Haryana

StateCommission

A/83/2015

BALRAJ - Complainant(s)

Versus

ORIX AUTO AND BUSINESS SOLUTIONS LTD. - Opp.Party(s)

K.S.MALIK-I

14 Mar 2016

ORDER

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.83 of 2015

Date of the Institution: 22.01.2015

Date of Decision: 31.03.2016

 

Balraj S/o Bhola Ram, R/o Village Makrouli Kalan,Tehsil & Distt. Rohtak.

…..Appellant

Versus

 

ORIX Auto and Business Solutions Limited, 31-33, Central Market, West Avenue Road, Punjabi Bagh West, Delhi.

                                                                             .….Respondent

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.K.S.Malik, Advocate counsel for the appellant.

                   Mr.Harshvardhan proxy counsel for Mr.Kartik Gupta, Advocate counsel for the respondent.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

It was alleged by the complainant that he availed loan facility from O.P.-respondent of Rs.Eight lacs and purchased a vehicle bearing No.HR-69-9533.  At that time respondent obtained his signatures on blank papers, which were not explained to him.  He paid all the installments except last three installments of Rs.27,500/-.  On 22.06.2005 muscleman of O.P. took possession of the vehicle by force and signatures of his driver were obtained under pressure and duress.  The said act was altogether illegal because O.P. was not entitled to take possession of the vehicle which was hypothecated.  He was ready to pay remaining amount of Rs.82000/-.  Value of the vehicle was more than Rs.Two lacs, but, it was snatched only for Rs.80,000/- approximately.  He requested O.Ps. to release vehicle, but, to no use.  So they be directed to return vehicle and pay compensation for mental harassment etc.

2.      It was alleged by O.P. that loan amount pertaining to this vehicle, was to be repaid by way of 35/- monthly installments. First installment was of Rs.29,790/- and remaining 34/- installments of Rs.27,600/- each.  In the month of January 2005 when he did not pay installment notices were issued to him time and again, but, he did not bother to make payment and that is why vehicle was taken into possession. Signatures of driver were not obtained by force or under duress. The vehicle was taken into possession as per agreement executed in between them.  It was also alleged by O.P. that actually complainant obtained loan of Rs.8,75,000/- for another vehicle bearing registration No.HR 46 R 1791 and executed agreement on 05.09.2003.  That loan was to be paid in 34/- monthly installments. First instalment was of Rs.31,500/- and rest of the installments of Rs.30500/-.  He did not pay that loan regularly and was in arrears.  Even whereabouts of vehicle bearing registration No.HR 46 B 1791 were not known.  Objections about jurisdiction of Forum, status as consumer etc. were also raised and requested to dismiss complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Rohtak ( In short “District Forum”) dismissed the complaint vide impugned order dated 28.11.2014 which is as under:-

“In view of the aforesaid law which are applicable on  the facts and circumstances of the case it is observed that the vehicle was repossessed by the opposite parties as per terms and conditions of the agreement and was further sold the vehicle to liquidate its dues.  As such the complainant is not a consumer and there is no deficiency in service on the part of the opposite party.  Accordingly the present complaint is hereby dismissed with no order as to costs.”

4.      Feeling aggrieved therefrom, the complainant has preferred this appeal.

5.      Arguments heard.  File perused.

6.      Learned counsel for the O.P./respondent vehemently argued that complaint has become infructuous because vehicle in question is already disposed of to recover the balance amount.  When complainant did not make payment, despite notices Ex.R-4 to R-9 and R-20, vehicle was taken into possession as per terms and conditions of agreement Ex.R-2.  Vide notice Ex.R-15 dated 31.01.2005 he was asked to clear loan otherwise the vehicle would be sold.  It cannot be alleged by him that no notice was given before sale.  When he did not pay any amount the vehicle was sold as per terms and conditions of the agreement, so this step cannot be considered as illegal.  Complainant is bound by the terms and conditions of the agreement.  Arbitrator has already pronounced award about loan taken by him, copy of which is Ex.R-36. So complainant cannot ask for any relief and complaint be dismissed.  He placed reliance upon the opinion of Hon’ble Supreme Court expressed in The Managing Director, Orix Auto Finance (India) Ltd. Vs.Shri Jagmander Singh and Anr. 2006 (1) RCR (Civil) 756 wherein it is held that parties are bound by the terms and conditions of the agreement.

7.      However, it cannot be disputed that in case of violation of payment or clear the arrears, respondent was entitled to take possession of the vehicle, but, before sale notice was to be served upon borrower as opined by Hon’ble National Commission in Natarajan Bohidar Vs. Citibank N.a.  2014(2) CPJ (NC) 19. Hon’ble National commission has clearly opined in Magma Leasing Limited Vs. Bharat Singh 2013 (1) CLT 185 that merely notices for repayment of EMI do not amount to any notice advising complainant to pay up the entire outstanding amount of loan failing which vehicle will be sold. The respondent has miserably failed to show that any pre-sale notice was ever served upon complainant. Ex.R-5 is dated 31.03.2005, whereas vehicle was taken into possession on 22.01.2005.  Had he been informed about sale of vehicle he might have deposited the remaining amount , when he had already paid 32 installments.  In this way sale was not legal and respondent cannot apportion the sale proceeds qua the other loan. The O.Ps. can recover the amount pertaining to this vehicle from the sale proceeds and is return the remaining amount to the complainant.  It is no where mentioned in agreement in Ex.R-2 that if he fails to pay the loan of the other vehicle then this vehicle can also be sold. More so this agreement was executed on 12.08.2002 whereas other loan have taken in the month of September 2003.  Award of arbitrator is pertaining to the other vehicle and not this vehicle.

7.      More so, if the matter is pending before the Civil court and specific order is passed then parties are bound by the same, but, till today the right of the complainant is not determined. So these arguments are of no avail.

8.      As a sequel to above discussion when as sale was not proper, impugned order dated  28.11.2014 is set aside. The respondents are directed to return the amount of sale proceeds of this vehicle, which is in excess than due at that time.  Due to improper and illegal act of O.Ps, complainant is awarded Rs.10,000/- for mental harassment and agony and Rs.2100/- as litigation expenses.  The appeal is allowed accordingly.

 

 

March 31st, 2016                Urvashi Agnihotri                           R.K.Bishnoi,                                                                       Member                                             Judicial Member                                                     Addl. Bench                                                Addl.Bench             

S.K.