Sri Debasis Bhattacharya, Member

This appeal is directed against the Order dated 23-04-2013, passed by the Ld. Consumer Disputes Redressal Forum, Cooch Behar (in short, District Forum), in C. C. No. 17/2012, whereby the complaint case has been allowed.  Being aggrieved by and dissatisfied with the same, OPs thereof have preferred this appeal.

Briefly stated, case of the Complainant, is that, he purchased a motor cycle from the showroom of the OP No. 2 with the financial assistance of the OP No. 1.  In terms of the agreement executed in this regard, the Complainant was required to repay the loan within 36 months.  Complainant paid the amount of EMIs from time to time and after depositing all EMI amounts, requested the OP No. 1 to supply him a statement of account and also necessary loan clearance certificate.  However, on going through the statement of account provided by the OP No. 1, to his utter surprise, he found that the OP No. 1 illegally received some amount by practicing fraud.  On 07-08-2009, one Advocate’s notice demanding a sum of Rs. 30,260/- from him in respect of the loan account concerned was received by him, although he repaid all the monthly instalments in the year 2008 itself.  Allegedly, on 08-02-2012, employees of the OP No. 1 forcibly repossessed his motorcycle and gave him one inventory list.  Although he rushed to the Office of the OP No. 1 and urged them to return the said motorcycle, they did not pay any heed to his request.  He lodged a complaint in this regard with the S.P., Cooch Behar, as the local Police Station refused to accept any complaint from him.  Subsequently, he filed the complaint case before the Ld. District Forum.

Defending its action, it is stated by the OP No. 1 that the Complainant entered into a loan agreement on 25-08-2005 and availed of financial assistance to the tune of Rs. 54.360/- (Sanctioned amount Rs. 43,000/- + financial charges Rs. 11,360/-).  The loan was repayable by 03-09-2008 in 36 EMIs.  Allegedly, Complainant continuously defaulted in making payment of monthly instalments towards his two-wheeler loan.  Therefore, OP No. 1 imposed necessary charges as per agreed terms & conditions of the loan agreement.  According to this OP, as on 12-02-2012, the Complainant was in arrears of Rs. 28,525/- (i.e. Rs. 4,530/- as instalment arrear + Rs. 23,995/- as other accumulated charges).  Despite severe follow ups and reminders, as the Complainant intentionally failed and neglected to make payment of outstanding dues, there was no question of issuing NoC in favour of the Complainant.  The OP No. 1, on several times, requested the Complainant to either clear the outstanding dues or handover the vacant and peaceful possession of the vehicle to the OP No. 1 in order to avoid legal action as per the agreement.  It is claimed that, due to repeated follow-up of the matter with the Complainant, the loanee on 12-02-2012 approached the OP No. 1 and expressed his inability to pay the outstanding dues instantaneously and expressed his inclination to surrender the vehicle in question.  At the same time, the Complainant also promised to repay the outstanding amount of Rs. 28,525/- within one month and urged the OP No. 1 not to dispose (sell) the vehicle. Considering such request, the OP No. 1 permitted the Complainant to surrender his vehicle and accordingly, the said vehicle was surrendered to the Siliguri branch of the OP No. 1 on 12-02-2012.  It is stated that at the time of surrender of the vehicle, the OP No. 1 took due inventory of the said vehicle and got it signed by the Complainant and handed over a copy thereof to the Complainant.  It is alleged that despite due assurance from the side of the Complainant to clear all outstanding dues, he has not paid a single farthing since then.  Lastly, it is stated that the vehicle is still kept in the safe custody of the OP No. 1 and if the Complainant repays his outstanding dues, the vehicle would be returned to him.

The moot point for consideration is whether the impugned order suffers from any material irregularity, or not.

Decision with reasons

It is the case of the Appellants that the Respondent has paid the amount of only 33 instalments out of 36 instalments and a sum of Rs. 4,530/- is still due from him on account of EMIs.  Besides, a sum of Rs. 23,995/- is also due on account of overdue charges.  To drive home such point, Appellants have furnished photocopy of an account statement in respect of the concerned loan.

However, on going through the same, we find that, out of total 17 pages, Appellants have furnished only 13 pages. We must emphasize that, for proper evaluation of a claim, access to complete set of documents is imperative.  In any case, the statement of account does not appear to be at all trustworthy.  Reasons follow.

It is the specific case of the Appellants that as on 12-02-2012, the Respondent defaulted making payment of Rs. 28,525/- (Rs. 4,530/- as installment + Rs. 23,995/- as other overdue charges) and the said amount is still due, implying that the Respondent has not made any further payment after  12-02-2012.  However, from the Statement of Account placed on record itself it appears that the Appellants received payment of three cheques worth Rs. 1,575/- each on 20-04-2012.  There is nothing to show that any of the said cheques got bounced later on.  Given that the Appellants have not disputed receipt of 33 instalments prior to 12-02-2012 and the statement of account on record shows valid payment of three instalments on 20-04-2012, the allegation of non-clearance of 36 EMIs fall flat on the face of it. In this regard, it may not be totally out of the place to mention that the Respondent stated in his petition of complaint that he received an Advocate’s notice on 07-08-2009 claiming that he owed a sum of Rs. 30,260/- as on date.  One wonders, while it is the specific case of the Appellants that the Respondent owed a sum of Rs. 28,525/-  as on 12-02-2012, how could it become Rs. 30,260/- on 07-08-2009 itself.

It also appears strange that on the very same day, i.e., on 20-04-2012, the Appellants have waived off overdue charges not once or twice, but 57 times at a row.  There is no clarity from the side of the Appellants if the Respondent indeed did not pay outstanding dues, as contended by them, why they at all waived off said charges. 

Undisputedly, the loan was supposed to be repaid by 03-09-2008.  Against this backdrop, we fail to understand, if the Respondent indeed did not discharge his obligations in terms of the agreement in question, what prevented the Appellants from taking legal action against the alleged defaulter, particularly when, the agreement in question stated to have authorized them to repossess the hypothecated vehicle.  True, it is claimed by the Appellants that they repeatedly asked the Respondent to repay the loan.  However, no material proof is advanced from their side to prove the bona fide of such claim.  It is hard not to wonder, if any financier would ever be so benevolent to extend such a long rope to a defaulter.

Denying the allegation of the Respondent of forceful repossession of the vehicle in question, it is claimed by the Appellants that the Respondent himself voluntarily surrendered the motor cycle on 12-02-2012 and also promised to clear the outstanding dues of Rs. 28,525/- within one month since then.  Surely, any person of reasonable prudence would find it hard to accept that a defaulter, who has not paid a single penny over a period of four years, would not only turn up before the financier to surrender the hypothecated vehicle on his own, but would also commit repayment of the outstanding dues within one month.  Another perplexing fact of this case is that the Respondent would invite so much trouble for a meager sum of Rs. 4,530/- and would sit tight over such outstanding due for years together and in the process, allow overdue charges to escalate leaps and bounds.

There is also a dispute as regards the actual date of seizure of the motorcycle in question.  As per the version of the Respondent, the said motorcycle was forcibly repossessed by the men of the Appellant No. 1 on 08-02-2012.  It appears, he lodged a complaint in this regard before the SP, Cooch Behar on 09-02-2012. On the other hand, it is claimed by the Appellants that the said vehicle was voluntarily surrendered by the Respondent on 12-02-2012.  In view of such claims and counter-claims, eyebrows would definitely be raised if the said vehicle was indeed surrendered before the branch office at Siliguri by the Respondent on 12-02-2012, how could FIR alleging forceful repossession of the motorcycle in question be lodged before the office of the SP, Cooch Behar 03 days prior to such alleged surrender of the same. Appellants have also filed photocopy of a Seizure Assets Inventory Report.  Most surprisingly, the same does not contain any date.  Moreover, we do not find any parity in respect of the signature of the Respondent as it appears on the Seizure Assets Inventory Report vis-à-vis other documents on record. 

All these findings, to our mind, do not stand Appellants in good stead; rather raise serious doubt about the bona fide of their claims/allegations against the Respondent.  Having said that, we find that the charity lashed out by the Ld. District Forum in favour of the Respondent does not also commensurate to the facts and circumstances of the case, to some extent they are not permissible under the law too.  Accordingly, the impugned order is modified suitably.

The instant appeal is, thus, allowed in part.

Hence,

O R D E R E D

that FA/584/2013 be and the same is allowed in part.  The impugned order is modified as under:-

“That the complaint be and the same is allowed on contest against the OP No. 1 with a cost of Rs. 10,000/- and dismissed against the OP Nos. 2 and 3 without any costs.  The OP No. 1 shall return the motorcycle in question in sound road worthy condition to the Complainant along with ‘No Objection Certificate’ in his favour.  Further, the OP No. 1 shall pay compensation of Rs. 20,000/- to the Complainant.  The OP No. 1 shall comply with this order within 40 days hence.”