ORDER NO. 7 DT. 11.11.10

HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT

          Appellant through Mr. P.Banerjee, Ld. Advocate, Respondent No. 2 through Mr. Alok Mukhopadhyay, Ld. Advocate, and Respondent No. 1 in person are present.  Heard them in full.  Judgement is passed as under :-

          A short question involved in this Appeal is whether the financier/Appellant was entitled to re-possess the vehicle in question purchased by the borrower/Respondent by taking financial assistance from the aforesaid financier without resorting to the procedure recognized by law, only for making default in payment of monthly installments by the borrower/Respondent

          It is not in dispute that the complainant/borrower purchased a truck by availing of  financial assistance to the extent of Rs. 11.00 lakhs from the Appellant/financier.  The said loan was re-payable by 53 monthly installments @ Rs. 28,337/- each.  It is also not in dispute that the complainant had paid 25 installments in full and thereafter made default in payment of four monthly installments in full and one other installment in part.  In this state of affairs the Appellant/financier without resorting to the procedure recognized by law took possession of the vehicle from the borrower/Respondent.

          The complaint case thus filed by the borrower/Respondent has been allowed by directing the OP No. 1/financier to return the said vehicle to the complainant at its own cost within 30 days from the date of communication of the order, in default of which the said financier has been directed to pay a cost of Rs. 2,000/- per day for the delayed period.  The complainant at the same time has been directed to repay all arrear monthly installments in four equal monthly installments with current installments commencing from the month after expiry of 30 days from the date of return of the vehicle by the OP No. 1.  It has also been observed that the unpaid installments as above shall carry a simple interest @ 8% per annum on the outstanding balance for the period from 21.12.09 till the date of return of the vehicle to the complainant. 

          It has been settled by a series of decisions delivered both by the Hon’ble  Supreme Court and the Hon’ble National Commission that a financier should resort to procedure recognized by law to take possession of the vehicle where the borrower committed default in payment of installments and the practice of hiring recovery agents has been deprecated with the observation that it needs to be discouraged.  In the case in hand it has not been established by any material whatsoever that the Appellant/financier took resort to procedure established by law to take possession of the vehicle in question from the complainant. 

In course of hearing of this Appeal it has been admitted on behalf of the Appellant/financier that the vehicle is still lying in the possession of the Appellant.  There being no material whatsoever to establish that such possession of the vehicle was taken through a due process of law and in view of the law as above laid down both by the Hon’ble Supreme Court and the Hon’ble National Commission in this regard, we do not find any material to interefere with the judgement of the District Forum below.  The Appeal is accordingly dismissed. 

It is made clear that upon return of the vehicle to the complainant he shall repay all arrear monthly installments along with simple interest @ 8% (eight per cent) per annum on the outstanding balance for the period from 21.12.09 till the date of return of the vehicle to the complainant, in four equal monthly installments with current installment commencing from the month after expiry of 30 (thirty) days from the date of return of the vehicle by the Appellant.  Other terms of the order of the District Forum will remain as it were.  The Appellant/financier will return the vehicle to the complainant at its own cost within 30 (thirty) days from this day, in default of which the Appellant/financier shall be liable to pay Rs. 2,000/- (Rupees two thousand only) per day for the period of default.  After return of the said vehicle if there be any further default by the borrower/Respondent, the Appellant/financier will be at liberty to take appropriate legal action for re-possession of the said vehicle in question.