19.06.2015
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Revision Petition u/s 17(1)(b) of the Consumer Protection Act, 1986 has been filed by the OPs challenging the order No. 46 dated 28.2.2014 passed by the Ld. District Consumer Disputes Redressal Forum at Siliguri in Consumer Case No. 12/S/12, restraining the OPs from giving effect to the Notice dated 07.02.2014 proposing to refer the matter to the Arbitrator if balance outstanding payment of Rs. 1,60,443/-, as standing after adjustment of the proceeds of the auction of the vehicle in question due to default in payment of instalments of loan amount, is not made by the Complainant/ Respondent within 7 days from the date of receipt of the said Notice.
Brief facts of the case are that the Respondent/Complainant purchased a ‘TELCO LPT 2515 EX TRUCK’, bearing Registration No. WB-37/A-6961, obtaining loan of Rs. 5,50,000/- from the Revisionists/OPs with provision for repayment of the same by 5.7.2012 in 35 monthly instalments. After repayment of more than half of the said loan amount in monthly instalments the Respondent/ Complainant defaulted in making repayment of some of the instalments in respect of the balance loan amount owing to his financial loss and sudden illness. Then the Revisionists/OPs advised the Respondent/Complainant to pay the balance outstanding loan amount within three months from 9.6.2011 when the Respondent/ Complainant approached the Revisionists/OPs for time for payment of the balance instalments. After this, on 23.6.2011 all on a sudden the Revisionists/OPs repossessed the truck in question near Muzzafarpur forcibly as alleged. After such repossession as the Respondent/Complainant did not get the truck in question released after payment of the balance outstanding loan amount, the Revisionists/OPs sold out the truck in question through auction, but even after adjusting the proceeds, received through the said auction, against the outstanding loan amount, there still remained outstanding loan amount of Rs. 1,60,443/- repayable to the Revisionists/OPs. Thereupon the Revisionists/Ops issued a Notice dated 7.2.2014 proposing for referring the matter to Arbitrator as per terms and conditions of the Loan Agreement in question for realizing the outstanding amount of loan still remaining unrealized even after adjustment of the proceeds of auction with the outstanding loan amount. After receiving the said Notice the Respondent/Complainant filed a petition u/s 13(3-B) of the Consumer Protection Act, 1986 before the Ld. District Forum praying for injunction in respect of the said Notice. In this factual background, the Ld. District Forum passed the impugned order of injunction. Aggrieved by such order of injunction the Revisionists/OPs moved this Commission for setting aside the same.
The Ld. Advocate for the Revisionists/OPs submits that as the Respondent/ Complainant failed to make repayment of the loan amount as per agreed terms and conditions of the Loan Agreement (No. 0907310013 dated 31.7.2009), the truck in question was sold out through auction as per the terms and conditions of the said Agreement and that as even after adjustment of the proceeds of the auction with the outstanding loan amount there still remained a balance outstanding loan amount of Rs. 1,60,443/-, the Revisionists/OPs were within their legal right as per the terms and conditions of the said Loan Agreement to issue the said Notice dated 7.2.2014 in question proposing steps for recovery of the balance outstanding loan amount.
It is further submitted by the Ld. Advocate that it is the settled principle of law that no injunction can be granted restraining any judicial proceeding as in the present case of referring the dispute to an Arbitrator.
The Ld. Advocate finally submits that in view of the said settled principle of law, the impugned order should be set aside, it being illegal and improper.
None has appeared on behalf of the Respondent/Complainant despite due service of Notice as evident from the order dated 27.8.2014 of this Commission.
However, in the petition for injunction filed before the Ld. District Forum, as available on records, it was admitted by the Respondent/Complainant that he defaulted in repayment of the loan amount as per the terms and conditions of the said Loan Agreement. It was also stated in the said petition that during pendency of the Complaint Case before the Ld. District Forum the Revisionists/OPs had no right to take any subsequent action and, hence, the order of injunction might be passed by the Ld. District Forum.
We have heard the submission of the Ld. Advocate for the Revisionists/OPs, considered his submission and perused the materials on records.
It is well-settled principle of law that under the Hire Purchase Agreement, as is in the present case, it was the financier, i.e. the Revisioists/OPs herein, who was the owner of the truck in question, and the person, who took loan, retained the truck with him only as a bailee/trustee, and, therefore, taking possession of the truck in question by the Revisionists/OPs on the ground of default on behalf of the Respondent/Complainant in repayment of the instalments of loan as per agreed terms and conditions, was a legal right of the financier, i.e. the Revisionists/Ops herein. In this context, reliance is placed on the decision of the Hon’ble National Commission in Surender Kumar Sahoo Vs. Branch Manager, Indusind Bank, decided on 1.10.2012 in RP 3319 of 2012, which was passed relying on a decision of the Hon’ble Supreme Court in Suryapal Singh Vs. Siddha Vinayak Motors & Anr., reported in 111(2012) CPJ 4 (SC).
In view of such settled principle of law in this respect, we are of the considered view that the Ld. District Forum erred in law in passing the impugned order of injunction.
Consequently, the Revision Petition is allowed. The impugned order is set aside. The Ld. District Forum will hear the case on merits and dispose of the same as early as possible. Parties are directed to appear before the Ld. District Forum on 21.07.2015.
