still unpaid by the complainant.
Ld. lawyer for the OPs agitates that the complainant is not a consumer and so the case is not at all maintainable in its present form and nature on the ground that the vehicle was used by the complainant for commercial purpose. The complainant has categorically stated at ‘para – 5’ of his petition that he used to earn Rs. 50,000/- per month as net profit after making all recurring and incidental expenditure to run the said vehicle. No where it is stated by him that he himself was a driver of the vehicle or the vehicle was used for self employment and for his livelihood. In the agreement signed by and between the parties it is categorically stated as commercial vehicles preliminary credit facility application form which was duly signed by the complainant.
In view of above discussions and considering the facts of this case along with the above cited rulings of the Hon'ble State Commissions our considered view is that the complainant is not a consumer as per provision of law. It is also established that the deficiency in service on the part of the OPs as alleged by the complainant is not at all proved. So finally we hold that the complainant has failed to prove his case and he is not entitled to get any relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/10/86 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
