1.      Heard Mr. Varun Dev Mishra, Advocate, for the petitioner and Mr. Anjan Sinha, Advocate, for respondent-1.

2.      This revision has been filed against the order of State Consumer Dispute Redressal Commission, West Bengal, dated 16.03.2020, passed in First Appeal No. 5 of 2018, (arising out of the order of District Consumer Disputes Redressal Forum, Hoogly, dated 25.10.2017, passed in Consumer Complaint No. 182 of 2014), whereby District Consumer Disputes Redressal Forum, has allowed the complaint, directed the petitioner to return the tractor to the complainant with all accessories in good condition, to pay Rs.5,00,000/- towards compensation and Rs.10,000/- as the cost and the appeal filed by the petitioner has been dismissed. 

3.      The office has reported that the revision has been filed with delay of 296 days. Supreme Court in Suo Moto Writ Petition (C) No. 3 of 2020, by orders dated 23.03.2020, 08.03.2021 and 27.04.2021, has directed to exclude the limitation after 15.03.2020. As such the delay in filing the revision is condoned.

4.      Nikhil Patra (respondent-1) filed Consumer Complaint No. 182 of 2014, against Shriram Transport Finance Company Limited, (the petitioner) (hereinafter referred to as the financer) and Sri Arun Ghosh (the dealer of the tractor) for (i) return of the tractor, (ii) to pay Rs.5,00,000/- as the financial loss and for mental harassment and (iii) any other relief for which he was entitled. It has been stated in the complaint that the complainant had purchased a tractor, i.e. Power Track Tractor, Model 409 and registration No. WB-15 A-1544 (hereinafter referred to as the vehicle) from Soket Motors (opposite party-1), for Rs.4,86,000/- on 25.10.2010. The complainant paid Rs.1,86,000/- and the petitioner financed Rs.3,00,000/-. Loan was payable in 55 monthly instalments of Rs.9,855/-, i.e. up to 20.04.2015. The complainant paid monthly instalments regularly up to May, 2012. However, due to financial problem and the illness of his wife, the complainant committed default in payment of 3 instalments. The financer, through their muscle men, took forcible possession of the tractor on 01.08.2012. The financer did not give any prior notice for taking possession of the tractor. The complainant visited to the branch office of financer at Padua and prayed to release the tractor. Then he asked the petitioner to deposit Rs.40,000/-. The complainant managed the aforesaid amount and went to the branch office for deposit of that amount, then demand was enhanced to Rs.50,000/, thereafter to Rs.60,000/- and Rs.1,20,000/-. The tractor was source of earning of the family of the complainant. Due to taking illegal possession of the tractor, the complainant was deprived of his livelihood. The complainant gave legal notice dated 24.01.2014 but the financer did not responded. On these allegations, the complaint was filed.

5.      The financer contested the case and filed their written reply. They admitted that they had advanced loan amount of Rs.3,00,000/- through Loan Cum Hypothecation Agreement dated 15.10.2010, for purchasing aforesaid tractor, which was duly signed by the complainant and his guarantor. It has been stated that the complainant initially paid some instalments but later on he committed default in payment of the instalments. In spite of repeated demands and reminders, when the complainant did not respondent, then the tractor was repossessed in terms of the agreement, to safeguard in the interest of the financer. The complainant was not entitled for any relief. Preliminary objections relating to territorial jurisdiction of District Forum and maintainability of complaint have also been raised.   

6.      District Consumer Disputes Redressal Forum, Hoogly, by its judgment dated 25.10.2017, found that the complainant was paying instalments regularly up to 22.05.2015 and paid total Rs.3,45,000/- till then. Due to illness of his wife, the complainant could not pay the instalment after May, 2012. However, without any notice, the tractor was repossessed on 01.08.2012, due to which the complainant was deprived from the source of his earning. On these findings, the complaint was allowed and the relief as mentioned above has been granted.

7.      The petitioner filed First Appeal No. 5 of 2018 from the aforesaid order, before State Consumer Disputes Redressal Commission, West Bengal. State Commission by its judgment dated 03.01.2018, held that Reserve Bank of India has issued a Guide Lines on 01.07.2006, for recovery of the loan by the private banks. Vide clause-3 of the Guide Lines, a prior notice of minimum 60 days is required for repossessing the hypothecated vehicle. In the present case, no notice has been issued before taking possession of the tractor as such the action of the financer was illegal and District Forum has not committed any illegality. On these findings, the appeal was dismissed. 

8.      The counsel for the petitioner submitted that Supreme Court in M/S Magma Fincorp Ltd. Vs. Rajesh Kumar Tiwari, (2020) 10 SCC 399 has held that so long as the full amount of the loan was not paid, the financer was owner of the hypothecated good and entitled to take possession of it, in terms of the agreement. In the revision, for the first time, a letter dated 25.07.2012, allegedly written by Nikhil Patra, showing his inability to pay the instalments and requesting to take possession of the tractor has been produced and on its basis, he submitted that when the financer was insisting to pay the defaulted instalments then during talk, this letter was written by the complainant himself, for taking possession of the tractor, therefore possession was taken on 01.08.2012.

9.      We have considered the arguments of the parties and examined the record. So far as the letter dated 25.07.2012, allegedly written by Nikhil Patra, showing his inability to pay the instalments and requesting to take possession of the tractor is concerned, there is no pleading in this respect in the written reply filed before District Forum nor this letter has been produced before the Foras below as such we refuse to rely upon it, particularly, when the complainant since very beginning has alleged that without any notice the tractor was forcibly repossessed on 01.08.2012.

10.    The agreement dated 15.10.2010 is a Loan Cum Hypothecation Agreement and dominant purpose of it was to obtain a loan of Rs.3,00,000/- from the financer for purchasing the tractor. It may be mentioned that when the forcible possession of the hypothecated vehicles has been started by the financer under the loan agreements in this country, then the matters were come in different High Courts, around 2003-04. The High Courts deprecated the practice of taking forcible possession of the hypothecated vehicles by the financers and granted relief against forcible possession. Some of the High Courts also issued direction to Reserve Bank of India to issue a guide lines for recovery of the loan. The order of the High Court against forcible possession has been upheld by Supreme Court in Manager, ICICI Bank Vs. Prakash Kaur, (2007) 2 SCC 711. Reserve Bank of India has issued a Guide Lines on 01.07.2006, for recovery of the loan by the private banks. Vide clause-3 of the Guide Lines, a prior notice of minimum 60 days is required for repossessing the hypothecated vehicle. Supreme Court in M/S Magma Fincorp Ltd. Vs. Rajesh Kumar Tiwari, (supra) has also held that in a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement, non-service of prior notice would tantamount of deficiency of service for breach of the hire purchase agreement, giving rise to claim in damages based on an assessment of loss caused to the complainant by reason of omission to give notice. As we found that dominant purpose of the agreement dated 15.10.2010 was to obtain loan as such the Guide Lines issued by Reserve Bank of India dated 01.07.2006 was binding upon the financer and 60 days prior notice was mandatory. Admittedly no notice was given by the financer to the complainant before taking possession of the tractor on 01.08.2012. The tractor was the source of earning and due to illegal repossession of the tractor, the complainant has suffer financial loss in both way that he was from source of earning and liable to pay interest/penal interest to the financer.  The impugned orders do not suffer from any illegality.  

O R D E R

In view of the aforementioned discussions, the revision has no merit and is dismissed.