Orissa

Jajapur

CC/126/2020

Sanjaya Jena. - Complainant(s)

Versus

Soubhagya Ranjan Behuria,Employee of Manapuram Finance Ltd. - Opp.Party(s)

Laxmidhar Nayak.

09 Dec 2021

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:    1.Sri Pitabas Mohanty, Member,

                                                                          2.Miss Smita Ray, Lady Member.                       

                                                      Dated the 9th day of December ,2021.

                                                      C.C.Case No.126 of 2020

Sanjaya Jena   S/O Ramachandra Jena   

Vill.  Injanpur, P.O. Arei, P.S.Binjharpur  ,

 Dist.-Jajpur.                                                                                           …… ……....Complainant .                                                                       

                   (Versus)

1.Soubhagya Ranjan Behuria, Employee of Manapuram Finance Ltd,    

T.V.S, Show Room , At. College Square Near , N.C.College

P.O/P.S/Dist Jajpur

2. M/S Subas T.V.S Show Room , At.College square ,Near N.C.College

 P.O/P.S/ Dt.Jajpur.

3. Collection Branch ,Jajpur Town,Manapuram Finance Ltd,

    At.Sitaleswar, Jajpur Town

4.M/S Manapuram Finance Ltd, Corporate office at –A wing ,3^rd floor

Unit no.301 to 315, Kanakia wall street, Andheri Kurla Road ,Andheri ,

East, Mumbai

                                                                                                                      ……………..Opp.Parties.                                                 

For the Complainant:                           Sri  L.D.Nayak,R.L.Biswal  Advocates.

For the Opp.Party: No.1 and 2            None.

For the Opp.Party : No.3  and 4       Sri Devi Tripathy, Sri A.R.Mohanty, Sri G.Mohanty,Advocates                                                                                          

                                                                                                    Date of order:  09.12 .2021

SHRI PITABAS MOHANTY, PRESIDING  MEMBER .                                                  

The petitioner has filed the present dispute alleging deficiency in service on the part of the O.ps.

            The fact as per complaint petition  as stated by the petitioner  shortly are  that the petitioner is a permanent resident  of Binjharpur, Jajpur .He purchased a T.V.S  star city motor cycle bearing Regd. No. OD-34-K-3118 from  O.P.no.2 availing the financial assistance  from  O.p.no.3 and 4  on the strength of hypothecation agreement. The loan of Rs.56,400/- to be paid by the petitioner in total 36 equal installment at the rate  of Rs 2243/  each .At the initial stage  the petitioner  paid Rs14,500/-   towards as down payment to the O.Pno.1  . The petitioner regularly  paid the monthly Emi  to the O.Ps  till Feb-2020  due to covid- 19 the financer did not collect the money from the account of the petitioner against  the cheque  issued by the petitioner  as well as  they have not come to the house of the petitioner  to collect the EMi dues in cash for the period of March, April and May  and June. when the petitioner  asked the O.P.no.1  regarding non collection of installment dues the O.P.no.1 replied that he would be paid directly in the office of O.Ps, so the petitioner  has made payment the  installment dues on 23 rd July 2020 and 27 Aug-2020 but the O.P.no.3 did not receive   the previous installment dues .

            That i.e on 30.09.20 while the petitioner  coming from  Birja Hat to Medical chhak  through  kusuma Road at about 2.00 p.m two young persons  forcibly taken away  the Motor  cycle from his custody dealting push  and fist blows to him. The petitioner asked them regarding their hooliganism act and they told they are the personal of O.p.no.3  and they have done as per instruction of the financer as well as the O.P.no.1.  Thereafter the petitioner made a complaint before O.P.no.3   as well as I.I.C, jajpur but when no action was taken by the police . The petitioner  filed a I.C.C. case bearing No.408/20 before the Hon’ble S.D.J.M, Jajpur .The said complaint has been sent to the I.I.C, jajpur P.S  to  be registered a P.S  case treating it as F.I.R U/S 156 (3) Crpc. The petitioner  is a bonafied consumer under the O.Ps . The O.Ps without giving any intimation  has taken the vehicle by using muscle power  which is unfortunate, illegal and unfair trade practice.

 Accordingly finding no other alternative the petitioner constrained to file the present dispute with the prayer  to direct the O.Ps  to return   back the alleged vehicle also to direct the O.P  to pay compensation of Rs. 20,000/- and cost and also pay Rs300/-  per day from 30.09.20 for loss of business .

            After  receipt of notice  the O.P.no.3 and  4 appeared through their learned  advocate  subsequently filed their written version . The present complaint is wholly misconceived groundless and unsustainable in law and is liable to be dismissed as such:-

            That exercise of rights under the Loan-cum-Hypothecation agreement can not be construed as unfair trade practices. That any act done by the O.ps in terms of the said agreement can not be termed as unfair trade practice or deficiency of service. As per the law laid down, the complainant does not fall within the definition of consumer and the relationship between the complainant and

the O.p no.3 and 4 is that of borrower and the lender. As such no consumer dispute arises. It is essentially a Civil  dispute hence the complaint is not maintainable . It is submitted that the complainant had taken a Loan of Rs.56,400/- from the O.P vide loan-cum-hypothecation agreement No.5114704  (here in after referred to as the said agreement) for purchasing T.V.S STAR CITY motor cycle which was registered vide registration number OD-34-K-3118 had agreed upon all the terms and conditions of the said agreement, inter-alia agreeing to repay the loan in 36 installments each amounting Rs.2243/- starting from 05.10.2019 to 05.05.2022.

            The terms and conditions of the said agreement clearly provides that the monthly installments are to  be paid regularly on monthly basis and any delay or default in paying the monthly installment is a breach in the terms and conditions of the agreement , thereby giving the O.P a legal right to terminate the loan account and repossess the said asset to secure the loan payment. It is submitted by the present O.P , in case of hypothecated vehicle the law is well settled that, the ownership lies with the financer till the last E.M.I is paid. Under the relevant provision of the Motor vehicle Act enables a person to run the vehicle on road without any let or hindrance. The absolute ownership of the vehicle does not pass to him until all the conditions in an Agreement are fulfilled or he opts to purchase the vehicle. It would be a fallacy to equate the borrower with an absolute owner having proprietary rights in the vehicle. It would be the financer who would be entitle to the possession of the vehicle when the same is subject of Loan-cum-Hypothecation Agreement. So the question of ownership is vested to the financer till the last installment is paid. The Loan-cum-Hypothecation in law is an executor contract of sale and confers no Right in Rem on the Borrower until the conditions for transfer of the property to him have been fulfilled. More fully the Hypothecation means a charge in or upon any movable property ,existing in future, created by a Borrower in favour of a secured creditor ,without delivery of possession of the movable property to such creditor, as a security for financial assistance. Therefore the O.P  has all right to repossess the vehicle and sale it to secure its outstanding dues against the borrower, the O.P can exercise the right of repossession by virtue of the agreement and same can not construed  as deficiency in services or  unfair trade practice.

The above submission made by the present O.P, the Hon’ble Forum may be pleased to dismiss  the present complaint and for filing such a frivolous and vexatious complaint this case is liable to be dismissed on merit with cost.

On the date of hearing we heard the argument from the learned advocate  of the petitioner  and advocate for O.p.no.3 and 4 . After hearing we have perused the record  along with the documents in detail and inclined to frame the following issues so as to come to our conclusion .

            1 Whether the petitioner is a consumer who is entitled to entertain the dispute in this commission ? 

            2.Whether this commission gets jurisdiction to adjudicate the dispute ?

            3.Whether there is any  deficiency in service on the part of the O.Ps ,If so   whether the petitioner is  entitled to  any relief ?

Answer  to issue no 1 and 2

                        It is undisputed fact that the petitioner purchased the alleged vehicle for his  own use  .It is also undisputed fact that the petitioner is  paying interest of such loan to the O.Ps  which is covered  in the expression of service  and the interest so paid by the petitioner in repayment of loan is consideration .  As such the petitioner is a consumer as per C.P.Act, 2019 as well as   per observation  of Hon’ble Supreme court  reported in 1995-2-SCC-150 ( consumer unit and Trust society Vrs Chairman M.D Bank of Baroda) , II (2000) CPJ-II(SC) ( Vimal ch. Grover Vrs Bank of India)   . Hence this commission gets jurisdiction to adjudicate the present dispute.

Answer to issue no. 3

            These are the vital issues wherein  we have to verify whether there is any deficiency in  service on the part of O.Ps  and if so whether the petitioner is entitled for  any  relief .  It is alleged by the petitioner  without giving any pre-repossession  notice and pre-sale notice the  O.Ps after repossessing  the vehicle and sold the vehicle . As against such grievance of the petitioner the O.P 

taken the stand in their written version  that  the O.ps have every right to repossess the vehicle and sale it to secure its outstanding dues against the borrower.

                         The next aspect comes for consideration whether the made of seizure and sale of the alleged vehicle is tenable in the eye of law.

                                In this context after perusal of the observation of Hon’ble supreme court reported in 2006-CTJ-209-SC(M.D Orix Auto Vrs. Joginder Singh) we are inclined to hold that though the O.Ps are empowered as per term and condition of the agreement to seize and sale the financed vehicle in case of default of

monthly installments towards the loan but such seizure and sale must be as per law as per observation of Hon’ble Supreme Court reported in 2007(36) OCRCSC-815(Manager ICICI Bank Ltd, Vrs .prakash Kaur & Otrs) In this context we make it clear no where the hypothecation agreement of the alleged vehicle empowers the O.Ps. to take such action  violating the  guide line of Hon’ble Supreme Court ,National Commission and State

Commission Delhi reported in 2012 (2) CLT-72 Sc,2007(3)-CPR-191,2005-CTJ-522 respectively   ( Citi crop Maruti Finance Ltd  Vrs. S.Vijay Laxmi) wherein it is held that

                        “ seizuring of the vehicle must be through court .”

3.Similarly we are also required to verify whether the selling of the above vehicle bonafide one. In this context it is alleged by the petitioner that without giving an opportunity to the petitioner the O.ps. have sold the vehicle at their sweet will  without inviting  bidders from the local market as per observation of Hon’ble National Commission reported in 2008(3)-CPR-45-N.C.( Tata Finance Ltd Vrs. Franus)  have sold the vehicle which is not tenable in the eye of law . 

            After perusal of the record it is observed that vide order dt.21.10.20 this commission directed the op.4 not to take any coercive action against the allege vehicle bearing  Regd.No.OD-34-K-3118 till appearance / further order  and the matter posted to 17.11.20 for filing objection by the O.P. The copy of the above order sent to the O.Ps   from the commission through regd post i.e on 22.10.20 which was received by the O.P no.4  i.e  on 2.11.20  as per postal tracking report   but the o.ps vide their memo dt.31.3.21 stating that  the complaint has received the pre-sale notice on dt.28.10.20  having  7 days time to pay all the dues to the O.P for the vehicle loan. As the complainant did not pay the amount the said O.P sold the vehicle on 11.11.20 and after selling the said vehicle the amount was adjusted in the loan account of the complainant and the post sale notice has also been sent to the complainant but the complainant refused to receive the post sale notice

            Accordingly as per postal tracking report and the mail  filed from the side of the O.Ps it is presumed that the O.P sold the alleged vehicle after receipt of the interim order i.e on 02.11.20 of this commission  On the other way when the interim order remain  in force.

O R D E R

            The dispute is allowed against the O.p. The O.P is directed to refund the EMIs amount paid by the petitioner .The outstanding amount if any  is hereby quashed. The O.P is also directed to pay compensation of Rs.50,000/- to the petitioner. The above direction shall be complied within 45 days after receipt of this order , failing which the petitioner is at liberty to take action as per law.

                    This order is pronounced in the open Forum on this the 9th day of  December,2021. under my hand and seal of the Commission .