14/03/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

             This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I in CC 89 of 2012 allowing the complaint and directing the OPs jointly and severally to return the vehicle no.WB 41D 9629 to the Complainant within 45 days from the date of communication of the order and the Complainant was directed to pay the amount payable to the OPs with interest as per terms and conditions as it stood on 18/11/11, that is, till the date of repossession of the vehicle.  The OPs were further directed to pay the sum of Rs.2,25,000/- to the Complainant for loss of daily earning and to pay compensation of Rs.50,000/- and litigation cost of Rs.5,000/-.

            The case of the Complainant/Respondent, in short, is that he is the owner of the truck bearing no.WB 41D 9629 and he purchased the vehicle for earning his livelihood.  The Complainant took loan from the OP financier and paid a sum of Rs.2,50,000/- to the dealer and the amount of Rs.5 lakh was financed by the OPs against EMI @ Rs.19,100/-.  He paid the sum of Rs.4,82,900/- till the date of filing of the complaint.  In the month of July the Complainant was unable to pay EMI to the OP due to heavy rain and unable to use the truck for break down and he went to Vellore for treatment of heart disease.  The vehicle of the Complainant was forcibly repossessed on 18/11/11.  Under the circumstances, the complaint was filed before the Learned District Forum.

            The Learned Counsel for the Appellant has submitted that the vehicle was purchased for commercial purpose and there is no provision as to self-employment as envisaged in the C. P. Act, 1986.  It is contended that the Complainant was, admittedly, a defaulter and the vehicle was repossessed by the Appellant.  It is submitted that Arbitration award has already been passed wherein the Complainant once appeared, but thereafter did not contest.  The Learned Counsel has referred to the decision reported in 2014 (2) CPR 207 (NC) [Beverly Park Maintenance Services Ltd. vs. Kashmir Fab Styles Pvt. Ltd.] wherein it has been held that two proceedings for similar relief cannot run simultaneously in two Fora.  The Learned Counsel has also referred to the decision reported in II (2012) CPJ 8 (SC) [Suryapal Singh vs. Siddha Vinayak Motors & Anr.] wherein it has been held financier is the real owner of the vehicle and the person who takes loan retains vehicle only as bailee/trustee.  The Learned Counsel has referred to the decision reported in IV (2012) CPJ 322 (NC) [Surendra Kumar Sahoo vs. Indusind Bank Ltd.] wherein it has been held that prior notice was not required to be given as per agreement and where the Petitioner did not pay the instalment it gave legal right to financier to repossess the vehicle. 

            The Learned Counsel for the Respondent has submitted that the complaint was earlier filed and after the passing of the judgment by the Learned District Forum the Arbitral award was passed.  It is submitted that no document has been filed to show that notice was served upon the Respondent in connection with the Arbitration proceeding.  

            We have heard the submission made by both sides and perused the papers on record.  It is an admitted fact as averred in paragraph 5 of the complaint that the Complainant could not pay the EMI for the breakdown of the truck and for his illness.  The default in making instalment gave legal right to the financier to repossess the vehicle.  From the papers filed it appears that pre-sale notice dated 30/03/12 was served upon the Complainant.  It is the contention of the Complainant as averred in paragraph 6 of the complaint that the vehicle was forcibly repossessed on 18/11/11, but no G.D. was lodged by the Complainant.  There is no materials on record to show that the vehicle was forcibly repossessed by the financier.  Such being the position, we are of the considered view relying on the aforesaid decisions cited by the Learned Counsel for the Appellant that there was no deficiency in service on the part of the OP financier.  The Complainant was not entitled to get any relief and the Learned District Forum was not justified in allowing the complaint.

            The Appeal is allowed.  The impugned judgment is set aside.  The petition of complaint is dismissed.