- The complaint petition has been filed against the O.P. who illegally and arbitrarily took possession of the tractor and claiming its auction sale for not crediting the amount in the loan account causing gross negligency and deficiency in services making liable for the payment of compensation.
- The complainant’s case in brief is that the complainant has taken tractor on the loan hypothecated by the O.P. in Loan a/c no. 32716801387 and the complainant was regular making the payment of installment amount to the O.P. but the O.P. illegally and arbitrarily violating the provisions of law forcibly taken possession of the tractor and even the complainant was not informed about the proclamation of any auction sale by the O.P. nor any auction sale in respect of the tractor was proclaimed by the O.P. nor any auction sale in respect of the said loan a/c.
- Thereafter the complainant demanded the copy of statement of his saving a/c and loan a/c which was supplied by the O.P. The complainant has paid to the O.P. Bank. It is further submitted that the statement of a/c dt. 23.04.15 in respect of loan a/c indicates no entry in respect of sale proceeds amount of alleged auction sale of the tractor. The O.P. is preparing and maintaining false, fabricated account in order to cause loss, damages, harassment and injury to the complainant which is gross negligency and deficiency of services of the O.P. as well as unfair trade practices of the O.P.
- It is further submitted that on the date of taking possession by the O.P. the tractor was in running condition valued at Rs 2,00,000 and the letter dt. 22.04.15 prima facie proves about the table auction sale of the tractor with malafide and dishonest intention to cause loss, damages, harassment and injury to the complainant for which the complainant is entitled to get compensation.
- The complainant has claimed Rs 2,00,000 as a principal amount, Rs 1,00,000 as compensation and about Rs 10,000 as cost of litigation along with 18% p.a. interest also. The complainant has prayed that the O.P. may be directed to return the tractor to the complainant or in alternative return Rs 2,00,000 the value of the tractor on taking the possession of the tractor. The O.P. may also be directed to make the payment of compensation amounting to Rs 1,00,000 and O.P. may also be directed to make payment to the complainant the litigation cost of Rs 10,000 and O.P. may also be directed to make payment of interest @ 18% on Rs 2,00,000 the value of the tractor from the date of taking the possession till its payment. And any other relief or reliefs which the complainant is entitled may also be granted.
- The O.P. appeared and filed his W/S on 01.06.16 stating therein that the present complaint is not maintainable either in law or in fact and the same is only to abuse of the process of this court and it is fit to be dismissed out rightly. From the bare perusal of the contents of the complainant shows and the facts on the face of it as alleged involves recovery of the Bank loan i.e; Public Money. It is pertinent to mention here that complaint in this case pertains to a transaction of borrowings from the O.P. Bank. The complainant has availed a term loan of Rs 4,75,000 on 21.12.12 for purchase of a tractor. He executed loan agreement and thereby agreed to repay the loan and interest in monthly installments. The tractor purchased out of the Bank finance was hypothecated to the O.P. Bank and therefore first charge and secured asset. The complainant had agreed that if he fails to pay the Bank dues regularly, Bank is entitled to recover the same by sale of said asset. He further agreed that if loan is not liquidated even after the sale of that asset, he will personally be liable to repay the balance.
- The complainant has failed to repay the loan plus interest in regular installments. The loan was under N.P.A and the amount being Public Money, it required recovery by sale of the secured assets first. The auction of the Bank was strictly in accordance with the terms of the arrangement term loan account and deficiency in services on the part of the O.P. Bank. It is therefore submitted that repayment was not as per the loan agreement. He failed and neglected to repay the Bank due in regular installments and therefore the loan was placed under N.P.A. Statement of account would falsify the statement of complainant. It is further submitted that notices for auction of the vehicle published in Prabhat Khabar dt. 25.09.14 which is enclosed herewith will falsify the false statement.
- The Bank has initiated recovery of remaining balance through Certificate Case which has been filed before the Certificate Officer, Dumka and the said case is still pending. As such the complainant has no merit and it is fit to be dismissed and the complainant is not entitled to get any relief or reliefs as sought.
- The main point for the determination in this case is whether the complainant is entitled to get any relief or reliefs as claimed !
Findings
The complainant in support of his case filed oral and documentary evidence both. As oral witness he has filed the affidavit of following persons –
CW1 – Nilkanth Roy
CW2 – Mahendra Roy
And has also filed the following documentary evidences which are as follows –
Exhibit 1 – is the delivery challan dt. 11.11.22
Exhibit 2 – is the retail invoice dt. 20.12.12
Exhibit 3 – is the reply of letter of the complainant dt. 22.07.14 by Bank’s lawyer dt. 30.07.14
Exhibit 4 – is the letter of the complainant to the O.P. Bank
Exhibit 5 – is the letter of the Bank details 22.04.15 to the complainant.
Apart from that no other oral or documentary evidence has been filed by the complainant in support of his case.
- The O.P. in support of his case has filed some oral and documentary evidence. He has filed the affidavit of Gorakhnath Mishra as O.P. witness no. 2 and clearly he has also filed affidavit of Mukul Kumar Singh. And apart from that he has also filed some documentary evidences which are as follows –
Exhibit A - is the notice for seizure of hypothecated asset dt. 20.09.13 from O.P. Bank to the complainant.
Exhibit B – is the notice by the Bank to the O.P. dt. 28.06.13
Exhibit C – is the letter by the Bank to the complainant regarding the payment of dues.
Exhibit D – is also notice/letter by the Bank to the complainant dt. 01.08.13 regarding payment of loan amount.
Exhibit E – is also the letter of the Bank dt. 22.04.15 to the O.P. which was marked as Exhibit 5
Exhibit F – is the notice for auction of vehicle by the State Bank of India published in Prabhat Khabar newspaper on 25.09.14
Exhibit G – is the statement of account no. 32689199912 of Nilkanth Roy. Total 4 sheets.
The statement of loan account is also attached here with which is 5 sheets and the loan account no. 32716801387.
- Heard the Learned Counsel of both the parties and also gone through the case record thoroughly and after carefully scrutinizing and analyzing the documents and evidence adduced on behalf of both the parties it appears some points which are admitted fact.
- It is admitted fact that the complainant has taken the loan for the purchase of tractor of Rs 4,75,000 on 21.12.12 this fact is admitted one. The Bank has admitted this fact that the complainant has only repeated the loan amount of Rs 88,000 only which is apparent from the reply of the legal notice of the complainant by the O.P. Bank dt. 31.07.14 which is Exhibit 3. The O.P. in his rejoinder filed in the court dt. 17.03.18 in reply of the complaint petition dt. 18.01.18 in which in Para 3 the O.P. has clearly mentioned that on
16.04.13 paid Rs 10,000
06.05.13 paid Rs 12,000
16.11.13 paid Rs 12,000
03.12.13 paid Rs 17,000
30.12.13 paid Rs 12,000
23.01.14 paid Rs 10,000
30.04.17 paid Rs 10,000
29.06.14 paid Rs 5,000
Total Rs 88,000 was paid by the complainant towards the Loan amount. It is also admitted that the installment of the Loan amount was Rs 11,535 per month. But the complainant was not regular in payment of the loan amount installment monthly. It is submitted on behalf of the Learned Counsel for the O.P. that the complainant was chronic defaulter for not paying the installment money to the Bank. He was never regular in payment of the money.
- So far the allegation of the complainant is concerned, the auction money was not credited in the loan account of the complainant. But from the perusal of statement of loan account it appears that the sale auction money has already been deposited in the loan account of the complainant. The O.P. in his rejoinder dt. 17.03.18 in Page 3 has clearly stated that auction was done on 29.12.14 and the payment was made by the auction taken as below :- 29.12.14 Rs 20,000 12.01.15 Rs 1,20,000 11.02.15 Rs 1,15,000
Total Rs 2,55,000 was credited in the account of the complainant’s loan account which is also mentioned in the statement of loan account filed by the O.P. Bank.
- As the complainant was not regular in his payment of loan installment to the O.P. he was defaulter in payment of loan account then his account was declared as NPA and pledged under NPA. As such the Bank money is a Public Money it must be secured as the tractor was hypothecated to the Bank and secured asset against the loan amount. From the perusal of the several notices sent to the complainant by the Bank regarding payment of the loan i.e; Exhibit A, B, C, D and E but the complainant is not awake for the payment of loan amount and thereafter the said hypothecated tractor was repossessed by the Bank and after following due process of law, serving several notices to the complainant and also by way of publication in newspaper i.e; Exhibit F he auction sale the tractor in question on the much higher price i.e; Rs 2,55,000 and when the complainant simply claims Rs 2,00,000 of his value of the tractor. Considering above facts we do not find the O.P. negligent or deficient in providing services to the complainant rather the complainant is negligent performing his repayment of monthly installment of the said tractor to the O.P. Bank. As such the complainant is not entitled to get any relief or reliefs as he claimed.
It is therefore,
Ordered
That this case and the same is dismissed on contest without cost.
Let a copy of this order be served to both the parties free of cost.
Let this document be deposited in the record room and also to be shown on the website of the commission.
