Sri Shyamal Gupta, Member

Assailing the aforesaid impugned order, this Appeal is preferred by M/s Shriram Transport Finance Co. Ltd.

The Respondent, namely, Abdul Hadim Molla @ Abdul Hamid Molla filed the instant complaint case alleging several malpractices on the part of the Appellants in respect of the loan taken by him from the Appellants.  The Appellants, however, denied all the material allegation stated in the complaint petition and claimed that everything was done in pursuance of the terms and conditions contained in the Loan-cum-Hypothecation Agreement executed between them.

I heard both sides in the matter and gone through the documents on record.

Ld. Advocate for the Appellants firstly disputed the very maintainability of the complaint case contending inter alia that the Respondent availed of the subject loan for commercial purpose and therefore, it was highly improper for the Ld. District Forum to adjudicate the case in the first place.

On due consideration of the facts and circumstances of the case, however, I did not find any rational in it.  First of all, commercial purpose has not been totally kept out of bound of this beneficial legislation.  In fact, it is the settled position of law that employing a driver for running a vehicle does not strip one off his status as a ‘consumer’.  There is nothing to show that the Respondent owns two or more trucks.  Therefore, in my considered opinion, by seeking redressal of his grievance under the 1986 Act, the Respondent committed no illegality.   

Ld. Advocate for the Appellants further contended that in view of the earlier order passed by this Commission in the self same matter in FA/700/2014, there was no scope for the amending the plaint. 

It is found that by moving an MA (MA/25/2016), the Respondent amended his petition of complaint.  Since the Appellants did not dispute the concerned order by which such amendment was allowed by the Ld. District Forum by preferring statutory Revision before this Commission within the limitation period, they cannot cry foul at this stage.  Above all, in the interests of natural justice, one is always at liberty to amend the plaint till the same attain finality subject to the due approval of the concerned Court of Law.  Therefore, I do not think that, by allowing the amendment petition, the Ld. District Forum committed any legal infirmity at all.

It is also contended by the Ld. Advocate for the Appellants that due insurance premium was deducted from the sanctioned loan amount as per the agreement and there was no provision to refund the said amount.

It appears that, prior taking the subject loan, the Respondent was already having an insurance policy in respect of the pledged vehicle.  Therefore, it was highly improper for the Appellants to compel him to take another policy.  On going through to the relevant portion of the Agreement, I find that, it is merely stated therein that the borrower should keep the hypothecated asset fully and comprehensively insured against all risks to the full market value thereof. No such condition was laid down in the agreement in question to the effect that irrespective of having an insurance policy in respect of the pledged asset, the same ought to be insured afresh by taking another policy from the nominated Insurance Company of the Appellants. 

It is also submitted by the Ld. Advocate for the Appellants that in terms of the provisions laid down under the loan agreement in question, the Appellants reserved every right to repossess the hypothecated vehicle over non-payment of EMIs. 

I, however, do not find any substance in such contention of the Ld. Advocate for the simple reason that, the law of the land does not permit any company to take the law unto itself.  Before repossessing a vehicle, one has to follow due process of law.  No such documentary proof is advanced from the side of the Appellants to show that due notice was served upon the Respondent cautioning him about the probability of repossessing the subject vehicle in the event of failure on the part of the Respondent to clean the slate within the scheduled time frame.  It is though stipulated in the loan agreement in question that the Appellants were empowered to repossess the vehicle without serving any notice, I afraid, while the Hon’ble Apex Court denounced such practice on the part of financial institutions, it was highly improper for the Appellants to insert such clause in the loan agreement.  They must know that agreements which have unlawful consideration and objects are void in terms of Sec. 24 of the Indian Contract Act, 1872. Therefore, by inserting unlawful provisions in the contract which is not enforceable in law, the Appellants cannot get away with it.  More so, while its own Appeal on the self same matter was pending before this Commission, it was highly improper on the part of the Appellants to take forceful repossession of the vehicle in question without taking due leave of this Commission. 

Lastly, Ld. Advocate for the Appellants challenged the legality of the impugned order in view of the Arbitration order passed on 31-03-2015.

On a reference to the documents on record, I find that the instant arbitration proceedings was drawn up in the year 2014, long after the complaint case filed in the year 2013.  Therefore, the award passed in the arbitration proceedings had got no bearing in the complaint case being decided by the Ld. District Forum. 

In all, none of the contentions articulated by the Ld. Advocate for the Appellants seem convincing to me for which I dismiss this Appeal with a cost of Rs. 10,000/- being payable by the Appellants to the Respondent.