APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON : 06^TH APRIL 2017

O R D E R

PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 19.01.2011, passed by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (hereinafter referred to as the State Commission) in appeal No. 654/2010, “Cholamandalam Investment & Finance Co. Ltd. vs. Jaleswar Shah,” vide which, while allowing the appeal, the order dated 27.09.2010, passed by the District Forum Durg, allowing the complaint No. 72/2010, filed by the present petitioner, was set aside and the said complaint was ordered to be dismissed.   

2.       The facts as stated in the consumer complaint are that the complainant Jaleshwar Shah purchased a tractor bearing No. CG07C 4398 which was financed for ₹4,70,000/- by the OP Financer and the said loan was repayable with interest in 34 monthly instalments of ₹13,309/- each.  The complainant alleged that at the time of signing the agreement with the OP for obtaining the loan, a few printed forms with empty spaces, were got signed from the complainant with assurance by the OP that the same shall be returned on termination of the agreement.  The complainant stated that he had been paying the instalments from time to time through cash or cheque.  He, however, admitted that cheque No. 8134615 of Dena Bank, Sector 10 Branch, Bhilai for ₹13,309/- was dishonoured for insufficient funds.  Subsequently, the vehicle was forcibly repossessed by the OPs on 04.05.2009 without sending any prior notice to him.  The said vehicle was sold on 17.06.2009 for ₹2,25,000/- without any prior intimation and without calling quotations from the market.  The said act of the respondent/OP constitutes unfair trade practice on their part, and it caused loss to the complaint.  Despite the sale of the vehicle, the OP was sending recovery notice of ₹1,52,402/- which included arbitrary interest on the said amount.  The complainant sought directions through the consumer complaint to the OP Financer to return his vehicle after receiving their outstanding amount and to pay compensation of ₹2 lakh for loss to the complainant due to repossession of the vehicle and a further sum of ₹10,000/- for mental agony etc. 

3.       The complaint was resisted by the respondent/OP by filing a written statement before the District Forum in which they stated that the amount of loan was ₹4,17,000/- and not ₹4,70,000/-.  The said loan was payable in 48 instalments of ₹13,309/- each, for which the complainant had provided post-dated cheques to them.  The loan agreement had been executed between the parties and the complainant had signed the same after reading and understanding the contents therein.  The complainant paid the first five instalments regularly, but after that the cheque for payment of instalment for January 2008 was dishonoured.  The cheques for February 2008 and March 2008 were encashed but subsequently, the cheques for the months from April 2008 to June 2009 were dishonoured, which was evident from the statement of accounts as well.  The OP company had given regular information to the complainant about non-payment of instalments and only after that, the vehicle was repossessed on 04.05.2009 as per due process of law.  The signatures of the complainant were also obtained on repossessed vehicle inventory list.  The OP sent a registered letter to the complainant and his guarantor (wife) on 8.09.2009 about the total outstanding amount and for its payment, but the same was returned with the remarks, “incomplete address”.  Another letter was sent to the complainant and his guarantor on 17.06.2009 at the address mentioned in the agreement, but the same was also returned with the remarks, “incomplete address”.  After repossession of the vehicle, information regarding its market value was obtained by appointing an independent surveyor Jagat Ratnani, who assessed the market value at about ₹2,40,000/-, as per his valuation report dated 19.06.2009.  Since the complainant never approached them for clearing the loan amount, they sold the vehicle for ₹2,25,000/-.  There was, therefore, no deficiency in service, irregularity or unfair trade practice on their part.

4.       The District Forum, after considering the averments of the rival parties, directed vide their order dated 27.09.2010 that the OP shall pay ₹2,19,166/- to the complainant with interest @18% p.a. payable from 04.05.2009 to 27.09.2010.  This was the amount recovered in excess from the complainant, because he had already made payment of ₹4,98,655/- as against the payable amount of ₹2,79,489/-.  In addition, the sale amount of ₹2,25,000/- shall also be paid to the complainant.  A compensation of ₹5,000/- for mental agony and ₹1,000/- for litigation cost shall also be paid.  Being aggrieved against the said order of the District Forum, the respondent/OP challenged the same by way of appeal before the State Commission, which was allowed vide impugned order and the order passed by the District Forum was set aside and the consumer complaint was dismissed, with liberty that if the complainant had any dispute about the settlement of accounts, he could approach the appropriate forum for remedy.  The State Commission observed that due to continued default on the part of the complainant in payment of instalments, the respondent/OP had acquired right to repossess the vehicle without notice as per article 11 of the loan agreement.  The State Commission also observed that there was no evidence that the vehicle was repossessed forcibly.  The complainant did not take any steps to know the outstanding loan dues or to repay it fully.  The respondent/OP had given sufficient time to the complainant to clear the outstanding dues after the dishonour of cheques given by him.  Being aggrieved against the order of the State Commission, the complainant is before this Commission by way of the present revision petition. 

5.       During arguments, the learned counsel for the petitioner stressed mainly on the issue that the repossession of the vehicle was done forcibly, without giving any intimation or notice to the complainant.  This action of the respondent/OP was against law as per the view taken in the judgment of the Hon’ble Supreme Court in “Citicorp Maruti Finance Limited vs. S. Vijaylaxmi” [AIR 2012 SC 509].  The learned counsel for the respondent has, however, drawn attention to the terms and conditions of the loan agreement between the parties, saying that as per clause 11.1 of the agreement, the respondent/OP acquired the right to repossess the vehicle without notice.  The Ld. Counsel stated that there was no evidence that the vehicle was repossessed forcibly.  In fact, they had sent letters dated 08.05.2009 and 17.06.2009 to the complainant, asking him to pay his dues, but the same were returned ‘unclaimed’.  The factum of dishonour of cheques was clear from the statement of account produced on record.  A number of cheques had been dishonoured as reflected in the statement.  According to the learned counsel, 42 out of the 48 instalments payable, had not been paid.  Moreover, the vehicle had been sold after giving due notice as per procedure.  In support of his arguments, the learned counsel has drawn attention to the orders passed by the Hon’ble Supreme Court in “Suryapal Singh vs. Siddha Vinayak Motors & Anr.” [Civil Appeal No. 5302/2012 decided on 21.02.2012]

6.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 

7.       From a perusal of the documents on record, it is clearly made out that a number of cheques given by the complainant for repayment of the loan got dishonoured, as per the account statement on record.  It is mentioned therein that between period 01.04.2008 to 01.06.2009, i.e., a period of 14 months, all cheques presented by the OP for payments on monthly basis were dishonoured.  It is observed that in the order passed by the District Forum, complete details of the amounts/cheques deposited on different dates have been given in tabular form.  A perusal of the said table indicates that most of the cheques given by the petitioner were dishonoured.  The State Commission rightly concluded, therefore, that the District Forum reached an erroneous conclusion that the petitioner/complainant had paid a sum of ₹4,98,655/- towards payment of loan as against the total amount of ₹2,79,489/-.  The State Commission observed that there was no collection of excess amount from the petitioner.

8.       During the course of arguments before us, the learned counsel for the complainant could not convince us that the complainant was not a defaulter on the date of repossession of the vehicle.  In the loan agreement executed between the parties, it has been mentioned that in case of default, the vehicle was liable to be delivered by the borrower to the Financer and failing delivery of the vehicle by the borrower, the OP company was entitled to take possession of the same.  It is evident, therefore, that the action of the OP company in taking possession of the vehicle on 04.05.2009 was in order and in accordance with the terms and conditions of the agreement between the parties.  As per the view taken by the Hon’ble Supreme Court in the case of “Suryapal Singh vs. Siddha Vinayak Motors & Anr.” [supra]”, it is made clear that taking possession of vehicle on ground of non-payment of instalment was the legal right of the financer, as the financer was taken to be the real owner of the vehicle.  In the judgment quoted by the petitioner “Citicorp Maruti Finance Limited vs. S. Vijaylaxmi” [supra], also, it has been stated that the recovery process should be affected with due process of law.  In the present case, there is no evidence that the action of the respondent/OP in taking possession of the vehicle was not in accordance with law, keeping in view the fact that the complainant was admittedly a defaulter of the respondent/OP. 

10.     In the light of the facts stated above, the observations made by the State Commission in the impugned order that a number of cheques given by the complainant got dishonoured and that there was no evidence of forcible repossession of the vehicle, is based on sound logical reasoning.  Therefore, we do not find any illegality, irregularity or jurisdictional error in the order passed by the State Commission and hence, the said order is upheld.  The present revision petition is held to be without any merit and the same is ordered to be dismissed.  There shall be no order as to costs.