A K Bhattacharyya

Briefly narrated, case of the complainant is that he purchased a Tata Ace vehicle from OP no. 3 with the financial assistance of OP nos. 1 & 2.  It is stated that complainant paid Rs. 58,000/- in cash out of the total value of said vehicle amounting to Rs. 3,18,000/-.  It is further stated by the complainant that he issued advance EMI cheques in favour of OP financier towards installments as per the schedule of agreement and that he paid a sum of Rs. 62,022/- in 7 cheques of which 4 cheques were bounced, but then he paid the same in cash and besides this, he also paid Rs. 88,846/- in cash i.e. he paid a total sum of Rs. 1,52,868/- and defaulted making payment of only two installments and promised to pay the same shortly, but the men of OPs forcibly repossessed the said vehicle from him without serving any prior notice upon him.   As the OPs did not return the said vehicle despite his repeated assurance to repay the defaulted amount, finding no other alternative, complainant filed the instant case for relief.

Complainant submitted some money receipts, repayment schedule, bank pass books, Seizure list, Certificate of Registration in respect of the vehicle in question etc.

All the OPs contested the case through their ld. advocates.  While OP nos. 1&2 jointly filed w.v. and w.n.a., OP no. 3 only filed w.v. and prayed for considering it as their w.n.a.

Besides denying all the material allegations of the complainant, OP nos. 1&2 contended that the loan amount of Rs. 4,03,460/- [financial assistance Rs. 2,63,000+finance charge Rs. 1,10,460+insurance charge Rs. 30,000] was repayable in 47 installments starting from 07-02-2011; that when complainant repeatedly failed to adhere to the repayment schedule, they issued demand notice upon him on 14-07-2012 by registered post, but the complainant did not pay any attention to it; that they also issued pre-sale notice upon the complainant on 07-09-2012, but to no avail; that they did not commit any wrong by repossessing the vehicle in question since it is settled position of law that financier is the real owner of the vehicle and in terms of the agreement executed between the parties, there was no need to give prior notice of repossession in case a borrower defaulted in making payment of installments. Accordingly, they prayed for dismissal of the instant case against them.

In support of their contention, OP nos. 1&2 submitted photocopy of Loan Agreement, Statement of Account, Demand Notice dt. 14-07-2012, Post repossession Notice dt. 30-08-2012 and Pre-sale Notice dt. 07-09-2012 etc.

OP no. 3, through their written version, also denied all the material allegations of the complainant.  It is contented by this OP that the instant dispute revolves over repossession of the vehicle in question is entirely a bilateral dispute between the OP financier and complainant and they are in no way connected with the said dispute and there was no basis behind impleading them in the instant case which can be evident from the fact that complainant has not sought for any relief against them.  Therefore, they prayed for summary dismissal of the instant case against them.

Points for consideration

We have perused the entire materials on record so submitted by the parties, heard the averments of ld. lawyers of the parties.  On the basis of such documents and also taking into consideration the submission of the parties, the following points are framed to come to a conclusion.

1. Whether there is any deficiency in service on the part of the OPs?

2. Whether the complainant is entitled to get any relief?

Decisions with reasons

Point nos. 1&2:

Both these points are taken up together for the sake of brevity of discussion.

Although OP nos. 1&2 raised preliminary objection about maintainability of the instant case through their written version, they did not however raise the issue at a later stage.  More so, on perusal of the contents of w.v. we find that the objection raised by the OPs in this regard is basically formal in nature without any cogent ground.  Hence, we do not see any good ground to take cognizance of their objection in this regard.

Undisputedly, OP nos 1&2 extended financial assistance to the complainant to enable him purchase a vehicle (Tata ACE) after executing a Loan agreement on 12-01-2011.  Admittedly, in terms of the Repayment Schedule complainant was supposed to repay the entire loan amount together with allied charges in 47 installments between the period from 07-02-2011 to 07-12-2014.  There is also no dispute that OP nos. 1&2 took repossession of the vehicle in question on 12-07-2012. 

A comparison table showing date-wise liability of the complainant vis-à-vis repayment details is appended below:

Although it is alleged by complainant that OP took forceful repossession of the vehicle in question, there is nothing on record to show that complainant lodged any complainant before the local police station against such alleged unlawful activity of the OP.  In absence of any corroborative document complainant’s allegation in this regard is not sustainable.

On going through the materials on record we find that OP financier, besides issuing one post-seizure notice upon the complainant vide their letter dt. 14-07-2012, they posted two pre-sale notices upon the complainant as well as the Guarantor on 30-08-2012 and 08-09-2012 respectively asking them to settle their dues. 

It is quite palpable from the materials on record that from the very beginning complainant has been most irregular in adhering to the repayment schedule.  Admittedly, four cheques,which the complainant issued in favour of the OP financier toward EMIs, got bounced including the very first EMI cheque.  Though he deposited cash on some occasions, it was deposited in a whimsical manner and in most cases, the deposit amount was far less than what he was supposed to repay in terms of the repayment schedule.  No satisfactory explanation has been given by the complainant as to why he did not honour his commitment as regards timely payment of EMIs as per agreement.  It transpires from the record that the OP financier sold the vehicle on 12-10-2012 after repossessing the same on 12-07-2012 and in between, OP financier issued 3 notices including two pre-sale notice to both the complainant as well as the Guarantor asking them to clear the outstanding dues, but as it appears, complainant did precious little to inspire confidence in the mind of OP financier about his sincerity of purpose and repaid only approx.. 1/4^th of the outstanding amount that stood in his name on the date of auction of the vehicle in question.

Needless to say, once an agreement is executed, parties involved thereto are expected to conduct themselves to the true spirit of the said agreement to ensure that the agreement so executed under any circumstances does not fall prey to the whims and fancies of any of the concerned parties. In the instant case as the complainant reneged on his commitment on several occasions in relation to the agreement, in our view, it was within the domain of OP to repossess the hypothecated vehicle in question and dispose it as per agreement.

In the light of foregoing discussion and particularly taking into consideration the negligent conduct of complainant, we do not find any irregularity/illegality in the action of OP financier and in our unanimous view, therefore, there was/is no deficiency in service on the part of OPs and consequent thereof, complainant is not entitled to any relief as sought for.

As a result, both these points are disposed of against the complainant.

Hence, it is

ORDERED

that the instant consumer case no. 39/2012 be and the same is dismissed on contest against the OPs.  Parties do bear their respective cost.

                                               S.S. Ali                                                A.K. Bhattacharyya

                                               Member                                               President