Heard learned counsel for the appellants. None appears for the respondent.
2. This appeal is filed u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short). Parties hereinafter were arrayed as the complainants and OPs as per their nomenclature before the learned District Forum.
3. The caseof the complainant in nutshell is that the complainant has obtained loan of Rs.3,00,000/- from the OPs – Bank on condition to repay the same on instalment basis to purchase a tractor. It is alleged inter alia that the complainant was repaying the loan amount regularly but due to financial problem she could not pay some instalments. However, the OPs seized the tractor and trolley on 18.1.2007 without issuing any notice or any opportunity being given to repay the defaulted amount. After seizure of the vehicle, the complainant approached the OPs who advised to deposit Rs.65,000/- for release of the vehicle. Complainant deposited Rs 25,000/- and Rs.40,000/- on 29.1.2007 and 30.3.2007 respectively. Complainant alleged that they have paid Rs.2,20,000/- already out of Rs.3,00,000/-. In spite of receiving the amount the OPs did not release the vehicle. Thereafter, the complainant approached many occasions to the OPs but the OPs without giving notice to the complainant sold away the vehicle by adopting unfair means.Finding no other way, the complainant filed the complaint.
4. OPs filed written version stating that the complainant defaulted in payment of the instalment for which they have seized the vehicle and kept under the custody of Industrial Security Force which was owned by one Ajay Mohanty at Dera. It is the further case of the OPs that after seizure, they have issued notice for sale of the vehicle. The complainant approached to the OPs by stating that the vehicle is not under custody of Industrial Security Force at Dera also the Branch Manager could not find out the vehicle. Thereafter, FIR was lodged on 5.11.2008. As such there is neither any unfair trade practice adopted by the OPs nor they have any deficiency in service.
5. After hearing both the parties, the learned District Forum passed the following order:-
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The opp.parties are directed to pay Rs.75,000/- (Rupees seventy five thousand) and compensation of Rs.5,000.00 (Rupees Five Thousand) along with Rs.2,000/- (Rupees Two Thousand) as litigation expenses to the complainant within a month from the date of passing of this order.”
6. Learned counsel for the appellants submitted that the respondent has borrowed loan from the OPs to purchase the tractor and trolley and due to non-payment of the instalment, they have seized the vehicle by observing formalities. Learned District Forum without following the rule of law has passed the impugned order which is not correct. Therefore, he submitted to set aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellantsand perused the impugned order including the DFR.
8. It is admitted fact that the tractor and trolley was purchased being financed by the OPs. It is also not in dispute that during currency of the policy the vehicle was repossessed by the OPs and subsequently, it was to be sold in auction. It is also admitted fact that the complainant was a defaulter for some time due to financial crisis. It is settled in law that the complainant has to prove the case of deficiency in service and unfair trade practice on the part of the OPs. Complainant alleged that without her knowledge the vehicle in question was repossessed by the OPs.
9. In fact, the copy of the notice filed with the DFR shows that the complainant was issued notice to pay the outstanding loan amount. But none of the notice shows that he was issued notice to pay the amount within certain date failing which the vehicle would be seized. It is settled law that before the seizure the notice should be issued showing outstanding amount. On the other hand, prior seizure notice is mandatory in case of default in payment of loan amount. In the instant case no agreement was filed to show that OPs Bank has taken action in accordance with the agreement executed by the parties. Hence, we are of the opinion that the seizure of the vehicle is illegal. Apart from this, it is found from the pleadings of both the parties that the vehicle was kept in the custody of Industrial Security Force and subsequently, it was missing.So it is for the OPs to explain where the vehicle is laying.
10. Be that as it may, when the seizure is illegal any furtheraction of the OPscannot be said as legal and proper. Therefore, it is found that the complainant has proved the deficiency in service on the part of the OPs. Moreover, OPs afterseizure failure to account for vehicle. It is untenable and as such complainant proved unfair trade practice on the part of the OPs.
11. Learned counsel for the appellants submitted that the operativeportion of the impugned order needs to be modifiedbecause the money which has been paid by the complainant for purchase of the vehicle should not be allowed to be paid back to the complainant. Moreover, he submitted that the collection of Rs.75,000/- is not based on any evidence. We have considered the submission and we are of the view that the said portion of the order should be modified inasmuch as the said order about return of amount has no reason recorded by learned District Forum. Hence while confirming the finding of impugned order, we modify the operative portion of impugned order by directing the OPs to remove the deficiency in service by closing the entire loan account of the complainant and issue NOC to complainant. We further direct OPs not to repeat the unfair trade practice henceforth. Rest part of the impugned order remains unaltered.
11. The appeal is disposed of accordingly. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
