This case has arisen out of application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that he obtained loan from O.P of Rs.18,44,846/- for purchasing a commercial vehicle vide Regd. No:W.B57C/8114, payable by 77 EMIs of Rs.44,459/- out of which 03 months moratorium period and 05 months non-payment for restructuring the loan outstanding & thereafter, he is paying EMIs on regular way except last 02 EMIs dated 04.03.2023 & 04.04.2023 due to poor business and economic hardship.
That the O.P without giving any opportunity through its repo Agent took possession of said vehicle forcefully on 06.04.2023 by Ratan Talukdar representative of Purnia Association Pvt. Ltd Agency & the vehicle escaped in the premises of Subham Parking Garage at Fulbari, Siliguri. At the time of taking possession said vehicle loaded with rice so the complainant communicated the respondent’s office and requested to release the vehicle as complainant instantly agreed to pay overdue amount with fine but O.P did not listen the request of the complainant. Finally on 12.04.2023 O.P assured the complainant that they will release the vehicle only if complainant agrees to pay at once Rs.2,45,500/- which stands for 02 overdue EMIs & 03 advance EMIs in addition with penal charges. But when complainant went to make payment thereof on 20.04.2023 concerned authority of O.P turn down & demanded to settle entire loan amount lying due which is next to impossible for the complainant. Hence, this complaint praying for stay order against auction of the vehicle by the O.P, order to release the vehicle to the complainant, receiving overdue amount, compensation of Rs.3,50,000/- for loss due to taking away possession, damages of Rs.1,00,000/- for harassment and mental agony and litigation cost of Rs.20,000/-.
O.P did neither appear nor contest the case so the case is heard ex-parte.
Points for Consideration
- Whether there was deficiency of service on the part of O.P?
- Whether the petitioner is entitled to get relief(s) as prayed for?
D e c i s i o n W i t h R e a s o n s
Exhibit-7 dated 12.09.2022 shows that O.P/HDB Financial Services informed Md. Asiruddin (complainant) that O.P sanctioned loan amount Rs.18,44,864.07 vide Loan A/c No:9927529, of which amount disbursed(net of charges) Rs.16,98,563.07, installment amount 44,459.00, repayment start date 04.01.2020, applied charges Rs.53,200.00 as advanced EMI from customer, Rs.66,400.00 as HDFC Ergo premium, Rs.7,701.00 as HDFC Slic Credit Protect Plus, Rs.15,500.00 as processing fees from customer and Rs.3,500/- as Sarv Suraksha Premium Refine, followed by repayment schedule showing tenure 79, total installment 77, loan type-commercial vehicle, amount financed 18,44,864.07, frequency monthly, final repayment due date 04.06.2026.
Statement issued on 27.04.2023 shows disbursement date 31.12.2019 against the head mentioned above, rate of interest 18.03 from January 2020 to January, 2021, 18.03 from March 2021 to June, 2026, moratorium applied from 01 March, 2020 to 31 May, 2020 (03 months). After restructuring the loan the complainant appears to have paid EMI (37 installment) with late payment interest, in cash upto 03.03.2023.
Admittedly, the complainant has failed to pay subsequent EMI (installment 38 & 39) dated 04.03.2023 & 04.04.2023.
The case of the complainant is that without giving him any opportunity to pay EMIs agent of O.P took possession of his commercial vehicle forcefully.
Exhibit-6 is the Inventory of items in vehicle which shows that complainant’s vehicle being No:W.B-57C/8114 was taken in possession being loaded with rice, from the possession of the driver on 06.04.2013 & kept the vehicle in Poonea Associate Pvt. Ltd, agency representative Ratan Talukdar in the warehouse named Subham Parking Garage at Fulbari, Siliguri.
Pre-sale notice dated 11.04.2023 depicts that the said vehicle hypothecated to HDB Financial Services Ltd, of which we have possession due to your defaults on non-payments in the monthly installments by you shall be sold by O.P, and in terms of the power conferred upon it under the Loan Agreement that has been executed between the parties.
In the event you wish to obtain release of the vehicle, the total dues outstanding and overdue interest including collection, re-possession and godown charges amounting to Rs.14,56,667.48 must be cleared in full “within 07 days from the receipt of the notice”. It will proceed with auctioning the vehicle without any further notice and shall deemed it has your consent for disposing the vehicle towards clearing liability.
The complainant’s case is that he met the authority concerned who finally on 12.04.2023 assured him to release the vehicle, that means the complainant has duly received pre-sale notice on the same date i.e 11.04.2023. Whatever, he stated as to any kind of assurance by authority concerned has not been supported from any document. Therefore, sale may take place after 18.04.2023. No case is made out on the date of filing of this complaint dated 11.05.2023 whether the vehicle was sold in auction or remain unsold as on 11.05.2023.
We, therefore, undone to pass any stay order over pre-existing auction of the vehicle as well as pass any order to release the vehicle till payment of the entire amount as demanded in the pre-sale notice.
We are also not inclined to pass any order for compensation or damages or litigation cost as claimed for pre-existing auction & we find no deficiency in service on the part of O.P so the complainant is not entitled to get relief as prayed for.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-16/2023 be and the same is dismissed ex-parte against the O.P without cost.
Let a copy of this order be given to the complainant free of cost.
