This is a case under Section 12 of Consumer Protection Act, 1986.
Brief facts of the complainant’s case is that, on 31.10.2017 the complainant had purchased one Alto 800 SD, Maruti Car bearing no. WB72R-2895, under finance from the O.P. Finance Company. The complainant regularly paid the installment to the O.P. Company, but on 01.03.2019 advocate’s notice was send to his Advocate, being no. DN/FEB/2019/JR-C3116 dt. 27.02.2019, demanding an amount of Rs. 21840/- (Rupees Twenty One Thousand Eight Hundred Forty Only), with a direction to pay within seven (7) days of receipt of the notice and also to continue paying the remaining installment as per the agreement no. 4856689. The complainant had been unable to pay two (2) installment for which the O.P. Company had sent the notice, which the complainant had received on 09.03.2019. In the said notice the O.P. Company had given permission to the complainant to pay the dues from 10.03.2019 to 16.03.2019. But as 10.03.2019 and 11.03.2019 was a Saturday and Sunday respectively and the complainant started making arrangement to repay the above amount, but on 10.03.2019 the O.P. Company suddenly took away the vehicle from his driver namely Ruplal Das from Islampur, while he was returning to Jalpaiguri. The vehicle had been taken away by one Repo Agent, Sudipmoy Nandi, prior to the expiry of fixed date of 16.03.2019. Thereafter, the complainant approached the O.P. Company to repay the amount, but the O.P. Company refused to take the amount. Finding no alternative the complainant sent a notice through his Advocate which was received by the O.P. Company on 18.03.2019 and another notice, which was not received, but the complainant again sent the same on 21.05.2019. The complainant thereafter filed this instant case. Hence this case.
The O.P. Company have entered appearance by filing Written Version, where in they have mostly denied the complainant’s case. They have asserted that the vehicle was purchased and Loan Agreement had been executed on 30.06.2017 and not on 31.10.217. The complainant had applied for a loan for the amount of Rs. 2,30,000/- ( Rupees Two Lakh Thirty Thousand Only) and the loan had been sanctioned as per the Loan Agreement amounting to Rs. 3,22,000/- (Rupees Three Lakh Twenty Two Thousand Only), which included the principal amount of Rs. 2,30,000/- ( Rupees Two Lakh Thirty Thousand Only) and interest payable by the complainant amounting to Rs. 92,000/- (Rupees Ninety Two Thousand Only), which was payable in 59 (Fifty Nine) equal monthly installments amounting to Rs. 5460/- (Rupees Five Thousand Four Hundred Sixty Only) within 10th of every month. Clause-8 of the Loan Agreement dealt with the default position, wherein the O.P. Company would be entitled to declare all the sums due and payable with foreclosure charges @ 3 % on the balance principal outstanding along with the unpaid installments and service tax, late charges etc., due as on date of such declaration and on the borrower failing to make such payment within 7 (Seven) days thereof, the O.P. Company may issue notice to the complainant terminating this agreement or exercise any such rights available to them.
Moreover, the complainant failed to exercise the Clause-16 of the agreement to refer to the arbitrator and in view of the Judgement passed by the Hon’ble Supreme Court, in Indus Mobile Distribution Private Limited vs Datawind Innovations Private Limited, CIVIL APPEAL NOS. 5370-5371 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 27311-27312 OF 2016), this case, under the provisions of the Consumer Protection Act 1986, was not maintainable.
Furthermore, the complainant was very irregular in repaying the monthly installment with the 10th of every month and therefore, attracted the penalty of Accrued Financial Charges for which the complainant was legally bound to pay Rs. 7324/- (Rupees Seven Thousand Three Hundred Twenty Four Only). That apart, the complainant failed to pay the equal monthly installment for consecutive months for which reason the O.P. Company issued a demand Rs. 21840/- (Rupees Twenty One Thousand Eight Hundred Forty Only). The complainant had paid only 16 equal monthly installments amounting to Rs. 87220/- (Rupees Eighty Seven Thousand Two Hundred Twenty Only). Moreover the complainant had handed over the vehicle to one Ruplal Das of Islampur, without intimating the O.P. Company for which reason the custody of the vehicle had been recovered from Islampur, after intimating the police at New Jalpaiguri and Islampur Police Station. On the other hand the complainant to evade his lawful obligation had issued a legal notice dt. 13.03.2019 to the O.P. Company for return of the vehicle as well as to pay the compensation. But the complainant had earlier ignored the O.P. Company's letter, to clear the dues, failing which the vehicle would be sold. The complainant never contacted the O.P. Company for repaying outstanding dues but kept on issuing legal notice.
The O.P. Company on the basis of the Loan Agreement, when the complainant failed to clear the dues the O.P. Company, after issuing demand notice dt. 27.02.2019, had repossessed the vehicle on 10.03.2019, when the complainant failed to repay the outstanding dues nor made contact with the O.P. Company, to regularize the Loan Amount. As a result the O.P. Company to recover the Loan Amount sent a pre-sale notice dt. 14.03.2019 to the complainant as well as the guarantor, for selling the said vehicle. As the complainant and guarantor did not respond inspite receiving the notice, the vehicle had been sold on 02.05.2019 and after adjusting the sale amount of Rs. 1,33.000/- (Rupees One Lakh Thirty Three Thousand Only), still Rs, 62,229/- (Rupees ) needed to be recovered along with Accrued Financial Charge of Rs. 7324/- from the complainant. Therefore, the complainant’s case needed to be dismissed.
Firstly, the undisputed position of the case is, that the vehicle in question had been purchased by the complainant with finance from the O.P. Company. On default the vehicle had been confiscated by the company after issuing notice dt. 27.02.2019. The vehicle had been confiscated on 10.03.2019.
The complainant had tried to raise a dispute that the vehicle had been confiscated by the O.P. Company, prior to the expiry of the time allotted to the complainant. The complainant’s version is that the O.P. Company had issued a letter dt. 27.02.2019 with a direction that the confiscation of the vehicle in question would be done after seven (7) days of the non-payment of the defaulted amount Rs. 21840/- (Rupees Twenty One Thousand Eight Hundred Forty Only), from the date of receipt of the letter. The complainant has claimed that he received the letter on 09.03.2019, with the following days being Saturday and Sunday and for which reason he could not arrange the finance and the vehicle in question had been seized on 10.03.2019, which was prior to the expiry of the seven (7) days period. On closure perusal of the letter dt. 27.02.2019, specially on the reverse side of the said letter, there appears to be a copy of the postal stamp of Jalpaiguri showing ‘6.3’, indicating that the letter was received on 06.03.2019 at the Jalpaiguri Post Office and therefore, supports the contention of the complainant, that he had received the letter dt. 27.02.2019, on 09.03.2019 and therefore, the confiscation by the O.P. Company on 10.03.2019, appears to have been done in violation of the principles of the natural justice, without providing an opportunity to the complainant, to discharges his liabilities. Therefore, the O.P. Company appears to have acted in haste and thereby committed unfair trade practice, by depriving the complainant from availing the opportunity to clear his liabilities.
Furthermore, there is also no evidence forthcoming to show that the complainant had been duly intimated with regard to the place and time where the auction of the vehicle in question would be held, so as to enable the complainant an opportunity to claim his vehicle through such process. On the other hand, the O.P. Company, has not filed any evidence to show that the auction of the vehicle, had been given wide publicity, with regard to the date, time and place, by way of proclamation or by publishing in the News Papers etc. This lacuna on the part of the O.P. Company further deprived the complainant from participating in such bidding process to claim his vehicle. Thus, the O.P. Complainant further violated the principles of natural justice and thereby caused unfair trade practice.
Now with regard to the question raised on the jurisdiction point, the O.P. Company has relied in Indus Mobile Distribution Private Limited vs Datawind Innovations Private Limited, CIVIL APPEAL NOS. 5370-5371 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 27311-27312 OF 2016), where in the jurisdiction of this Commission has been ousted on the ground of existing exclusive jurisdiction clause. But the latest position of law as enumerated by the Hon’ble Supreme Court in M/S. Emaar MGF Land Limited Vs. Aftab Singh, in Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017, is that where specific / special remedies are provided for and which opted by an agreed person that judicial authority can refuse to relegate the parties to the arbitration. Therefore, the contention the O.P. Company on this ground also fails.
As a result the instant case succeeds. The O.P. Company shall compensate the complainant, as the vehicle has already been sold, by paying Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) along with litigation cost of Rs. 5,000/-
(Rupees Five Thousand Only) and Rs. 5,000/-( Rupees Five Thousand Only) towards mental pain and agony along with interest @ 9 % from the date of this order till the date of realization.
It is therefore,
O R D E R E D
That the instant case be and the same is allowed on contest with cost. The O.Ps. No. 1,2,3 & 4 shall pay the complainant jointly and severally the sum of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) along with litigation cost of Rs. 5,000/-( Rupees Five Thousand Only) and Rs. 5,000/-( Rupees Five Thousand Only) towards mental pain and agony along with interest @ 9 % from the date of this order till the date of realization.
All the petition pending in this case stands disposed of by the passing of the above Judgement.
After the above, the Ld. Lawyer filed the judgement passed in Magma Fincorp(M/S) versus Rajesh Kumar Tiwari reported in(2021)SCCR 201 and in Mahindra and Mahindra Financial Services Ltd. Versus Sou Radhabai Balu Nimbare by the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in First Appeal No. A/12/559. But the principles percolating from the above judgement has no application in the judgement, as has been discussed above.
Copies of the Judgement be delivered free of costs to the parties.
