Orissa

Rayagada

CC/158/2017

Sri bijoy Kumar Jena - Complainant(s)

Versus

The Branch Manager, HDFC Bank ltd., - Opp.Party(s)

Sri V.R.M. Patnaik

06 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   158/ 2017.                                      Date.     6   .  5     . 2019.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri Gadadhara   Sahu,                                                                     Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Sri Bijay  Kumar Jena,  S/O: Late K. Ch.Jena, Goutam Nagar,  Po/Dist:    Rayagada, State:  Odisha.                                                           …….Complainant

Vrs.

1.The Branch Manager, HDFC  Bank Ltd., Rayagada.

2. The Nodal Officer, HDFC Bank Ltd., Baramunda. Bhubaneswar.

.…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Sri  V . Ram  Mohan Patnaik , Advocate,

For the O.Ps  :- Sri M.K.Panda and Sri R.R.Khatua, Advocate.

                                                          J u d g e m e n t.

          The present dispute arises out of the complaint petition filed by the above named complainant  alleging deficiency in service  against the afore said O.Ps not to seize the vehicle Car Swift desire diesel VDI   bearing registration No. OD-18-B-0666  and  to receive the amount as and when deposited by the complainant and waive out the  over due penal interest.

Upon  Notice, the O.Ps    put in their appearance and filed written version through their learned counsel in which  they refuting allegation made against them.  The O.Ps   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P.s . Hence the   prays the forum to dismiss the case against  them  to meet the ends of justice.

We have heard the submissions made across by and on behalf of   both the parties by their respective  Learned  counsels, as also  perused the pleadings filed there on.

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                        FINDINGS.

Undisputedly the complainant  had purchased a Car Swift desire diesel VDI   bearing Regd. No.  OD-18-B-0666  availing finance amount a sum of Rs. 5,53,860/- from the O.Ps.  by  adding interest of Rs.1,77,000/- total loan amount a sum   of Rs7,30,860/-. Accordingly  60 E.M.Is. has been fixed   @ Rs. 12,181/-  by the O.Ps. for the period from 05.08.2014 to 05.07.2019  bearing  agreement No.28759493.

          The main grievance of the complainant is that without proper notice  the  O.Ps had threatened  to seize the vehicle  by  using local Gundas in forcefully   which is arbitrary, whimsical  where as the last date of agreement  will be  expired on  05.07.2019. Hence C.C. case filed by the complainant.

 

          The O.Ps in their written version  contended that  the said petition is not maintainable in the eyes of law and facts.   That the complainant is  a chronic defaulter which is   evident  from the statement of accounts  where in  he has started defaulted in payment of  EMIs  since  2^nd. EMI i.e. on 6^th. September, 2014 and till now  out of 41 EMIs he has  bounced 39 EMIs and  still an amount of Rs.1,20,739.18 is outstanding dues  as on 1^st. .January, 2018.

 

The learned  counsel for  O.Ps  vehemently  contended   that the  complaint petition  is not maintainable  and the  complainant  is not a consumer  under the  C.P. Act  and   It is admitted by both the parties  are that the transaction is on hire purchase agreement.

It is admitted by the O.Ps that it is a financing company and offering their services for consideration. It is submitted by  both the parties  that the complainant had availed the said service  for consideration and this fact is clearly   depicted in the Hire purchase agreement. Hence the complainant is a consumer as per the C.P. Act and the O.Ps were giving their services for consideration and as such this dispute comes within the scope of C.P. Act.   The agreement entered into between the parties  clearly reveals that the  complainant will pay    60  Equal monthly installments   @ Rs. 12,181/- commencing from  5.8.2014  and the last  installment falls due  on  5.07.2019  vide agreement  No.28759493.

Admittedly the O.Ps have given the necessary finance to the complainant in the transaction .  They also admit the execution of the hire purchase agreement and the condition laid down there as per the hire purchase agreement.

On perusal of the complaint  filed by the learned counsel for the  complainant it is revealed that  the complainant has already paid monthly E.M.I. till September, 2017  and thereafter  O.Ps are demanding amount by charging  over due  interest and penal interest  to the complainant and to deposit higher amount at a time. Thereafter the complainant without getting any alternative knocked the  door of the  hon’ble forum with a prayer that the O.Ps ought  not to seize the vehicle till  the final  E.M.I   Dt. 5.7.2019 and to  waive out the over dues interest. 

 The  O.P. in their written version contended  that the complainant  has not came in clean  hand before the forum and has suppressed some material facts. The complainant is a chronic  defaulter in repaying the loan dues and he has never made payment of the installments as per agreed terms and conditions for which  huge amount of loan amount  remain unpaid  as such the  O.Ps  have  requested  to the complainant for repay the loan dues as per agreement.

Admittedly   the complainant has admitted that  he has defaulted in repaying the regular installment due to his  ill health and under takes to repay all the pending installments within  few  months.  The O.Ps. had never  intention to seize the vehicle of the complainant as no such documents have been  filed by the complainant in this context before the forum.

It is held  and reported  in  CPJ – 1996 (3) page No. 1 in which  the hon’ble  Supreme  Court  observed  Section-34 of the Arbitration Act  does not confer an automatic embargo in the exercise of the powers by the judicial authority under the Act. It is a matter of discretion. Though the Dist. Consumer Forum, State  and National Commission are judicial  authorities for the purpose of Section-34 of the Arbitration Act, in view of the object  of the Act and by operation of Section-3 thereof,  we are of considered view that it would  be appropriate that these forums created under the Act are at liberty  to proceed with the matters in accordance with provisions of the Act rather than relegating the parties to an arbitration. The expression “Not in derogation” in Section-3 makes it clear that the provisions of C.P. Act do not in any way abrogate even partially the provisions of other laws in force and other laws are to be regarded as complementary to each other. Under the C.P. Act consumers are provided with an alternative, efficacious and speedy remedy.  When the consumer is entitled to seek remedy under  two different jurisdiction, he has option to choose one of them.

Section- 2(O) of the C.P. act, 1986  clearly  defines “Service” means service of any description which is made available to potential ‘(users and includes, but not limited to, the  provision  of )  facilities  in connection with banking, financing, insurance , transport, processing supply of electrical or other energy,   board or lodging  or both,  ‘(housing construction ,) entertainment, amusement or the purveying of news or other information, but does not  include the rendering  of any service free of charge or under a  contract of personal service.

Section-20   the Hire purchase  Act- 1972  defines that, restriction on owner’s right to recover possession of goods otherwise than  through  court.   Where    goods have been  let under a hire purchase agreement and the  statutory proportion of the hire purchase price  has been paid, whether  in pursuance of  the judgement   of a court or otherwise or tendered by or  on behalf of the hirer or any  surety, the owner  shall not enforce  any right to recover possession of the goods from the hirer otherwise than in accordance  with Sub-section -3  or by suit.

It is held and reported  in A.I.R. 1994 S.C. page No. 787  and  1994 (I) SCC 243 the Hon’ble Supreme Court  observed  importance of the Act lies in promoting welfare of the society by enabling the consumer to participate  directly in the market economy. It is clearly stated by the apex court that it attempts to remove the helplessness of a  consumer which he faces against powerful business, described a net work of rackets or a society in which producers have secured power to rob the  rest  and the might of public bodies which are degenerating  into store house of in action.

It is held and reported in OLR 2007(1) (SC) page No. 472 where in  the Hon’ble Supreme  Court  observed – Loan granted by  finance company- Default in payment- Recovery  of same- Procedure- Recovery of loans or  seizure of vehicles could be done  only through  legal means- The Finance company  cannot employ goondas to take  possession by force.

The Securitisation  and Reconstruction  of Financial Assets and enforcement of security interest Act clearly  provides the mode of recovery. The O.Ps have advanced the money for a definite purpose as seen from the   documents filed by the  complainant.  Hence they are guided by the same  as well as  by the guide lines given by R.B.I and the hon’ble  apex court  from  time to time  in the above subject.

On  perusal  of the documents, written version and arguments  of the parties it is  found that  the main allegation  of the O.P  is regarding the  default in payment of regular installment as per agreement  on the part of the  complainant  which  is admitted  by the complainant. He had  requested  to the O.P.  during the month of  November, 2017   to  allow him  time to repay  the old due along with  current installments. So admittedly the complainant has failed  to  pay the regular  installments  in time  for which  the O.P. (Bank)  has   charged   penal interest as per the loan agreement. 

The complainant approached the forum to waive out entire over due penal interest  and also filed a petition for an  interim   order for  prohibiting the O.P. Bank not to repossess the  vehicle. The interim petition was disposed  of directing the O.P.  not to take forcible  possession of the loan  vehicle and also to accept the installment paid  by the complainant. The O.P. while honoring the order of  this forum did not seize the vehicle,   the complainant paid the  installment amount  which is  much less than the E.M.I. for which the  outstanding loan    has swelled-up.

           

            On perusal of the documents we observed the O.Ps   had  clearly  violated the guide lines  given by the Act  and as well as by the  hon’ble Supreme Court and R.B.I. on the above subject and as such threaten to  repossess the above vehicle  is an unfair trade practice and deficiency putting the poor consumer  into financial loss and mental agony.  The complainant is a  educated  unemployed  youth  and for his livelihood  he  doing this business  so that the  complainant to earn  some money so that economically he can improve.  The intention of the legislature is also clear.  In order to mobiise and improve the economic conditions of the remote areas the scheme is opened it is not for the personal gain of the financing company.   Hence the action to threaten  to   repossess  of the above vehicle by   the O.Ps  is a  deficiency of service and unfair trade practice.  It is held and reported in C.P.R-2012(1) page  No. 89 the  hon’ble  State Commission, West  Bengal where in  observed  “That the finance company can not be seized/ repossessed without observing  due process of law”.

In the present case in hand  we are of the opinion that admittedly the complainant failed   to pay the E.M.I but it was also the duty of the O.P. to issue notice  before seizure of the vehicle as per the agreement, which was not done by the O.P. In the instant case.   we are also  of the opinion  that  the O.P. should  not  seized the vehicle through an illegal manner which  can not be encouraged in the  eye  of law and we are inclined to mention that henceforth  the O.P. shall not  seize  any vehicle  forcefully and without assigning any notice before seizure.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.                                                                                                  ORDER.

            In  resultant   the complaint petition stands allowed  in  part  on  contest against  the O.Ps. 

 

The   complainant shall clear the outstanding E.M.I  loan amount within six months  on installments  basis and also to  pay regular  E.M.I to the O.Ps   from receiving  this order.

            The O.Ps shall  not charge overdue penal interest beyond the guide lines fixed by the R.B.I.

            The interim order passed  by this forum on Dt.10.11.12017  made final  with the above direction.

The OPs     ordered to make compliance the aforesaid Order within  60 days from the  date of  receipt  of this order.      .

   Serve the copies of above order to the parties free of cost

Dictated and corrected by me.  

Pronounced  on this             6th.     Day of   May,   2019.

 

 

Member.                                          Member.                                                      President

 

 

 

 

 

 

 

 

 

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