The complaint filed by one Asem Mallik against M/s Kanchan Engineering Works and others, in short, is that the complainant purchased a tractor for agriculture purpose with financial assistance from L&T Finance Ltd. The value of the tractor was Rs. 599797/- and the complainant paid Rs. 183000/- as down payment. Rest of the amount was paid through loan from O.P No.2. The complainant paid the loan amount to O.P No.2 by installments. Inspite of receiving the last payment on 31.03.2015 the O.P without complying the rules of possession in respect of hypothecated goods forcibly taken away the aforesaid tractor on 23.04.2015. Thereafter, the complainant came to know through a demand notice send by the Advocate of O.P No.2 that the aforesaid vehicle was sold for a sum of Rs. 66198/-. The sale value was not appropriate as the vehicle was 2 years old and as such the O.P violated the law fixing bid in respect of sale value of the vehicle. Being aggrieved the complainant has come to the Forum for reliefs as to return the vehicle or refund back the value of the vehicle and to pay the down payment of Rs. 183000/- with interest and compensation of Rs. 100000/- and litigation cost of Rs. 10000/-.

O.P No.1 appeared and filed written version. Thereafter he does not take steps. O.P No.1 raised the point of non-maintainability of the case, it has no cause of action and the case is barred by limitation.

Op No.2 did not appear. The case is heard ex parte against O.P No.2.

Upon pleading of the parties the following points are to be considered for discussions.

1. Whether the case is maintainable or not?
2. Whether the O.Ps have deficiency in service on not?
3. Is complainant entitled to get relief as prayed for?

DECISION WITH REASONS

The complainant purchased a tractor from O.P No.1 with financial assistance from O.P No.2. The loan has been sanctioned through O.P No.1.The documents filed by the complainant (delivery order sheet issued by L&T Finance, O.P No.2 to Kanchan Engineering Works, O.P No.1, the receipts of payments of instalments and the demand notice issued by the Advocate for the O.P No.2) support the fact. The complainant purchased the vehicle on May 2013 and the vehicle repossessed by O.P No.2 on April 2015 (as per demand notice). So, the cause of action arose on and from April 2015. The complainant filed the case to the Forum on 20.11.2015 i.e. without two years from the date of cause of action. Head office of O.P No.1 is situated at Rampurhat, Birbhum which is within the jurisdiction of the Forum. So, the case is maintainable in law.

At the time of purchasing the tractor the complainant took loan of Rs. 390000/- from O.P No.2 repayable in equal installments of Rs. 11800/-. Number of installments was 47 starting from 14^th May 2013 to 5^th March 2017. The complainant paid installments upto 31^st March 2015 with irregular payments. O.P No.2 took the tractor forcibly on 23.04.2015 without due process of law.

O.P No. 2 sold the tractor and sent a demand notice through Advocate on 3^rd October 2015. The demand notice dated 03.10.2015 reveals that the amount payable after sale of the aforesaid tractor was Rs. 155410/- as on 03.10.2015. The amount was payable comprising of outstanding loan amount, interest, delayed payment charges and other charges. The cost of the tractor was Rs. 599797/-. O.P No.2 sold the vehicle for Rs. 66198/- without prior intimation given to the complainant. The O.P sent demand notice for remaining balance of unpaid loan amount of Rs. 155410/-.

The complainant stated in his petition that the O.P had not financed the total cost of the vehicle. Out of purchase price Rs. 183000/- was contributed by the complainant towards margin money. The vehicle was repossessed and sold by the O.P. According to the complainant, the O.P did not served any notice to the complainant prior to sale of the vehicle and sold the vehicle at much lower price.

There is no evidence of any notice having been sent to the complainant before repossessing the vehicle, if he does not pay the outstanding amount the vehicle would be repossessed by the O.P. The complainant stated in his evidence in chief denying receipt of any notice from the O.P. O.P No.2 did not convey the complainant about the date on which the said vehicle was proposed to be sold. Even no evidence of any public notice have been given by the O.P in the Newspaper before selling the vehicle. Therefore, it cannot be said that the vehicle was sold following the fair and transparent process.

In ICICI Bank Ltd. =Vs.= Prakash Kour and others, Hon’ble Supreme Court was on the view that instead of taking resort to strong arm tactics, the bank should resort to procedure recognized by law to take possession of vehicle in cases where borrower himself defaulted in payment of installments. In this case O.P No.2 took the vehicle from road applying force without issuing any notice prior to repossession. The Forum thinks it as deficiency in service on the part of O.P No.2.

The complainant purchased the vehicle for earning his livelihood. He used the vehicle for two years. After that the vehicle was repossessed and sold for Rs. 66198/- by O.P No.2. The said vehicle would not sold for such meager amount. This is also deficiency in service of O.P No.2.

Hon’ble National Commission holds that wherever the O.P repossesses the vehicle for nonpayment of installments by the complainant and chooses to sale the vehicle, it is bound to refund the margin money which was paid by the complainant and adjusted the depreciated value of the vehicle and not the auction value. The Forum opines that the complainant is entitled to get refund the amount of market value minus outstanding amount for repayment of loan. The market value shall be calculated at a depreciated value which is cost price minus 10% p.a. depreciation for two years i.e. Rs. 599797/- - Rs. 120000/- (approx.) = Rs. 479797/- and the refundable price shall be Rs. 479797/- - (Rs. 155410/- + Rs. 66198/-) = Rs. 298190/-. The complainant is further entitled to get interest of 8% p.a. on the calculated amount from May 2015 to the date of actual payment and litigation cost of Rs. 5000/-.

Proper fees have been paid.

Hence,

O R D E R E D

                                                that C.F case No. 133/2015 be and the same is allowed on contest against O.P No.1 and ex parte against O.P No.2.

The O.P No. 2 is directed to pay Rs. 258190/-, 8% interest per annum on Rs. 258190/- from  May 2015 till the date of actual payment and Rs. 5000/- as litigation cost. The payment shall be made to the complainant within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and procedure.

            Copy of this order be supplied to the parties each free of cost.