SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal repossession of Complainant’s financed vehicle are the allegations arrayed against ops.
2. Complaint in nutshell reveals that, Complainant purchased a MF-241 D-1 Model Mahashakti Tractor TAFE bearing engine No-S3251F54314 and chassis No- 979517 under a higher purchase scheme from Op-financer on the recommendation of Odisha Agro Industries Corporation Ltd., Bhubaneswar. The said vehicle was insured with TATAAIG Insurance Company vide policy No-015304044600 and was plying for cultivation purposes. It is stated that Complainant was paying the installments regularly as per the agreement between the Complainant and Op. Complainant petition also reveals that on dt. 3/2/2016 the henchman of Op-finance Company forcibly took away the possession of the vehicle, pulling the driver, when the said vehicle was working in afield, and after receiving the information, Complainant rushed to the spot and misbehaved by the highered goonads of Op, which tarnished the image of the Complainant. The Complainant disclose the payment particulars of installments on different dates and an amount of Rs. 1,36,375/- up to dt. 30/04/2015 and money receipts were granted in this respect. It is further alleged that the local agents of Op received an amount of Rs. 98,250/- on different dates, but not issued any money receipt in-spite of the commitment. Accordingly, the Complainant paid a total amount of Rs. 2,34,625/- towards loan outstanding dues, but the Op-with a maladies intention claiming Rs. 3,78,608/- as outstanding dues, which according to complainant is illegal and arbitrary. It is alleged that the acts of the Op are illegal and gave mental agony and harassment to the Complainant. The cause of the instant case arose on dt. 3/2/21016 when the Op-financier illegally repossessed the vehicle of the Complainant and the Complaint is filed before this Forum, with prayer that a direction may be issued to Op to hand over the scheduled vehicle, and to pay Rs. 50,000/- for mental torture. It is further prayed that illegal outstanding claimed by the Op be verified and adjusted in the loan account of the Complainant.
3. Upon Noticed, KOTAK MAHINDRA BANK LTD. (OP) appeared through their Ld. Counsel and filed written version on behalf of the Op. In the written statement Op-financer challenge the maintainability of the Complainant citing the decision of Honbl’e Apex Court in case of Laxmi Engineering. Op-finance Company in Para-wise reply averred that the Complainant was sanctioned a loan amount of Rs. 4,30,000/- to purchase a tractor and as per the agreement the EMI was fixed to Rs. 12,875/-, which starts from 10th June-2014 and Completes on 10th April-2018. But Complainant by deviating the agreement paid only Rs. 2,14,125/- as disclosed from the statement of Account (Annexure-A) and an amount of Rs. 2,14,461/- is outstanding towards loan till dt. 31/03/2016. It is further averred that, Complainant submitted an affidavit (Annexure-B) on dt. 08/05/2015, that she will pay the EMI’s regularly and on its failure, Op-Bank has the right to take lawful action against her. When the Complainant again default on her payment she surrendered the vehicle before the authorized person of Op. The surrendered letter is filed into the dispute as Annexure-C. Countering the allegation of non-issuance of money receipt by the authorized person of Op, it is averred that from dt. 1/5/2014, no manual receipts were granted and on line payment system was introduced for receipt of the dues from the customers. The Op-finance Company boldly denies the forcefully repossession of the vehicle as alleged by the Complainant and further states that Op have intimated the repossession of the vehicle before Mohakalpada, Police Station, Kendrapara on dt. 11/2/2016, which is Annexure-D. The Op- issued a pre-sale Notice to Complainant on dt. 22/2/2016 to clear up the outstanding dues and the letter and postal receipts are filed into the case as Annexure-E series. It is further averred that Complainant has to pay balance amount of Rs. 2,14,461/- as outstanding dues after sale of the vehicle. In the circumstances Op prayed this Forum that, Complainant has foisted a false case, which is to dismissed with exemplary cost.
4. Take up the hearing of the case on merit, as none appears on behalf of the parties on the date of hearing, gone through the complaint petition and written statement filed by the parties. It is an admitted fact that complainant availing a finance from OP(Kotak Mahaindra Bank Ltd.),purchased a MF-241, D-1 Mahashakti Model TAFE,Tractor by executing an agreement between the parties and the said vehicle was plying without having any registration. It is also admitted that the vehicle in question was repossessed/surrendered by the OP-Bank.
According to complainant she has paid a total amount of Rs.2,34,625/- towards loan outstanding dues and OP-Bank, the financer of the vehicle is claiming an illegal amount of Rs.3,78,608/-. It is also alleged that OP-Bank forcibly repossessed the vehicle by using muscle power. It is further alleged that out of complainant’s total payment of Rs.2,34,625/-, the local agents of the OP-Bank received Rs.98,250/-, but the Agents did not issue any money receipt in support of the payment though assured. Countering the allegations OP-Bank states that as per the agreement the sanctioned loan amount is for Rs.4,30,000/- with a monthly EMI of Rs.12,875/- and the loan dues are to be cleared within April,2018. It is also the plea of the OP-Bank that complainant was irregular on payment of dues for which the vehicle was seized prior to surrender/repossession of the vehicle on dtd.11.02.2016, in the 1st instance of seizure complainant-borrower furnished an affidavit to make regular payment failing which the OP-Bank is authorized to repossess the vehicle. OP-Bank vehemently opposing the forceful repossession of the vehicle as alleged by the complainant, states that complainant in her own will surrendered the vehicle and OP-Bank has taken every lawful steps by informing the concerned police station and intimating the complainant-borrower by Regd.post as pre-sale notice. Parties entered into the dispute filed documents as evidence to prove their case. Complainant in her support filed attested Xerox copies of money receipts, insurance cover note, letter of OP-Bank dtd.20.02.2016 and statement of loan account. On the other side, OP-Bank filed documents as Annexures, which includes, statement of loan account (Annexure-A) affidavit of complainant-borrower(Annexure-B), repossession/surrendered letter dtd. Nil, (Annexure-C) Intimation to Mahakalpada Police Station dtd.11.02.2016(Annexure-D) and pre-sale notice dtd.20.02.2016 alongwith Postal receipts as Annexure-E Series. Neither of the parties filed the copy of the agreement executed between complainant and OP-Bank. It is clearly evident from the statement of loan account SOA (Annexure-A) and affidavit of complainant-borrower(Annexure-B) that prior to surrender/repossession of the vehicle complainant was a defaulter in respect of payment of her dues, when the same is not countered by the complainant-borrower by producing any evidence. It is the settled principle of law that in a higher-purchase agreement the financer has every right to repossess the financed vehicle in case of default. In addition complainant in her complaint alleges that, she had paid Rs.98,250/- to the local Agents of the OP-Bank, where no money receipt is granted and the same allegation is vehemently denied by the OP-Bank by stating that after dtd.01.05.2014 no manual receipt is granted against payment of dues, as the alleged payments of Rs.98,250/- are paid after dtd.01.05.2014 and complainant does not produce a single evidence that OP-Bank was issued manual receipt on such dates. Further, the complainant has to blame herself, when she makes payments without receiving any money receipts. Hence, this Forum can not adjudicate the dispute which are covering under Criminal Law.
The second allegation of the complainant is that OP-Bank forcibly repossessed the vehicle by using muscle power and misbehaving the complainant. Op-Bank countering the allegation in their written statement averred that after furnishing the affidavit(Annexure-B), when complainant did not pay the dues regularly and voluntarily surrendered the vehicle before the OP-Bank and surrender of the vehicle has been duly communicated to Mahakalpada Police Station on dtd.11.02.2016(AnnexureD).
The documents produced as evidence before the Forum do not disclose that the repossession of the vehicle was forceful, and illegal, further the OP-Bank on intimation of presale, notice by Regd. post to the complainant-borrower complied the legal formalities prior to sale of the vehicle. As, we have observed earlier that the Op-Bank is legally authorized to repossess the financed vehicle in case of default, and the surrendered/repossession is not illegal, accordingly, the OP-Bank can not liable for deficiency in service. So far the allegation of payments of arrear dues as agitated by complainant in her petition, we are of the opinion that the same are accounts dispute, which does not fall within adjudicating process of the Foras.
OP-Bank in their written statement challenge the maintainability of the complaint by citing the decision of Hon’ble Apex Court in case of ‘Laxmi Engineering’. In this regard, we are of the opinion that in the present dispute the OP-Bank has not proved that the vehicle was used exclusively for ‘commercial purposes, meager engaging one person as a driver of the vehicle does not mean that the vehicle was running for commercial purposes. Accordingly, the complaint is maintainable before this Forum.
Having observations reflected above, the complaint is dismissed and OP-Bank is freed from any such liability of deficiency in service.
Complaint is dismissed without any cost on merit.
Pronounced in the open Court, this 19th Day of July, 2017.
