Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 04-12-2013 passed by the Ld. District Forum, Jalpaiguri in CC No. 38/2013, whereof the complaint has been allowed.

In short, case of the Complainant is that, he purchased a vehicle with the financial assistance rendered by the OP No. 1. In terms of the loan-cum-hypothecation agreement executed in between them, he was required to pay monthly instalments on stipulated dates and accordingly, he started repaying his loan.  However, due to financial problem, he could not pay EMI to the OP No. 1 in time for which the OP No. 1 served a legal notice upon him, thereby terminated the concerned loan and asked him to pay Rs. 4,48,202/- within 48 hours of receipt of the notice.  After discussion, the OP No. 1 asked the Complainant to pay Rs. 1,38,000/- to liquidate the said loan account.  Meanwhile, the OP No. 1 also took repossession of the subject vehicle forcefully.  The Complainant in course of running the said vehicle, fixed two wheels with new MRF tyres and another two wheels with new Apollo tyres.  After repossessing the said vehicle, the same was kept in the custody of the OP No. 2.  In any case, after repaying Rs. 1,38,000/-, when the Complainant went to take possession of the said vehicle, to his utter surprise, he found that one stepny, wheel jog, lever, 4 new tyres went missing from the said vehicle.  Therefore, the Complainant refused to receive the said vehicle and asked the OPs to provide the missing items but in vain; hence, the complaint.

OP No. 1, on the other hand, stated that the Complainant is an admitted defaulter.  It is alleged that the Complainant did not make payment on scheduled dates.  Although the total due was Rs. 4,48,202/-, acting upon the request made by the Complainant, on humanitarian ground, it decided to release the vehicle temporarily upon payment of Rs. 1,38,000/-.  However, instead of appreciating the goodwill shown by this OP, the Complainant filed a frivolous case against it.

Decision with reasons

Due notice was served upon all the Respondents.  However, only the Respondent No. 1 contested the case through his Ld. Advocate. At the time of hearing, Ld. Advocates appearing on behalf of the Appellant and Respondent No. 1 argued at length.  We have perused the material on record.

Admittedly, the Respondent No. 1 defaulted making payment of the outstanding loan amount for which the Appellant took custody of the vehicle after serving pre-repossession notice upon the Respondent No. 1.  Insofar as the Hypothecation-cum-loan agreement provided such clause and further that pre-repossession notice was served upon the Respondent No. 1, it seems, the Appellant committed no illegality in doing so. 

Although the Respondent No. 1 alleged that the Appellant repossessed the vehicle by use of force, no police report is filed from his side confirming such allegation.

That apart, it is though claimed by the Respondent No. 1 that the Appellant agreed to settle the matter on payment of Rs. 1,38,000/-, it is highly unlikely that any private company would agree to settle outstanding due worth Rs. 4,48,202/- for a paltry sum of Rs. 1,38,000/-.  In any case, no such copy of settlement offer is forthcoming before us to satisfy ourselves about the veracity of such claim of the Respondent No. 1. Rather, it is claimed by the Appellant that, on humanitarian ground it agreed to temporarily release the vehicle on payment of Rs. 1,38,000/-.

Next, it is alleged by the Respondent No. 1 that several items of the subject vehicle went missing from the custody of the Respondent No. 2.  However, no cogent documentary proof is placed on record from his side to prove such allegation.  To cite an example, if he indeed purchased 4 new tyres and fitted the same in the said vehicle, he must be in possession of requisite bills for the same.  Unfortunately, no such bill copy is furnished by him for the reasons best known to him.

On going through the impugned order, we notice a grave fundamental error being crept therein.  It is observed by the Ld. District Forum that the Respondent no. 1 squared off the loan account by paying the entire principal sum along with interest.  It is not understood, what was the basis of such assumption.  We have discussed hereinabove why the claim of the Respondent No. 1 about repayment of the entire loan amount is not at all believable.  Therefore, we refrain from reiterating the same here.

Since the complaint case was allowed out of factually incorrect assumption, we are left with no other alternative but to set aside the same.

The Appeal, thus, succeeds.

Hence,

O R D E R E D

The Appeal stands allowed on contest against the Respondent No. 1.  The impugned order is hereby set aside.