Presented by Miss R. Pattnayak, President .
The brief facts of the case is that, the Complainant namely Rakshykari Pradhan has entered into an agreement with the Opposite Party for finance towards the purchase of a L & T Case 770 loader Backhoe machine for his self-employment. Accordingly a loan cum hypothecation agreement bearing No. EFD 016016R0 800055735 was executed between the parties and the Complainant paid down payment of Rs.2,51,000/-(Rupees two lakh fifty one thousand)only + Rs. 49,000/-(Rupees forty nine thousand)only total Rs. 3,00,000/-(Rupees three lakh)only on Dt.17/10/2008 which was duly received by the Opposite Parties. Accordingly, the Opposite Party issued two numbers of customer copy to the Complainant and issued a letter to M/s Balaji Auto World, Industrial Estate, Sambalpur on Dt.31/10/2008 to release the machine on receipt of proper acknowledgment. On Dt.05/05/2009, the Complainant came to know from the information supplied by the Opposite Parties that the down payment deposited by the Complainant has been shown as Rs. 2,50,000/-(Rupees two lakh fifty thousand)only although Rs. 3,00,000/-(Rupees three lakh)only has been received by the Opposite Parties. So the complainant alleged Rs. 50,000/-(Rupees fifty thousand)only has been misappropriate by the Opposite Parties. Copy of agreement was not given to the Complainant. Although request was made to the Opposite Parties, but the Opposite Parties failed to transfer the ownership, not delivered the R.C.Book and complete documents of the machine. The R.T.O., Bargarh on Dt.03/05/2009 seized the machine and directed the complainant to produce the original documents. As the Complainant could not produce the documents, a penalty of Rs.10,871/-(Rupees ten thousand eight hundred seventy one)only was imposed upon the Complainant. The machine was released on Dt.05/05/2009 after payment of the penalty with a condition to produce the documents. The machine was seized and detained by R.T.Authority, Bargarh from Dt.03/05/2009 to Dt.05/05/2009 and the complainant alleged that he has sustained a loss of Rs.40,000/-(Rupees forty thousand)only. The Complainant requested the Opposite Parties to deliver the papers of the machine but in vain. So on Dt.07/05/2009, the Complainant sent pleader Notice to which the Opposite Parties on Dt.12/05/2009 in reply denied the receipt of alleged Rs.50,000/-(Rupees fifty thousand)only and responsibility of handling over original documents of the machine.
That, the Complainant has further submitted that the Opposite Parties also cheated the Complainant by stating that the manufacturing year of the machine is in the year 2008 instead of the year 2007.
The Complainant stated that he has already paid Rs. 7,02,000/-(Rupees seven lakh two thousand)only towards installment + Rs. 3,00,000/-(Rupees three lakh)only as demanded i.e. total Rs. 10,02,000/-(Rupees ten lakh two thousand)only to the Opposite Parties but could not deposit the rest of the installment due to difficulties. But the Opposite Parties on Dt.26/09/2010 seized the machine through Opposite Party No.4(four) from the driver of the Complainant and issued a Notice on Dt.04/09/2010 to patch up their lacuna and demanded Rs. 8,51,495/-(Rupees eight lakh fifty one thousand four hundred ninety five)only and ultimately vide Notice dated 18/05/2011 informed to the Complainant that machine was sold at Rs.6,45,000/-(Rupees six lakh forty five thousand)only on Dt.20/11/2010 and Rs. 1,85,137/-(Rupees one lakh eighty five thousand one hundred thirty seven)only further due is laying against the Complainant.
The Complainant submitted that, since the period of agreement was not over, the Opposite Parties took steps for sale of the machine with low price and without following the procedures of law and without giving opportunity to participate in the sale process, it clearly amounts to unfair trade practice. Being aggrieved he has filed this case with a prayer to direct the Opposite Parties.
To hand over the machine to the Complainant.
To pay Rs. 50,000/-(Rupees fifty thousand)only amount unaccounted for dated 17/10/2009 @ 36% (thrity six percent) at monthly interest till the date of realization.
To pay Rs. 40,000/-(Rupees forty thousand)only towards compensation for the seizure of machine by the R.T.O., Bargarh during the period Dt.03/05/2009 to Dt.05/05/2009 along with penalty @ 36%(thirty six percent) flate per month till realization.
To declare the sale by the Opposite Parties illegal and the amount received by the Opposite Parties i.e. Rs. 10,02,000/-(Rupees ten lakh two thousand)only be refunded to the Complainant as the action taken by the Opposite Parties within agreement period.
To pay compensation of Rs. 5,00,000/-(Rupees five lakh)only towards deficient in service, harassment and litigation cost.
Any other relief along with return of cheques deposited by the Complainant.
In support of his case, the Complainant has filed the following documents:-
Money receipts (16 numbers)
Pleader Notice dated 15/05/2009.
Reply Notice dated 15/05/2009.
Certificate of ownership.
Release Order dated 05/05/2009 of the vehicle.
Repo Advice.
Demand Notice dated 04/10/2010.
Notice dated 18/05/2011.
Vehicle checking report of Dt.03/05/2009.
M.R.No. 542319 Dt.05/05/2009.
Certificate of R.T.O., Jamnagar.
Notice being served upon the Opposite Parties. SR back from Opposite Party No.3(three) but notice not served upon Opposite Party No.1(one), No.2(two) and No.4(four). So, paper publication was made by the Complainant but no body appeared. Hence on Dt. 20/11/2013 all the Opposite parties were declared as set ex-parte. As such the case is heard ex-parte.
Heard the argument from the complainant and after perusal of the case record, it is evident that, the present case relates to grant of loan, repayment there of and realization of the loan amount by the financing bank. From perusal of the copy of Release of delivery order and final payment, we found the repayment schedule was as follows:-
Asset cost Rs.14,25,000/-
Finance Amount Rs.11,75,000/-
Interest Amount Rs.3,13,725/- (Installments 35 numbers for three years)
Monthly Installment Rs. 43,000/- X 34 numbers
Last Installment Rs. 26,725/- X 1 numbers
Total Amount to be paid Rs. 14,88,725/-(Rupees fourteen lakh eighty eight thousand seven hundred twenty five)only.
From perusal of the copy of the money receipts, we found that the Complainant has already paid, the following amounts towards down payment and installment as duly received by the Opposite Parties.
On Dt.17/10/2008 Rs. 2,51,000/- Down payment
On Dt.17/10/2008 Rs. 49,000/- Down payment
On Dt.29/12/2008 Rs. 43,000/- Installment
On Dt.27/01/2009 Rs. 43,000/- Installment
On Dt.26/02/2009 Rs. 43,000/- Installment
On Dt.23/03/2009 Rs. 43,000/- Installment
On Dt.21/05/2009 Rs. 43,000/- Installment
On Dt.25/06/2009 Rs. 38,000/- Installment
On Dt.30/07/2009 Rs. 22,000/- Installment
On Dt.01/10/2009 Rs. 43,000/- Installment
On Dt.14/10/2009 Rs. 43,000/- Installment
On Dt.24/11/2009 Rs. 1,12,000/- Installment
On Dt.31/12/2009 Rs. 43,000/- Installment
On Dt.10/03/2010 Rs. 43,000/- Installment
On Dt.18/03/2010 Rs. 43,000/- Installment
On Dt.03/08/2010 Rs. 1,00,000/- Installment
Rs.10,02,000/-(Rupees ten lakh two thousand)only
Total installment paid Rs. 07,02,000/-
Total Down payment Rs. 03,00,000/-
Rs. 10,02,000/-(Rupees ten lakh two thousand)only.
On perusal of the Demand Notice given by the Opposite Parties on dated 04/10/2010 it reveals that on Dt.26/09/2010, vehicle was seized and reposed and the Notice Dt.18/05/2011 shows that, the vehicle was sold on Dt.20/11/2010 at Rs.6,45,000/-(Rupees six lakh forty five thousand)only and still balance amount pending against Complainant is Rs.1,85,137/-(Rupees one lakh eighty five thousand one hundred thirty seven)only from where we found the following irregularities have been made by the Opposite Parties.
Prior to repossession of the vehicle, No prior Notice was served upon the Complainant. So the Notice Dt.04/10/2010 appears to us just an eye wash. It has been held by the Hon'ble National Commission reported in 1 (2012) CPJ 408 (NC) B.Narasimha Vrs The Regional transport Officer (R.T.O.), “that taking repossession of the vehicle without Notice is bad in law.
Prior to the date of sale or at the time of sale of the vehicle no notice has been given to the Complainant. Although Notice was duly served on Opposite Party No.3(three) and paper publication was made. No Opposite Parties appeared and participate in the proceeding to counter the allegation raised by the complainant and also no documentary evidence filed relating to this case.
The Opposite Party ought to have made an assessment of the market value of the vehicle through a qualified assessor. If made no documents relating to this has filed.
Quotations should be invited before selling it to the highest bidder. The Opposite Party here has not intimated who are the bidders and the best quoted prices and Quotations of intending purchasers..
Prior to sale, reconciliation of the account has not been made by the Opposite Parties.
No agreement copy field .
No statement of account has been filed by the Opposite Parties.
Besides this we found that although in the release order Opposite Parties mentioned that down payment is Rs. 2,50,000/-(Rupees two lakh fifty thousand)only but has received Rs. 50,000/-(Rupees fifty thousand)only which is evident from the money receipts Dt.17/10/2008. After receipt of Down payment of Rs. 3,00,000/-(Rupees three lakh)only R.C.Book and related documents were not given by the Opposite Parties. We also found that the allegation of the complainant is true that the certificate of ownership is in the name of N.V. Chetariya and manufacturing year is mentioned as 2007 instead of 2008, which is clearly shows unfair trade practice on the part of the Opposite Parties. Due to non-supply of ownership certificate penalty of Rs.10,871/-(Rupees ten thousand eight hundred seventy one)only was imposed by R.T.O. And vehicle was seized from Dt.03/05/2009 to Dt.05/05/2009. So loss and damaged was caused to the Complainant. As till Dt.03/08/2010, the Complainant had already paid to the Opposite Parties, a total sum of Rs. 10,02,000/-(Rupees ten lakh two thousand)only against the total amount of 35(thirty five) installments which include interest of Rs 14,88,725/-(rupees fourteen lakh eighty eight thousand seven hundred twenty five) only. Thus the complainant was in arrear of Rs 4,86,725/-(Rupees four lakh eighty six thousand seven hundred twenty five ) only. The vehicle in question sold by the opposite party for RS 6,45,000/-(Rupees six thousand forty five thousand) only. So Rs 6,45,000/-(Rupes six lakh forty five thousand) only -RS 4,86,725/-( Rupees four lakh eighty six thousand seven hundred twenty five only = Rs 1,58,275/-(Rupees one lakh fifty eight thousand two hundred seventy five) only is due from the opposite to the complainant and hence the penalty of Rs 1,85,137/- ( Rupees one lakh eighty five thousand one hundred thirty seven only as raised by the opposite party is illegal, because it is the opposite party who have to pay the complainant.
In the instant case, when the complaint failed to repay the installments and the Opposite Party sold the vehicle, it is their duty prior to sale, to reconcile the account as the Opposite Parties denied the receipt of Rs.50,000/-(Rupees fifty thousand)only differential amount although the bills show that the Opposite Parties have received the said amount.
Moreover, the Opposite Party have screened the actual fact by not participating in the proceeding and shows the arbitrariness while imposing the amount upon the complainant as there is no documentary evidence filed by the Opposite Party as to higher-purchase agreement as agreed between the panties. If we study the motive and conduct of the complaint, for repayment of loan installment, it is clear and cogent that he is very must sincere till Dt.31/12/2009 but due to some difficulties he has not regularly paid the amount.
Another thing is that as to the arbitration clause in the agreement such a clause can not bar the remedy under the C.P. Act-1986 because by virtue of Sec-3 of the Act, the remedy under the Act is in addition to and not in derogation of provisions of any other law. In view of the law on the point ,We hold that the Complaint is maintainable and this Forum has absolute jurisdiction in adjudicating the matter even if an arbitration clause exists in the agreement.
As regards to the different judgment of the Apex Court on the issue of repossession, there is no dispute regarding the general proposition that, hirer/financier of a vehicle bought by a person on hire-purchase basis has the right to repossess the vehicle for default in payment by the purchase. However, the settled law is also that this has to be done accordingly to due process of law. Taking into consideration the totality of the circumstances we hold that Opposite Party has not follow the due procedure of law is guilty of unfair trade practice.
Order
However considering all the facts and circumstance brought before the Forum and following the principal of natural justice, the penal amount imposed against the complainant is here by waived.
The complaint disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree, (Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera) (Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r. M e m b e r.
