| Final Order / Judgement | - The complaint petition has been filed against the O.P. for snatching the vehicle of the complainant forcibly without any prior notice without supplying any inventory letter, which supplied after facing long hardship on 07.04.15 and Cardex supplied with demand Rs. 3,16,685 on 03.07.18.
- The complainant’s case in brief is that the complainant purchased Tata ACE magic 8 seater vehicle on 10.01.13 being registration no. JH15G 8129 chassis no. MAT445117CVPA9058 engine no. 2751DI06MXYSS – 9473 for her livelihood with the assistant of hypothecation of Rs 366,000 by O.Ps where monthly installment was fixed Rs 12,180 per month payable from 11.02.13. The complainant started plying the vehicle and also started to pay the monthly installment and thus she paid Rs 1,46,189 against the loan and initially complainant had to pay Rs 25,000 at the time of delivery of the vehicle Rs 20,000 for the cost of body fitting and the complainant had paid for the vehicle total Rs 191189.
- It is further submitted that the complainant could not pay some of the installment in the year 2014 in the month of March and April due to some of the family hardship, physical hardship but the O.P. were assured by the complainant that she will pay rest dues in short but O.Ps. did not cared for any hardship situation of the complainant and on 20.09.14, O.P. sent their muscles men who snatched the vehicle from Saraiyahat bazaar without any prior notice without any inventory.
- Thereafter the complainant visited the office of the O.P. in the next day who asked to pay total rest amount of the loan at a time otherwise O.P. will recover the rest loan amount by reselling the vehicle. The complainant offered Rs 50,000 to O.P.s to return the vehicle but O.Ps. did not pay any heed and the complainant had to visit with a prayer to return the vehicle to supply inventory Cardex which the O.Ps. supplied on 07.04.15 after about 1 year but did not supplied on account of payment due amount etc. for which the complainant had to run to the door of the O.ps not less than 100 times from 20.09.14 to 03.07.18 for about 4 years. The complainant being a poor lady did not approached with the complaint to any police station in the hope that the O.Ps will re solve the matter in her favor but all became fell flat and in other hand the O.Ps started demanding due amount of Rs 3,16,685.
- Thereafter the complainant gave the pleader notice to the O.P. on 30.08.18 and also on 13.10.18 but no response was given by the O.P. and the O.P. became fearless, desperate and has taken shelter under the umbrella of agreement/ contract dt. 08.01.13 bearing no. 5001148452 and snatched the vehicle without any notice, without inventory and after a long hardship/ long continued visiting supplied the copy of the inventory letters dt. 07.04.15, Cardex on 03.07.18 which is nothing but deficiency of services, negligent behavior, unfair trade practices for which O.Ps is responsible and also liable to pay compensation of Rs 1,00,000 for such activities cost Rs 50,000 for the expenses etc.
- The cause of action for this complaint arose on 10.01.13 when the vehicle was handed over to the complainant on 20.09.14 when the complainant visited with the O.P. in his local office at Dumka on 22.09.14 when the complainant refused to take Rs 50,000 and to return the vehicle on 07.04.15 when the O.P. supplied the inventory letter on those days when the complainant visited with the O.P. in their local office for account detail which supplied on 03.07.18 and also on 03.07.18 when O.Ps demanded Rs 3,16,685 on 30.08.18 and 13.10.18 when the complainant sent a pleader notice to the O.P.
- The complainant has claimed the following reliefs –
- He prayed that O.P. may be directed to pay back the invested amount to the complainant of Rs 1,91,189 for the purchase of vehicle with 12% interest from the date of repossession that is 20.09.14 till realization.
- Compensation for harassment, mental agony, crisis, loss of business for violation of the contract for breaking the law of the land cost Rs 1,00,000 and also Rs 50,000 for the expenses occurred due to such snatching process, fees etc.
- The O.Ps appeared and filed his WS on 15.03.19. He has stated in his so cause/ WS that O.P. 1 and 2 are working for gain at Tata Motors Finance Ltd. who will be representing Tata motors Finance Ltd. and this company is incorporated under the provisions of the Indian Companies Act, 1956 having its head office at Think Techno Campus Building A, 2nd Floor, off Pokhran Road – 2, Thane west 400607. He has also raised preliminary objection regarding the complaint petition and has stated that the complaint is not maintainable and may be dismissed for one of jurisdiction as the complainant does not qualify to be called a consumer as envisaged by section 2(d) of the Consumer Protection Act, 1986. In the instant case complaint is not maintainable as the complainant used the vehicle purchased for commercial purposes and it has been categorically held in the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute, 1995 AIR 1428 that if the goods is used for commercial purposes it amounts to commercial purpose as envisaged in section 2(d) of the Act. And the present complaint is an abuse of process of law and is not maintainable as the complainant has approached this Hon’ble Forum by suppressing material facts and the present complaint does not disclose any consumer dispute as envisaged under the act as no cause of action relates to the Answering opposite party.
- It is further stated that the complainant has purchased the Tata Motors vehicle bearing engine no. 2751DI06MXYSS9473 and chassis no. MAT445117CVPA9058 on certain terms and conditions and a written agreement to that effect dt. 08.01.13 bearing agreement no. 5001148452 has been entered into both the complainant and the financing Company i.e; O.P. on the Financial Assistance provided by the Answering Opposite Party. And it is pertinent to mention here that timely payment of installments is the essence of Loan Agreement as entered into between Answering O.P. and the complainant and the complainant has defaulted in discharging the obligation of timely payments in pursuance of the agreement.
- The complainant has approached the commission with unclean hands and concealed important facts in this complaint. It is further submitted here with that the complainant remained a chronic defaulter as per the executed agreement by not adhering the repayment schedule and this fact has been intentionally and deliberately concealed to mislead this Hon’ble Commission. It is further submitted that by the virtue of clause 18.4 of the Agreement the O.P. is bestowed with the power to repossess the vehicle in the event of default committed by the borrower/ complainant.
- It is further submitted that the vehicle of the complainant was rightfully repossessed with due process of law and with a section 17 order passed by the Ld. Arbitral Tribunal on 24.01.15 he has also attached the said order as Annexure B. The O.P has further denied this fact that he forcibly repossessed the vehicle. He has further stated that the complainant being unable to pay the outstanding installments voluntarily surrendered the vehicle to the Answering O.Ps and now trying to get a sympathy of the Learned Forum. And it has also mislead the Learned forum by not disclosing that the answering O.Ps had time and again demanded the due installments which the complainant did not pay any heed to and being forced by the circumstances the answering O.P. had invoked arbitration as per the agreed terms and conditions of the agreement.
- It is further submitted that in Suryapal Singh VS. Siddha Vinayak Motors and ANR(2012) CPJ8 (SC), it was held by the Hon’ble Apex court that, “Under Hire Purchase Agreement , it is the financer who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/ trustee, therefore, taking possession of the vehicle on the ground of non-payment of installment has always been upheld to be a legal right of the financer.” And in another case, Ramesh Kumar Sharma VS. Kotak Mahindra Primus Ltd. & Ors., I(2009) CPJ 502, it was held that the vehicle financed – payment of installment defaulted – vehicle repossessed as per the agreement – deficiency in service alleged – complainant dismissed by Forum – Hence appeal – vehicle repossessed forcefully not proved – As per the agreement the O.P. free to take over the possession of the vehicle in default in payment of installment and put it to sale for recovery of dues – facility of loan recalled due to non- payment of installments – no further notice required to be served upon complainant for repossession of the vehicle – payment of certain installment after recall of loan, not amounts to revival of loan – no relief entitled – order of Forum upheld – Appeal dismissed.
- It is further submitted that the complainant supplied inventory and it is pointed by the terms and conditions mentioned in the agreement. It is further submitted that there was arbitration clause vide clause no. 23 wherein the complainant has approached to the forum in complete ignorance of the said arbitration clause and after suppressing material facts. It is further submitted that the Answering O.P. always act in accordance with the terms and conditions as stipulated therein the agreement but the complainant has filed the instant complaint case with ulterior motive to harass the Answering O.Ps. This O.P. has admitted this fact that he financed the complainant of Rs 3,66,000 for purchasing the Tata ACE Magic, the details has been given by him in their so cause. And also filed the agreement dt. 08.03.13 as Annexure A which is Loan Agreement.
- It is further submitted that the complainant committee defaulted in paying the installment on regular basis. This Answering O.P. recalled the entire loan by this letter dt. 16.01.15 which is Annexure C. Thereafter this O.P. invoked arbitration in this matter and advocate kainaz Irani was appointed as the Sole Arbitrator in this matter and passed an award dt. 09.03.15 in favor of the answering O.P. which is Annexure D and during the pendency of the proceedings of the Arbitration proceedings the vehicle of the complainant had been repossessed with section 17 order dt. 24.01.15 passed by the Learned Arbitrator to recover the possession of the vehicle as it was the only security for the entire debt.
- And it is further submitted that the vehicle has been sold on 11.01.17 and after sale proceeds were adjusted against the outstanding of the account and even after such adjustment there is a substantial amount due to the complainant on account of the contractual liability. And thereafter the complainant approached this Forum with ulterior motive to deny the payment to the Answering O.Ps. The O.P. has totally admitted this allegation that the vehicle was repossessed on 20.09.14. He further stated that the vehicle was repossessed by Answering O.P. with the order of the Learned Forum on 07.04.15 and inventory was duly given to the complainant after her signature on the inventory. The copy of inventory dt. 07.04.15 is annexed as Annexure E. He further submitted that the complainant has filed this case on false and frivolous ground and thus liable to be dismissed with cost in favor of the Answering O.Ps.
- From going through the complaint petition and so cause the following points has to be decided in this case :-
- Whether the complainant has defaulted in payment of EMI to the O.Ps.
- Whether the vehicle in question was repossessed forcibly by the O.Ps on 07.04.15 or 20.09.14
- Whether the complainant is entitled for relief or reliefs as claimed !
Findings The complainant in support of his case has filed oral and documentary evidence both to establish his case which are as follows. CW1 – Pushpa Yadav and an affidavit has been filed as documentary evidence. The following documents has also been filed which are as follows - Exhibit 1 – is the delivery – cum – challan dt. 10.01.13. Exhibit 2 – is the inventory of the items vehicle dt. 07.04.15. Exhibit 3 – is the photocopy of certificate of registration of vehicle no. JH15G – 8120. Exhibit 4 – is the certificate – cum – policy scheme that is Insurance Policy from 11.01.13 to 10.01.14. Exhibit 5 – is the certificate of Insurance – cum – Policy schedule from 11.01.14 to 10.01.15. Exhibit 6 – is the tax token of vehicle no. JH15G8129. Exhibit 7 – is the contract details dt. 08.01.13 (6 sheets). Exhibit 8 – letter of surrender of vehicle dt. 20.09.14. Exhibit 9 – is the photocopy of Aadhar Card of Pushpa Yadav. Exhibit 10 – is the pleader notice by the complainant dt. 13.1018. Apart from that no other documents has been adduced on behalf of the complainant. - The O.P has also adduced the following documents in support of his case. He has filed an affidavit of Rajnish kant as a witness and also filed the following documents which are as follows :-
Annexure A – is the Loan – cum - hypothecation cum guarantee agreement. 8 pages Annexure B - is the order of arbitrator dt. 24.01.15 Annexure C - is the legal notice by the O.P. to the complainant dt. 16.01.15 regarding termination of the loan agreement. Annexure D - is the letter of arbitrator dt. 09.03.15 Annexure E - is the inventory of the items of the vehicle dt. 07.04.15 Apart from that no other oral or documentary evidences has been adduced on behalf of the O.Ps. - Whether the complainant has defaulted in payment of the installment of loan to the O.Ps. – Regarding this point the complainant in his Para 2 of the complaint petition has clearly admitted this fact that he could not pay some of the installment in the year 2014 in the month of March and April due to some family hardship, physical hardships. He also assured the O.P. that she will pay all the rest dues in short but O.P. did not care. Payment of installment of the loan is the essence of loan agreement which was entered into between the complainant and the O.P. It is further submitted on behalf of the O.P. that the complainant is the chronic defaulter as per the executed agreement by not adhering the repayment schedule and this fact has been intentionally and deliberately concealed to mislead this Hon’ble Commission.
- The complainant has not filed any documents which shows his intention to repay the due EMI to the O.P. Annexure A is the loan – cum – Hypothecation – cum – Guarantee agreement which is about 8 pages. It is admitted documents. It is also admitted fact that the complainant has taken loan of Rs 3,66,000 by the O.P. with monthly installment of Rs 12,180. He also paid the EMI total Rs 148,189 but he defaulted in paying EMI from the month of March and April 2014. And after that in default of payment of EMI the O.P. repossessed the vehicle on 20.09.14 as alleged by the complainant and the vehicle was repossessed by the complainant on 07.04.15 as alleged by the O.P.
- So far as this point is concerned admittedly the complainant is the defaulter in payment of Loan EMI to the O.P. Considering the default of the complainant in paying the installment on regular basis the O.P. recalled the entire loan wide its letter dt. 16.01.15. He has also given the notice to recall the Land t. 16.01.15 which is Annexure C on the record. It is further submitted by the O.P. that he sold the repossessed vehicle on 11.01.17 and after sale the proceeds were adjusted as against the outstanding of the account and even after as such adjustment there is a substantial amount on account of contractual basis.
- It is clearly established that the complainant is the defaulter in payment of the Loan and timely payment of installments is the main essence of Loan Agreement. As such this point is decided against the complainant and in favor of the O.Ps.
- Whether the vehicle in question was repossessed forcibly with the help of muscles man on 20.09.14 or 07.04.15 – In Para 2 of the complaint petition it is alleged that on 20.09.14 the O.P. sent their muscles men who snatched the vehicle from Saraiyahat bazaar without any prior notice without any inventory and it is further submitted that in Para 3 that the supply of inventory and Cardex which the O.Ps. supplied on 07.04.15 after about 1 year but did not supplied on account of payment. Against this the O.P. in his so cause has stated that by virtue of clause 18.4 of the Agreement the O.P. is bestowed with the power to repossess the vehicle in the event of default committed by the borrower/ complainant.
- It is further stated that vehicle was rightly repossessed with due process of law and that with section 17 of the order passed by the Ld. Arbitral Tribunal on 24.01.15. It is further submitted that he repossessed the vehicle forcibly. He has also cited the case law decided and reported in 2012 CPJ8(SC) Suryapal Singh VS. Siddha Vinayak Motors and ANR. It is held by Apex Court that under Hire Purchase Agreement, it is the financer who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/ trustee, therefore, taking possession of the vehicle on the ground of non-payment of installment has always been upheld to be a legal right of the financer. Apart from that the complainant has not filed any evidence which shoes that the vehicle was repossessed forcibly.
- The O.P. is free to take the possession of the vehicle on default in payment of installment and put it to sale of recovery of dues facilities and loan recall due to non – payment of installments – no further notice required to be served for repossession of the vehicle – payment of certain installment and after recall of the loan not amounts to revival of the loan – no relief entitled. From the perusal of Annexure C which is notice dt. 16.01.15 regarding the recall of Loan facilities and therefore the Exhibit B is the Order of Arbitration u/s 17 for repossession of the vehicle dt. 24.01.15 and in the light of order of the arbitration dt. 24.01.15 which is Annexure B.
- The O.P. repossessed the vehicle on 07.04.15. the complainant has related one paper which is Exhibit 8 in which it was mentioned that on 20.04.15 the vehicle was repossessed. But from Annexure A which is inventory of the vehicle the date of repossession is mentioned as 07.04.15. From carefully scrutinizing both the documents the Exhibit 8 is a simply on plain paper and there is no sign of complainant Pushpa Yadav in this paper. And the date which is mentioned in this paper was written after the signature which is darker than other letters. So far as Annexure E is concerned which is also corresponding to Exhibit 2. On this paper there is no signature of Pushpa Yadav and this paper clearly shows that the vehicle repossession date was 07.04.15.
- On behalf of the complainant, certain case law were filed on which the repossession of the vehicle by muscles man was held illegal but here in this case it does not establish that the vehicle was repossessed by the O.P. forcibly but the vehicle was repossesses by the O.P. after following due process of law with the Order of Arbitration dt. 24.01.15. The Hon’ble Supreme Court in Suryapal Singh VS. Siddha Vinayak Motors and others clearly held on 21.02.12 that under Hire Purchase agreement, financer is the Real Owner of the vehicle and person who has taken vehicle and the person who takes the loan retain the vehicle only as a bailee/ trustee, therefore, taking possession of the vehicle on the ground of non - payment of installment has always been upheld to be a legal right of the financer.
- Considering above facts and decisions of the Hon’ble Supreme Court we come to the conclusion that repossession of the vehicle by the O.P. saying illegal it was rightful under the legal provisions and also under Hire Purchase Agreement. As such the O.P. cannot be held responsible for repossessing the vehicle illegally. So far as point no. 3 is concerned from the finding of the petition both the parties the complainant is not entitled for getting any relief or reliefs as she has claimed. It is therefore,
Ordered That this complaint petition is hereby dismissed without any cost. The copy of this judgment be provided to all the parties free of cost. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties. Let a copy of this order be served to both the parties without cost. File to be consigned to record room along with copy of this judgment. | |
