Order No. 11 dt. 23/09/2019
The case of the complainant in brief is that the complainant being an unemployed youth purchased a truck from TATA Motors Ltd. with an intention to operate the said vehicle for carrying goods for earning his livelihood and his family exclusively. The o.p. provided him financial assistance to the tune of Rs.10,60,000/- for purchasing the said vehicle. A loan agreement was entered into between the parties. The complainant was provided with a letter mentioning the facts and figures of the amount sanctioned by the o.p. The o.p. also mentioned the repayment schedule whereby it was stated that the loan amount is to be repaid in 47 months EMI and EMI end date is on 10/09/2018. As per the terms of the said repayment schedule o.p. received 46 nos. of EMI @Rs.29,000/- each out of 47 nos. of EMI. The complainant failed to pay the last installment to the tune of Rs.29,000/- within the stipulated period of time i.e. 10/09/2018 owing to his financial hardship and the complainant requested the o.p. to allow him 15 days time to pay the last EMI, but o.p. informed the complainant that since it was last installment the complainant will be allowed to pay the installment within the next 15 days. In spite of such assurance o.p. forcibly and illegally seized the vehicle from the complainant while the vehicle was plying at Raigunj on 24/09/2018. The o.p. has not issued any notice upon the complainant for which the complainant filed this case praying for direction upon the o.p. to hand over the vehicle in question as well as compensation and litigation cost.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that as per the agreement the complainant agreed that he shall oblige to make payment of the monthly installment to o.p. The complainant failed to make payment of the monthly installment as contemplated under the said agreement. The o.p. made several demands for making payment of the outstanding installment, but of no avail. In view of such default on the part of the complainant, the o.p. is entitled for huge sum fallen due and payable by the complainant to o.p. It has also been stated that o.p. is also entitled to get the interest. Since the vehicle in question stands hypothecated and / or charged in favour of o.p. and as such, o.p. is entitled to take possession of the said vehicle and sell the same in portanto satisfaction of his claim. The complainant is encroaching and threatening the valuable rights of o.p. The o.p. categorically stated that relationship between the o.p. and the complainant as debtor and creditor relationship which clearly bars under the purview of the C.P. Act. In view of such facts and circumstances o.p. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant took the loan from o.p.?
- Whether the complainant failed to pay the last installment?
- Whether the vehicle in question was taken possession by o.p.?
- Whether there was any deficiency in service or unfair trade practice on the part of o.p.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant being an unemployed youth purchased a truck from TATA Motors Ltd. with an intention to operate the said vehicle for carrying goods for earning his livelihood and his family exclusively. The o.p. provided him financial assistance to the tune of Rs.10,60,000/- for purchasing the said vehicle. A loan agreement was entered into between the parties. The complainant was provided with a letter mentioning the facts and figures of the amount sanctioned by the o.p. The o.p. also mentioned the repayment schedule whereby it was stated that the loan amount is to be repaid in 47 months EMI and EMI end date is on 10/09/2018. As per the terms of the said repayment schedule o.p. received 46 nos. of EMI @Rs.29,000/- each out of 47 nos. of EMI. The complainant failed to pay the last installment to the tune of Rs.29,000/- within the stipulated period of time i.e. 10/09/2018 owing to his financial hardship and the complainant requested the o.p. to allow him 15 days time to pay the last EMI, but o.p. informed the complainant that since it was last installment the complainant will be allowed to pay the installment within the next 15 days. In spite of such assurance o.p. forcibly and illegally seized the vehicle from the complainant while the vehicle was plying at Raigunj on 24/09/2018. The o.p. has not issued any notice upon the complainant for which the complainant filed this case praying for direction upon the o.p. to hand over the vehicle in question as well as compensation and litigation cost.
Ld. lawyer for the o.p. argued that as per the agreement the complainant agreed that he shall oblige to make payment of the monthly installment to o.p. The complainant failed to make payment of the monthly installment as contemplated under the said agreement. The o.p. made several demands for making payment of the outstanding installment, but of no avail. In view of such default on the part of the complainant, the o.p. is entitled for huge sum fallen due and payable by the complainant to o.p. It has also been stated that o.p. is also entitled to get the interest. Since the vehicle in question stands hypothecated and / or charged in favour of o.p. and as such, o.p. is entitled to take possession of the said vehicle and sell the same in portanto satisfaction of his claim. The complainant is encroaching and threatening the valuable rights of o.p. The o.p. categorically stated that relationship between the o.p. and the complainant as debtor and creditor relationship which clearly bars under the purview of the C.P. Act. In view of such facts and circumstances o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant for the purpose of his livelihood took the loan from o.p. for purchasing the vehicle and the complainant has also alleged that he paid 46 EMI out of 47 EMI as fixed by o.p. Only dispute arose between the parties for the payment of the last installment. The complainant has stated that he failed to pay the last installment because of his financial stringency and he informed the o.p. praying for extra 15 days time so that he can pay the last installment. The o.p. assured the complainant that he would be given time for payment of last installment. But in the mean time o.p. took possession of the said vehicle which has not been disputed by o.p. The o.p. has argued that the vehicle in question was purchased by the complainant for commercial purpose, but in the petition itself the complainant categorically stated that for maintaining his livelihood and family members he purchased the vehicle and took loan from o.p. Therefore, the argument as advanced by o.p. that the vehicle was purchased for commercial purpose cannot be appreciated. From the four corners of the documents filed by the complainant which has also not been denied by the o.p. that the complainant paid 46 EMI as per the terms of the agreement. The complainant before filing of this case sent a Lawyer’s notice agreed to pay the demand made by the o.p. but o.p. did not give any reply to the letter sent by ld. lawyer for the complainant. Ld. lawyer for the complainant during the argument stated that a recent intimation has been given to the complainant by o.p. whereby the complainant has been asked to pay online payment of Rs.27,400/- on 22/09/2019. The said intimation was provided to the complainant for the purpose of avoiding the payment of compensation and litigation cost. Since the complainant has categorically stated that before taking possession of the vehicle in question the complainant was not informed by issuing any notice upon the complainant asking for the payment of the amount as well as for taking possession of the vehicle as per the terms of the agreement entered into between the parties. In this respect we can rely on a decision as cited by ld. lawyer for the complainant as reported in 2017(3) CPJ 517 whereby it was held by Hon’ble National Commission that non compliance of guidelines of Reserve Bank of India re-possession of vehicle was not justified. On the basis of the said judgment as well as materials on record we find that only last installment was yet to be paid by the complainant for which his vehicle was taken possession and the complainant has suffered financial loss due to taking possession of the vehicle in question. Accordingly, we hold that there is deficiency in service as well as unfair trade practice on the part of o.p. The complainant since has not paid the last installment of Rs.27,400/-, if the said payment is made the vehicle should be released in favour of the complainant and o.p. should also pay compensation and litigation cost. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No. 70/2019 is allowed on contest with cost against the o.p. The complainant is directed to pay a sum of Rs.27,400/- (Rupees Twenty Seven Thousand and Four Hundred) only to the o.p. towards the payment of last installment and after payment of the said dues necessary documents are to be provided to the complainant and the o.p. is also directed to pay to the complainant compensation of Rs.50,000/- (Rupees Fifty Thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees Ten Thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
