Orissa

Jajapur

CC/46/2021

Abhiram Behera - Complainant(s)

Versus

The Authorised Signatory,Cholamandalam Investment and Finance Co.Ltd - Opp.Party(s)

Ramakanta Ghadai.

13 Dec 2021

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:    1.Sri Pitabas Mohanty, Member,

                                                                          2.Miss Smita Ray, Lady Member.                        

                                              

                                                      Dated the 13th day of December ,2021.

                                                      C.C.Case No.46 of 2021

 

Abhiram Behera    S/O late Golakha ch.Beehra   

At.  Lenka sahi  , P.O. Baniapal  ,

 P.S.Binjharpur, Dist.-Jajpur.                                                                                       …… ……....Complainant .                                                                       

                   (Versus)

1.The Authorised  Signatory Cholamandalam Investment and Finance Co.Ltd     

 Post Box No.500,ASV Adarsh Tower 719,Pathari Road, Annasolai, Chennai.

2. The Authorised Signatory,Cholamandalam Investment and Finance Co.Ltd,

       Dare house ,2.N.S.C Bose Road,Parrys ,Chennai .

3. The Authorised Signatory,Cholamandalam Investment and Finance Co.Ltd,

     At/P.O/ Chandikhole, Dist. Jajpur.

                                                                                                               ……………..Opp.Parties.                                                                                                                                            For the Complainant:                      Sri  R.K.Ghadei, Sri R.N.Dhal,  Advocates.

For the Opp.Parties                         Sri A.K.Pahil,  Advocate.

                                                                                                     

                                                                                                    Date of order:  13.12.2021

MISS  SMITA  RAY, LADY MEMBER .                                                  

The petitioner has filed the present dispute against the O.ps alleging deficiency in service as well as unfair trade practice since the O.Ps without following the proper procedure of law has seized  and subsequently  sold the seized Auto.

            The facts as stated by the petitioner in the complaint petition shortly are that the father of the petitioner being an unemployed person to maintain his livelihood purchased a Auto bearing Regd. No.OD-34-C-6577 by availing loan of Rs.1.89,359/- on the strength of loan cum-hypothecation agreement. As per term and condition of hypothecation agreement the father of the petitioner and petitioner  required to repay the loan along with interest in 55 installments and the petitioner was paying the installment regularly  but due to sudden death of the father of the petitioner on 30.07.20 the petitioner became defaulter. Subsequently the petitioner paid Rs.12,120/- on 24.12.20 but the O.Ps without giving pre-repossession notice seized the alleged above cited financed Auto on 15.03.21 by force claiming Rs.75,370/- as outstanding loan amount along with parking charge to which the petitioner is required to pay within 10 days after receipt of the letter , failing which the alleged vehicle shall be sold who will  pay  the amount of Rs.75,370/- .In such situation the petitioner approached the O.ps to release the vehicle after receipt of Rs.20,000/- with condition to repay the rest amount in 4 installments but the O.Ps without paying any heed to the request of the petitioner remained silent. Accordingly finding no other way the petitioner has filed the present dispute along with interim petition with the prayer to direct the O>ps to release the alleged vehicle after receipt of Rs.20,000/- with an undertaking to repay the balance amount in 4 installments since the above cited alleged Auto is the only source of income to maintain  his livelihood.

            In the present though as per order dt.12.04.21 the O.ps were directed to file objection against the interim order but  after receipt of the notice the O.Ps  neither appeared nor filed objection against the interim petition. Accordingly this commission on 19.07.21 considering the interim petition of the petitioner directed the O.ps to release the above cited alleged Auto after receipt of Rs.20,000/- from the petitioner within 3 days as well as the petitioner was also directed to pay the future EMIs of the loan against the Auto regularly. Subsequently the petitioner filed a petition on 23.09.21 stating that though interim order was sent to O.P.no.3  by R.P as well as the petitioner has contacted O.P.no.3 in his office but O.p.no.3 to release the Auto  after receipt of the ordered  amount but O.P.no.3 without paying any heed to the request of the petitioner replied that the alleged Auto has already been sold in the market. In such situation the petitioner finding no other way filed a execution petition U/S 72 of C.P.Act ,2019  to initiate proceeding against the O.Ps. After receipt of the execution petition this commission issued show cause notice to the O.Ps as well as posted  the subsequent date on 25.10.21. On 25.10.21 the O.ps appeared and filed the written version taking the stand :

            The O.Ps though at the initial stage did not appear nor filed the written version as well as after receipt of interim order did not release the alleged financed Auto but after receipt of show cause U/S 72 of C.P.Act,2019 appeared and filed the written version taking the stand that the petitioner and his father have availed a loan of Rs.189359/- from the O.ps on the strength of loan cum-hypothecation agreement . As per term and condition of loan-cum-hypothecation agreement though the petitioner is required to  repay the loan along with interest regularly but the petitioner became chronic defaulter for which the O>ps after service of pre-repossession notice  and pre-sale notice to the petitioner seized the alleged Auto and subsequently sold the same as per provision of law. Similarly the O.ps also filed a written objection stating that prior to initiation of the present case by the petitioner pre-sale notice  was sent to petitioner  on 16.03.21 and as the petitioner did not turn up in time the vehicle was sold on 13.04.21. Subsequently  this Hon’ble Commission issued notice on 12.04.21 to appear and file objection on 11.05.21 prior to receipt of the notice of the Hon’ble commission the vehicle has already been sold. In support of the defence the O.ps have filed the 4 citations of the Appellant Forums  and Appex court.

1.2008(1)OLR(CSR)-p-817

2.2010(2)CPR-NC-p-140

3.II(2010) CPJ-NC-p-163

4. Vol-95(2003)CLT-(SC) p-324

Not only the above citation of O.Ps but also as per recent observation of Hon’ble Suprem court reported in 2020(4)-166-S.C it is settled principle of law that in case of default in paying the EMIs towards loan the financer though is entitled to repossess  and sold  the same in Auction but the auction sale must be bonafied one. In the present case it is observed that as per guide  line of RBI though 60 days prior notice is mandatory to take possession of the alleged Auto but in the present case the O.Ps have not followed  such procedure- 2021)3)CLT-622-N.C

            The O.ps have not filed the postal receipt along with postal tracking report  to prove that the pre-repossession notice and pre-sale notice sent by R.P has been received by the petitioner.

            The O.P.no.3 has not filed any document to prove that the date of auction of the alleged financed  Auto  has been intimated to petitioner.

There is no documentary evidence from the side of the O.p.no.3 that the date of auction has been published in the local news paper- 2002(3)CPR- 34, NC , 2004(3)CPR-154 (Odisha),2018(3)CPR-367-N.C, 2015(3)CPR-584-N.C .

Similarly the O.P.no3 has not filed any relevant documents of auction sale indicating the name of other bidders who have participate in the auction sale.

            There is no documentary evidence from the side of O>p.no.3 to prove that the alleged Auto has been valued by approved valuer.

The O.p.no.3 has not taken the order of any competent court for selling the alleged financed vehicle -2020(3)CPR-169-N.C

            The above observation from our side clearly go to establish that the O.p.no.3 without following the proper procedure of auction sale has sold the alleged above cited  Auto for which the petitioner lost his income to maintain his livelihood by means of self employment for which though the petitioner has not prayed  any compensation but owing to fact and circumstances of the present dispute as per observation of Supreme  court reported in 2001(2)CPR-108-SC the petitioner  is entitled for compensation  as per observation of Hon’ble National Commission reported in 2001(1) CPR-199-Maruti Udyog Vrs Bhawana .

Hence this Order

            The dispute is allowed against the O.p.no.3. The O.p no.3 is directed to refund the total amount paid by the petitioner to O.P.no.3 /O.ps for purchasing the above cited Auto .In addition to it the O.p.no.3 is liable to pay Rs.50,000/- ( fifty thousand ) towards compensation and cost of the above dispute to the petitioner  within 45 days from the date of receipt of this order . The amount of compensation and cost shall be recovered from the pocket of the O.p.no.3  as per observation of Hon’ble Supreme court reported in 1994(1)CLT-1-S.C, Lucknow Dev Authority Vrs M.K.Gupta.

 

This order is pronounced in the open Commission on this the 13th day of  December,2021. under my hand and seal of the Commission