Per Shri Dhanraj Khamatkar, Hon’ble Presiding Member
This appeal takes an exception to an order dated 25/01/2008 passed by District Forum, Sangli in consumer complaint No.46/2006.
2. The facts leading to this appeal can be summarized as under:-
The complainant had purchased a Tata Spacio vehicle from opponent No.1 by taking a loan from opponent No.2 for his personal use. The complainant had entered into a ‘Hire-Purchase Agreement’ with opponent No.2. As per the hire-purchase agreement, E.M.I. of the loan amount was `7,899/- and to be repaid in 47 installments. Accordingly, complainant had deposited 47 post-dated cheques. The opponent had sent a cheque of E.M.I. dated 03/01/2005 for clearance. The opponent had informed to the complainant by letter dated 03/02/2005 that the cheque has returned without clearance and hence, directed the complainant to pay the same within a period of seven days. It is the contention of the complainant that on that date, the complainant was having an amount of `10,736/- in his account and the complainant has explained the same to the opponent No.1, still opponent No.1 has issued a notice under Section 138(2) to the complainant through Advocate. Again on 03/04/2005 the opponent No.1 informed the complainant that second cheque was not cleared. However, from 31/03/2005 to 12/04/2005 complainant was having an amount of `14,692/- in his account. The complainant even told to the opponent No.1 as he was having sufficient amount in his account, there is no reason for not clearing the cheque. However, opponent No.1 has not taken any action. In May 2005, the Police had come to the residence of the complainant with summons and at that time, it came to the notice of the complainant that the opponent No.2 had initiated action under Section 138 of the Negotiable Instrument Act. The opponent No.2 had charged `23,737/- from the complainant. On 30/11/2005 the opponent No.1 had repossessed the vehicle and informed by their letter dated 02/02/2006 to the complainant that they are auctioning his vehicle. Alleging all this as deficiency in service on the part of the opponent, the complainant had filed a consumer complaint praying that opponent is deficient in their service and resorting to an unfair trade practice and prayed that opponent be directed to hand over the possession of the vehicle and pay an amount of `1 Lakh as compensation.
3. District Forum issued a notice along with an Interim Relief Application. Opponent No.1 appeared before the District Forum and stated that the complainant has entered into a Hire-Purchase Agreement with opponent No.2. However, they are not impleaded as necessary party and hence, the complaint is not tenable for non-joinder of necessary party. Hence, the complainant had added opponent No.2 as necessary party and accordingly, Tata Motors Pvt. Ltd. Company has been added as necessary party.
4. Opponent No.2 appeared before the District Forum and denied the contentions of the complainant in the complaint. They also stated that as the complainant failed to pay the EM.I. they have taken possession of the vehicle and auctioned the vehicle. The amount realized from the auction credited to the loan account of the complainant and still there is some outstanding against the complainant.
5. District Forum directed the opponent No.2 to file papers regarding its repossession, auction and details of loan account. Accordingly, opponent No.2 had filed all the papers. After filing the papers, the complainant has filed an amendment application praying to add the person to whom the opponent No.2 had sold the vehicle and accordingly, opponent No.3 was impleaded as necessary party.
6. District Forum after going through the complaint, written versions filed by opponent Nos.1&2, evidence filed by both the parties on affidavit and pleadings of the Advocates came to the conclusion that there is deficiency in service on the part of appellant/opponent Nos.1&2 and allowing the complaint directing the opponent No.2 to pay an amount of `1,08,177/- with interest @ 12% p.a. from 27/02/2006 to the complainant and also directed the opponent Nos.1&2 to pay a compensation of `50,000/- and cost of `5,000/- jointly and severally to the complainant. Aggrieved by this order, original opponent No.2 has filed present appeal.
7. We heard Mr.Ajay Pawar, Advocate Proxy for Mr.A.V. Patwardhan, Advocate for the appellant and Mr.S.R. Patel, Advocate for respondent No.1. None present for other respondents.
8. Advocate Mr.Pawar has pointed out that original price of the vehicle as per Invoice is `3,68,294/-. However, District Forum has arrived at the price of the vehicle at `3,75,000/-. Advocate Mr.Pawar stated that when the Invoice of price of the vehicle is `3,68,294/- how the District Forum has arrived at price of vehicle as `3,75,000/- when the vehicle is used by respondent No.1 for nearly 6to7 months. Similarly, Advocate Mr.Pawar stated that the tax has been paid to the registering authority and respondent No.1 cannot claim the same from the appellant. He stated that for rest of the order he does not have any objection.
9. On perusal of the order of the District Forum, it is seen that amount of `3,75,000/- has been fixed by the Valuer appointed by the appellant itself. When confronted by the Commission, the Learned Advocate has shown his ignorance about this. We have gone through the appeal compilation. It is best example of how the process of law can be abused. The appellant has repossessed the vehicle without following due process of law. It is on record how the cheques could not be enchashed when respondent No.1 was having sufficient amount in his account. Not only this, the appellant has initiated proceedings under Section 138 of Negotiable Instrument Act. The appellant has sold the vehicle when there was interim order of the District Forum for not creating third party interest. As regards the person to whom the vehicle was sold, there is contradiction in the pleadings of the opponents. From the papers presented by the appellant, they claimed that they have sold the vehicle on 27/02/2006 to one Mr.Vishwajit Samant. However, from the certificate of R.T.O. it is seen that the vehicle is sold to one Mr.Suresh R. Durgade on 29/03/2006. There is deficiency in service of appellant beyond doubt. The present case is height of abuse of process of law. We do not find any substance or merit in the appeal filed by the appellant. District Forum has passed the order after taking into consideration the facts of the case. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal is dismissed. The order of the District Forum is hereby confirmed.
2. Appellant to bear its own cost and pay cost of `10,000/- to respondent No.1.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 23rd October 2013.
