STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.

APPEAL NO.285 OF 2009

M/s. ICICI Bank Limited through its Regional Manager, Registered Office: Land Mark, Race Course Circle, Vadodara and also at SCO No.181-182, Second Floor, Sector 9-C, Madhya Marg, Chandigarh.

                                                ………Appellant.

Versus

Mrs. Sunita Verma wife of Sh. Sanjeev Verma resident of House No.636, Manimajra, Chandigarh.

…Respondent.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL (RETD.), PRESIDENT.

HON’BLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

PRESENT:            Sh. Sandeep Suri, Advocate for the appellant.

                        None for the respondent.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.                     This is an appeal against the order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 19.2.2009 passed in complaint case No.869 of 2007 : Mrs. Sunita Verma Vs. M/s. ICICI Bank Limited and another.

2.                     Briefly stated the case of the complainant is that she purchased a Maruti Marina car bearing registration No.HR-41-B-1108 after availing a loan of Rs.3,40,000/- from the OPs. It was averred that the said loan amount was to be paid in 48 EMIs of Rs.9,635/- each commencing  from 10.6.2006, which as per the complainant were being paid regularly. The case of the complainant is that to her utter surprise in the month of April 2007, some muscle men came to her house and took away the her car forcibly. It was averred by the complainant that no notice regarding repossession of the car was ever given to her by the OPs. The complainant, it was next averred, served a legal notice upon the OPs whereby she had demanded a sum of Rs.1,57,838/- from the OPs being the outstanding amount against the loan taken by her. Alleging forcible repossession of her car as deficiency in service and unfair trade practice on the part of OPs, the complainant had filed complaint before the learned District Forum.

3.                     The version of OPs is that the complainant had taken a loan of Rs.3,40,000/-, which was to be repaid in 48 EMIs of Rs.9,635/- each commencing from 10.6.2006. It is further the case of OPs that as per the loan agreement, in case of default in payment of charges, OPs were entitled to take over possession of the vehicle and sell the same towards liquidation of the outstanding dues. As per OPs, the complainant had promised to pay all the installments on due dates and the vehicle stood hypothecated to the Bank. It is further the case of OPs that the complainant had not been paying the due amount and many of the cheques continued to bounce. It was next stated that OPs served notices upon the complainant but not response was forthcoming from the side of the complainant. Even the complainant, it was also stated, was directed to pay the entire amount in lump sum but despite the notice to that effect, she failed to pay the outstanding amount. As per OPs, the complainant surrendered the vehicle on 24.4.2007 herself and the same had not been repossessed by the OPs forcibly. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.

4.                     The learned District Forum in its analysis of the complaint has recorded in the impugned order that in her affidavit, the complainant had specifically stated that she had been paying the installments regularly but her statement to this effect was corroborated from the statements of accounts furnished by OPs as it was apparent to the learned District Forum from the statements of account that first ten installments were timely paid by the complainant but the 11^th installment was not paid in time for which OPs had charged overdue charges along with cheque bouncing charges from the complainant. Thus, in the view of learned District Forum, there was no occasion for the complainant to surrender the car at any for which she had also filed her categorical affidavit. The learned District Forum, after perusing the document of surrender which was stated to had been signed by the husband of the complainant, was of the view that there was nothing on record to prove that the signature on the document were that of the husband of the complainant and further, no evidence lad been led by the OPs to prove that he had surrendered the car himself and his signatures were not obtained forcibly. Thus, in view of its above observations, the learned District Forum was of the view that the action of OPs in forcibly repossessing the vehicle of the complainant and thereafter selling the same without any notice to the complainant  was a clear deficiency in service as well as unfair trade practice on the part of OPs. The learned District Forum also placed reliance on the judgment of Hon’ble Apex Court rendered in the case of ICICI Bank Vs. Prakash Kaur & Ors., (2007) 2 SCC 711 wherein it was held that practice of hiring of recovery agents who are musclemen is deprecated and needs to be discouraged. The Bank should resort to procedure recognized by law to take possession of vehicle in cases where the borrower may have committed default in payment of the installments instead of taking resort to strong-arm tactics. In view of its above discussion, the learned District Forum allowed the complaint and directed the OPs to pay the complainant a sum of Rs.1,50,000/- as compensation besides Rs.5,000/- as costs of litigation. The order was directed to be complied with within a period of two months from the date of receipt of copy of the order failing which OPs were made liable to pay interest @9% per annum on the amount of compensation from the date of order till its realization.

5.                     Aggrieved by the said order of learned District Forum, OPs have filed the present appeal. The appeal having been taken on board, notice was sent to the respondent and record of complaint case was summoned from the District Forum concerned. Sh. Sandeep Suri, Advocate appeared on behalf of the appellant/OPs whereas initially Sh. Vikram Singh, Advocate had appeared on behalf of the respondent/complainant but on the date of final hearing i.e. 5.5.2010, none appeared on behalf of the respondent and after hearing learned counsel for the appellant Sh. Sandeep Suri, Advocate, the case was reserved for orders.

6.                     The learned counsel for the appellant Sh. Sandeep Suri, Advocate submitted that it was not a case of forcible repossession of the vehicle but the vehicle had been surrendered by the complainant’s husband himself. He further referred to Page 22 of the appeal paper book, which is the customers copy giving the general information of the assets surrendered, which pertains to the surrender of the car. As per this document, he pointed to the Bench that the complainant’s husband had surrendered the vehicle himself on 29.11.2007 and he had duly signed this document. Along with this document, he also referred to Page 33 and Page 53 of the appeal paper book. Page 33 is a letter dated 24.4.2007 and Page 53 is part of the agreement and in both these documents, Sh. Sanjeev Verma had signed as co-borrower/borrower and his signatures on these two documents were similar to those on the surrender document annexed as Page 22. He emphatically submitted that no rebuttal of this fact has been made by the complainant and also pointed out to the Bench that there is no denial by the complainant’s husband Sh. Sanjeev Verma that the signatures on these documents were not his. The learned counsel thereafter also referred to the judgment of Hon’ble National Commission in the case of Citicorp Maruti Finance Limited Vs. S. Vijayalaxmi,  Revision Petition No.737 of 2005 decided on 27.7.2007 wherein it has been held that a consumer dispute would not arise regarding payment of consideration if the complainant willingly surrenders a vehicle for sale and for recovery of the outstanding amount. He emphatically reiterated that in the instant case, the vehicle had been voluntarily surrendered and there was no forcible repossession and hence, the issue with regard to the settlement of the account between the Bank and the complainant did not constitute a consumer complaint. In the end, the learned counsel for the appellant also submitted that Annexure at page 22 of the appeal paper book had been placed before the learned District Forum by the complainant herself without any statement or any allegation that the signatures of Sh. Sanjeev Verma on the document were either forged or he was forcibly made to sign this document.

7.                     We have gone through the record on file as well as the impugned order and have heard the learned counsel for the appellant.

8.                     Admittedly, the vehicle had been possessed by the OPs on 29.4.2007. From the record, it is also apparent that no installment has been paid by the complainant after 10.2.2007, which clearly proves that the installment due on 10.3.2007 and 10.4.2007 had not been paid. There is no mention in the complaint as to why or for what reason, the complainant had stopped making the payment. Admittedly, as per the agreement, due to failure on the part of loanee to pay the loan installment, the Bank has the right to repossess the vehicle. In this case, other than a bald allegation that the vehicle had been forcibly repossessed by the Bank, the complainant has placed on record no evidence let alone cogent evidence to prove her case that the vehicle had been repossessed forcibly by the OPs. It is also seen from the record that the surrender document placed at Page 22 of the appeal paper book has been filed by the complainant herself. There is also no evidence or pleading to state that the signatures on this document are forged or that Sh. Sanjeev Verma had been forced or coerced to put his signatures on this document. We do not contribute to the view held by the learned District Forum that the onus was on OPs to prove that the signature on the documents were of the husband of the complainant and that the OPs have to prove that it were OPs who had to prove that the vehicle had been surrendered voluntarily and signatures of Sh. Sanjeev Verma were not obtained forcibly. In fact, the situation is other way round. In the instant case, OPs had placed on record a document signed by Sh. Sanjeev Verma, borrower that the vehicle has been voluntarily surrendered. Now the onus lay upon the complainant to prove that this document was either false, forged or fabricated or the signatures of Sh. Sanjeev Verma had been obtained forcibly. However, no such averment or evidence is on record. Sh. Sanjeev Verma has himself not denied  his signatures on these documents and also there is no corroborative evidence to prove the version of the complainant regarding forcible repossession of the vehicle. In this view of the matter, we are of the considered view that the impugned order holding the OPs guilty of forcible repossession of the car does not stand legal scrutiny.

9.                     In view of the foregoing discussion, the appeal filed by OPs is allowed and the impugned order is set aside. Consequently, the complaint is dismissed as it has no substance. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.

10.                   Copies of this order be sent to the parties free of charge.

Pronounced.

10^th May, 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MAJ. GEN. S. P. KAPOOR (RETD.)]

MEMBER

Sd/-

[MRS. NEENA SANDHU]

MEMBER

Ad/-

APPEAL NO.285 OF 2009

PRESENT:            Sh. Sandeep Suri, Advocate for the appellant.

                        None for the respondent.

                                                …..

                        Vide our detailed order of even date recorded separately, this appeal filed by the OPs has been allowed.