Per – Hon’ble Mr. Dhanraj Khamatkar, Member This appeal filed by the Appellant/original Opponent, The Branch Manager, M/s. Shriram Transport Finance Company (hereinafter referred to as ‘the Finance Company’ for the sake of brevity) takes an exception to an order dated 1/4/2011 passed by the District Consumer Disputes Redressal Forum, Sangli (hereinafter referred to as ‘the District Forum’ for the sake of brevity) in Consumer Complaint No.337 of 2010, Mr. Rafique Khudbuddin Pirjade Vs. The Branch Manager, M/s. Shriram Transport Finance Company. Facts leading to this appeal can be summarized as under:- [2] Respondent/original Complainant, Mr. Rafique Khudbuddin Pirjade (hereinafter referred to as ‘the Complainant’ for the sake of brevity) has purchased a truck upon borrowing a loan of `3,30,000/- from the Finance Company. Said loan was to be repaid in 36 Equated Monthly Installments (EMI) of `14,250/-. Till 15/6/2010 the Complainant paid to the Finance Company a total amount of `4,28,500/-. It is the case of the Complainant since the vehicle met with an accident he could not pay the EMI regularly. However, according to the Complainant, he deposited certain amounts with the Finance Company from time to time. The Complainant further contended that the Finance Company forcibly repossessed the vehicle on 15/6/2010. When the Complainant approached the police authorities they did not register the FIR. The Complainant approached the Finance Company. However, there was no response. The Complainant admitted that the Finance Company issued him a notice on 12/5/2010 demanding an amount of `61,249/-. The Complainant requested the Finance Company to supply him the papers regarding outstanding amount. However, the Finance Company did not supply the papers regarding loan account to the Complainant. The Complainant further stated that the Finance Company issued him a notice dated 29/6/2010 asking him to pay the outstanding loan amount of `2,46,207/- within a period of seven days and failing which the vehicle will be auctioned. However, the Complainant has stated that the amount demanded by the Finance Company was not outstanding at all. It is the contention of the Complainant that as per the rate of interest @ 14.5% p.a. the amount of interest comes to `1,43,550/-. If an amount of `30,000/- towards insurance is added in the loan amount and interest, the total comes to `5,30,000/- and the Complainant has already paid an amount of `4,28,500/-. Taking into consideration these facts the Complainant contended that the amount which was communicated to him by the Finance Company is not as per the terms and conditions of loan agreement. The Complainant, therefore, stated that there is deficiency in service on the part of the Finance Company and prayed for possession of vehicle alongwith consequential relief of compensation and costs. [3] Finance Company contested the complaint by its written version inter-alia contending that the Complainant was irregular in paying the EMI. It is further contended that the Complainant has not showing his readiness to pay the outstanding amount. It is contended that the statement of the Complainant that an amount of `2,46,207/- which is communicated to him vide notice dated 29/6/2010 is not correct is an improper statement. It is further contended that the Complainant is a defaulter. According to the Finance Company, it has repossessed the vehicle as per terms & conditions of the loan agreement. On these main grounds and other grounds as set out in the written version, the Finance Company prayed that the complaint may pleased be dismissed. [4] The District Forum on going through the complaint, written version filed by the Finance Company, evidence filed by both the parties on affidavits and pleadings of the advocates came to a conclusion that there is deficiency in service on the part of the Finance Company and partly allowed the complaint and directed the Finance Company to hand-over the possession of vehicle bearing RTO Registration No.MH-04-F-6139 to the Complainant till 1/5/2011 and failing which the Finance Company was liable to pay to the Complainant a penalty of `300/- per day till the possession of the vehicle is handed over to the Complainant. Finance Company was further directed to pay to the Complainant an amount of `30,000/- by way of compensation to the Complainant. Being aggrieved by the said order, the Finance Company preferred this appeal. [5] We heard Adv. Mangesh D. Patel on behalf of the Finance Company and Adv. Madhav Tamhankar on behalf of the Complainant. Perused the record. [6] Admittedly, the Finance Company had disbursed a loan of `3,30,000/- to the Complainant so as to enable the Complainant to purchase a truck. Said loan was to be repaid by the Complainant in 36 EMI of `14,250/- each. It is a fact that the Complainant was not regular in making payment of EMI. However, from the receipts produced on the record, which are at pages (35) to (55) of the appeal compilation and which have emerged as undisputed documents, it is evident that from time to time the Complainant has deposited with the Finance Company a total amount of `4,28,500/-. At page (31) of the appeal compilation, there is a notice dated 12/5/2010 issued by the Finance Company calling upon the Complainant to pay an amount of `61,249/- within a period of seven days and present the vehicle for inspection to the field officer and failing which the Finance Company shall initiate an action as per law. On 29/6/2010, the Finance Company further issued a notice informing the Complainant that his vehicle has been repossessed by the Finance Company on 15/6/2010 and the Complainant was called upon to pay the outstanding dues of `2,46,207/- to be deposited within a period of seven days and failing which the vehicle was to be auctioned. [7] We directed the Finance Company to produce on the record Statement of Loan and accordingly, it was produced on the record. On perusal of the same it appears that on 15/6/2010 an amount of `88,525/- was shown as outstanding from the Complainant. However, by a notice dated 12/5/2010, the Finance Company called upon the Complainant to pay an amount of `61,249/-. Similarly, on 29/6/2010, the Complainant was called upon to pay an amount of `2,46,207/-. However, as per the Statement of Loan produced on the record by the Finance Company itself, only an amount of `94,525/- is shown as outstanding from the Complainant. It shows that either the demand notice issued by the Finance Company to the Complainant is incorrect or the loan account pertaining to the Complainant is not properly maintained. After repossession of the vehicle, the Complainant approached the Finance Company with a request to release the vehicle upon accepting the defaulted amount. However, the Finance Company did not pay any heed to his request. [8] Learned Counsel for the Finance Company invited our attention to Clause (6-b) of the Loan-cum-Hypothecation Agreement executed in between the Complainant, as the ‘Borrower’ and the Finance Company. As per the said clause the Finance Company is authorized to take possession of the hypothecated assets from wheresoever it may be and remove the hypothecated asset including all accessories, bodywork and fittings and for the said purpose, it shall be lawful for the Finance Company or its authorized representatives, servants, officers and agents forthwith or at any time and without notice to the Complainant to enter upon the premises, or garage or godown where the hypothecated assets shall be lying or kept and to take possession or recover or receive the same and if necessary to break open such place of storage; the Finance Company will be within its rights to use a tow-van to carry away the assets. Thus, according to the Learned Counsel for the Finance Company repossession of the vehicle by the Finance Company is lawful. However, when we asked Learned Counsel for the Finance Company about Clause (6-a) of the loan agreement, which stipulates to call upon the Complainant to pay forthwith the outstanding balance of the said credit facilities together with interest and all sums payable by the Complainant under the agreement, he remained silent. [9] Demand notice issued by the Finance Company to the Complainant for payment of the outstanding dues was not as per the amount shown as outstanding in the Statement of Loan. Further, amount shown as outstanding in the notice dated 29/6/2010 of `2,46,207/- is not reflected in the Statement of Loan submitted on record by the Finance Company itself. After taking repossession of the hypothecated security the Finance Company has not taken further action for the disposal of the hypothecated vehicle. When the hypothecated security viz. the truck is in possession of the Finance Company and it is lying idle with the Finance Company how the Complainant is supposed to repay the outstanding loan dues. [10] At page (30) of the appeal compilation, there is a paper showing therein total loan amount, interest and insurance and the total amount shown there is of `5,03,550/-. Rate of interest is shown as of 14.5% p.a. This paper bears the stamp of the Finance Company. Out of this amount, admittedly, the Complainant has paid to the Finance Company an amount of `4,18,500/- leaving balance amount of `85,050/-. [11] Learned Advocate for the Finance Company relied upon the decision of the National Consumer Disputes Redressal Commission in the matters of Citi Financial Consumer Finance India Ltd. Vs. Shri Rafiq Ahmed ~ 2010-(4)-CPR-132-(NC), wherein upon repossession of vehicle by Financier, the District Forum directed Petitioner to pay Respondent principal amount of `10,000/- as compensation for mental harassment and `2,000/- towards costs. State Commission upheld order of the District Forum in toto. It was held that there was credible evidence on record to show that the Petitioner had sent notices to Respondent regarding default in payment. Further, notices to repossess vehicle and after repossession before selling the vehicle were also sent and received by him. National Commission held that there was no justification to uphold quantum of relief given by Fora below to Respondent on the ground of deficiency in service/unfair trade practice. It was held that order of Fora below regarding quantum of compensation cannot be upheld in toto. National Commission observed that keeping in view that the Respondent had paid most of loan installments, it would be fair balance if Petitioner pays Respondent `1,01,000/- which was amount he received for selling the vehicle after repossession and with these observations order of State Commission was partly set aside. [12] As against this Learned Advocate for the Complainant relied upon the decision of the National Commission in the matters of HDFC Bank Ltd. Vs. Balwinder Singh ~ 2009-(3)-CPR-201-(NC) as also decision in M/s. Capital Trust Ltd. Vs. Sanjay Dutt and Another ~ 2009-(3)-CPR-205-(NC). [13] Facts and circumstances of the case relied upon the Learned Advocate for the Finance Company, supra, though similar are not identical. In the present case, the Complainant has paid to the Finance Company an amount of `4,28,500/- as against the total outstanding dues of `5,03,550/-. Further, the amounts shown to be outstanding in the default notice and the subsequent demand notice issued to the Complainant by the Finance Company do not reflect the outstanding amounts shown in the Statement of Loan. Though the vehicle is repossessed it is not yet sold by the Finance Company depriving the Complainant from earning his livelihood by means of self-employment by plying the said vehicle. As the vehicle is lying unattended and non-used, might have got rusted and it may not be in a roadworthy condition. When the hypothecated security is in possession of the Finance Company, the Complainant is not legally bound to pay interest for the period the vehicle is in possession of the Finance Company. [14] Looking to the facts and circumstances of the case upon accepting the balance outstanding loan dues of `85,050/- from the Complainant, handing over possession of the vehicle to the Complainant in a roadworthy condition will be just and proper and would meet the ends of justice. In the result, impugned order passed by the District Forum needs to be modified as per final order. Hence, we pass the following order:- ORDER 1. Appeal is partly allowed. 2. Impugned order dated 01st April, 2011 passed by the District Consumer Disputes Redressal Forum in Consumer Complaint No.337 of 2010 is hereby stands modified. 3. Respondent/Complainant is hereby directed to pay to the Appellant/original Opponent balance loan amount of `85,050/- within a period of one month from the date of this order and if, the Appellant/Opponent refuse to accept this amount then in a such case, within a period of eight days thereafter, the Complainant shall deposit said amount with the State Commission. 4. Upon deposit of the amount by the Complainant, as ordered above, within a period of fifteen days thereafter, the Appellant/original Opponent is hereby directed to hand-over possession of motor vehicle bearing RTO Registration No.MH-04-F-6139 to the Complainant and failing which the Respondent/original Opponent shall also be liable to pay penal charges to the Complainant @ `300/- per day as from the date of expiry of stipulated period of fifteen days till the date of handing over possession of the vehicle to the Complainant. 5. Order as regards payment of compensation as passed by the District Forum stands confirmed. 6. In the given circumstances, parties to bear their own costs. Pronounced on 02nd April, 2013 |
