Final Order/Judgment

DEBASIS BHATTACHARYA:- PRESIDING MEMBER

 The instant case filed under section 35(1)(a) of the Consumer Protection Act 2019 emanates from the grievances of the complainant in the matter of seizure and subsequent sale of a vehicle by the OP bank with which a loan agreement was executed by the Complainant in connection with purchase of the said vehicle.

To depict the case in an aphoristic manner, the complainant, with a plan to purchase a Bolero van approached to the OP Bank for a loan and eventually entered into a loan agreement with the OP Bank.

The Complainant claims to have paid Rs.1,50,000/- on his own for purchase of the vehicle and paid off 34 installments of the loan taken from the OP Bank.

However allegedly ‘without any knowledge’ of the Complainant and ‘without granting any opportunity to the Complainant to take any step’, the vehicle was‘seized’ and finally sold by the OP bank causing financial crisis and mental agony for the Complainant.

The seizure in the Complainants’ opinion was arbitrary, whimsical and unlawful.

Simultaneously the petitioner admits in the fifth paragraph of the Complaint petition that OP ‘sent letters dtd.31.12.2021, 07.01.2022, 07.02.2022 and 21.02.2022’.

It is admitted further by the Complainant in the seventh paragraph of the Complaint petition that they failed to pay certain installments to the OP Bank because of the Covid pandemic.

The Complainant continues in somewhat erratic manner that the loan agreement was not ‘crystal clear’ and allegedly they were threatened by the OP Bank.

Treating this as failure to provide proper service and finding the OP Bank as guilty of causing financial crisis and mental agony, the Complainant approaches to this Commission seeking direction upon the opposite party to release the vehicle, to pay compensation of Rs.6,41,825/- with interest@10%, to pay Rs.50,000/- as further compensation and Rs. 30,000/- towards litigation cost.

Copies of communications received from the bank, corresponding reply of the Complainant’s lawyer and bank statements reflecting partial repayment of the loan have been annexed to the complaint petition.

Evidence on affidavit and brief notes of argument are almost replica of the complaint petition.

The sole opposite party contested the case by filing elaborate rebuttals in their written version, evidence on affidavit and brief notes of argument denying therein the allegations leveled against them.

The OP Bank has annexed copies of loan agreement, certain schedules containing Asset particulars, financial details, schedule of repayments, reminders in connection with outstanding dues, repossessed vehicle inventory list and Pre-sale notice dtd.18.10.21.

  The complainant, primarily appears to be a consumer in terms of section 2(7)(ii) of the Consumer Protection Act 2019 and both the Complainants and  the sole OP are having their respective residence/office address within the district of Hooghly. The claim preferred by the complainant does not exceed the limit of Rs.50,00,000/-Thus this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.

Defense case:- The OP Bank in their representations viz. written version, affidavit in chief and brief notes of argument points out inter alia that the Complainant is not entitled to claim themselves as consumers as the vehicle in question was purchased for business purpose and was used for commercial purpose. It is further claimed that in no way it was established that the deployment of the vehicle was the source of livelihood of the Complainants.

The OP Bank further explains that on the strength of the loan agreement dtd.16.01.2018 a loan of Rs.4,15,645/- was advanced to the Complainant for purchasing a commercial vehicle and the loan was repayable in 59 equal monthly installments in accordance to the schedule to the said agreement.

In terms of the said agreement, the Complainant was required to pay the principal sum of Rs.4,15,645/- along with interest @7% in 59 monthly installments of which first 47 installments were of Rs.10,500/- each and remaining installments were of Rs.9500/- each.

Naturally, the vehicle was hypothecated in favour of the OP bank as security towards repayment of the outstanding dues in terms of the said agreement.

However it is claimed by the OP Bank that the Complainant subsequent to the financing, defaulted in making payment of the installments due in spite of several requests and reminders. Resultantly the OP was compelled to issue a notice dtd.03.08.21 demanding due amount from the Complainant (Copy of the said letter is annexed).

Despite all these requests, reminders, demands and notices, the Complainants preferred to remain defaulter in the matter of repayment of the loan.

Reportedly, on the other hand, the Complainant surrendered the said vehicle, the OP Bank took possession of the vehicle and made over the repossession list to the Complainant. (Copy of the repossession list is annexed).

Allegedly the Complainant refused to make any further payment towards the loan and a further letter dtd.18.10.2021 was issued by the OP requesting the Complainant to pay the due amount of Rs.2,60,100/-  and was also requested to take the possession back of the vehicle upon payment of the due amount.

    As the Complainants failed to make any further payment, the OP Bank sold the said vehicle  at a price of Rs.2,06,000/- and the sale consideration was adjusted towards the pro tanto satisfaction of the dues. However even after such adjustment the OP Bank reportedly had to incur loss.

The OP bank mentions that the notices were sent to the address as mentioned in the agreement and they were never intimated of any change of address. It is further pointed out that in fact in the cause title of the present complaint, the address of the Complainants is identical to that provided in the agreement.

In the written version, the OP Bank denies to have received the installments in terms of the agreement. It is further denied that the vehicle was taken into possession without intimating the Complainant.

Decision with reason

Materials on records are perused. Firstly, so far as the Complainant’s demand incorporated in the complaint petition is concerned, it is inscrutable that on what basis the complainant prays for imposing direction upon the OP to pay Rs.6,41,825/- in the Complaint petition and Rs.5,41,825/- in the evidence on affidavit.

Secondly, it is nowhere substantiated in the Complaint petition by annexing supported documents that the Complainants used to earn their livelihood from deployment of the vehicle.

It is apparent from the records that the Complainant was a defaulter in the matter of repayment of the loan and even after receiving several alerts from the OP Bank refrained from repaying the loan in terms of the agreement, which was signed by both the Complainants.

Now in terms of clause 15.4 of the agreement, the lender in the event of default on the part of the borrower, was entitled to and the borrower irrevocably authorized the lender to take possession and sell/transfer/assign the asset either by public auction or by private treaty or otherwise dispose howsoever and appropriate the proceeds thereof towards repayment of all the outstanding amounts from the borrower to the lender under the agreement. It is also spelt out in the said clause that if the sale proceeds are not sufficient to meet all the dues of the lender the borrower shall be liable to pay for any deficiencies after the said appropriation.

There is no apparent reason to believe that the Complainants without perusing the agreement or without being acquainted of such a delicate clause of the agreement signed the agreement with closed eyes and without application of mind. At this juncture, the Complainants are not supposed to take the plea that the agreement was not ‘crystal clear’

It also transpires from the materials on records that all the notices from the OP Bank’s end were dispatched to the appropriate address of the Complainants as mentioned in the agreement as well as in the cause title.

Now, this Commission on consideration of all the aspects of the case is of the view that the Complainants became defaulter in the matter of repayment of the loan and showed a thoroughly indifferent attitude so far as the reminders and the alerts from the OP Bank are concerned. OP bank on the other hand after observing all the formalities in terms of the agreement, took necessary steps to realize the unpaid part of the loan. While doing that, the OP Bank left no stones unturned to keep the borrower informed about the steps to be taken by them. Thus, it cannot be concluded that there was deficiency of service or unfair trade practice on the part of the OP Bank. Besides, there cannot be any substantial mental agony as a fall out of the aforementioned which deserves to be compensated by monetary consideration.

Hence, it is

                                                ORDERED

that the complaint case no.75/2022 be and the same is dismissed on contest. However there is no order as to costs. Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgements/sent by ordinary post for information and necessary action.

Drafted and word file created by me.