Kundan Kumar Kumai

This is an Appeal preferred under section 15 of the Consumer Protection Act, 1986 against the Judgement and Order dated 29/12/2020, passed by the Ld. DCDRF, Malda, in CC/84/2014.

Brief facts of the Appellant’s Case are that, the Respondent/Complainant had lodged the complaint, stating that a John Deere Tractor, had been purchased from the Appellant Company on condition, that they would purchase the old tractor on favourable terms, to the Respondent/Complainant. In this regard, he had gone to the Malda Branch of the Appellant Company on 02/04/2012 and had purchased the above-mentioned tractor by availing loan amounting to Rs.3,60,000/- (Rupees three lakhs sixty thousand) only and he had paid Rs.1,40,000/- (Rupees one lakh forty thousand) only.

From the very initial stage, the purchased tractor did not perform up to the mark and even on reporting such non-performance, the Appellant/Company did not pay heed, for which reason the Respondent/Complainant started losing his earnings, as the tractor was his only source of livelihood. He had stated that he had been very regular regarding the re-payment of instalments, but the Appellant/ Company failed to issue receipts against such payments, on the ground that the Appellant Company would send such acknowledgement by SMS to his mobile, but on most occasions, he did not receive the same. He had even met the local Branch Manager of the Appellant/Company and apprised him of the non-issuance of receipt but he also maintained that nothing would happen.

On 13/11/2014 some personnel from the Appellant/Company appeared and took away the tractor bearing no. WB-65A-9353, along with the mechanized plough (Rotovator). The Respondent/Complainant had then contacted the local Branch office as well as the Respondent/Opposite Party No.3, but they had insisted re-payment of nearly 6,00,000/- (Rupees six lakhs) only, to get the vehicle released. The cause of action therefore arose on 13/11/2014. Hence this Case.

The Appellant Company contested the claim, by filing written version, wherein they denied the Complainant/Respondent’s Case. They mentioned that the Respondent/Complainant had entered into a Contract on his own accord, by putting the signature on the Agreement Copy. It was also mentioned that the Appellant/ Company had been merely a financing company and the technical services for the tractor had been entrusted to the Respondent/OP no.3. The Appellant/Company also denied that the mechanized plough (Rotovator) had been repossessed along with the tractor as only the tractor had been repossessed and the same had been intimated to the local P.S. Moreover, the Case would not fall within the provisions of the Consumer Protection Act as there was no deficiency in service nor any unfair trade practice.

The Respondent/OP no.3 also contested the claim by filing written version wherein they had also denied the Respondent/Complainant’s Case.

After hearing the Ld. Advocates from both the sides and on perusal of the evidence on record, the Ld. DCDRF, Malda, passed the impugned order directing the OP nos. 1, 2 & 4 to make payment of Rs.6,00,035/- (Rupees six lakhs thirty five) only as compensation for the tractor with mechanized plough and for mental pain and agony and litigation cost, payable with 45 days failing which it would attract interest @ 5% per annum from the date of Order, after dismissing the Case against the Respondent/OP no.3.

Being aggrieved by the above Order the Appellants preferred the instant Appeal on the ground that the Respondent/Complainant had committed breach of the Agreement dated 17/04/2022, following which, as per the terms of the Agreement the tractor in question along with rotavator had been repossessed but no deficiency in service or unfair trade practice, as per the Consumer Protection Act, 1986 had been committed.

                                                     Decisions with Reasons

At the time of final hearing the Ld. Advocate for the Appellant, assailed the impugned judgement on the ground that inspite observing that the Respondent/Complainant had defaulted, had passed the impugned order in favour of the Respondent/Complainant, in complete violation of the principles percolating from the judgement passed by the Hon’ble Supreme Court in Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. reported in (1996)4 SCC 704. He has also relied in Charanjit Singh Chadda & Ors. Vs. Sudhir Mehra & the Managing Director, Orix Auto Finance (India) Ltd. Vs. Sri Jagmander Singh & Anr. passed by the Hon’ble Supreme Court and reported in (2001)7SCC 417 and (2006) 2 SCC 598, respectively.

None appeared on behalf of the Respondents, as such the Appeal was heard ex-parte against both the Respondents.

From the materials on record, it transpires that the facts of the Case is that on 02/04/2012, the Respondent/Complainant had purchased the John Deere tractor along with rotovator from the Respondent/OP no.3, by obtaining finance amounting to Rs.3,60,000/- (Rupees three lakhs sixty thousand) only, from the Appellant/Company  and after depositing the margin money amounting to Rs.1,40,000/- (Rupees one lakh forty thousand) only, against the Agreement dated 17/04/2012. The Respondent/Complainant’s case is, despite making periodical payments, proper receipts were not issued promptly either by the SMS or by hard copy. Suddenly on 13/11/14 some persons from the Appellant/Company had taken away the tractor along with the rotovator, in presence of the persons known to the Respondent/Complainant.

Now the short question that arises is whether any illegality was caused leading to unfair trade practices under the Consumer Protection Act, 1986. At the very outset, it needs to be mentioned that no allegation of any undue force being used has been made in the complaint by the Respondent/Complainant. In the complaint there is only a matter of facts statement in para 9 of the complaint, about such taking away of the tractor with the rotovator. Therefore, it can be safely concluded that use of force had not been resorted, at the time of taking possession of the tractor with the rotovator. Clause 9 of the Agreement mentioned above deals with the consequences of defaults and terminations. Though Clause 9(i) of the Agreement speaks of the issuance of Notice of Demand within 7 days period of repayment, but there is nothing in the record which shows that such Notice had been issued. The Respondent/Complainant has also nowhere mentioned of such lack of Notice indicating the lack of prejudice, being caused to the Respondent/Complainant from such anomaly. However, it is found in the record that the pre-sale notice dated 20/11/14 Annexure F, had been issued indicating the compliance of the Clause 9 (iv) of the Agreement. Though there is no evidence or averment that the sale had already been taken place, but as almost 10 years have elapsed from the date of repossession, it can be safely presumed that the sale had already taken place. With the principles from the judgements relied above clearly laying down limiting the role of the Consumer Foras to go beyond the terms of the contract in  Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. reported in (1996)4 SCC 704 and the Appellant’s right to take possession as per terms of the contract being upheld in the judgments of Charanjit Singh Chadda & Ors. Vs. Sudhir Mehra & the Managing Director, Orix Auto Finance (India) Ltd. Vs. Sri Jagmander Singh & Anr. passed by the Hon’ble Supreme Court and reported in (2001)7SCC 417 and (2006) 2 SCC 598, respectively. Hence, as far as the question of practicing unfair trade practices by repossessing the tractor with rotovator is concerned, the facts and the principles from the above judgements clearly justify the Appellant/Company’s action and therefore the allegation of unfair trade practices,  under the Consumer Protection Act, 1986 also goes away.

As far as the question of dealing with the deposits already done by the Respondent/Complainant is concerned, the Hon’ble Supreme Court in M/s. Magma Fincorp Ltd. Vs. Rajesh Kumar Tiwari in Civil Appeal No.5622 of 2019 on 01/10/2020, while dealing with the similar facts had opined that sustaining the impugned order would result in the Respondent/Complainant being admittedly a defaulter would in effect have been allowed free use of the vehicle for more than two and half years plus damages arising out of depreciation. Hence, here also the Appellant/Company’s case is fortified. Under the circumstance, the impugned order needs to be set aside.

As a result, the instant Appeal succeeds.

                                              It is therefore

                                               ORDERED

That the instant Appeal be and the same is allowed ex-parte against the Respondent/Complainant.

The impugned Order is hereby set aside.

Copy of the Order be sent to the Parties free of cost.

Copy of the Order be sent to the Ld. DCDRF, Malda for necessary information.

Statutory deposits be returned from whom received. Joint-Registrar WBSCDRC, Siliguri, to do the needful.