PRONOUNCED ON: 7th March 2017 ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, challenging the order dated 06.07.2007, passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (hereinafter referred to as “the State Commission”) in First Appeal No. 24/2005, M/s Mahindra & Mahindra Financial Services Ltd. & Ors. Vs. Ramesh Sawant, vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Shimla on 11.01.2005, allowing the consumer complaint no. 117/2003, filed by the present respondent, was upheld. 2. Briefly stated, the facts of the case are that the complainant purchased a Mahindra & Mahindra Utility vehicle, bearing registration no. HP09 4286 under hire-purchase agreement with the opposite parties/OPs/petitioners. The complainant made a lump sum payment of Rs. 1,15,440/- on 11.05.2000 to the OPs. The OPs provided a loan of Rs. 2,55,000/- on which, the complainant was to be charged an interest of Rs. 70,491/-. The amount of Rs. 2,55,000/- alongwith Rs. 70,491/- was to be repaid by the complainant in 35 instalments, the last instalment being payable on 31.03.2003. It is stated that the OPs charged a sum of Rs. 3,74,190/- inclusive of a sum of Rs. 1,15,440/-, but the vehicle was repossessed by the OPs on 20.03.2003 for non-payment of some of the instalments of the loan. The complainant filed the consumer complaint in question, seeking return of the vehicle, or in the alternative to refund the amount of Rs. 3,74,190/- plus Rs. 1,15,440/- alongwith interest, damages, cost of litigation etc. 3. The complaint was resisted by the OPs by filing a reply before the District Forum, in which they stated that the District Forum had no jurisdiction to try the complaint and the complainant was not a consumer, because the vehicle was being used for commercial purposes. It was also stated that the vehicle had been rightly repossessed, because of default by the complainant in making payment of the instalments in time. The complainant had agreed to pay hire charges of Rs. 10,965/- only for the first 17 months and thereafter, to pay hire charges of Rs. 7,727/- every month for the balance 18 months, failing which, late charges equal to 3% per month on the hire charges were to be paid. The OP stated that they had received only 27 hire charges from the complainant and the same were also highly delayed. Despite persistent follow-up and calling upon the complainant to pay the outstanding amount, he failed to pay the dues to the OPs, who were well within their rights to repossess the vehicle. He also stated that several cheques issued by the complainant had been dishonoured. 4. The District Forum, after considering the averments of the parties, passed the following order:- “12. We, thus, direct the OPs to return the vehicle bearing registration no. HP-09-4286 to the complainant within one month from the date of receipt of copy of this order, failing which the complainant shall be entitled to a sum of Rs. 3,74,638/- along with interest at the rate of 12% per annum from the date of filing of the complaint, till actual payment is made. The OPs are also burdened with damages of Rs. 10,000/- alongwith cost of litigation which is qualified at Rs. 3,500/-. With these observations, the complaint stands disposed of accordingly.” 5. Being aggrieved against the above order of the District Forum, the OPs challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed by that Commission, the OPs are before this Commission by way of the present Revision Petition. 6. The learned counsel for the OPs/petitioners stated that default in the payment of instalments on the part of the borrower had been fully proved from record. The State Commission had stated in para 2 of their order that the learned counsel for the complainant admitted before them that 2-3 cheques issued by the complainant were dishonoured, but when the matter came to the notice of the complainant, he deposited the amount in question with the OPs. According to the learned counsel, a sum of Rs. 95,128/- was due and payable by the complainant as on the date of filing the reply i.e. 01.07.2003 alongwith other charges as applicable as per the terms of the agreement. The vehicle was accordingly repossessed on 20.03.2003 and there was nothing wrong in doing so. Further, a notice dated 20.03.2003 was sent to the complainant informing him that the vehicle had been repossessed on account of default in payment and he should meet a representative of their Company at Shimla within 14 days, failing which they shall proceed to dispose of the vehicle. The learned counsel maintained that the vehicle could not be released, until the payments due to the petitioner were realised. As per the statement dated 31.08.2007, the amount receivable from the complainant was Rs. 2,25,593/-, which included the interest till that date. The learned counsel has drawn attention to an order passed by this Commission on 30.10.2007 in these proceedings, vide which, the present Revision Petition was admitted. It was stated in that order that the vehicle will be handed over to the complainant in working condition, if he paid Rs. 1 lakh within a period of four weeks from the receipt of copy of the order. However, the complainant chose not to deposit any amount in pursuance of this order of the National Commission. 7. Per contra, the learned counsel for the complainant/respondent has drawn attention to an order passed by the Hon’ble Apex Court in Citicorp Maruti Finance Ltd. vs. S. Vijayalaxmi, (2012) 1 SCC 1, in which, it was held that the recovery process under hire-purchase agreement was to be carried out in accordance with law and not by the use of force. The hirer was not entitled to take back the possession of the mortgaged vehicle by using force in the case of default in payment. The action taken by the OPs/petitioners in this case was, therefore, not in accordance with law. The learned counsel submitted that whenever the factum of dishonour of any cheque came to their notice, they used to deposit the amount involved in cash. The position had been explained before the State Commission as well, as indicated in their order. The learned counsel further stated that in case any cheques issued by the complainant got dishonoured, the OPs were at liberty to file criminal complaints against them under Section 138 of the Negotiable Instruments Act. The learned counsel stated that the petitioners should be given exemplary punishment for repossessing their vehicle in an illegal manner. 8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 9. The first point for consideration in the present case is whether in the case of a hire-purchase agreement, the borrower comes under the definition of ‘consumer’ or not and hence, whether the consumer complaint made was maintainable before the consumer fora. The matter has been discussed in detail in an order passed by a three-member Bench of this Commission in Revision Petition No. 134 of 2007, Yogendra Saxena vs. Manager Chhindwara Tractors (Motors) & Anr. and other connected matters. It was held, vide order dated 25.08.2015, ‘that the borrower does come within the definition of ‘consumer’ and hence, it is held that the complaint is maintainable before the consumer fora. 10. The main issue for consideration in the matter is whether there had been any default on the part of the complainant in repaying the hire charges to the petitioners/financiers. As per the statement of accounts produced on record, it is clear that on the date of repossession, certain amount was payable by the complainant to the opposite parties. The allegation raised by the opposite parties that certain cheques issued by the complainant had bounced, has not been denied anywhere. On the other hand, it has been stated that whenever they got information about any cheque having been bounced, they used to repay the money in cash. However, the complainant has not been able to produce on record any evidence about the deposit of money in cash. He has not produced any receipt on record in favour of the assertion about cash payment made by him. The version given by the complainant cannot be believed, therefore, that there was no default on his part at any time. It is further observed that after the repossession of the vehicle, the OPs/petitioners sent notice to the complainant, asking him to meet their representatives within 14 days, failing which, they shall proceed to dispose of the vehicle. It was the duty of the complainant to make efforts to repay the amount due from him and then to get back the delivery of the vehicle. However, nothing of that sort seems to have been done by the complainant. 11. Based on the discussion above, it is held that the orders passed by the consumer fora below do not reflect a correct appreciation of the facts and circumstances on record and hence, these orders are perverse in the eyes of law. The contention raised by the District Forum that the use of coercive methods and obtaining forceful possession of the vehicle amounts to unfair trade practice, is not tenable in the eyes of law. The State Commission observed that the action of the appellants in repossessing the vehicle was highly unjust, arbitrary and unreasonable, when tested on the touchstone of reasonableness within the meaning of Article 14 of the Constitution of India. However, we do not find any basis for making such observations, when it is clear that certain amount of money was payable by the complainant on the date, the vehicle was repossessed. The direction given by the consumer fora below for return of the vehicle was not justified on any ground, considering that the complainant was liable to pay the outstanding sum to the OPs in terms of the hire-purchase agreement. It was the duty of the consumer fora below to have a look at the accounts statement given by the OPs/petitioners and then to determine, whether the default in making payments of instalments on the part of the complainant, was there or not. 12. Based on the discussion above, this Revision Petition is allowed and the orders passed by the consumer fora below are set aside. The consumer complaint in question stands dismissed. There shall be no order as to costs. |
