Fact of the case in short is that this Complainant purchased a Swaraj Tractor from O.P. No.1 vide Challan dated 30-10-2012, having Model No.735EF, HP – 39, Engine No.391354 / SRH 09177A and Chasis No.WATK30405159089 and Registration no.WB67A / 3508 , after taking loan from O.P. no.2 of Rs.3,20,000/- on condition to repay the same by 35-monthly installments.

O.P. no.1 is the Dealer of the said tractor, O.P. no.2 is the Financier of Complainant and O.P. no.3 is the authorized agent of O.P. no.2.

This Complainant used to pay monthly installment regularly; but all on a sudden O.P. no.2 through his mussel men forcibly and illegally repossessed the said tractor from the possession of Complainant.

Complainant is a youth unemployed person and was engaging himself for the purpose of earning his livelihood by means of self-employment with the income of this tractor.  So, this Complainant has filed this case and has made prayer to direct O.P. no.2 to refund / back the aforesaid tractor, which was illegally repossessed, in good conditions and also made further prayer to make direction upon O.P. no.2 to allow this Complainant to pay installment of the said tractor as per agreement and also prays for other reliefs.

This case has been heard exparte for non-appearance of O.Ps. at the time of hearing.

                                                                 Decision with reasons.

Ld. Advocate for the Complainant submitted inter alia that this Complainant purchased this case tractor after taking loan from O.P. no.2 borrower and he used to pay amount of monthly installment regularly and he is not a defaulter; but mussel men of O.P. no.2 repossessed the said tractor in question by force though he was not defaulter.  So, he prays for giving relief prayed in the petition of complaint.

We have carefully heard the submissions made by the Ld. Advocate for the Complainant.

Perused the documents and materials on record.  It is undisputed that this Complainant purchased this tractor under Hire Purchase Agreement, after taking loan from O.P. no.2. (Annexure – B) is the Loan Offer – Terms & Conditions.  It reveals from Annexure – B that the loan amount is to be paid by 35-monthly installments and first installment is to be paid by 12-11-2012.

 As per Annexure – C which is schedule of payment at the rate of monthly installment was Rs.12,500/-  by 24-monthly installments and at the rate of Rs.8,800/- by 11-monthly installments.

It reveals from Annexure – D those are receipts showing payment of installments by Complainant.

It reveals from those receipts i.e. Annexure – D series that this Complainant has not paid amount of installment within due date and at the rate as stated in the agreement (Annexure – C) and it also reveals that the amount of installment of Rs.15,000/- was paid lastly on 24-11-2014.  The case tractor was repossessed under Annexure – E.  No documents have been filed by the Complainant to show that he has paid amount of installment regularly at the rate of Rs.12,500/-  by 24-installments and at the rate Rs.8,800/- by 11-installments within due date.

It also revels from Annexure – G which is the notice dated 23-12-2014 given on behalf of the O.P. no.2 asking this Complainant to pay amounting Rs,.1,54,528/- as per agreement within 7-days ; but no copy of letter has been given on behalf of the Complainant raising objection about claim of amount made by O.P. no.2 in Annexure – G / notice given to him.

So, it would be presumed that Complainant had no objection about the claim of amount as stated in Annexure – G, if he had any objection against amount as claimed in notice, then he would given objection in writing.

In view of the above facts & circumstances and discussions made above, we are inclined to hold that O.P. no.2 be a financier gave loan under Hire Purchase Agreement to Complainant to purchase the case tractor.

We also hold that Complainant could not be able to prove that he has paid amount of monthly installment regularly as per terms of condition of agreement.  So, we hold that Complainant is a defaulter in repayment of loan amount.

Ld. Advocate for the Complainant referred 2012 (1) CRLR (SC) page 139 and submitted that the recovery of the vehicle should be with due process of law and use of mussel power is not permissible. – But in the present case we find from Annexure – E that repossession of vehicle was taken under this document under the signature of Complainant.  No copy of FIR has been filed alleging that this case vehicle has been repossessed by the O.P. no.2 with mussel power.  No G.D. entry has been filed that this Complainant has informed the Police that his vehicle was taken by the O.P. no.2 with mussel power by force.

So, the allegation of repossession of vehicle with mussel power has not been proved.

Moreover, it has been observed by the Hon’ble National Commission reported in 2017 (1) CPR page 86 (NC) inter alia that “Consumer Protection Act, 1986 – Section 15, 17, 19 and 21 – Financial Services – Hire Purchase Agreement – Repossession of vehicle by Financier for defaulter in repayment of loan amount  - In case of Hire Purchase Agreement, Financier is owner of subject matter of agreement and purchaser is owner as Hirer, who would acquire ownership only after clearing of loan – Petitioner cannot be held guilty of deficiency in service – Impugned order set aside and complaint dismissed.”

The said above decision was made by the Hon’ble National Commission relying on the decision of the Hon’ble Apex Court reported in – II – (2012) CPJ page 8 (SC).

In the present case we hold that this Complainant purchased this case vehicle under Hire Purchase Agreement after taking loan from the O.P. no.2 and there is nothing to show that the entire amount of loan as per terms and conditions of the agreement has been paid back

to O.P. no.2 by Complainant.

In the present case Tractor was purchased by Complainant under Hire Purchase agreement, amount of loan has not been repaid; So, Complainant cannot be said as owner of case Tractor; but O.P. no.2 is the owner of said tractor.

It is also been observed by the Hon’ble National Commission reported in 2017 (2) CPR page 95 (NC) inter alia that taking possession of vehicle on the ground of non-payment of installment is legal right of financier.

In view of the observation of the National Commission we are inclined to hold that taking possession of the case vehicle on the ground of non-payment of installment is the legal right of O.P. no.2 being a financier; and there is no deficiency in service.

So, we find no illegality on the part of the O.P. no.2 in taking possession of the case vehicle from the possession of Complainant, being a Financier / owner of the subject vehicle.

In view of the circumstances, this case is liable to be dismissed.

Hence it is

                                                               Ordered

That the Complaint Case No.11 of 2015 be and same is hereby dismissed exparte against all O.Ps. ; but without cost.

Let a plain copy of this Judgement be supplied to the parties free of cost.