Orissa

Kalahandi

CC/15/2015

Sanjeev Kumar Sahoo - Complainant(s)

Versus

Mananger, TML Finance Ltd. - Opp.Party(s)

11 Mar 2016

ORDER

For the Complainant:-  Self

For the O.P No. :- Sri A.K.Sahu   and Sri S.S.Sahu, Advocate.

 

ORDER.

            The present disputes arises out of the complaint petition filed by the above named complainant  alleging deficiency in service  against the afore said O.Ps  for non refund of   deposited  amount  with the O.Ps.  The brief facts of the case is briefly summarised  here under.

 

            The  O.P. had financed a sum of Rs.4,56,000/- on Dt. 1.4.2005 in favour of the  complainant for purchase of a new  “Sumo Victa “.    The  complainant had paid a sum of Rs. 80,000/- towards down payment against the total cost of the  “Sumo Victa “   a sum of Rs.5,36,057/- .  The O.Ps  had  made  35  equal monthly  instalment  Ist. E.M.I. Rs. 16,968/- and from 2 to 35 E.M.I. @ Rs.15,700/- per month starting from 19.5.2005 to 21.3.2008  for collection of finance amount from the complainant  including interest. The O.P. delivered  vehicle to the complainant during the month of  May, 2005  and the vehicle was registered  by the RTA, Kalahandi  vide Regd. No.08-C-6969 and the vehicle  was insured by  Oriental Insurance  at the cost of the complainant  with payment of  premium a sum  of Rs.14,687/-.    The complainant  started repayment of  instalments w.e.f.  1.5.2005.   When the  above  vehicle   was  in a trip to cuttack  on Dt.19.11. 2005   the O.P.  forcibly  took away  the  vehicle  to his possession. The above vehicle was auctioned and  sold by the O.P  with sale consideration a sum of Rs.3,80,000/-. The O.P. had  already received  repayment of  instalments  a sum of Rs.60,000/-.  After  repossession of the above vehicle by the O.P.  the complainant demanded  to refund  deposited amout to the O.P.   After  such demand  the O.P.  on Dt.2.9.2009  demanded  Rs. 87,000/- towards differential amount  of the vehicle along with interest. Hence  this complaint petition  before the  forum for redressal of  his grievance. The complainant prays the forum to direct  to the O.P.  not to claim any amount from the complainant. Further direct the  O.P. to  refund deposited  E.M.I. a sum of Rs. 58,368/- along with   down payment a sum of Rs.80,000/-, Registration charges Rs. 21,220/-, Insurance charges Rs.14,687/- along  with accessories Rs.14,000/- total comes to Rs.1,88,000/- along with interest  from the respective date  of  repossession till realization and such other relief as the hon’ble forum  deems fit and proper for the best interest of justice.

On being noticed the O.P. appeared through their learned counsel  and submitted that   as per the terms and conditions contained  in the said agreement the said vehicle is hypothecated to the O.P. as security  for due  repayment  of the loan.  Such security was enforceable by the O.P. on the occurrence   of any of the events of default or violation of the terms and conditions as contemplated in the said agreement. The above petition is barred by  limitation. The complaint filed by the complainant does not fall with in the  definition  of a ‘Consumer  dispute’ under the C.P. Act. The complainant in this instant case has been a chronic  defaulter of the installments.  The complainant used the above vehicle  for commercial  purpose. The complainant  paid Rs. 43,168/- towards E.M.I.  till  November, 2005. The O.P. prayed the forum to dismiss the complaint petition against the O.P. No.1.

The O.P appeared and filed their written version.  Arguments from the  learned counsel for Opposite   parties and from the complainant  heard.  Perused the record, documents,  filed by the parties. 

The  learned counsels  for the  Opposite  parties  vehemently advanced arguments touching the points both on the facts  as well as on  law.

        FINDINGS.

The learned  counsel for  O.Ps  vehemently  contended   that the  complaint petition  is not maintainable  and the  complainant  is not a consumer  under the  C.P. Act  and   It is admitted by both the parties  are that the transaction is on hire purchase agreement.

It is admitted by the O.Ps that it is a financing company and offering their services for consideration. It is submitted by  both the parties  that the complainant had availed the said service  for consideration and this fact is clearly   depicted in the Hire purchase agreement. Hence the complainant is a consumer as per the C.P. Act and the O.Ps were giving their services for consideration and as such this dispute comes within the scope of C.P. Act.   The agreement entered into between the parties  clearly reveals that the  complainant will pay    35  monthly equal  installments  Ist E.M.I.  @ Rs. 16,968/-  and from 2^nd. to 35 EMI @ Rs.15,700/- commencing from  19.5.2005  and the last  installment was  dated due  on  21.03.2008.

Admittedly the O.Ps have given the necessary finance to the complainant in the transaction .  They also admit the execution of the hire purchase agreement and the condition laid down there as per the hire purchase agreement.

In the instant case the O.Ps. had  without  given any notice of demand took  away the vehicle on Dt.19.11.2005 where as the last date of agreement  had expired on  21.03.2008  and sold  the vehicle  without intimation to the complainant.

The O.P.  had  never taken the  spirit on consumer service in their attitude and they have encouraged their business wings to a prohibited area. The counter  claim of the O.Ps. are not maintainable before this forum and the O.Ps  have  violating the provisions of   Odisha Regulation- 1968 and Odisha Debt  relief  Act  1981. Further the O.Ps have entered into the scheduled   prohibited area and violated U/S- 23 of the Contract act. 

Section-20   the Hire purchase  Act- 1972  defines that, restriction on owner’s right to recover possession of goods otherwise than  through  court.   Where    goods have been  let under a hire purchase agreement and the  statutory proportion of the hire purchase price  has been paid, whether  in pursuance of  the judgement   of a court or otherwise or tendered by or  on behalf of the hirer or any  surety, the owner  shall not enforce  any right to recover possession of the goods from the hirer otherwise than in accordance  with Sub-section -3  or by suit.

The O.P. vehemently  argued  before  the forum that   the above case is barred  by limitation.  The Hon’ble  Supreme Court, New Delhi  in catena judgements  observed  “Failure to act properly by the Advocate  due to negligence and in action  for  non filing  of the  case in due date before the  court  the complainant should not be denied to his legitmate right.” In the instant case  the complainant  approached the advocate  on Dt.22th. September, 2009 for filing of case against the O.P for realisation of the  amount from the O.P.  The advocate  prepared  the petition on Dt.22.9.2009 but not filed before the forum  in due date as revealed from the  last  page  of the complaint  petition. On asking  by the complainant  to the advocate  towards the status of the case the advocate    had taken some or other plea. So the complainant  came  in person to the forum and  verified the institution register  from 2009  up  to  December, 2014.  For  non filing the above case he approached the  advocate and  brought the typed petition  which  was typed on  September, 2009 and filed  the same before the forum  on Dt.27.3.2015. On perusal of the petition  we observed  there is no fault  on the part  of the complainant and the above case is  allowed under section 24(A) (2)   of the C.P. Act.

It is held and reported  in A.I.R. 1994 S.C. page No. 787  and  1994 (I) SCC 243 the Hon’ble Supreme Court  observed  importance of the Act lies in promoting welfare of the society by enabling the consumer to participate  directly in the market economy. It is clearly stated by the apex court that it attempts to remove the helplessness of a  consumer which he faces against powerful business, described a net work of rackets or a society in which producers have secured power to rob the  rest  and the might of public bodies which are degenerating  into store house of in action.

It is held and reported in OLR 2007(1) (SC) page No. 472 where in  the Hon’ble Supreme  Court  observed – Loan granted by  finance company- Default in payment- Recovery  of same- Procedure- Recovery of loans or  seizure of vehicles could be done  only through  legal means- The Finance company  cannot employ goondas to take  possession by force.

In the instant case repayment by the  complainant started  from  19.5.2005 and he had paid   03  E.M.I.  The vehicle was  seized on 19.11.2005 and by  then  total installment  dues are  06  E.M.I.   Out of which the  complainant had paid  03 installments and had   deferred   payment of  3 installments   only  for which some penal  interest might  have  accrued  and some monthly  installments are over due .  But  from the records and document  available  on record the O.Ps had  never  issued any  default notice and repossession the same and  sold  the same on auction  without  any  prior notice to the complainant and giving any   opportunity to him to repay the outstanding dues.

The entire transaction of the O.P. with the complainant in the deal was with an ill intention and they have never followed the rules and regulations while granting  the finance and without giving any chance  to the consumers they have  forcibly  took the vehicle on Dt. 19.11.2005 and  the above  vhicler was  utilized  by the complainant  for his     livelihood . Further  the complainant is residing in remote area and  due  to failure of crop   the complainant sustained heavy financial loss.

The Securitisation  and Reconstruction  of Financial Assets and enforcement of security interest Act clearly  provides the mode of recovery. The O.Ps have advanced the money for a definite purpose as seen from the   documents filed by the  O.Ps.  Hence they are guided by the same  as well as  by the guide lines given by R.B.I and the hon’ble  apex court  from  time to time  in the above subject.

On perusal of the documents we observed the O.Ps   had  clearly  violated the guide lines  given by the Act  and as well as by the  hon’ble Supreme Court and R.B.I. on the above subject and as such the repossession is an unfair trade practice and deficiency putting the poor consumer  into financial loss and mental agony.  The complainant is a educated  unemployed  youth  and for his livelihood  he  doing this business  so that the  complainant to earn  some money so that econmially he can improve.  The intention of the legislature is also clear.  In order to mobiise and improve the economic conditions of the remote areas the scheme is opened it it not for the personal gain of the financing company.   Hence the action of  repossession of   the O.Ps  is a  deficiency of service and unfair trade practice.  It is held and reported in C.P.R-2012(1) page  No. 89 the  hon’ble  State Commission, West  Bengal observed that the finance company can not be seized/ repossessed without observing  due process of law.

In the above facts, circumstances and on perusal of the record,  and referring  the above citations there  exists a strong  prima-facie case in favour of the complainant. Hence allow this case.

To meet the ends of justice, the following order is passed.

                                                            ORDER.

In the result with the above observation, findings the complaint petition is allowed  in part  on contest against  the O.P.

The O.P is ordered to refund the down payment a sum of Rs. 80,000/-, payment of installment Rs. 43,168/-, Accessories fitted in vehicle  Rs. 14,000  grand  total comes to Rs. 1,37,168/- . Parties are left to bear their own cost.

The OP  is  ordered to make compliance the aforesaid Order within  30 days from the date of receipt of this order failing which  an interest  @ Rs.9 %  would  accrue on the decrial  amount . from  the date of  seizure  of the vehicle  i.e. on  Dt.19.11.2005  till  realization.

Dictated and corrected by me.  

Pronounced  on this  1 1^th.   Day of  March,   2016.

 

 

Member.                                          Member.                                                      President

 

 

Documents relied upon:-

By the Complainant:-

 

1. Xerox copies of the  form C of the vehicle issued by the RTO, Kalahandi.
2. Xerox copies of   bank statement.
3. Down payment  made by the complainant in shape of  3 Nos. of D.D. amounting to Rs.80,000/- in favour of  Maa Samaleswari Automobiles, Sambalpur on Dt.18.4.2005.
4. Rs.14,687/- deposited towards insurance for above vehicle in shape of D.D. Date.5.5.2005 a sum of Rs.14,687/-.

 

By the O.Ps:-

 

                                                 Nil.

 

                                                         

President