Orissa

Dhenkanal

CC/06/2013

Debashis Sahoo - Complainant(s)

Versus

Regional Manager, State Bank of India, Regional Business Office and Others - Opp.Party(s)

Ashok Kumar Rout & Associates

10 Nov 2017

ORDER

BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                                C.C.Case No. 06 of 2013

Debashis Sahoo, aged about 30 years

S/o Pramod Kumar Sahoo,

At/Po: Nuagarh, P.S: Nihalprasad,

Dist: Dhenkanal                                                                 ….......Complainant

                                                                                Versus

1) Regional Manager,

     State Bank of India, Regional Business Office,

     P.S/Dist: Angul

2) Branch Manager, State Bank of India

    Evening Branch, At: Ganesh Bazar,

    P.S/Dist: Dhenkanal                                                ….......Opp. Parties

Present: Sri Badal Bihari Pattanaik, President,

                 Miss Bijayalaxmi Satapathy, Member

Counsel: For the complainant: Ashok Kumar Rout & Associates

                 For the Opp. Parties:  C. Nanda & Associates

Date of hearing argument:  8.11.20178

Date of order: 10.11.2017

                                                                                JUDGMENT

Sri Badal Bihari Pattanaik, President,

                The complainant has filed the complaint petition U/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the Opp. Parties and has come up before this Forum seeking for a direction to the Opp. Parties for refund of a sum of Rs. 8,35,000/- towards margin money, cost of registration, fitness, permit, insurance and cost of body building  along with compensation of Rs. 50,000/-.

                1)  Briefly, the facts of the case of the complainant  stated are that he has purchased one  Ashok Leyland Truck in the month of April-2010 bearing registration No. OR-04 K 8156 under loan arrangement from State Bank of India, Dhenkanal Evening Branch, Dhenkanal. At the time of purchase of the truck the petitioner has deposited a sum of Rs. 4,85,000/- as margin money.  The complainant was intimated  to repay a sum of Rs. 30,000/- as monthly installment inclusive of principal and interest. The complainant  was paying the loan dues  but due to change in government policy and major repairs in the vehicle the loan account became irregular by Rs. 3,35,431/- as on 22.8.2012 and accordingly the O.P.No.2 was intimated by the complainant with a request to bear with him  for the reasons stated. The O.P. No.2 without considering the genuine difficulties of the complainant seized the vehicle  forcefully by use of hired musclemen.  The complainant requested the Opp. Parties to release the vehicle.  The Opp. Parties instead of releasing the vehicle has published a notice to sell the vehicle.  The O.P.No.2 vide his letter dated 30.1.2013 intimated the petitioner to sell the vehicle and to have fixed the price at Rs. 8,00,000/-.  It is alleged that the vehicle was valued by the approved valuer of the Bank and the value of the truck has been assessed to be Rs. 12,00,000/-, but the O.Ps  deliberately and willfully have suppressed this report with ulterior motive. The O.P.No.2 vide his letter dated 25.8.2012 intimated the petitioner that his loan account is irregular by Rs. 3,35,431/- whereas the letter dated 30.1.2013 states it to be Rs. 7,23,359/-.  The complainant is never irregular by Rs. 7,23,359/-.  The vehicle was repossessed on 17.10.2012 and the default amount till such time approximately comes to Rs. 4,00,000/-.  From the letter dated 30.1.2013 the O.P.No.2 has already adjusted a sum of Rs. 3,00,000/- against the loan account from the fixed deposits of the complainant.  The complainant after adjustment of the fixed deposits of Rs. 3,00,000/-  the default of Rs. 1,00,000/- was to be paid and the complainant offered the said amount for release of the vehicle.  The complainant had given adequate property security against his loan account.  The agreement period for repayment of loan was also in force and the bank was charging penal charges for delay in repayment of loan dues. Therefore, while the loan was secured snatching away of the vehicle from the complainant and sell of the vehicle at a throw away price amounts to unfair trade practice.  It is further stated that while there was an interim direction passed by the Dist. Forum directing the Opp. Parties to release the vehicle on receiving a sum of Rs. 1,40,000/- from the petitioner.   Considering the objection of the O.Ps the Forum again directed the Opp. Parties not to sell the vehicle until further orders, but the O.Ps violating the orders of the Forum has sold  away the vehicle   of the petitioner at a throw away price.   The complainant has stated that  the O.P Bank has financed a sum of Rs. 13,50,000/-  and he has paid a sum of Rs. 4,85,000/- towards margin money and spent a sum of Rs. 1,50,000/- towards cost of registration, fitness, permit and insurance and also spent a sum of Rs. 2,00,000/- towards body building (dala).  Besides, the complainant has repaid a substantial amount.  The vehicle was purchased for earning the livelihood of the complainant by means of self-employment being an unemployed person.  The Opp. Parties have sold the vehicle violating the interim orders passed by the Forum and in violation of the provisions of law the O.Ps committed deficiency in service and liable to refund the entire amount of Rs. 8,35,000/- in total paid by the complainant.    The body (dala) of the truck is not a part of the loan and the complainant has constructed the dala by raising hand loans from relatives. The Opp. Parties have seized the dala for which the Bank has never financed.  Therefore, the complainant has prayed to direct the Opp. Parties to refund a sum of Rs. 8,35,000/- towards the amount already paid by the complainant along with a sum of Rs. 50,000/- towards compensation and cost of the litigation.  The contents of the petition are supported by affidavit.

                2) The Opp. Parties appeared and filed written version.  It is in the version of the O.Ps that the complaint is not maintainable.  The complainant being a defaulter cannot claim as a consumer.  It is admitted that the complainant has purchased the truck in question on 7.4.2010 under loan agreement from State Bank of India, Dhenkanal Evening Branch, and Dhenkanal.  At the time of purchase of the Truck, the price was Rs. 15,43,073/- i.e cost of the chassis and cost of the body building.  Out of the total cost of the Bank has financed a sum of Rs. 13,50,000/- and it was agreed upon by the loanee and the Guarantor to repay the loan amount at the rate of Rs. 30,200/- per month.  The complainant was irregular to repay the instalments for which the loan amount swelled up to the tune of Rs. 7,12,976/- till 24.7.2012  , after adjustment of collateral security amounting Rs. 3,35,432/- from the fixed deposit of the complainant, still then  the loan  became unsecured for which the Bank filed Civil Suit No. 83/2013 before the learned Civil Judge, (Sr. Divn),Dhenkanal for recovery of the said amount from the petitioner and his guarantor. The complainant apprehending such institution of filing suit filed the present case before this Forum. It is further averred that the value of the vehicle fixed at Rs. 8,00,000/- as no purchaser came forward to purchase the vehicle  at Rs. 12,00,000/-.  As no purchaser came forward to purchase the vehicle at the rate of Rs. 8,00,000/- the complainant  was offered to retain the vehicle on payment of Rs. 8,000,000/-.  The original default amount was Rs. 3,35,431/- which was swelled to the tune of Rs. 9,18,054/- as on 28.2.2013.  The O.Ps repeatedly issued demand notices to the loanee and the guarantor to repay the loan amount but he avoided to pay the loan amount for which the Bank was constrained to seize the vehicle on 17.10.2012.  Now the outstanding against the loanee is more than Rs. 9,00,000/- including up to date interest.  It is further stated that no property security has been given by the complainant. The complainant is not a bonafide consumer and he has no cause of action to file the case.   In the additional written statement filed on behalf of the O.P.No.2 it is stated that the Forum had passed interim order time to time for maintaining status-quo but the same was not duly communicated to the O.Ps for which the O.P auctioned the seized truck to satisfy the outstanding dues of the Bank and for avoiding further loss.  It is denied that the Forum has directed the Bank to release the vehicle on receiving Rs. 1.40,000/-.  The complainant is a habitual defaulter and played hide and seek with the Bank for which the Bank was constrained to seize the vehicle and to put the vehicle on auction.   The material facts as pleaded in the newly added paras are after thought, malafide and not entertainable at this stage. Accordingly, it is pleaded to dismiss the complaint.

                    Originally the petitioner has fled the complaint case with a prayer to declare the seizure of the truck bearing No. OR-04 K 8156 by the O.Ps as illegal and compensation of Rs. 50,000/- towards harassment and cost of litigation.  During pendency of the case and while the interim order of this Forum was in force wherein the Opp. Party was directed not to sell the vehicle until further orders,  but the Opp. Party disobeying the orders of this Forum sold the said vehicle for which the complainant sought for amendment of the complaint petition which was rejected by this Forum against which the complainant approached before the Hon’ble State Commission in R.P.No. 59/2017 and Hon’ble State Commission vide its order dated 31.8.2017 allowed the Revision petition of the complainant and accordingly the petitioner filed amendment petition and Opp. Party also filed additional written version.

                3)  On the aforesaid pleadings of the respective parties the following issues are framed for determination.

                1)  Whether the complaint is maintainable?

                2) Whether there is deficiency in service on the part of the O.P?

                3) To what relief, if any, the complainant is entitled?

4) Issue No.1

                Learned counsel for the Opp. Party vehemently argued that the case is not maintainable as the complainant has purchased the Truck in question for commercial purpose, between the parties for same issue a Civil Suit is pending and the case is barred by limitation.  On the other hand learned counsel for the complainant argued that the petitioner has purchased the vehicle to earn his livelihood, and even if the suit is pending before the Civil Court for the same issue this Forum has jurisdiction to decide the deficiency in service on the part of the Opp. Party and further argued that the case is within limitation.  We have gone through the pleadings of the parties.  The petitioner in his petition at para-11 of the petition specifically pleaded that he earn his livelihood by way of self-employment from the vehicle which is the only source of income of the petitioner which is not disputed by the Opp. Party in their written version.  Further the Opp. Party has not produced any evidence that the complainant has more than one truck and he is doing transport business or he has other business.  So in absence of any evidence from the side of the Opp. Party the argument as advanced by the complainant in this respect is not sustainable.  It is stated by the Opp. Party in para-9 of the written version that as a Civil Suit No.83/2013 between the parties is pending the present case is not maintainable.  In para-4 of the written version it is pleaded that the Opp. Party has filed the suit No.83/2013 before learned Civil Judge,( Sr. Dvn,) Dhenkanal for recovery of their dues.  But in the present case the petitioner has prayed compensation for deficiency of service on the part of the Opp. Party.   The Opp. Parties have not filed copy of the plaint or there is no specific pleading whether the suit was filed before initiation of this proceeding or after initiation of the present proceeding.  Further if during pendency of this proceeding the Opp. Parties have filed any suit with different type of relief, then the jurisdiction of the Consumer Forum is not ousted.  In this regard we are fortified by   decision of Hon’ble Supreme Court in the case of Satpal Mahindra vrs. Surindra Timber Stores reported in 1999 (9) Supreme page 196  and  in the case of M/s Biswalaxmi Sasidharan –vrs- B.M. Syndicate Bank reported in 1997 (2) Supreme page 544.  It is argued on behalf of the Opp. Parties that the Bank has seized the vehicle in the year 2012 and the petitioner has filed the case with amendment of prayer in the year 2016 which is hopelessly barred by limitation.  On the other hand learned counsel for the petitioner argued that when during the pendency of the case the vehicle was sold by the Opp. Parties and thereafter the amendment petition was filed and Hon’ble State Commission in the revision petition No. 59/2017 after hearing both the parties allowed the amendment petition which amounts to continuation of the limitation and the case is not barred by limitation.  It is not disputed that during pendency of the proceeding and while the interim order was in force restraining the O.Ps not to sale the vehicle, the Opp. Parties by violating the orders of the Forum have sold the vehicle.  So when it came to the notice of the complainant he has filed the amendment petition and amended his original prayer which was allowed by the Hon’ble State Commission.  So in our considered opinion this is a continued cause of action and the case is not barred by limitation.

5) Issue No.2

                Learned counsel for the complainant argued  that the Opp. Party without following due procedure of law by use of criminal force through hired musclemen seized the vehicle even if the complainant was paying the monthly installment regularly and  there was some delay due to change of Govt. Policy and other difficulties.  Further when the interim order of this Forum was in force whereby the Opp. Parties were directed not to sale the seized vehicle until further orders, but without any prior notice to the complainant or without any permission of this Forum and without following due procedure for auction of the vehicle, it was sold at a very lower price than the prevailing market price which amounts to deficiency in service on the part of the Opp. Parties.  On the other hand learned counsel for the Opp. Parties  have argued that  after notice to the complainant and following the procedure the Opp. Parties have sold the vehicle , as the  absolute interim order was not communicated to the Opp. Parties.  So there is no deficiency in service on the part of the Opp. Parties.  We have gone through the pleadings of the parties and documents filed by them.  Both the parties in their pleadings have not specifically pleaded the date when the loan was sanctioned, when the vehicle was sold and the amount of the sale proceeds.  But it is an admitted fact that the vehicle has been seized and already sold.  Now question arises as to whether the Opp. Parties while taking repossession of the vehicle and selling the same have followed due process of law or not?    From the statement of account filed by the Opp. Parties we noticed that the Opp. Parties have sanctioned and disbursed Rs. 13,50,000/- in favour of the complainant  for purchase of the vehicle.  From the agreement it is also noticed the loan was payable in 60 installments of Rs. 30,200/- each month starting from April-2010 till March-2015.  Learned counsel for the complainant in his written note of argument specifically stated    the date and amount of repayment by the complainant towards his loan amount.   On perusal of the statement of accounts we found that the complainant has  paid the installment dues on 11.5.2010, 10.6.2010, 15.7.2010, 15.9.2010, 21.10.2010 and 10.12.2010  in total he has paid Rs. 1,90,760/-.  In the year 2011 and 2012   we also noticed that the complainant has paid some    installment dues.  The Opp. Parties in their letter dated 25.8.2012 intimated the complainant that  his loan account is irregular and the irregularity on that date is Rs. 3,35,431/- and in that letter  the petitioner was requested to surrender the truck in question  within 15 days otherwise bank will constrain to lodge F.I.R against him.  On perusal of the statement of account filed by the Opp. Parties we noticed that on 24.7.2012  the Opp. Parties closed the S.T.D.R  deposited by the complainant at the time of availing loan and transferred to his loan account  a sum of Rs. 3,35,431/-.  The Opp. Parties have not filed any documents that they have taken steps in accordance with law to seize the vehicle. Further when the complainant was paying the dues of the Opp. Parties without any notice, Opp. Parties adjusted his collateral security and the Opp. Parties have not filed any documents to show prior to adjustment of collateral security the complainant was defaulter.  On our perusal of the entire record we do not find a single document adduced on behalf of the Opp. Parties that they have given several notices before seizure of the vehicle.  Further we find that the seizure of the vehicle from the custody of the complainant is not transparent on the basis of the Opp. Parties have seized the vehicle.  Learned counsel for the Opp. Parties argued that prior to sale of the vehicle they have intimated the petitioner  on 30.1.2013    that they have decided to auction the vehicle on 13.2.2013 and the auction price is fixed at Rs. 8,00,000/-.  In the said letter the petitioner was also requested that if he had any objection regarding the price then he may arrange a suitable buyer for purchasing at a higher price prior to that date.  So he argued that with due notice, the Opp. Parties have sold the vehicle and hence there is no deficiency in service on their part.  On perusal of the documents we find that the case was filed on 22.1.2013    and thereafter as per interim order in Misc. Case No 1/.2013 the Opp. Parties were directed not to sale the vehicle and lastly order was passed on 29.4.2014 wherein Opp. Parties were directed not to sale the vehicle until further orders.  But the Opp. Parties violating orders of this Forum and without taking any permission of this Forum have sold the vehicle.  The Opp. Parties have also not filed any document that prior to sale the complainant was intimated.  Further the Opp. Parties have not filed any documents the manner and mode of sale of the vehicle.    It appears that without due process of law the Opp. Parties have sold away the vehicle at through away price.  The complainant has filed documents that the value of the vehicle as per the Value was Rs. 12,00,000/- as on 14.11.2012 which was not disputed by the Opp. Parties by adducing any evidence.  On the letter dated 30.1.2013  the Opp. Parties intimated the petitioner  the auction price of the vehicle was fixed at Rs. 8,00,000/-.  But the Opp. Parties sold the vehicle for Rs. 4,50,000/- on 9.10.2014 as reflected in the statement of account filed by the Opp. Parties which is in our considered pinion  that the above stated conduct of the Opp. Parties is arbitrary and for such highhanded action the complainant sustained huge financial loss  only for the deficiency in service of the Opp. Parties.    After taking into consideration of the factual aspects, pleadings of the respective parties and the documents available on record we are of the opinion that the Opp. Parties have committed gross negligence and deficiency in service while repossessing the vehicle and selling the impugned vehicle at a very lower price. . In this regard we are fortified by a decision of the Hon’ble Supreme Court reported in 2007 (52) AIC 113 (S.C) (Supreme Court in case of Manager, I.C.I.C.I. Bank Ltd, vrs.  Prakash Kaur and others, Further the learned counsel for the complainant relied on two decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in III (2007) CPJ-161 (NC) in case of CITICORP MARUTI FINANCE LTD Versus S. Vijayalaxmi  and in another case between ABN AMRO BANK vrs.  SANGEET SRIVASTAVA reported in II (2007) CPJ269 (NC)   Besides, the learned counsel for the complainant also relied on a decision of Hon’ble State Consumer Disputes Redressal Commission, Odisha Cuttack reported in 2007 (I) OLR (CSR) page 62 in case of Branch Manager, ICICI Bank Ltd, and another verus  Khirod Kumar Behera.  The facts of the relied decision as referred to above are quite akin to facts of the present case.  

6)  Issue No.3

                The complainant in his prayer portion has prayed to award Rs. 50,000/-  for practicing unfair trade practice and cost of litigation  and also prayed to direct the Opp. Parties to refund a sum of Rs. 8,35,000/- towards the expenditure made by the complainant . The complainant in his petition has stated that he has deposited Rs. 4,50,000/- as margin money and spent Rs. 1,50,000/- towards cost of registration, fitness, permit and insurance  and also spent Rs. 2.00 lakhs towards body building (dala).  Admittedly, the cost of the vehicle was  Rs. 15,43,073/- out of which the Opp. Parties have financed Rs. 13,50,000/-.  So it is not disputed that the complainant has spent the balance amount of Rs. 1,93,073/- from his own source for purchase of the said vehicle.  The complainant in his petition has categorically pleaded in para-1 that he has deposited a sum of Rs. 4,85,000/- as margin money.  The Opp. Parties in their written version have not disputed the said fact.  In   affidavit filed by the Opp. Parties they have not specifically denied that the complainant has deposited Rs. 4,85,000/- as margin money.  Even if there is no denial from the side of the Opp. Parties  but primafacie the complainant has to  satisfy the Forum by depositing the receipt  showing  Rs. 4.85,000/- paid by him towards margin money. But from either side no document is adduced in this respect.  But fact remains as a principle while availing a loan the loanee might have paid margin money as per the Banking rule.    Therefore, in our considered opinion the complainant is entitled to get refund of the actual margin money deposited by the complainant and the balance amount of Rs. 1,93,073/- spent by him to purchase the vehicle.   The complainant has not filed any document to show that the amount deposited by him towards Registration, Fitness, Permit and Insurance.  However, after purchasing the vehicle the owner has to pay the Registration fee for one time and he has to pay the cost for fitness, permit and insurance annually.  In absence of any documents as regards to payment on the above head, this claim is not acceptable.  Besides, the complainant is entitled to get compensation for the deficiency in service and harassment caused to the complainant. Hence ordered.

                                                                                ORDER

                The complaint is allowed on contest in the light of the observations made in the preceding paragraphs.  The Opp. Parties are directed   to refund the actual margin money along with a sum of Rs. 1,93,073/- spent towards purchasing the vehicle  by the complainant  with interest at the rate  6% per annum from the date of  disbursement of the loan  till its refund.  Further the Opp. Parties are directed to pay compensation of Rs. 1,00,000/- (Rupees one lakhs) .  Besides, the Opp. Parties are to pay cost of litigation of Rs.  5,000/- (Rupees five thousand) only.  The Opp. Parties are jointly and severally liable to comply with the directions of this Forum within a period of one month from the date of receipt of this order failing which the entire amount will carry interest @ 12% per annum.

 

                (Miss Bijayalaxmi Satapathy)                          (Badal Bihari Pattanaik)

                                Member                                                         President