13.04.2016
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
This Appeal u/s 15 of the Consumer Protection Act, 1986 is directed against the judgment and order dt. 30.3.2012 passed by the Ld. District Consumer Disputes Redressal Forum, Cooch Behar in Case No. DF 07/2011 with the following directions to the OP No. 1-Bank:
- OP No. 1-Bank shall pay to the Complainant Rs. 3,00,000/- as compensation;
- OP No. 1-Bank shall return the original documents deposited by the Complainant to the OP No. 1-Bank;
- OP No. 1-Bank shall not demand any further amount from the Complainant treating the Agreement dead;
- OP No. 1-Bank shall pay to the Complainant Rs. 5,000/- as cost;
- OP No. 1-Bank shall have to comply with the aforesaid directions within 45 days from the date of the order, failing which interest @ 8% per annum shall accrue on the said amount for the entire period of default;
- OP No. 1-Bank was also directed to take custody, within the aforesaid date, of the tractor from the Complainant at its own cost and against proper receipt to the Complainant; and
- OP No. 1-Bank was further directed to deposit Rs. 150/- per day for the entire period of default with the SCWF, W.B. for violation of the order of the Ld. District Forum concerned.
Facts of the case, as emerging from the materials on records, are, in short, that the Respondent/Complainant, along with one Sri Paritosh Barman, purchased a Tractor (Registration No. WB-63-3884) under Bill-cum-Challan No. NIL dt. 16.10.2007 from the Respondent No. 2/OP No. 2 against consideration of Rs. 5,81,000/-, for which the Appellant/OP No. 1-Bank sanctioned on 23.10.2007 loan of Rs. 4,40,200/- (Loan A/c No. 396010600000204, no loan document available on records), with EMIs to be paid by the Respondent/Complainant, against deposit of original documents of some agricultural land to the Appellant/OP No. 1-Bank as averred in the Petition of Complaint.
It also appears from the Petition of Complaint that even after repayment by the Respondent No. 1/Complainant of the said loan to the tune of Rs. 3,51,600/-, the Appellant/OP No. 1-Bank forcibly repossessed, allegedly by engaging musclemen, the said Tractor on 28.12.2010 without any receipt thereof being handed over to the Respondent/Complainant. Thereafter, the Appellant/OP No. 1-Bank released the Tractor in question in favour of the Respondent No. 1/Complainant under order of the Ld. Additional Chief Judicial Magistrate concerned allegedly after removing some vital parts from the Tractor in question and thus reducing the Tractor in question under defunct condition. With this factual background the Ld. District Forum passed the order impugned in the manner aforesaid. Aggrieved by such order the OP No. 1-Bank has preferred the instant Appeal.
The Ld. Advocate for the Appellant/OP No. 1-Bank, filing BNA, submits that the total deposit by the Respondent No. 1/Complainant towards the Tractor-loan account was only Rs. 1,83,246/- and that Rs. 1,91,702, as claimed by the Respondent No. 1/Complainant to have been deposited with Tractor-loan account, were deposited by the Respondent No. 1/Complainant with his Savings Bank Account No. 396010100023038, and thus the outstanding amount of Tractor-loan account stood at Rs. 4,37,382/- including interest.
The Ld. Advocate also submits that in view of such outstanding loan amount, the Appellant/OP No. 1-Bank requested the Respondent No. 1/ Complainant to handover the Tractor to the Appellant/OP No. 1-Bank, to which the Respondent No. 1/Complainant responded by handing over the Tractor to the person of the Appellant/OP No. 1-Bank after duly signing the inventory and Panchanama.
The Ld. Advocate adds that the Respondent No. 1/Complainant deposited Rs. 10,000/- on 3.12.2010 with the Appellant/OP No. 1-Bank and requested the Appellant/OP No. 1-Bank to return the Tractor to the Respondent No. 1/ Complainant, to which the Appellant/OP No. 1-Bank did not accede to, but they released the Tractor in favour of the Respondent No. 1/Complainant as per order dt. 10.5.2011 of the Ld. Additional Chief Judicial Magistrate upon execution of a Bond by the Respondent/Complainant on 14.7.2011.
The Ld. Advocate further submits that the Tractor in question was under hypothecation in favour of the Appellant/OP No. 1-Bank, as is evident from the Form of Certificate of Registration dt. 7.11.2007 of the Tractor in question as issued by the concerned Regional Authority, Cooch Behar, Government of West Bengal. In course of submission the Ld. Advocate admits that the documents of hypothecation of the Tractor in question were not produced before the Ld. District Forum.
The Ld. Advocate finally submits that the Respondent No. 1/Complainant having defaulted in repayment of the Tractor Loan as appearing from the materials on records and the Tractor in question having been under hypothecation in favour of the Appellant/OP No. 1-Bank, there was no deficiency on the part of the Appellant/OP in repossession of the Tractor in question, but the Ld. District Forum passed the order impugned without duly appreciating the facts and evidence on records and hence, the Appeal should be allowed setting aside the impugned order.
None has appeared on behalf of the Respondent No. 1/Complainant on the date of final hearing. But it appears from the records that the Respondent No. 1/ Complainant has filed BNA on 27.8.2012. However, in the said BNA the Respondent/Complainant stated that the Respondent/Complainant had repaid the Tractor-loan to the tune of Rs. 3,47,902/- out of Rs. 4,70,200/- due and hence, only Rs. 1,22,298/- (Rs. 4,70,200/- - Rs. 3,47,902/-) are repayable to the Appellant/OP No. 1-Bank but not Rs. 4,37,382/- as claimed by the Appellant/OP No. 1-Bank. In the said BNA the Respondent No. 1/Complainant also stated that the Tractor was never hypothecated with the Appellant/OP No. 1-Bank and that the documents of hypothecation, as claimed by the Appellant/OP No. 1-Bank, were never handed over to the Respondent/Complainant by the Appellant/OP No. 1-Bank. It was also stated in the said BNA that as the Tractor in question was not under hypothecation, so the Appellant/OP No. 1 had no legal right to repossess the Tractor in question allegedly by deputing musclemen.
The Respondent No. 1/Complainant further stated in the said BNA that as the Tractor-loan in question was obtained by mortgaging the land, the Appellant/OP No. 1-Bank could have recovered the outstanding loan amount in question by selling the mortgaged land, but not by forceful repossession of the Tractor which was not hypothecated with the Appellant/OP No. 1-Bank, thereby causing the damage to the cultivation of land, only for which the Tractor in question was purchased.
It was also reiterated in the said BNA that the Appellant/OP No. 1-Bank, after taking custody of the Tractor in question by forceful repossession, removed the vital parts of the Tractor, thereby rendering the Tractor defunct. In the said BNA the Respondent/Complainant prayed for dismissal of the instant Appeal and affirmation of the judgment and order impugned.
None has appeared on behalf of the Respondent No. 2/OP No. 2 on the date of final hearing despite its appearance on the previous occasions as is evident from the orders dated 17.8.2012 and 10.1.2013 of this Commission.
Heard the case, considered the submissions of the Ld. Advocate appearing for the Appellant/OP No. 1-Bank as well as the BNA as filed by the Respondent No. 1/Complainant. Also perused the materials on records.
The key controversy in the case on hand appears to revolve round the event of hypothecation, the documents of which were neither produced before the Ld. District Forum as admitted by the Ld. Advocate for the Appellant/OP No. 1-Bank nor before this Commission. As a result, the Ld. District Forum passed the order without having any scope to consider the documents of hypothecation which appear to be very pertinent and relevant for proper adjudication of the Complaint Case concerned.
In view of the above discussion we consider it just and proper to remand the case to the Ld. District Forum for adjudication afresh as per law upon examining the documents of hypothecation of the Tractor in question.
Consequently, the instant Appeal is allowed. The impugned judgment is set aside. The case is remanded to the Ld. District Forum for adjudication afresh as per law on examination of the documents of hypothecation, for production of which before the Ld. District Forum the Appellant/OP No. 1-Bank is hereby directed.
Both the sides are directed to appear before the Ld. District Forum concerned on 2.5.2016.
