Per Hon’ble Mr.P.N.Kashalkar, Presiding Judicial Member

          Appeal no.A/10/1026 is filed by the original opponent -HDFC Bank, Andheri (East), Mumbai against the judgement and award passed by Mumbai Suburban District Consumer Disputes Redressal Forum in consumer complaint no.226/2007 decided on 06/08/2010.  While allowing the complaint partly, forum directed opponent to pay a sum of `50,000/- to the complainant towards the compensation and `5,000/- towards the costs and if this order is not complied with within six weeks from the date of receipt of order to pay interest @ 9% p.a. on amount of `50,000/- and also stated that opponent shall not be entitled to recover any amount from the complainant towards the unpaid or outstanding amount in its Books of accounts regarding loan account of the complainant.  Aggrieved by this order, appeal no.A/10/1026 has been filed by the original opponent.  Facts to the extent material may be stated as under:-

          Complainant had approached opponent/HDFC Bank (herein after referred as “Bank”).  She sought vehicle loan of `3,52,000/- on 02/06/2004.  Said loan was to be repaid from 02/06/2004 to 02/05/2009 in monthly EMI of `7,250/- each.  From the said loan, complainant purchased Maruti-Zen, which was registered with RTO bearing Registration No.MH-04-BY-8878. According to complainant, she had paid EMI from the month of June 2004 onwards till November 2006 regularly.  However, in the meantime in the month of April, 2005 she had shifted her residence from Nerul, Navi Mumbai to Kharghar, Navi Mumbai, which was duly informed to the opponent bank by making phone call at the helpline of the opponent bank.  Pursuant thereto, opponent bank used to collect installments by visiting house of the complainant at Kharghar, Navi Mumbai.

          According to complainant on 28/12/2006, while she was not in her residence, some unknown persons, engaged by M/s.Sunanda Enterprises, Goregaon, Mumbai, acting as Recovery Agents of opponent bank; entered into complainant’s house, abused complainant’s husband, took some signatures of her husband on some papers, obtained keys of the vehicle and forcibly took possession of the vehicle.  She then approached police at Kalamboli police station to lodge the police complaint but the concerned police station refused to accept the complaint. 

          Opponent then issued false demand notice on 29/12/2006 and made demand of `2,68,069/- towards the outstanding dues.  According to complainant, she then approached officials of the bank.  She showed payment receipts of EMIs and requested to return the vehicle but her request was turned down.  Condition imposed by the opponent bank was that unless she paid full total amount remaining unpaid towards her loan account, she would not be given back vehicle. Then complainant sent registered notice on 10/01/2007 through her advocate.  Even after receipt of the notice, opponent had not returned the vehicle and, therefore, she filed consumer complaint seeking direction as against the bank, that bank should return the vehicle and she also asked for compensation of `5,50,000/-.

          Notice was sent to the opponent.  Opponent bank filed written version and took up the defence that Loan agreement executed between the parties dated 20/05/2004 mentioned term as to how loan should be repaid by the complainant by tendering EMI amount every month on the due date.  According to opponent bank several post-dated cheques issued by the complainant were dishonoured.  Opponent bank therefore served notice dated 09/12/2006, making demand of outstanding amount.  By the said notice complainant was informed that if outstanding amount was not paid then possession of the vehicle would be taken on the strength of the terms and conditions of the agreement.  Accordingly, since there was outstanding amount in her loan account, they had repossessed the vehicle on 28/12/2006.

          Bank further pleaded that on 29/12/2006, a notice was sent to the complainant calling upon her to pay `2,68,069.44ps. before 06/01/2007, failing which, the vehicle would be auctioned.  Notice was not complied with by the complainant and, therefore, vehicle was auctioned.  Sale proceeds thereof in the sum of `2,01,000/- were adjusted against outstanding amount and there is still shortfall of `67,069.44 ps. Bank pleaded that they had not forcibly taken repossession of the vehicle and on giving due notice to the complainant and invoking clause no.(14) of the Loan Agreement, they had repossessed the vehicle and, therefore, they pleaded that they were not guilty of deficiency in service. 

          Forum on considering affidavits and documents filed by the respective parties and after hearing the counsels for both the parties held that the complainant proved that bank was guilty of deficiency in service on repossession of the vehicle and that complainant was entitled to get compensation of `50,000/- from the opponent bank and, as such, it was pleased to allow the complaint partly and passed the impugned order, which is impugned in this appeal by the original opponent HDFC bank.

          Appeal no.A/10/1026 is filed by the original opponent HDFC Bank and original complainant -Mrs.Keka Chakraborty filed Appeal no.A/11/315 asking for redelivery of the vehicle from the bank.  Appeal no.A/11/315 is filed by the original complainant praying that opponent should be directed to pay compensation of `5,50,000/- and `10,000/- towards the miscellaneous expenses.  She also prayed that compensation awarded should be enhanced.  We took up both these appeals for hearing and heard submissions of Advocate Ashutosh Marathe for the original opponent -HDFC Bank and Advocate Anil Galgali for the original complainant-Mrs.Keka Arnab Chakraborty in both the appeals. 

          We are finding that there is substance in the appeal preferred by HDFC bank.  The salient features of this case is that Mrs.Keka Chakraborty had taken loan of `3,52,000/- from the HDFC bank on 02/06/2004.  Loan agreement was accordingly executed between the parties.  On the same day she also executed demand promissory note and irrevocable power of attorney in favour of the appellant regarding the vehicle in question. In terms of agreement said amount was repayable in 60 monthly installments each of `7250/- starting from the month of June 2004 lasting till May 2009.  Said loan was granted at the interest rate @ 8.98% p.a.  Complainant had availed finance facility by declaring that she was ‘self employed’.  Said loan agreement contains clause 9 sub clause (v)(a), which clearly stipulated that borrower hereby expressly and irrevocably agrees and covenant, that during the period of this Agreement, the borrower shall on demand being made by the bank or without demand, if any of the events mentioned in this clause arise, to give immediate actual possession of the hypothecated vehicle to the bank, its nominee or agents.  Said clause also contain sub clause (viii) that borrower shall punctually pay all the sums referred to in Clause 2 of this Agreement. 

          Clause 14.1 of the said loan agreement stipulated that if the borrower fails to perform any of the obligations herein and the same is not remedied to the satisfaction of the bank within prescribed period and had there being any default, the bank through its officers, agents or nominees shall have right to take any one or more than one of the following actions without the specific intervention of a court or any court order.  Special action for taking immediate possession of the subject vehicle or hypothecated vehicle and bank was given right to use to tow van to carry away the vehicle.

          Mr.Ashutosh Marathe-Advocate brought all these terms and conditions to our knowledge and stated that the complainant admittedly committed default.  She had not paid EMI punctually at the appointed date.  In fact, he brought to our notice that the loan account clearly reveals that most of the cheques given by the borrower had bounced and one such cheque was dated 07/09/2004, another was dated 06/12/2004, third was dated 04/06/2005, 4^th was 04/11/2005, another cheque dated 03/03/2006, yet another cheque dated 05/04/2006 were all bounced and there are some other dates also.  For the sake of brevity we are not reproducing the same but suffice it to say that there is default committed by the complainant. Mr.Ashutosh Marathe-Advocate contended that the cheques of EMI given by borrower Mrs.Chakraborty had bounced more often than not and that is why bank had decided to repossess the vehicle.  So action of repossessing the vehicle was directly in accordance with the terms and conditions of the loan agreement.  Loan agreement is binding on both the parties and none of the parties can be allowed to take benefit of the default committed by it or her when the loan agreement was to be in force till May 2009.  So till May 2009 every month original complainant was required to make payment of `7250/- but she committed default, her cheques were bounced and, hence, bank had decided to enforce its right to recover the dues and, therefore, they had sent a letter on 29/12/2006 informing the complainant that complainant was required to pay outstanding dues of `2,68,069.44 ps. on or before 06/01/2007, failing which the opponent will have to sell the hypothecated vehicle as per procedure of the bank.  Bank had given all the particulars of outstanding amount to the complainant along with letter dated 29/12/2006.  Exhibit D is the copy of such letter.  Since said letter was neglected by the borrower, the bank had no option but to repossess the vehicle and sell it by public auction.  So it exercised right of repossession given under loan agreement since defaults were consistently committed by the borrower and they sold the vehicle for consideration of `2,01,000/- and, thereafter, sent another notice on 06/02/2007 informing the complainant about the shortfall of `67,069.44 ps. Exercise of right of the appellant bank to repossess the vehicle and to sell it by public auction is well recognized right in view of the terms and conditions of the loan agreement.  Respondent-complainant cannot be heard to say that though she defaulted in making payment, the bank should not have sold the vehicle by public auction and she cannot be allowed to make complaint that bank’s agents had visited her house in her absence and repossessed the vehicle from taking keys from her husband.  If at all this was a case of borrower, then when she had gone to police station, Kalamboli, the police would have registered the offence, had the bank’s officials or their agents had done any illegality.  Very fact that police told that no offence could be registered or no FIR could be registered against bank officials or its agent, it would mean that bank officials or its agents had committed no default in taking repossession of the hypothecated vehicle from the house of the complainant.  Though at the time of taking repossession it is alleged that complainant was not present but her husband was present and her husband had given keys to the bank’s agents.  In the circumstances, we are finding that there was no merit in the complaint lodged by the complainant alleging deficiency in service on the part of original opponent bank.  Loan statement clearly showed that there was outstanding amount of `2,68,069.44 ps. when notice was sent on 29/12/2006.  Since she committed default in not paying the installments regularly as per agreement, the outstanding dues become payable and therefore bank had sent notice initially on 09/12/2006 making demand of outstanding amount and since it was not paid by the borrower, possession of the vehicle was taken on the strength of terms and conditions of the agreement on 28/12/2006 and same was sold by public auction strictly in terms of the loan agreement.  It resulted in recovery of `2,01,000/- and there was still outstanding amount of `67,069.44 ps. from the complainant after adjusting the amount recovered by selling the vehicle by public auction.  All these facts are clearly establishing the fact that complainant Keka Chakraborty was defaulter, she had defaulted in payment of monthly EMI and, therefore, bank had rightly exercised its right to repossess the vehicle.

          It was tried to be contended by counsel for the respondent that she had shifted her house to new address and, therefore, she had not received any notice sent by the bank.  All notices were sent to her old address.  To that effect counsel for the appellant Mr.Ashutosh Marathe brought to our notice the terms and conditions of the loan agreement, which clearly stipulated that in case of change of address by either of the parties, same should be communicated to other side in less than 21 days by giving written notice to the party.  This we find in loan agreement in clause 19.3.  The complainant has nowhere asserted in her pleading that when she had changed her residence from Nerul, Navi Mumbai to Kharghar, Navi Mumbai, she had given intimation in writing to the bank about her change of address.  She cannot be heard to say that she had orally given intimation to the Customer Care Unit of HDFC Bank regarding her change of address.  When loan agreement clearly stipulated the provision that any change of address by either of the parties shall be informed to the other side by giving 21 days prior notice and when she had not acted upon this clause, she cannot be heard to say that notice sent by the bank was at her old address and not at the new address and, therefore, bank should not have acted upon said notices and should not have repossessed the vehicle.  In view of the clause mentioned above this argument is appearing to be devoid of any substance.  In totality of the circumstances, we are finding that the order passed by the District Consumer Disputes Redressal Forum in favour of the complainant is appearing to be contrary to the facts and circumstances established on record by the bank.  Bank was not at all guilty of deficiency in service in repossessing the vehicle and in selling it by public auction.  No doubt the Ld. District Consumer Disputes Redressal Forum found fault with the bank because bank had not obtained any court order.  When loan agreement clearly stated that the bank has power to repossess the vehicle or hypothecated vehicle in the event of single default committed by borrower, bank had rightly exercised its right to take possession of the hypothecated vehicle and to sell it to third person in view of the irrevocable power of attorney executed by original complainant in favour of HDFC Bank. 

          We are also finding that there is no merit in the contention of the original complainant that her vehicle was repossessed by employing Gundas and it was forceably taken away from her husband’s custody.  What is pertinent to note that her husband has not sworn affidavit in favour of the complainant in that behalf.  Moreover, her husband could have lodged FIR if repossession of the vehicle was contrary to the provisions of law and if they had violated any provisions of Indian Penal Code and had committed criminal trespass by taking in possession valuable property of the complainant in her absence.  She had gone to the police station but police expressed their inability to register the offence for the reason that it was a civil dispute between the parties. Bank officials or its nominee or agents had not committed any offence which could be registered against them on the report filed by Mrs.Keka Chakraborty.  In view of the matter, we are finding that order passed by the District Consumer Disputes Redressal Forum in favour of the complainant in consumer complaint no.226/2007 is appearing to be bad in law and it cannot be allowed to sustain in law.  Bank had strictly acted within the four corners of the Loan agreement, which was agreed by both the parties and it was not established that the bank had taken repossession of the vehicle belonging to the complainant by resorting to legal means.  When there were outstanding dues payable by Mrs.Chakraborty and when bank had sent notice to that effect and asked her to clear the dues, on her failure to comply with the notice bank had rightly exercised their right in terms of loan agreement executed between the parties and they had rightly sold the vehicle to third person to recover their dues from the complainant.  In the circumstances, we are finding that the order passed by the District Consumer Disputes Redressal Forum allowing the complaint is bad in law.  Bank was not guilty of deficiency in service.  Said complaint was erroneously allowed by the District Consumer Disputes Redressal Forum.  As such, appeal filed by HDFC Bank will have to be allowed to quash and set aside the order passed by the District Consumer Disputes Redressal Forum. 

          There is also appeal filed by Mrs.Chakraborty seeking enhancement and repossession/restoration of the vehicle, but then vehicle to already sold by auction by the bank on the default committed by the original complainant and since we are holding that the bank was not guilty of deficiency in service, appeal filed by Mrs.Chakraborty seeking enhanced compensation and some reliefs not granted by the District Consumer Disputes Redressal Forum does not survive for consideration.  Said appeal filed by Mrs.Chakraborty will have to be dismissed.  Hence the following order:-

                                      ORDER

Appeal no.A/10/1026 filed by HDFC Bank/original opponent is allowed. 

Impugned judgement and award passed by the District Consumer Disputes Redressal Forum in consumer complaint no.226/2007 is quashed and set aside.

Consumer complaint stands dismissed.

Likewise, appeal no.A/11/315 filed by the original complainant Mrs.Keka Chakraborty is dismissed since we are allowing appeal filed by HDFC Bank. 

Both the parties are directed to bear their own costs.

Copy of the judgement be sent to both the parties free of costs.

Pronounced on 28^th March, 2012.