Orissa

Cuttak

CC/84/2013

Subhadarshini Sahoo - Complainant(s)

Versus

Managing Director,Indusind Bank Ltd - Opp.Party(s)

B M Mohapatra

23 Sep 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.84/2013

Mrs. Subhadarshini Sahoo,

At/PO:Sukarpada,P.S:Salipur,

Dist:Cuttack.                                                                                      .… Complainant.

 

Vrs.

1.         Managing Director,

Indus Ind Bank Ltd.,

Corporate Office-8^th Flkoor,Tower-1,

One Indiabulls Center,

841,S.B.Marg,Elphistone Road,

Mumbai-400013.

 

2.        Branch Manager,

IndusInd Bank Ltd.,

At:Bajrakabati Raod,PO:buxibazar,

Cuttack-1.                                   

 

3.        IndusInd Bank Ltd.,

No.78,IInd Floor,Janpath,

Kharvela Nagar,Unit-III,

Bhubaneswar,Dist:Khurda.

 

4.        R.T.O,Cuttack,

At:Kacheri Raod,Dist:Cuttack.

 

5.        Reserve Bank of India,Bhubaneswsr,

Khurda,Odisha.                                                                              … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,President.

Sri Bichitrananda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    26.03.2013

Date of Order:  23.09.2017

 

For the complainant  :             Sri B.M.Mohapatra,Adv. & Associates.

For the O.P. No.1,2 & 3  :        Sri S.Routray,Adv. & Associates.

For the O.P No.4 :                      None.        

For the O.P No.5:                    Sri S.P.Mohanty,Dy. General Manager,R.B.I.Bhubaneswar.

    

Smt. Sarmistha Nath,Member(W).

 

                The complainant has lodged this complaint before this Hon’ble Forum against the O.ps for Redressal of his grievances under the C.P.Act,1986(Act in short) in terms of his prayer made in the complaint petition.  The allegation made in the complaint is with regard to deficiency in service provided and unfair trade practice adopted by O.P. Bank.

1. The case of the complainant in brief is that she purchased a vehicle being financed by the Indus Ind Bank,(O.P.No.2) the O.P No.1 to 3 with loan amount of Rs.17,42,000/-(Aannexure-1).   A contract was also signed vide contract No.PCB 00238D.  The loan was repayable in 58 E.M.Is between 21.05.2012 to 21.02.2017. After purchase of the vehicle, she got it registered on 02.08.2011 vide registration No.OR-05AR-0059(Anenxure-2).  After registration of the vehicle, the complainant plied the same and went on paying the loan dues regularly  as per the schedule but the financier suddenly seized the vehicle on 02.11.2012 at Jagatpur Chhack,Cuttack without any prior notice though the complainant  had already paid Rs.1,77,650/- to the financier bank towards E.M.I.s(Repossession Inventory vide Annexure-3).  The complainant approached the O.Ps and wanted to know the reason of seizure of the vehicle and the O.P No.2 disclosed that as she has  defaulted in payment of E.M.I, the vehicle has been seized.  The complainant assured to pay the defaulted balance E.M.I but the O.P No.2 did not agree to release the vehicle.  So the complainant apprehends that the vehicle might have been sold to some other person for which the he would suffer from financial loss and mental agony.  Finding no other way she has taken shelter of this Hon’ble Forum.  She has prayed for declaration of the seizure as null and void and for a direction to O.Ps  not to sell and release the vehicle by accepting Rs.1,00,000/- as well as to pay compensation of Rs.20,000/- towards cost of mental agony, Rs.10,000/- towards loss of social prestige, Rs.60,000/- towards loss of business along with cost of litigation worth Rs.5000/-.  Thus she has claimed a total sum of Rs.95,000/- as compensation. 
2. O.P No.1 to 3 appeared through their counsel and filed their written version denying the allegations made by the complainant.     The O.Ps have intimated that the complainant was irregular in repaying the E.M.Is despite repeated demand notices (Copy of demand notice dt.10.07.2012 and 07.09.2012 along with postal receipts enclosed).  The complainant was incapable of paying the E.M.Is & she handed over the said vehicle to the Bank on 02.11.2012 and notoriously did not sign the inventory list (copy annexed).  After such lawful seizure of the vehicle on 02.11.2012, as per terms of agreement the borrower was given due opportunity by way of after seizure notice dt.09.11.2012 to liquidate the dues and take possession of the vehicle.  The borrower has irrevocably authorized the lender Bank to sell/transfer/assign the assets either by public auction or private treaty or otherwise howsoever and appropriate the proceeds there of towards repayment of all outstanding amounts from the borrower to the lender under the Agreement.  The agreement also stipulates 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.  Accordingly affording further opportunity to the borrower pre auction notice dt.31.12.2012 was sent (copy attached).  However as the borrower did not evince any interest upon paper publication dt.12.12.2012 in the leading Newspaper ‘ The Samaj’ regarding sale of the said vehicle(copy annexed), the vehicle was auctioned for loss on 13.3.2013 and the borrower instead of paying such loss to the Bank has filed consumer complaint. The O.Ps (1 to 3) vide affidavit dt.09.12.2013 have further stated that the complainant had availed loan from the O.P Bank for purchasing a truck-“Eicher-35.31”, Regd. No.OR-05-AR-0059 under hypothecation to O.P Bank.  The petitioner had executed the loan agreement vide No.OCB 00238D and had gone through the terms and conditions and thus agreed to repay the loan dues in regular EMIs without any fail.  The petitioner was also very much aware that in the event of default the Bank has every right to take possession of the vehicle in order to secure its interest over the asset in question.  The petitioner was irregular in repaying the loan and did not pay any heed to the notices of the O.P Bank for which the O.P Bank took possession of the vehicle in question on 02.11.2012.  The vehicle in question has already been auctioned off on dt.13.03.2013 much prior to filing of this consumer complaint since the complainant did not came to release the vehicle in spite of postal notice and paper publication.
3. The O.P No.4 did not appear, hence was set exparte.  O.P No.5 appeared & filed written objection requesting to dispense with the presence of its officers on every date of hearing as the complainant has no cause of action and if the Forum requires the R.B.I will depute its officer.
4. We have gone through the case records in details as filed by all the parties.  We have also heard the learned advocates from both the sides.(i.e. complainant and O.Ps (1 to 3) and we have observed that the complainant had availed a loan worth Rs.17,42,650/- from O.P Bank on 29.03.2012.  The agreement value was Rs.26,21,990/-.  The complainant failed to repay the installments in time for which the vehicle was seized on 02.11.2017.  As on date of seizure the over dues were Rs.1,40,543.83p and the loan balance repayable including future dues were Rs.24,69,723.83p.(As learnt from Annexure-1 i.e. Accounts statement as submitted by the complainant). Vide contract No.OCB 00238D a loan agreement was executed between the complainant and O.P Bank on 29.03.2012.  As per the said agreement “No notice, reminder or intimation will be issued to the borrower regarding his obligation to pay the installment regularly on the due date.  It shall entirely be the responsibility of the borrower to ensure prompt and regular payment of the installments”. (Clause 2.9(e) of the said agreement).  It is also stated in the said agreement that “the lender shall in any/all the aforesaid Events of Default be entitled to and the borrower hereby irrevocably authorizes 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 this agreement.” (Clause 15.4).  Therefore it is clearly stated in the Agreement that monthly installments are to be paid regularly on monthly basis and any delay or default in paying the monthly installment is a breach in the terms and conditions of the agreement and clause gives the O.P. a legal right to repossess the vehicle to secure the loan amount in the event of default and also to sell the asset to secure the loan amount.  The learned counsel for the petitioner submits that the Supreme Court and National Commission have held that no force can be used for repossessing the vehicle and the vehicle should be obtained as permitted by law.  This ground does not ensure in favour of the petitioner because the petitioner waddled out his commitments and indisputably was a defaulter.  The moment he did not pay the installment it gives the legal right to the financier to repossess the vehicle.  The Hon’ble Apex court in a judgment reported in Suryapal Singh Vrs. Sidha Vinayak Motors & Another III(2012) CPJ 4(SC) has held that “Under Hire purchase agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retains 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 financier.  Vide its judgment in Trilok Singh & Others Vrs. Satya Deo Tripathi, AIR 1979 SC 850 the Hon’ble Apex Court has categorically held that “Under the Hire Purchase Agreement, the financier is the real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle”.  The Hon’ble National Commission vide its judgment dt.08.12.2014 has held that “where vehicle has been possessed on account of default in payment of installments and has been sold after due notice, no deficiency on the part of financier can be presumed”. [2015(1) CPR 367(N.C)] it is needless to record it here that the said vehicle was sold on Auction on 13.3.2013”.  The petitioner filed this case before this Hon’ble Forum on 26.3.2013.  This Hon’ble Forum had passed an interim order on 26.3.2013 by directing the O.Ps not to sale the vehicle but prior to that, the vehicle in question was already sold on auction on 13.03.2013.

ORDER

Basing on the facts and circumstances as stated above, it is observed that the petitioner failed to prove the deficiency in service on the part of the O.Ps.  Hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 23^rd     day of November,2017 under the seal and signature of this Forum.

                                                                                                                                                                                                                                                                                                                           (Smt. Sarmistha Nath) 

                                                                                                                Member(W).

                                                                                                             (   Sri D.C.Barik  )

                                                                                                                              President.

                                                                                                                                                                                         

                             (Sri B.N.Tripathy )

                                                                                                                                  Member.