Counsel for:-   

For the Complainant:  Sri A.K.Pattjoshi & Associate Advocate, Bhawanipatna.

 For the O.Ps:  Sri  M.R.Mohanty & Associate Advocate, Bhawanipatna.

JUDGMENT

 Sri A.K.Patra,President

1. Heard. Perused the material on record. We have our thoughtful consideration on the submission of the Ld. Counsel for the parties.
2. The captioned Consumer Complaint is filed by the complainant   alleging negligence & deficiency in service on the part of Opposite Parties for their repossession of the financed vehicle without serving prior notice & sold it without giving any opportunity of being heard.
3. The complainant seeks for an order directing the Ops (i) to pay the amount of Rs.4,00,000/- towards compensation for mental agony and harassment,(ii) to pay compensation of Rs.30,000/-  towards litigation cost and further (iii) prayed for all other relief(s) as the Hon’ble Commission deem fit and proper.
4.   The factual matrix leading to the case of the complainant is that, the complainant had purchased one Swaraj PTL  Swaraj 834 XM Tractor worth Rs.6,00,000/- on dt.02.01.2018 from Maa Majhi Gouri Tractor, Rayagada with a down payment of Rs.1,20,000/-.The rest amount of Rs.4,80,000/- was financed by the  Opp.Party No.1 vide Loan Agreement No.0KG002316F1701232785 repayable in quarterly  EMIs of Rs.36,561/- starting  from 10.04.2018 to 10.01.2023.The the complainant has paid five installments worth of Rs.1,80,000/-  within the prescribed time period on regular interval. The complainant could not pay the 6^th installment due to his medical emergency and requested the Opp.Party No.1 to give some time and even he was agreed to bear the late fees but  the Opp.Party No. 1 did not listen to him rather ill-treated  & abused him. On 9^th August 2019 while the complainant had been to Chhattisgarh and taking undue advantage of his absence, the OP No.1   took away the tractor without any prior notice and without giving any opportunity of being heard to the complainant . After some days when the complainant visited the office of the Opp.Party No.1, he came to know that, his tractor had been auctioned by the Ops. Again on 8.09.2021   the complainant went to the office of the OP No.1 and requested  the OP1  to return his down payment and  five installments  which he had paid  but  the Opp.Party No.1 denied to pay any amount and abused him ,ill-treated with a threatened of dire consequences. Hence this complaint.
5. To substantiate his  claim the complainant has filed the true copy of the following documents :- (i) Copy of Purchase order, (ii) Original copies of payments of installments receipts,(iii) copy of order dt. 10.01.2022 passed by the Honorable Supreme Court of India in re : Cognizatione for extension of Limitation  in Suo Motu Writ Petition( C) No.3 of  2020.The averments of the complainant petition are supported by an affidavit of the complainant . In addition to this, the complainant has also filed his affidavit evidence as prescribe under C.P Act 2019 , the averment of which is corroborating with the averment of the complaint petition.
6.   On being notice the OPs appeared through  learned counsel Sri Mr.M.R.Mohanty and  filed their written version admitting the facts that, the complainant  has availed financial assistance of Rs.4,80,000/- from the Opposite Parties vide Loan- cum - Hypothecation Agreement No.0KG002316F1701232785 for purchasing  of the allege vehicle and agreed to repay the loan in 20 quarterly EMIs of Rs.36,561/-  each commencing from 10.04.2018. As per agreement  total amount of Rs.7,31,220/-  was  to be paid by the complainant in installments subject to penal interest added in case of delay  of payment. It is further submitted that, the complainant failed to pay the EMI regularly which led to levy of delay payment charges and other charges. It is further contended that, due to nonpayment of EMIs by the complainant the Opposite Parties repossessed the tractor following procedure as per terms of the loan agreement.
7. It is further submitted by the Ops that, the complainant has purchased the tractor worth Rs.5,80,000/- and not for Rs.6,00,000/-. Down payment of Rs.1,00,000/-was made by the complainant  and not Rs.1,20,000/- vide Agreements No. 0KG002316F1701232785 dt.28.12.2017. It is further submitted that, most of the payments made through cheques by the complainant was bounced due to insufficient funds and the complainant failed to repay the loan amount regularly. As the complainant defaulted on the scheduled repayment of the loan, steps were taken to repossess the vehicle. On dt.05.09.2019 the Opp.Parties intimated the matter to the Biswanathpur Police Station about proposed repossession of the vehicle and on the same day the Ops/Company recovers Possession of the vehicle from the complainant.  On dt.06.09.2019 the Ops/Company issued a notice to the complainant requesting  him to  make the payment of the dues amounting to Rs.4,97,756/- within 7 (seven) days from the date of receipt of the notice towards full and final discharge in respect of the loan cum hypothecation agreement but the complainant failed to make the payments. So the Opposite Parties auctioned the vehicle on 31.10.2019 at Rs.1,51,000/- incurring the loss of Rs.3,43,874.26. It is further submitted that, the present complaint is filed with a malafide intention. The vehicle was repossessed in September,2019 and the same was duly intimated  to the complainant vide notice dt.06.09.2029 but the complainant failed to take any necessary steps at that time  and after  more than two years the complainant has filed this complaint only  to harass the Ops as such this complaint has no merits liable to be dismissed with cost.
8. To substantiate their claim the Ops have filed the copy of (i) Authorized letter to repossession dt.03.09.2019, (ii) Pre Repossession intimation to Police Station dt. 5.09.2019. (iii) Post Repossession intimation to Police Station. 06.09.2019.(iv) Notice issued by the L&T Finance dt. 06.09.2019, (v) Profit & Loss Statement dt.18.07.2022 (vi)  Loan- cum- Hypothecations Agreement dt.28.12.2017. (vii)  Statement of account dt.01.08.2022. The ops also file an affidavit evidence of one Mr. Vikky Kumar Agrawal, Divisional Legal Manager L&T Finance Lt, averment of which is corroborating with the averment of the written version. The learned counsel for the OPs also files his notes of argument and coy of cited Judgment dt. 23.12.2014 passed by the Honourable SCDRC,Maharastra in L& T Finance Lt vrs . Ramash Urkuaji Gajbhiye.
9. After perusal of the complaint petition, written version and all the documents relied on by both the parties and their evidence placed on the record the points of consideration before this Commission is whether the Opposite Party Finance Company is justified in repossessing the vehicle of the complainant and whether there is any deficiency in service & unfair trade practice on the part of the Ops caused injuries to the complainant?
10. The fact that, the complainant has purchased a vehicle  being financed by the OPs  vide loan –cum -hypothecation agreement dt.28.12.2017 and that, the complainant got default in repayment  of the loan as per the agreement and that, on default the finance company/Op has repossessed the vehicle is not dispute.
11. The copy of undisputed Loan cum Hypothecation Agreement placed in the record contain:- “(9) CONSEQUENCE OF DEFAULT AND TERMINATION as follows(9.1) upon occurrence of any event of default as set out in clause 8 above the lender may issue a notice to the Borrower an notice of demand calling upon the Borrower to repay the amounts within 7 days from the date of receipt of this notice (“Default Notice”). (9.2) In the event of failure of the Borrower to clear the amount s due and payable under this Agreement within 7 days from  the date of receipt of the Default Notice, the Lender may take possession of the Hypothecated Asset without intervention of courts, either suo moto or through its duly authorized agent.(9.4) After taking possession of the Hypothecated Assets, the lender shall send notice prior ot sale of Hypothecated Assets(pre-Sale Notice) to the Borrower calling upon the Borrower to clear the total amount outstanding under this Agreement (“Loan Outstanding”)”
12.  It is submitted that, the vehicle in question was taken away by the financer on 9^th August 2019 without serving prior notice & without giving any opportunities of being heard to the complainant. It is further submitted that  , alleged vehicle is   sold without giving any opportunity to the complainant to retain the vehicle by paying the outstanding EMIs though the complainant was ready to repay the outstanding EMIs due before sold it to third person which caused financial loss and mental agony to the complainant. On the other hand Ops/ finance company have submitted that, they have repossessed the vehicle on 05.09.2019 informing the Biswanath police Station and that, on dt.06.09.2019 the Ops/Company issued a notice to the complainant requesting him to make the payment of the loan dues amounting to Rs.4,97,756/- within 7 (seven) days from the date of receipt of the notice towards full & final discharge of the said loan- cum -hypothecation agreement but the complainant failed to make the payments. So the Opposite Parties auctioned the vehicle on 31.10.2019 at Rs.1,51,000/- incurring the loss of Rs.3,43,874.26.
13. It is found that, no paper of inventory of the vehicle which could have made in presence of the complainant at the time of taking repossession is placed on the record.  No cogent evidence is placed on the record to hold that, said notices such as Pre Repossession intimation to Police Station dt. 5.09.2019, Post Repossession intimation to Police Station. 06.09.2019, Pre sells Notice issued by the L&T Finance dt. 06.09.2019, were properly served to the complainant.
14.  The Ops have filed no inventory report and in absence of such inventory report or any cogent evidence that, the vehicle was repossessed by the financer /ops on dt. 05.09.2019 after proper services of notice  to the complainant , we are unable to hold that, alleged vehicle was repossessed by the financer on 05.09.2019 after   serving of  loan -recall notice / legal notice rather, the Ops /financing company has taken away the vehicle in question on 9^th August 2019 without following the prescribed formalities stipulated there in  the terms of the loan agreement and  without making inventory of the said vehicle may not be disbelieved as it is proved by the complainant on affidavit.
15. It is contended that, the financer has issued pre -sale notice dt. 06.09.2019  to the complainant /borrower but did not responded for which the op/financer auctioned the vehicle on 31.10.2019 at Rs. 1,51,000/ thus incurring the loss of R 3,43,874.26 but   nothing cogent evidence is placed on record  to hold that,  said notices i.e pre -sale notice and after- sale notice has ever been duly served to the complainant. Nowhere in the evidence affidavit of the Ops is it stated that, afore said notices issued to the complainant were properly served to complainant. In absence of cogent evidence it may not be proper to hold that, notice of pre- sale & post- sale of the vehicle or notices of recall of the loan were properly served to the complainant before repossession of the vehicle.
16. The Ops finance company contended that, vehicle  was repossessed on 05.09.2019  and sold it on auction on dt.31.10.2019 for a sum of Rs.1,51,000/-incurring the loss of Rs.3,43,874.26 by intimating the complainant. We found no auction paper is placed on record so also, there is no explanation assigned for such a delayed  in sale of the alleged vehicle which caused depreciation of price of the vehicle may not be disbelieved. The Judgment dt. 23.12.2014 passed by the Honourable SCDRC,Maharastra in L& T Finance Lt vrs . Ramash Urkuaji Gajbhiye cited by the Ops is passed in different facts & circumstances.
17.  Here we found that, copy of notices placed on the record are nothing but a mere formalities  without proper service of the same to the complainant  & giving no time to the borrower /complainant to think about is certainly goes against the interest of the borrower and it is an unfair trade practice of the OPS /Finance company.
18.  It is evident that, the vehicle in question was repossessed by the financer/ops without proper service of notice to the complainant so also the finance company/ Ops failed to proved that ,they have conducted any  inventory of the vehicle so also failed to assess the value of the vehicle at the time of its repossession and sold it at very low price  certainly an act of deficient  service & unfair trade practice on the part of  the Ops/finance company which caused financial loss and mental agony to the complainant  is proved as such we are of the opinion that, there is sufficient cause of action to present this complaint before this Commission and in view of the order dt. 10.01.2022 of   the Honorable Supreme Court of India passed in re : Cognizance for extension of Limitation in Suo Motu Writ Petition, it is found that , this complaint is file in time well within the jurisdiction of this Commission.
19.  Keeping in view of the facts and circumstances discussed above, we are of the opinion that, repossession of the vehicle of the complainant by the Opposite Party Finance Company in this case is not proper and there is deficiency in service & unfair trade practice on the part of the Ops / finance company caused mental agony & financial loss to the complainant for which the Ops  are not entitle to claim further more “ loan dues” against the complainant. It is also not in dispute that, the complainant was using the vehicle while paying EMIs .Accordingly, the complainant is allowed in part on contest against the OPs with following direction.

ORDER

The OPs / financer is here by directed to set -off the loan dues if any against the complainant with the price received from the sale of the vehicle in question towards full & final settlement of the alleged loan dues against the complainant under said loan –cum -hypothecation agreement vide No.0KG002316F1701232785 dt.28.12.2017 and further be restrained themselves from claiming any more from the complainant. It is also not in dispute that, the complainant was using the vehicle while paying EMIs as such no order as to cost and compensation.

                   Dictated and corrected by me.

                       President

                              I   agree

                                                   Member    

      Pronounced in the open Commission today on this    day of 9^th August  2023 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

       Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. The complaint could not be decided in time in want of quorum in the Commission.Complaint is disposed of accordingly.