Heard learned counsel for the appellants. None appears for the respondent.

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The unfolded story of the complainant is that complainant in order to purchase a vehicle bearing Registration No.OR-16C-1610 for earning his livelihood has incurred loan of Rs.5,50,000/- from the OPs on 26.11.2016. As per the agreement complainant was to make the repayment of the incurred amount on instalment basis. While the matter stood thus on 17.11.2017 the OPs without any service of notice forcibly repossessed the vehicle. Thereafter, complainant appeared before the OPs to release the vehicle but he was not successful. So, alleging deficiency in service, the complaint was filed.

4.      OPs filed written version stating that the content of the agreement is binding upon them. It is sated that the complainant has taken loan and remained default for payment of the EMIs and after necessary notice, they have lawfully repossessed the vehicle and after repossession they have lawfully sold the vehicle. Therefore, there is no deficiency in service on their part.

5.      After hearing both the parties, the learned District Forum passed the following order which is as follows:-

                    “xxx   xxx   xxx

In view of our forgoing discussion we come to the conclusion that the OPs are held to be guilty for illegal an unlawful seizure with auction sale of the vehicle. For the reasons aforesaid and under the facts and circumstances, the finance company OPs 1 to 2 are bound to restore possession of the vehicle to the compliant or to return the loan instalments amount as has been paid by the complainant in respect to the finance of vehicle. The first course is not possible as the vehicle has been sold to a third party. Because of the illegal action, the complainant has suffer financially by paying some instalments with interest and therefore he should be adequately compensated and as there is no vehicle in possession of the complainant to earn his income, the finance company OP No. 1 & 2 has to return the loan instalments amount already received from the complainant  or to made payment of the cost value of repossessed vehicle with Rs.50,000/- as compensation and litigation expenses to the complainant. Considering the aforesaid gross deficiency in the services on the part of the company OPs 1 to 2, we direct accordingly with issue of loan clearance certificate to the complainant. Further we direct the OPs 1 to 2 jointly to comply the aforesaid order within 30 (thirty) days of receipt of this order, failing which they are  jointly and severally entitled to pay Rs.500/- per day extra as cost till the date of issuing clearance certificate to the complainant.”

6.      Learned counsel for the appellants vehemently urged that the learned District Forum has committed error in law by not going through the written version and the agreement with proper perspectives. According to him the learned District Forum ought to have considered the notice dated 1.11.2016 which was served on the complainant showing demand of the defaulted amount and consequence of payment of the same. Since there is already notice issued but the complainant has not complied the notice, they have repossessed the vehicle and according to the agreement sold the vehicle, learned District Forum has not considered the law involved in this case. Therefore, he submitted to set aside the impugned order by allowing the appeal.

7.      Considered the submission of learned counsel for    the   appellants and perused the DFR including the impugned order.

8.      It is admitted fact that the complainant has incurred loan from the OP to purchase a vehicle and also started repayment of the loan. It is also admitted fact that on 17.11.2017 the OPs have repossessed the vehicle from the complainant. The only question arises in this case whether the repossession of the vehicle by the OPs is illegal or not. In this regard we have gone through the agreement where there is clear provision in clause 11 about the notice. Such notice is to be issued seven days prior to repossession of the vehicle. It is also clear from the said clause that after the notice is issued, the repossession would follow if repayment is not made. On the other hand, clause 11 has clearly revealed that repossession without notice is illegal. In the instant case on 1.11.2017 the notice was issued only for asking the complainant to pay the arrear amount. Such notice in the eye of law is not a notice for repossession. Therefore, we are of the view that OPs have not served the notice as required under clause – 11 upon the complainant. Learned counsel for the appellants cited a decision of the Hon’ble Supreme Court of India passed in Magma Fincorp  Ltd vrs. Rajesh Kumar Tiwari (2020) 10 Supreme Court Cases 399, where Their Lordships have held in para – 32 as follows:-

                    “xxx  xxx  xxx

The financer has claimed to have issued notice to the complainant before taking possession of the vehicle and also a pre-sale notice. Unfortunately there was an error in the address of the complainant in the notice purported to be issued to the complainant before taking possession. It may thus, reasonably be assumed that an obligation to give notice to the complainant was implicit in the hire-purchase agreement. The financer also construed the hire-purchase agreement to contain an implicit requirement to give notice to a hirer before taking possession of the vehicle covered by the hire-purchase agreement.”

9.      With due regard to the aforesaid decision, we are of the view that if the notice before repossession is necessary, then notice must be served. If the repossession of the vehicle is without notice, such repossession   is  illegal.

10.    Be that as it may, in the instant case, no notice for repossession was served on the complainant. Therefore, in view of the decision of the Hon’ble Supreme Court of India the entire process of repossession is illegal. When the repossession is illegal, the sale of the vehicle in consequence of repossession is also illegal. Hence, we are of the view that there is no disagreement with the view taken by the learned District Forum. As such the finding is confirmed.

11.    Learned counsel for the appellants submitted that once the vehicle has been utilized by the complainant and accordingly EMI has been paid, such return of the money as directed by the learned District Forum is illegal. We are of the of the view that u/s 14 of the Act, learned District Forum can remove the deficiency in service either by restoring the vehicle or by imposing compensation adequately. But the EMI already paid should not be allowed to be returned. Therefore, we are inclined to hold that the portion of the order to return the EMI is liable to be set aside and is set aside. But at the same time, we hereby direct the OPs to remove the deficiency in service  duly proved by complainant, pay compensation of Rs.1,00,000/- to the complainant and litigation expenses of Rs.5,000/-. If those amounts are not paid within 45 days from the date of receipt of this order then same would be payable with interest at the rate of 10% per annum from the date of impugned order till payment is made.

      Appeal is partly allowed. No cost.

      DFR be sent back forthwith.

     Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.