JUDGMENT

 Shri A.K.Patra,President:

1. The present complaint is  filed by the complainant named above inter alia alleging deficiency in service and unfair trade practice by the Ops/financer for their repossession of the financial vehicle.
2. The complainant seeks for  the following relief:-

1. The Ops may please be directed to return the vehicle basing on which the complainant will have income and repay the loan.
2. In case the OPs failed to return the vehicle, the loan amount of the complainant be adjusted from sale proceeds of the vehicle for which the complainant will have nothing to pay.
3. The Ops may be directed to compensate an amount of Rs.3,00,000/- towards putting the complainant in suffering of mental agony and acute financial loss and sustainable distress.
4. Any other relief as the Hon’ble Commission may deem fit and proper.

3. Brief facts necessary for the adjudication of the present complaint are that, the complainant has purchased an agricultural tractor of New Honda Company from M/s Balaji Automobiles, Bolangir/OP 4 for an amount of Rs.8,90,000/- on 13.10.2020 paying down payment of Rs.2,00,000/- and got it registered vide Registration No.OD03 S 9542. The said tractor was financed by the CHN Industrial Capital (India) Pvt. Ltd./Ops 1-3 for an amount of Rs.6,73,430/- and said financed amount got disbursed directly to the dealer i.e. M/s Balaji Automobiles/OP 4. As per the loan cum hypothecation agreement vide No.47572 dt.20.10.2020 the loan ought to be repaid in 47 equal monthly installments(EMI) of Rs.18,420/- w.e.f. 11.11.2020 to11.09.2024. As per repayment reschedule of the loan the complainant has paid two installments for 1^st & 2^nd due on 11.11.2020 and 11.12.2020 respectively amounting to Rs.36,680/- to the said financer. However, the financer has taken away the said financed vehicle dt.7.3.2021 and handed over to a third party adopting unfair trade practice. Several approaches and requests to return back the vehicle went in vain. The Ops/ financer could not return back the vehicle to the complainant though the complainant was ready to repay the loan dues and wants to regularize the loan. After taking away the vehicle the Ops/finance company issued loan recall notice dt. 8.4.2021 claiming outstanding loan amount of Rs.7,29,534.07  threatening    action against the complainant. The complainant learn on enquiry that, the OP 1 & 2 have disbursed the vehicle to some other person as a result the complainant suffered   financial loss and mental agony .Hence, this complaint with a prayer as stated above.
4. On being notice the OP 1, 2 & 3 /Financer contested the case by filing their written version. The OP 4 did not choose to contest the case though notice is properly served & sufficient opportunity has been availed.
5. The OP 1 ,2 & 3 /here the financer of the vehicle admitted the finance of the said vehicle and repossessing of the vehicle .It is contended that, the complainant was making regular default in payment of EMI and despite of regular follow up  of the complainant when the complainant did not  honor the request to pay the said loan due and failed to discharge his obligation under the loan -cum -hypothecation agreement, the Ops sent loan recall notice on dt.8.4.2021 and then legal notice dt.8.4.2021 but the complainant  could not  responded to regularize the loan by paying the outstanding dues for which finding no other option took repossession of the said financed tractor on 20.4.2021 and subsequently issued pre-sale notice dt.14.5.2021 to the complainant vide Speed Post dt.17.05.2022 for the repayment of the outstanding loan but the complainant did not pay any heeds . Ultimately it was sold to third party on auction and realized a sum of Rs.5,20,000/- which is deposited in the loan account of the complainant  but after adjustment of the said auction sale price of Rs.2,26,683/- but loan due still remains to be rapid by the complainant in terms of the loan agreement. Accordingly a post sale notice dt.18.10.2021 vide Speed Post dt.15.11.2021 was issued to the complainant intimating the adjustment made after sale of the vehicle  and the outstanding balance amount of Rs.2,26,683/- is due against the complainant . It is specifically submitted that, the Ops finance company has rightly exercised their right as per the loan –cum- hypothecation agreement and there is no cause of deficiency of service or unfair trade practice on the part of the Ops/finance company and with this averment the Ops/finance company  urged to dismiss this complaint with cost.
6. The complainant to substantiate his claim filed the photocopy of the following documents:- (i) Xerox copy of delivery order dt.19.10.2020,(ii) Xerox copy of repayment schedule of 47 installments, (iii) Xerox copy of schedule of charges and payment receipt copy dt.20.10.2020,(iv) Xerox copy of vehicle registration certificate particulars vide Regd. No.OD-03-S - 9542 dt.9.11.2020,(v) Xerox copy of loan recall notice dt.8.4.2021,(vi) Xerox copy of aadhar card of the complainant. The complaints averment is supported by an affidavit of the complainant Binod Sahu.
7. The OP NO.1 2,& 3 /Financer, to substantiate their claim, has filed  the photocopy of the following documents along with their written version such as:- (i)copy of certificate of incorporation dt.23.10.2017,(ii) copy of authorization letter in favor of RA of OP 1-3,(iii) copy of invoice of OP 4 M/s Balaji Automobiles towards sale of the alleged vehicle,(iv)a copy of loan cum hypothecation agreement dt.20.10.2020 and demand promissory note dt.20.10.2020,(v) copy of pre- sale notice dt.14.5.2021 along with speed post  receipt dt.17.5.2022,(vi) copy of post- sale notice dt.18.10.2021 along with speed post receipt dt.15.11.2021,(vii) copy of deposit slip for  a sum of Rs.2,00,000/- and Rs.;3,20,000/-. The averment of written version is supported by an affidavit of one Nurul Malik Hoda , the State Collection Head & Authorized representative of CNH Industrial Capital(India) Pvt. Ltd. so also he has filed an additional affidavit evidence on behalf of Op 1-3/finance company, the averment of which is corroborating with the averment of their written version.
8. We have perused the material available on record and heard the learned counsel for the parties.
9. The fact that, the complainant has purchased a tractor being financed by the CHN Industrial Capital (India) Pvt. Ltd./Ops 1-3 vide loan –cum -hypothecation agreement dt.20.10.2020 and that, the complainant got default to pay the EMI towards repayment of the loan as per the agreement and on default the finance company has repossessed the vehicle is not disputed .
10.   It is contended that, the vehicle in question was taken away by the financer on 7.3.2021 and handed over to the third person though the ownership was there continuing in the name of the complainant which caused financial loss and mental agony to the complainant. On the other hand Ops/ finance company have submitted that, they have taken repossession of the vehicle on 20.4.2021 when loan recall notice dt.8.4.2021 and legal notice dt.8.4.2021 served to the complainant was not responded.
11.   It is found that, no paper of inventory of the vehicle which should have made in presence of the complainant at the time of taking repossession of the vehicle is placed on the record.  It is  there contented in para 10 of the written version & in para 9 of the affidavit evidence of ops /finance company that ,loan -recall  notice dt.8.4.2021 / legal notice dt.8.4.2021 is issued to the complainant but no cogent evidence is placed on the record to hold that said notice were properly served to the complainant .
12.   In absence of such inventory report or any other cogent evidence that the vehicle was repossessed on 20.4.2021 after proper services of notice  to the complainant , we are unable to hold that alleged vehicle was repossessed by the financer on 20.4.2021 i.e. after serving of afore said loan -recall notice dt.8.4.2021 / legal notice dt.8.4.2021 rather, the Ops /financing company has taken away the vehicle in question on 7.3.2021 without following the prescribed formalities as per the terms of the loan and  without making inventory of the said vehicle may not be disbelieved.
13.   The undisputed loan cum hypothecation agreement, copy of which is placed on the record, clause-14(1) for the purpose of repossession and sale of the asset says that, “(a) the lender (or its agent) shall have the right to enter the premises where the asset is located and possess the asset from the borrower by giving a written notice of 7(seven) business days. Upon taking possession of the asset, the lender shall give another written notice of 7 (seven) business days asking borrower to repay all amounts remaining outstanding and due and payable by the borrower under this loan agreement. If the borrower fulfill its payment obligation under this loan agreement within the time lien mentioned above to the satisfaction of the lender , it shall redeliver the asset to the borrower, (b) failure to the borrower to fulfill its payment obligation within the time set out in sub clause(a) above shall entitle the lender to dispose the asset by private contract/public auction or any other method permitted under applicable laws.(c) the lender dispense with the requirement of giving notice as above if it in its sole discretion determines that (a) the borrower intend to part with the possession with the asset(b) the asset is being use of unlawful purpose or(c) the asset has been dismantled in part or full by the borrower thus leading to reduction in its value.”
14.   It is contended that, the financer has issued pre -sale notice dt.14.5.2021 which contended that :- “if you fail to repay the loan including interest ,fee, premium and other charges payable immediately upon receipt of this notice ,then we shall be constrained to exercise the rights granted to us under the loan Agreement ,with inter-alia includes taking possession of the Asset and selling the asset and appropriating the sale proceeds to your account at your sole costs and expresses . Further ,if there is any excess amount that we receive after sale of the Asset ,such amount shall be transferred to you within 7(seven) days of receipt of the excess amount by us. However ,in the event of any shortfall amount from the sale of the Asset, you shall be solely responsible and liable to repay the same immediately on receipt of written intimation from us.”Here we found that nothing but a formality giving no time to the borrower /complainant to think about goes against the intrest of the borrower is certainly an unfair trade practice of the OPS /Finance company.
15.    Nothing cogent evidence is placed on record  to hold that the said notice pre -sale notice dt.14.5.2021 and after- sale notice dt.10.10.2021 has been duly served to the complainant. Nowhere in the evidence affidavit it is stated that, afore said the notices issued to the complainant is properly served to him. In absence of cogent evidence it may not be proper to hold that, notice of pre sale & post sale of the vehicle is properly served to the complainant.
16.    The Ops finance company contended that, tractor was repossessed on 20.4.2021 and sold it on auction for a sum of Rs.5,20,200/- and adjusted towards the outstanding loan intimating the complainant vide post- sale notice det.18.10.2021 . No auction paper is placed on record so also there is no explanation assigned for such a delay in sale of the alleged vehicle which caused depreciation of price of the vehicle may not be disbelieved.
17.    It is evident that, the vehicle in question was repossessed by the financer/ops 1-3 within six months of its purchase. The cost price of the vehicle was Rs.8,90,000/- as on 13.10.20 and was sold on Rs.5,20,000/- in the month of October 2021 i.e. less Rs.3,70,000/-. The finance company/ Ops 1 -3 failed to conduct an inventory of the vehicle so also failed to assess the value of the vehicle at the time of repossession of the vehicle and sold it at very low price  certainly an act of deficient of service and unfair trade practice on the part of  the Ops/finance company which caused financial loss and mental agony to the complainant  is proved as such we are of the opinion that, there is sufficient cause of action to present this complaint before this Commission and it is found in time well within the jurisdiction of this Commission.
18.      Keeping in view of the facts and circumstances we are of the opinion that, there is deficiency in service and unfair trade practice on the part of the Ops /finance company i.e. CHN Industrial Capital (India) Pvt. Ltd. causing mental agony and financial loss to the complainant for which the Ops1-3 /CHN Industrial Capital (India)Pvt. Ltd   are not entitle to claim further more i.e  “ loan dues” against the complainant. Accordingly, the complainant is allowed in part on contest against the OPs 1,2,&3/A CHN Industrial Capital (India)Pvt. Ltd   and dismissed against the Op 4 with following direction.

ORDER

     The  OPs 1, 2 & 3 / CHN Industrial Capital (India)Pvt. Ltd. is here by directed to set up the loan dues if any against the complainant with the price received from the sale of the vehicle in question towards full & final settlement of the alleged loan dues  against the complainant and further be restrained themselves from claiming any more from the complainant . No order as to cost and compensation.

  Dictated and corrected by me.

     President

     I   agree

                          Member    

      Pronounced in the open Commission  today on this    day of 19^th July, 2023 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

     Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. The complaint could not be decided in time due to Covid -19 situation and in want of quorum in the Commission. Ccomplaint is disposed of accordingly