Date 07/`12/2012
O R A L O R D E R
Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.
1. This appeal is preferred against the judgment and order dated 10/05/2006 passed in C.C.384/2005 by the Dist. Forum, Ahmednagar, by which the said complaint has been granted.
2. The complainant in the complaint made allegations in brief that he purchased motorcycle from opponent No. 1 Kalika Auto Agency i.e. respondent No. 2 herein and he paid Rs 6642/- on 11/11/2004 to the said opponent. He obtained loan from opponent No.2 for payment of remaining price of the said vehicle to the opponent No. 1. The said loan was tobe repaid by monthly instalments of Rs 1893/- each in total 18 instalments. The complainant also tendered 18 blank signed cheques to opponent No. 2 towards payment of 18 instalments. The complainant paid 8 instalments to the opponent No. 2 i.e. appellant herein. However on 04/11/2005 the opponent No. 2 repossessed the said vehicle. The complainant had gone to the opponent No. 2 to pay Rs 1893/- and paid him the said amount on 14/11/2005. However the opponent No. 2 did not hand over the vehicle to him .Thus according to the complainant he paid total amount of Rs 23,216/-. The opponent No. 2 illegally took away the motorcycle from his possession. He therefore served notice on 02/12/2005 to both the opponents and demanded motorcycle or refund of amount of Rs 23,216/- but of no use. Therefore complainant prayed that direction may be given to the opponent No. 2 to return the motor cycle and if it is not returned then direction be given to it to pay Rs 23,216/- with interest and also to pay Rs 5000/- towards mental harassment to him.
3. The original opponent No. 1 dealer did not appear before the Dist. Forum below inspite of service of notice. Therefore complaint preceded ex-parte against it. The opponent No. 2 filed it’s written version and opposed the claim. It admitted that the complainant had obtained commercial loan of Rs 29,580/- from it for purchasing the motorcycle and that it was tobe repaid by monthly instalments of Rs 1893/- each, in 18 instalments from 07/01/2005 to 07/06/2007 as per terms of loan agreement executed by original complainant. However, complainant did not pay instalments regularly. Some of the cheques issued by the complainant were bounced and returned unpaid. On repeated requests, calls and personal follow ups the complainant failed to pay the instalments as agreed by him and failed to regularize his loan account. It is further submitted that opponent No.2 has performed it part of agreement and contract but the complainant wilfully made default to perform his part of agreement and contract and there is breach of contract on behalf of the complainant. Hence, the complainant is not entitled to claim any relief. The complainant has failed to pay E.M.I. regularly and four E.M.I. were due from complainant at the time repossession of the said vehicle. Therefore by issuing notice on 21/09/2005 the opponent had given opportunity to regularize his loan account, but the complainant failed to regularize the account. Hence opponent No. 2 repossessed the said vehicle on 07/11/2005 as per the terms and condition of the agreement. The opponent No. 2 also served notice on 11/11/2005 to the complainant and gave due opportunity to the complainant to settle his loan account, but he did not settle it. Therefore as per loan agreement, the opponent No. 2 disposed of the said vehicle for Rs 15,000/- by auction sale. Therefore opponent No. 2 prayed that complaint may be dismissed.
4. The Dist. Forum below after giving opportunity of hearing to both the parties and after hearing advocates of both the parties, passed the impugned judgment and order. It observed that two to three instalments were due from the complainant. In the letter dated 21/09/2005 given by opponent No. 2 to the complainant, it is not stated as to how many instalments are due from complainant but it is simply stated that what amount is to be paid as per agreement. It also observed that though the opponent No. 2 has right to repossess the vehicle as per agreement on making any one default in payment of instalment. But the said opponent No. 2 ought to have given sufficient opportunity to complainant to pay instalment which were due. It also observed that the complainant was given four days time to pay total amount of Rs 25,000/- which is against the interest of the consumer. It also observed that the opponent No. 2 did not inform the complainant to remain present at the time of auction and it did not inform him the auction date and time and the valuation of the vehicle was not assessed before the auction and no document is produced to show that the vehicle is sold on which price. It is therefore held that the opponent No. 2 has misused its power. It also observed that in the R.T.O. book no name of the purchaser of the vehicle is shown. It also observed that the complainant used the vehicle for one year and he paid huge amount of Rs 23,216/-. Therefore it observed that there is deficiency in service on the part of the opponent No. 1 and 2. It directed the opponent No. 2 to inform the said Forum and the complainant as to whether it can return seized vehicle to the complainant. If opponent No. 2 is ready to give possession of vehicle then the complainant is directed to deposit the outstanding amount remained till date of confiscation of that vehicle with that Forum within 15 days from intimation to given by the opponents No. 2 to the complainant and thereafter the possession and custody of vehicle be given to the complainant by the opponent No.2 within 5 days in running condition. ( Road worthy ). The expenses incurred for repairing of that vehicle be borne by the opponent No.2. It is also directed the complainant to pay future instalments regularly. It also directed the opponent No. 2 not to apply future interest over the previous instalments which were due. The opponent No. 2 is also given right to recover the expenses incurred for repossession of the vehicle. It is further made clear that if the complainant has not deposited outstanding amount as above then he will forefeit the right of repossession of the vehicle. Alternatively direction is given that in case, the opponent No. 2 does not return that vehicle then it will have to pay Rs 10,000/- to the complaint with interest towards compensation. No order was passed against the opponent No. 1 dealer.
5. Feeling dissatisfied by the said decision, the original opponent No. 2 preferred this appeal. We have heard Adv.Shri. U.N.Shete appearing for the appellant. The perusal of the papers show that notice issued to the complainant i.e. respondent No.1 herein by Speed Post on 13/09/2012 has been duly served to him. Status report as obtained from internet is placed to that effect before us. Inspite of service of notice respondent No. 1 did not appear for final hearing.
6. We have heard Shri.Adv. U.N. Shete for the appellant. Adv.Shri. U.N.Shete submitted that impugned judgment and order shows that the four E.M.I. were due from the complainant and that he was also served with notice dated 11/09/2005 calling upon him to pay the said outstanding amount. He further submitted that the impugned judgment and order also shows that before the vehicle was sold after its seizure, the complainant was also given opportunity to pay total balance amount. He invited our attention to the clause 8.2 of the agreement. It shows that upon occurrence of any of the events of default at any time thereafter, the bank shall declare all sums for the full term of the loan immediately due and payable and upon the borrower failing to make the said payment within 7 days thereof, the bank may at its sole discretion sell the vehicle by public auction. He also relied on the observations by Hon’ble National Commission in following two cases.
1. Shriram Transport Finance Co.Ltd – V/s/- Mr.Chaman Lal in Revision petition No. 689 Of 2012, decided on 14/09/2012.
2. Surendra Kumar Sahoo –V/s- Branch Managar Indusind Bank Ltd in Revision Petition No.3319 Of 2012, decided on 01/10/2012.
The advocate of appellant further submitted that as the complainant admittedly failed to repay four instalments, the appellant has rightly repossessed the vehicle and sold it after giving complainant opportunity of making payment. He further submitted that the complainant has not produced sufficient evidence to show that the vehicle was forcibly taken away from his possession. Therefore it is submitted by advocate of the appellant that the Dist. Forum has not properly considered the evidence brought on record and the legal provision applicable to present case and the terms and conditions of the agreement and therefore it came to the erroneous conclusion. He therefore submitted that the appeal may be allowed and impugned judgement and order may be set aside.
7. Upon careful perusal of the complaint it is seen that the loan obtained by the complainant from the appellant was tobe repaid in monthly 18 instalments of Rs 1893/- each and that the vehicle was purchased on 11/11/2004 and the vehicle was repossessed on 04/11/2005. Therefore till the date of repossession, in all 12 instalments had tobe paid by the complainant. However, the complaint shows that only 8 instalments were paid by the complainant till 04/11/2005. It is the specific case of the opponent that four instalments were due from the complainant on the date of repossession of the vehicle. The Dist. Forum in the impugned judgment and order observed that 2 to 3 instalments were due. The agreement which is not disputed also shows specific condition that in case of default of payment of any one instalment, the bank is empowered to declare all sums for full term of the loan immediately due and payable and upon borrower failing to pay said dues within seven days thereof, to repossess the vehicle and to sale it. In the instant case the appellant herein had given notice to the complainant and demanded the outstanding amount from him as per said agreement. Moreover, he was also informed about the dues which were tobe paid by him. Inspite of said intimation and giving of opportunity, the complainant did not pay the outstanding amount .
8. The Hon’ble National Commission in aforesaid Revision Petition Nos. 3319 Of 2012 very clear observed that as per the agreement there was no need to give the prior notice. The petitioner waddled out of his commitments and indisputably he was the defaulter. The moment he did not pay the instalment it gives the legal right to the financier to repossess the vehicle
9. In the instant case seven days notice prior to the repossession of the vehicle was given by the appellant to the complainant as per agreement. Therefore the aforesaid observations made by the Hon’ble National Commission are fully applicable to the present case. In the aforesaid second Revision Petition No.689/2012, the Hon’ble National Commission observed that in the absence of payment of instalments and due amount, if possession of the vehicle was taken by petitioner or surrendered by complainant and sold in auction, the petition has not committed any deficiency merely because 20 months old tractor which was purchased for Rs 4,05,000/- and sold for Rs 1,75,000/- .
10. In our view the facts and circumstances of the present case are identical to those of aforesaid both the Revision Petitions. Therefore the said observations are applicable to the present case. In our view the Dist. Forum has not properly considered, the evidence brought on record, the terms and conditions of the loan agreement and the law applicable to the present case. Therefore it erred in arriving at conclusion and finding and hence it needs interference in this appeal . We are of the view that the complainant has not proved any deficiency on the part of the opponent No. 2 and therefore complainant is not entitled for any relief as sought for in the complaint. In the result, following order is passed.
O R D E R
1. Appeal is allowed as under.
2. The impugned judgment and order dated 10/05/2006 passed in CC.No. 384/2005 by the Dist. Forum Ahmednagar is hereby set aside.
3. The said complaint stands dismissed.
4. No order as to cost costs.
Copies of this judgment and order be sent to both the parties.
