The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Branch Manager, Magma Fincorp Ltd., Bhubaneswar, O.P No.2 is the Branch Manager, Magma Fincorp Ltd., Balasore, O.P No.3 is the M/s. Magma Fincorp Ltd., Kolkata and O.P No.4 is the Regional Transport Officer, Balasore.

                    2. The case of the Complainant in brief is that he had purchased one Chevrolet Spark LS car valued Rs.3,20,101/- (Rupees Three lacs twenty thousand one hundred one) only on 29.03.2011 bearing Regd. No.OR-01U-2699 from Super Sales Automobiles P.L, Bhubaneswar by availing loan from O.P No.1, to be repaid in 36 monthly installments @ Rs.7,968/- (Rupees Seven thousand nine hundred sixty eight) only after deduction of initial money. Accordingly, the Complainant paid around 20 installments and could not pay 4 installments till 02.04.2013 due to financial crisis. But, all of a sudden, the staff of O.P No.2 seized the above vehicle without giving any demand notice and seizure list. Thereafter, the Complainant had been to O.P No.2 in several occasions requesting him to return the vehicle on receipt of overdue installments, but the O.P No.2 did not pay any heed to it. But, the Complainant received a notice from O.P No.4 vide No.2606, dtd.23.06.2014 for transfer of ownership of the said vehicle of the Complainant. The Complainant on receipt of such notice filed a letter before O.P No.4 requesting him not to transfer the ownership of said vehicle. Thus, the Complainant came to know that the O.Ps without giving any information or any notice arbitrarily sold the car to any third party and accordingly, the third party after purchase submitted papers before O.P No.4 for transfer of ownership, causing mental agony and financial loss to the Complainant. As such, the Complainant sent an Advocate notice to O.Ps No.1 to 3 on 09.08.2014 through Regd. post with AD with a request to return the said car on receipt of installments due from the Complainant within 10 days of receipt of this notice, but the O.Ps are silent in the matter till date. The Complainant has prayed for return of said car along with compensation for mental agony, financial loss and litigation cost and also not to transfer the ownership of the said car of the Complainant.  

                    3. Written version filed by the O.Ps No.1 to 3 through their Advocate denying on the point of maintainability, jurisdiction as well as its cause of action. The O.Ps have further admitted that the Complainant availed a loan to the tune of Rs.2,24,000/- (Rupees Two lacs twenty four thousand) only from the O.Ps under hire-purchase agreement dtd.06.03.2011 for purchase of the vehicle/ car, make-General Motors, Model- Spark, Regd. No.OR-01U-2699 having Engine No.B10S1629390KC2, chassis No.MA6MF481MAT076679 payable along with interest in 36 monthly installments @ Rs.7,968/- (Rupees Seven thousand nine hundred sixty eight) only commencing from 01.04.2011 and thereafter, 1st day of every month. The said installments were paid within the due date of payment of the same, failing which delay payment charges and overdue charges would accrue in the loan account as per the terms of the said agreement. It is also submitted that the said agreement contains an arbitration clause, which states that all disputes and grievances emanating from the said agreement would be referred to arbitration as per the terms and conditions of the agreement. The provisions of the enactment mandate that a judicial authority before whom an action is brought, which is the subject of an arbitration agreement between the Parties, shall refer the Parties to arbitration. But, due to continuous non-payment of agreed monthly installments in time and in spite of the O.Ps repeated requests and reminders to regularize the same, the said vehicle was taken into possession by the O.P with proper seizure list as per terms and conditions of the said agreement dtd.06.03.2011. It is further submitted that hire-purchase agreement are executory contracts under which the goods are let on hire and the hirer has the option to purchase in terms of the agreement. Such a contract confers no title on the hirer, but a mere option to purchase on the fulfillment of certain condition thereon; it also signifies that the title to the goods shall not pass until all the installments are paid. Thus, in this case, the vehicle is seized by the financer and no criminal action can be taken against him as he repossesses the goods owned by him. It is also submitted that before and after the seizure, intimation was given to local police station and also after taking possession of the financed vehicle which is sole security against the loan; a pre-sale notice dtd.01.04.2013 with Regd. post was issued to the Complainant on 02.04.2013. The acknowledgement card of the demand notice addressed to the accused has not returned back to the Authorized Signatory of the O.Ps till date. The O.Ps stated that the said registered envelope containing the pre-sale demand notice was properly addressed prepaid and posted by registered speed post. But, in spite of receiving the notice, the Complainant did not give any positive response to repay the dues. The dues as on 01.04.2013 was Rs.1,65,473/- (Rupees One lakh sixty five thousand four hundred seventy three) only and the said due amount is noted in the pre-sale notice dtd.01.04.2013. As the Complainant did not turn-up within the stipulated period as mentioned in the said notice, the vehicle was put into valuation which was conducted a registered valuer on 25.04.2013. After valuation of the vehicle was put into auction and thereafter sold to highest bidder namely Purushottam Agarawal for Rs.1,40,000/- (Rupees One lakh forty thousand) only and an agreement of sale was executed dtd.30.04.2013 to that effect. Hence, the buyer acquired necessary title subsequently. As per said sale agreement, the said Mr. Purushottam Agarwal, deposited the sale consideration on 30.04.2013 and thereafter, the vehicle was released in his favour on 10.05.2013. After affecting the sale, the sale proceeds is adjusted with the overdue amount. After adjustment, still an amount of Rs.25,473/- (Rupees Twenty five thousand four hundred seventy three) only is receivable from the Complainant. The Complainant did not pay the said due amount till date. The prayer of the Complainant to return the vehicle to him cannot be possible, as the vehicle already sold to Third Party on 30.04.2013; thus the prayer against the O.Ps No.1 to 3 became in-fractious. Moreover, the Complainant never became the owner of the subject vehicle, he was a beneficiary as per Hire-purchase agreement and as he became defaulter, his right to possess as well as beneficial interest has been seized, thus he has no authority to pray any order against R.T.O for non-transfer of ownership. Thus, it may humbly prayed to dismiss the petition of Complainant against O.Ps with cost and also the Complainant may be directed to pay the said due amount of Rs.25,473/- (Rupees Twenty five thousand four hundred seventy three) only with interest till realization.   

                    4. Though sufficient opportunities were given to the O.P No.4, but he has not appeared in this case. The O.P No.4 is also set ex-parte.

                    5. In view of the above averments of both the Parties, the points for determination of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) Whether there is any cause of action to file this case ?

(iii) To what relief the Complainant is entitled for ?

                    6. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that after purchasing the vehicle in finance, he has repaid 20 installments and 4 installments are to be paid till 02.04.2013 due to financial crisis. But, all of a sudden, the staff of O.P No.2 seized the above vehicle without giving any demand notice and seizure list. Thereafter, the Complainant has requested to O.P No.2 in several occasions to return the said vehicle on receipt of overdue installments, but the O.P No.2 did not pay any heed to it and took steps for transfer of ownership of the vehicle of the Complainant, which the Complainant came to know on receipt of the notice from the competent authority i.e. O.P No.4, for which he has filed this case before this Forum praying for return of the said car along with compensation for mental agony, financial loss and litigation cost and also not to transfer the ownership of the said car of the Complainant. On the other hand, it has been argued on behalf of the O.Ps No.1 to 3 that there was an arbitration clause, which states that all disputes and grievances emanating from the said agreement would be referred to arbitration as per the terms and conditions of the agreement. The Complainant without taking shelter of an arbitrator, has directly came to this Forum. So, this case is not maintainable in this Forum. Further, it has been argued that due to continuous non-payment of agreed monthly installments in time and in spite of repeated requests and reminders to regularize the same by the O.Ps, the said vehicle was taken into possession by the O.Ps with proper seizure list as per terms and conditions of the said agreement dtd.06.03.2011. In a hypothecation vehicle, the O.Ps are the owner of the vehicle till final payment is made. Before and after seizure of the vehicle, intimation was given to local police station and also a pre-sale notice dtd.01.04.2013 with Regd. post was issued to the Complainant on 02.04.2013. The acknowledgement card of the demand notice addressed to the accused has not returned back to the Authorized Signatory of the O.Ps till date. The O.Ps also argued that the said registered envelope containing the pre-sale demand notice was properly addressed prepaid and posted by registered speed post. But, in spite of receiving the notice, the Complainant did not give any positive response to repay the dues. So, the vehicle was put into auction and thereafter, it was sold to the highest bidder namely Purushottam Agarawal for Rs.1,40,000/- (Rupees One lakh forty thousand) only and an agreement of sale was executed dtd.30.04.2013 to that effect. Thus, the buyer acquired necessary title subsequently. As per said sale agreement, the said Mr. Purushottam Agarwal, deposited the sale consideration on 30.04.2013 and thereafter, the vehicle was released in his favour on 10.05.2013. After affecting the sale, the sale proceeds are adjusted with the overdue amount. After adjustment, still an amount of Rs.25,473/- (Rupees Twenty five thousand four hundred seventy three) only is receivable from the Complainant. The Complainant did not pay the said due amount till date, for which the O.Ps No.1 to 3 prayed for dismissal of the case with cost. There is no document available in the case record that the vehicle has been properly valued and auction sale are duly followed as per Law. The O.P No.4 is set ex-parte as mentioned earlier. On perusal of the case record, a copy of notice issued to the Complainant before sale of the vehicle is available and the postal receipts also enclosed herewith, which shows that due notice was issued to the Complainant. But, the Complainant is denying on it. So, the burden is on the Complainant to show that he has not received the said notice. However, no such document is available in the case record to show that the O.Ps have issued it to the Complainant before seizure of the said vehicle. According to the settled principle of Law, the authority reported in Revision Petition No.49 of 2011 in the case of Someshwer Lal Chodhary (Vrs.) Shagun Finance Investment (P) Ltd., where in it has been held by the Hon’ble National C.D.R Commission, New Delhi that in case of finance and the vehicle was repossessed by the Finance Company for default of installments, the repossession and sale of the vehicle without notice to the Complainant was absolutely illegal, which amounts to deficiency in service and unfair trade practice on the part of the Finance Company. Furthermore, the authority reported in Civil Appeal No.9711 of 2011 in the case of Citicorp. Maruti Finance Ltd. (Vrs.) S Vijayalaxmi, where in it has been held by the Hon’ble Supreme Court of India that the recovery process has to be in accordance with law and the recovery process referred to in the agreement also contemplates such recovery to be effected in due process of law and not by use of force. But, in the instant case, such procedure is not duly followed as disclosed from the documents available in the case record, which amounts to deficiency in service and unfair trade practice on the part of the O.Ps No.1 to 3-Finance Company.  

                    7. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by the above Authorities as discussed earlier, this Forum come to the conclusion that there is deficiency in service and unfair trade practice on the part of the O.Ps No.1 to 3 and they are jointly or severally liable for payment of compensation of Rs.20,000/- (Rupees Twenty thousand) only and litigation cost of Rs.2,000/- (Rupees Two thousand) only to the Complainant within 60 days of receipt of this order, failing which it will carry interest @ 9% per annum from the date of order till realization. The O.Ps No.1 to 3 are also liable for waiving out the balance amount of Rs.25,473/- (Rupees Twenty five thousand four hundred seventy three) only of the Complainant within the aforesaid period. Hence, ordered:-

                                                     O R D E R

                         The Consumer case is allowed in part on contest against O.Ps No.1 to 3 with cost and the case is dismissed on ex-parte against O.P No.4 without cost. The O.Ps No.1 to 3 are jointly or severally directed to pay compensation of Rs.20,000/- (Rupees Twenty thousand) only and litigation cost of Rs.2,000/- (Rupees Two thousand) only to the Complainant within 60 days of receipt of this order, failing which it will carry interest @ 9% per annum from the date of order till realization. The O.Ps No.1 to 3 are also liable for waiving out the balance amount of Rs.25,473/- (Rupees Twenty five thousand four hundred seventy three) only of the Complainant within the aforesaid period. The Complainant is also at liberty to realize the same from the O.Ps as per Law, in case of failure by the O.Ps to comply the Order. 

                         Pronounced in the open Forum on this day i.e. the 28th day of March, 2018 given under my Signature & Seal of the Forum.