PER JUSTICE J.M. MALIK 1. Counsel for the parties present. Arguments heard. Mrs. Shanti Mishra, the complainant in this case purchased a vehicle after obtaining personal loan to the tune of Rs. 3,50,000/- from the HDFC Bank Ltd.-the OP in this case on 02.06.2007. According to the terms and conditions of the said loan, the sum was payable @ Rs. 11,413/- in 36 equal monthly instalments. This is an admitted fact that the complainant paid 30 instalments. The 31st instalment was due on 02.12.2009. The complainant alleges that while the vehicle was coming from Burdwan to Kolkata, the OP with the help of rowdy elements forcibly repossessed the vehicle alongwith its papers after assaulting the driver and the complainant. The legal notice was given but it did not ring the bell. 2. Consequently, complaint was filed before the District Forum with the prayer that the OP should be directed to return the Maruti Zen VXI vehicle bearing No. WB-02-X-7723 in good condition to the complainant immediately or in default to pay Rs. 3,50,000/- to the complainant. The complainant also demanded Rs. 1,50,000/- for the mental and physical sufferings. The District Forum dismissed the complaint. 3. Aggrieved by that order, First Appeal was filed before the State Commission. The State Commission allowed the appeal and granted compensation in the sum of Rs. 2,00,000/- to the complainant and also to pay litigation charges in the sum of Rs. 10,000/-. 4. We have heard the counsel for the parties. The main defense set up by the OP is that the complainant was unable to repay the loan. He was a defaulter. We have perused the record and it is unfortunate that this record was not discussed by the State Commission. The OP issued notice dated 03.10.2009, the said notice runs as follows:- “1. That your entire loan (principal and interest) is being recalled forthwith. 2. That pursuant to the rights vested with HDFC Bank Ltd., we shall recover the possession of the said vehicle in the event you failed to pay the whole of the amount due and outstanding by you, under the said Agreement, to us and amount to Rs. 115,173.39 within 7 days from the date of postage of this notice. 3. That on recovering the possession of the said vehicle, it shall be sold, transferred and disposed off after seven days thereof, at your cost, risk and expense, by auction or private treaty or through any other modality to recover whole of the amount to be settled against the said loan taken by you and your outstanding thereof. 4. That you shall be liable for the balance of the loan, interest & cost, if any therein. In case the amount realised from the sale of the said vehicle on the date of realisation of the sales proceeds, is in excess of the amount outstanding under the said loan together with charges and interest thereon, the balance, if any, shall be forthwith handed over to you.” 5. The notice was sent to the complainant through registered letter, but the complainant refused to accept the same. The address mentioned on the Registered Mail, Business Centre is correct. The counsel for the respondent did not pick up a dispute with the same. Likewise, another notice was sent on December 1st 2009, which runs as follows:- “This is to inform you that the said vehicle hypothecated to HDFC Bank Ltd., of which we have recovered possession due to your defaults on non-payments in the monthly instalments by you, shall be sold by the Bank, in terms of the power conferred upon it under the loan agreement that has been executed between us. In the event you wish to obtain release of the vehicle to yourself, the total dues outstanding and overdue interest including collection, repossession and godown charges amount to Rs. 78144.77 (Rupees Seventy eight thousand one hundred forty four and paise seventy seven only) must be cleared in full within seven days from the date of this letter. If you do not respond to the notice and clear the dues before the above-mentioned period, the Bank shall deem it has your consent for disposing the vehicle towards clearing your liability. The sale process shall commence at the Bank’s convenience and discretion. The payments received by the Bank through the sale procedure shall be applied towards the whole of the outstanding of your loan account. You shall still be liable for any remaining dues and be obliged to clear the balance, if any. Please also note that if the amount realised from the sale of the said vehicle is in excess of the amount outstanding under the loan together with charges and interest thereon, the balance, if any, shall be forthwith handed over to you.” 6. The respondent refused to accept the said letter. Consequently, this is a good service. The respondent was served, yet she did not care to pay the amount. The complainant/respondent waddled out of the commitment. The vehicle was sold for Rs. 2,14,000/- and rest of the amount in the sum of Rs. 548.68/- in balance was handed over to the complainant. 7. Counsel for the respondent/petitioner argues that as a matter of fact, the complainant has taken two loans, one personal loan and another for the vehicle. It is transpired that vehicle was also hypothecated with the personal loan as well, which is reproduced as follows:- “16. SET-OFF AND LIEN 16.1. The Borrower(s) expressly accepts that if the Borrower(s) fails to pay any monies when due or which may be declared due prior to the date when it would otherwise have become due or commits any other default under any Agreement with the Bank under which the Borrower(s) is enjoying any financial/credit/other facility; then in such event the Bank shall, without prejudice to any of its specific rights unco; each of the Agreement, be absolutely entitled to exercise all or any of its rights under any of the Borrower’s Agreement (including this Agreement) with the Bank at the sole discretion of the Bank. 16.2. Until the ultimate balance owing by the Borrower(s) to the Bank has been paid of satisfied in full the Bank shall have lien on any property and assets of the Borrower(s) from time to time in the possession of the Bank and a charge over all stocks, shares and marketable or other security from time to time and get any or all of them registered in the name of the Bank or its nominee whether the same be held for sale custody or otherwise. 16.3. The Bank shall be entitled to set off all monies, securities, deposits and other assets and properties belong to the Borrower (s) in the possession of the bank, whether in or on any account of the Bank or otherwise, whether held singly or jointly by the Borrower(s) with other and may appropriate the same for the settlement of dues hereunder.” 7. It is thus clear that the petitioner failed to honour the commitment. The Petitioner/OP has taken all the formalities. Both the notices, necessary in this case, were given. The case of the Petitioner proves to the hilt. Therefore, we set aside the order passed by the State Commission and dismiss the complaint. No order as to costs. | 
