PER SHRI S.M.SHEMBOLE, HON’BLE PRESIDING MEMBER.
This appeal is directed against the judgment and order dated 27/07/2005 passed by the District Consumer Forum, Chandrapur in Consumer Complaint No.CC/05/4 partly allowing the complaint, directing the opponent/appellant- I.C.I.C.I. Bank to hand over the possession of hypothecated tractor to the complainant within 7 days and further to pay compensation at the rate of 300/- per day within 1 month if not paid with interest at the rate of 9% p.a. till its realisation and further to pay Rs.500/- towards cost of proceeding, etc.
(For the sake of brevity Appellant is hereinafter called as “the Opponent Bank” and Respondent as “the Complainant”).
Brief facts giving rise to this appeal are that,
1. On 31/12/2003 the complainant purchased a tractor bearing registration No. MH-34/L-935 by obtaining finance at Rs.2,72,500/- from the opponent bank and hypothecated the tractor by executing deed of hypothecation in favour of the opponent bank. As per the agreement it was agreed to pay half yearly instalment of Rs.38,275/- for the period of 60 months as per the repayment schedule annexed with the copy of agreement. However, the complainant committed default in payment of instalment. On 25/12/2004 the opponent bank without prior notice attached the tractor forcibly and thereafter presale notice dated 28/12/2004 was served on him asking him to pay dues within 7 days, etc. Therefore, complainant issued notice dated 11/01/2005 asking the opponent bank not to sell the tractor, etc. and thereafter, filed the consumer complaint, claiming repossession of the tractor and compensation Rs. 20,000/-, etc.
2. Complaint is resisted by the opponent bank by its written version contending inter alia that the complaint is not maintainable. It is submitted that it has legally obtained the possession of the tractor as it is surrendered by the complainant since he could not repay the loan and committed default in payment, etc. It is submitted that after receiving the possession of the tractor it has issued notice dated 28/12/2004 asking the complainant to pay outstanding dues within 7 days else, tractor will be sold. In spite of this fact, the complainant failed to pay dues and filed false complaint. It is submitted that as the complainant has filed the consumer complaint, the tractor is not sold and remained in its possession. It is submitted to dismiss the complaint.
3. On hearing both the sides and considering the evidence on record District consumer Forum, Chandrapur partly allowed the complaint as noted above.
4. Feeling aggrieved by that judgment and order the opponent bank has preferred this appeal.
5. We heard Ld. Counsel for both the sides, perused the written notes of arguments submitted by them and also perused the copies of impugned judgment and order and copies of complaint, written version, deed of hypothecation agreement, copy of notices, etc.
6. Undisputed facts are that by agreement dated 31/12/2003 the complainant and his wife Smt. Shaila hypothecated the tractor by borrowing loan Rs. 2,72,500/- and agreed to repay loan by half yearly instalment Rs.38,275/- as per repayment schedule attached with deed of agreement. It is also admitted fact that the complainant could not repay the loan as per agreement. However, on 31/07/2004 he has paid amount of Rs.15,000/- as against the instalment dated 22/04/2004 and thereafter, on 26/10/2004 he again paid amount Rs.15,000/- only. Thus, from the undisputed facts, it is obvious that the complainant as well as his wife committed default in repayment of loan amount.
7. It is also not disputed that on 25/12/004 the hypothecated tractor is repossessed by the opponent bank. However, as per the complainant, the vehicle was forcibly taken into possession, whereas, according to the opponent bank, the complainant himself surrendered the tractor as he could not pay the dues.
8. Therefore, the crux in this matter is as to whether the opponent bank legally repossessed the vehicle or it was forcibly taken into possession.
9. It is submitted by Mr. Kasture, Ld. Counsel for the complainant that though, the complainant was defaulter; the opponent bank should not have taken the possession of the tractor without prior notice, etc. He has further submitted that the opponent bank forcibly taken possession of the tractor and therefore, such illegal acts of the opponent bank can not be protected. To which it is denied by Mr. Vora, Ld. Counsel for the opponent bank and submitted that the tractor was not forcibly repossessed by the opponent bank but the complainant himself surrendered it as he could not repay the loan amount. Undisputedly, there is no notice produced on record to show that before repossession of the tractor notice in writing was issued to the complainant. However, presale notice dated 28/12/2004 was served on the complainant, asking the complainant to pay the outstanding dues within 7 days but complainant could not pay any dues. However, from the recital of copy of complaint it reflects that the complainant surrendered the tractor as he could not pay the outstanding dues. Accordingly, it is mentioned in para No.4 of the complaint. Therefore, though no notice is produced on record, we have no hesitation to accept the arguments advanced by Mr. Vora, Ld. Counsel for the opponent bank and hold that the complainant himself surrendered the tractor as he could not raise the fund to clear the dues.
10. However, it appears from the copy of impugned judgment and order that the District Consumer Forum without considering the undisputed facts, committed error in holding that the opponent bank forcibly repossessed the tractor by using mascle power, etc. such finding is being baseless and unfounded, can not be sustained.
11. Apart from the above facts, Mr. Vora, Ld. Counsel appearing for the opponent bank submitted that the consumer complaint is not maintainable. Firstly, because that it suffers from the non joinder of necessary party i.e.- the wife of the complainant, who is signatory to the deed of agreement of hypothecation by jointly borrowing loan amount from the opponent bank. Mr. Kasture, Ld. Counsel appearing for the complainant could not give any explanation as to why the wife of the complainant is not made party to the complaint though she is joint signatory of the agreement of hypothecation for borrowing loan amount.
12. Secondly, it is submitted by Mr. Vora, Ld. Counsel appearing for the opponent bank that the loan, which was availed by the complainant, was for commercial purpose. On perusal of the deed of loan hypothecation agreement, it reflects that it was business transaction. The loan was obtained by the complainant for the business purpose. Admittedly, at the relevant time of borrowing loan, the complainant was in service with M.S.E.B. and he was not agriculturist. Mr. Kasture, Ld. Counsel for the complainant also could not point out the exact purpose of purchasing the tractor by the complainant. He has just submitted that the tractor was purchased for agricultural purpose, but no record is produced. Therefore, in the absence of any record to show that the tractor was purchased for agricultural purpose, it is difficult to hold that it was not purchased for commercial purpose.Therefore the consumer complaint is not maintainable. But it appears from the copy of impugned judgment and order that though all such averments are made by the opponent in their written version, the District Consumer Forum without considering all these legal points, committed error in allowing the complaint.
13. For the foregoing reasons the appellant succeeds and the appeal deserves to be allowed.
Hence, the following order.
ORDER
1. Appeal is allowed and impugned judgment and order is set aside.
2. Consequently the complaint stands dismissed.
3. Having regard to the peculiar facts of the case we direct the parties to bear their own cost.
Dated:- 21/12/2012.
