Orissa

Jajapur

CC/18/2021

Tanwar Anwar - Complainant(s)

Versus

Regional Manager/Authorised Signatory,HDFC Bank LTD. - Opp.Party(s)

Ramakanta Ghadai.

30 Oct 2021

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:      1.Shri Pitabas Mohanty, Member

                                                                             2. Miss Smita  Ray, Member,(w)                            

                                                   Dated the 30th day of October,2021.

                                                      C.C.Case No.  18  of 2021

Tanwar Anwar  , S/O Akhil Ahamad    

At. Chandikhole   , P.O. Sunguda  ,

P.S.Badachana  , Dist.Jajpur.                                                                                             …………….    .Complainant .                                                                         

                          (Versus)

1. Regional Manager, Authorised Signatory, H.D.F.C Bank Ltd, At-A/62/1, ,  

Unit-8, Nayapalli, Bhubaneswar.

2.  Branch Manager,HDFC Bank Ltd, Jajpur Road, At.Chorda Square

        P.O. Jajpur Road  ,Dist.Jajpur

                                                                                                                                                           ………………..Opp.Party.                                                                                                                                                                                                               

For the Complainant:                                     Sri  R.K.Ghadei , Sri R.N. Dhal,  Advocate 

For the Opp.Party   : 1  and 2                         Sri  R.K.Rout, S.Dalua, Advocates.                        

                                                                                               

                                                                                                                                         Date of order:  30. 10. 2021.

MISS  SMITA  RAY,  M E M B E R (W)   .

The petitioner has filed the present dispute against the O.Ps alleging deficiency in service as well as unfair trade practice as the O.Ps without giving pre-repossession notice and pre-sale notice has sold the financed vehicle without following the proper procedure of law.

                The facts of the case as per complaint petition shortly are that  in order to maintain lively hood by means of self employment the petitioner has purchased the  vehicle bearing No.OR-4H-1886 and No.ORO-4N-4986 by availing loan from the O.Ps. The petitioner has cleared up the entire loan as against the vehicle baring No.ORO-4H-1886  but the loan of Rs.19,50,000/- which was availed against the vehicle bearing No.ORO-4N-4986 the petitioner is required to repay Rs.25,13,900/- by monthly installment  within the period 01.12.2011 to 01.09.2015 which includes the principal amount and interest. As against the above loan though the petitioner has paid Rs.14,29,300/- as on 28.08.2014 out of the total repayment amount of Rs.25,13,900/- and there was balance Rs.10,84,600/- against the vehicle No.ORO-4N-4986 but the O.Ps without giving pre-repossession notice to the petitioner sized the vehicle which violates the term and condition of loan-cum-hypothecation agreement. Accordingly finding no other way the petitioner filed a writ application bearing No.4095/2016 in the Hon’ble Odisha High Court impleading 4 nos of O.Ps i.e (1) R.T.O (2) S.P (3) IIC Badachana and 4.HDFC Bank. In the writ application though the petitioner has stated that the O.P.no.4    HDFC Bank  has repossessed  the vehicle by engaging muscle man as well as has lodged an F.I.R in the Badachana P.S as the O.P.no.4 –HDFC Bank has taken the signature of the petitioner in the blank paper   also intimated the facts to SP Panikoili  by Regd post  but the O.p.no3 has stated that the petitioner has not lodged any F.I.R in respect of his allegation in the Badachana P.S  nor any police personal has been deputed to the spot at the time of taking possession of the alleged vehicle by O.P.no.4. According to O.P.no.4 the petitioner himself has surrendered  the vehicle for which no muscle man were engaged for taking possession of the vehicle and the said possession is as per clause-17 of loan –cum-hypothecation agreement. In the writ  petition the O.p.no.3 (IIC Badachana  has taken the stand that though police personal were not deputed with O.p.no.4 for taking possession of the alleged vehicle but on 08.02.16  the O.p.no.4 (HDFC Bank) not only submitted pre-repossession intimation and after taking possession further submitted post repossession  intimation along with surrender letter signed  by the petitioner. Moreover it is also the facts that no complaint has been filed by the petitioner in respect of his allegation in the SP office Panikoili  by Regd.post. Similarly the HDFC Bank (O.P.no.4  has taken the stand that as per clause-17 of loan agreement  the bank has taken possession of the financed vehicle. It is stated by the petitioner that even if for the sake of argument the petitioner has surrendered  the financed vehicle  still then it is the liabilities  of the O.Ps  to sell the vehicle in auction sale by following the proper procedure of law but in the present case the O.Ps without following the proper procedure of law has sold the vehicle  at low price for which the petitioner finding no other way has filed the present dispute  impleading O.p.no.1 and 2  (O.P.4 the writ petition no.4095/2016)  as financer  of the alleged vehicle with the prayer without claiming further outstanding amount if any  to refund the EMIs paid by the petitioner as well as award Rs.50,000/- as compensation for mental agony which resulted due to deficiency of service  and unfair Trade Practice on the part of the O.Ps.

                After appearance the O.Ps have filed the written version in support of their defence as well as denying the allegation of the petitioner. In the written version the O.ps have taken the following stands:

1. It is stated by the O.ps in the written version that the petitioner had purchased a TATA LPT 3118) vehicle by availing loan of Rs.19,50,000/- in the year -2011 vide loan A/C No.3393644 on the strength of loan –cum-hypothecation agreement and as per term and condition of the loan agreement  the petitioner is required to repay the loan  along with interest in 46 installments  starting from 01.02.2011 to 01.09.2015 having each monthly installment Rs.54,650/- .But the petitioner failed to honour  the term and condition of the loan agreement  for which the O.Ps issued reminder and notices and later on the petitioner  surrender the financed vehicle bearing No.OR-04N-4986 and letter the same was  auctioned as per the due prices and sold  to the higher bidder to appropriate the

sale proceeds towards the loan A/C of the petitioner. Furtherpost sale of the vehicle there is a short fall amount Rs.9,64,372/- is still laying towards the loss onsale amount of the said loan and the petitioner is liable to pay the same as per term and condition of the loan agreement. Further it is stated by the O.ps that due to non payment of outstanding loan amount an Arbitration proceeding bearing No.150/2012 was initiated against the petitioner in respect of loan A/C No.3393649 and the learned Arbitration after following the due process of law has passed an award in favour of the Bank on 23.09.2012 for an amount of Rs.20,95,833.12 along with interest @ 13% per annum from the date of notice dt.04.02.12 till award and @18% per annum from the award till realization of the amount .Due to non payment of the awarded amount an execution case bearing No.17/13 has been filed in the Ld.Dist. Judge ,Jajpur and thesame is now sub-judice. It is also the facts that after giving pre-possession notice dt.08.02.2016 to the police station i.e Badachana police station ,Jajpur and after possession a post repossession intimation was also given in the police station. Similarly the petitioner also has filed a writ bearing no.4095/2016 in the Hon’ble Odisha High Court stating that the O.ps have repossessed the vehicle forcible. The O.Ps after appearance filed counter affidavit denying the allegation of the petitioner. The Hon’ble High Courtafter hearing the parties dismissed the writ petition vide order dt.18.02.2019 . As the petitioner wanted to settle the loan A/C in one time settlementvide letter dt.28.09.2017 and legal notice dt.23.10.2017 the O.Ps though intimated the petitioner to deposit Rs.15,85,347 /-before 31.12.2017 to settlethe loan A/C No.3393644 and 3190056 but the petitioner did not take any action to settle the loan. In such situation finding no other way after giving sale notice dt.08.02.16 by Regd post the O.ps following the proper procedure of action sale as per term and condition of loan –cum- hypothecation agreement sold the vehicle to a highest bidder at the cost of Rs.6,11,000/ dt.24.04.2019 which was communicated to the petitioner regarding sale of the vehicle .As such owing to the above factual aspects the dispute may kindly be dismissed since there is no deficiency in service or unfair trade practice on the part of the O.ps.

In view of the above assertion and counter assertions of both the parties we are inclined to dispose of the present dispute as per our observation stated below:-

1. Admittedly the petitioner has purchased the  above cited alleged vehicle in availing the loan of Rs.19,50,000/- from the O.Ps and due to non payment of the loan amount the O.ps have filed the

Arbitration case and as the Arbitrator has already passed an award it is stated by the O.ps that the present consumer dispute is not maintainable.

As against such stand from the side of O.ps we have perused the record in detail and after verification it is observed that in support of Arbitration award the O.ps have not filed the Arbitration order of the Learned Arbitrator nor any documents in support of execution case No.17/2017 pending in the learned Dist.Judge ,Jajpur .Hence we are declinedto accept such stand of O.ps . Further the present dispute is maintainable since the petitioner has filed theconsumer disputefor different cause i.e deficiency in service in view of the observation of Hon’ble National Commission reported in 2006(2)CLT-388-N.C and C.C.No.67/2007 Odisha. In addition to it the arbitration notice has not been served to petitioner as per observation of Hon’ble N.C reported in 2012(3) CPR-510-NC.

B.Similarly  as per observation of Hon’ble Supreme court reported in 2020(4)CPR-197-Supreme court in case of default though the financer is entitled to repossess the financed vehicle but such repossession  should be as per proper procedure of law only because

1.As per guide line of  RBI 60 days prior notice is mandatory to repossess the financed vehicle as per observation of National Commission reported in 2021(3) CLT-622-NC

2. The O.Ps though have filed the pre-repossession and post repossession notice in the local police station for taking possession of the alleged vehicle but the O.Ps have not filed any documents or photo copy of the pre-repossession and post repossession to prove that such notice has been served to the petitioner.

3. Loan recall notice dt.03.10.2012 filed from the side of the O.P does not supported with postal receipt and postal track report .

4. There is no documentary evidence from the side of O.ps that the date of action has been intimated to petitioner so as to participate in the auction sale or release the vehicle in paying the outstanding dues as per observation of Hon’ble National Commission reported in 2002(3)CPR-34-NC, 2004(3) CPR-154-Odisha, 2018(3) CPR-367-NC.

5. Though it is stated by the petitioner that the O.Ps have taken   the signature of the petitioner in  a blank paper but the O.ps in the written statement have stated that the petitioner himself has surrender the vehicle. Even if for the sake of argument the petitioner has surrendered the vehicle still then it is the mandatory duty of the O.Ps to sale the alleged financed vehicle by following the proper procedure of law but in the present case as observed the Assessment report filed from the side of the O.ps does not indicate such report is from the approved value or not.

1. The O.ps have not filed relevant documents indicating the name of other bidders who have taken part in the auction sale of the alleged vehicle .

2. The O.Ps have not filed any documentary evidence to prove that the auction sale was duty advertised in the new paper before the vehicle was sold in view of the observation of National Commission reported in 2015(3) CPR-584-N.C,Odisha case.

3. The O.ps have not taken the order of competent court for selling the alleged vehicle in auction sale though it is settled principle of law that fundamental auction sales has to be complied with while  auction of the hypothecated vehicle in view of the observation of Hon’ble National Commission reported in 2020(3) CPR- 169-NC.

                The above observation from our side clearly go to establish that after repossession of the alleged financed vehicle the O.Ps have sold the same at low price i.e  Rs.6,11,000/- which comes not only in the purview of deficiency in service but also unfair trade practice on the part of the O.Ps

Hence this Order

                The dispute is allowed  against the O.ps .We quashed the rest outstanding amount of Rs.9,64,372/- which stands against the loan of the alleged vehicle bearing No.OR-04-N-4986. We also assess compensation of Rs.50,000/- ( Fifty thousand )  to be paid by the O.ps to the petitioner for deficiency in service as well as unfair trade practice . The O.Ps are also directed to issue NOC against the above cited vehicle in view of the observation of Hon’ble National Commission reported in 2001(3)CPR-199-NC. The order shall be complied within 45 days after receipt of this order, failing which the petitioner is at liberty to take action as per law. No cost.

This order is pronounced in the open commission  on this the 30^th  day of October,  2021 under my hand and seal of the commission.