This case has arisen out of application U/s 12 of the Consumer Protection Act, 1986.
The case of the complainant is that being unemployed educated youth he intends to purchase a tractor to cultivate his agricultural land and he contacted with O.P.No-3 who assured him that they are arranged to give bank loan so complainant contacted O.P.No-1 for taking loan of Rs.4,25,000/-, on down payment of Rs.3,00,000/- in total Rs.7,25,000/- payable by 36 EMIs of Rs.14,005/-. After taking delivery of the tractor on 20.06.2016 complainant was plying the tractor for agricultural purpose and trying to pay monthly installment.
That due to his illness the complainant was unable to pay EMI in the year 2017 & for that O.P.No-1 serve legal notice dated 22.11.2017 demanding Rs.3,49,808/- & after receipt of notice the complainant paid one time Rs.55,000/-, in spite of receipt of said amount O.P.No-1 pressured the petitioner to pay outstanding dues and complainant was asked to pay Rs.2,78,002.42 by demand notice dated 27.05.2018 & complainant paid one time Rs.1,00,000/- on 20.06.2018 & thereafter another payment made by him Rs.26,911/- on 18.12.2018.
That O.P.No-1 and some antisocial go to complainant’s land where the tractor was plying and pull out the said tractor forcibly on 18.01.2019 without any intimation. He informed the matter to IC, Karandighi P.S, subsequently he always contacted with O.P.No-1 & 2 to give time to pay the outstanding dues but they did not turn up. Thus complainant filed this case praying for direction to O.Ps not to sale the tractor and supply fresh statement of accounts, Rs.1,00,000/- for compensation due to financial loss for forcible take over the tractor and Rs.5,000/- as litigation cost.
Proforma O.P.No-3 did neither appear nor contest the case.
O.P.No-1 & 2/Bank concern contested the case by filing W.V stating that after taking delivery of the tractor the complainant did not pay installment regularly as a consequence legal notice was served on complainant on 04.10.2017, 28.08.2017, 22.11.2017 and 27.05.2018, thereafter the loan account became NPA & SARFAESI proceeding was initiated, bank authority sent their Representative to lift the tractor on 18.01.2019 & the brother of complainant voluntarily handed over the tractor to bank’s Representative on 18.01.2019 and no pressure was created upon him to do the same, on behalf of O.P/bank possession notice was issued and complainant’s brother received the same and Authorized Officer of Bank also put his signature in the possession letter.
That the complainant was supplied a registered demand notice on 21.01.2019 intimating him to the effect to sale the tractor in case of non-payment of total outstanding and after getting that notice the complainant filed this case in order to block the tractor from selling by O.P/Bank. As the tractor was hypothecated with the O.P/Bank authority and the loan is still outstanding and it is primary security unless and until loan amount is repaid tractor cannot be returned. O.P.No-1 & 2/Bank Authority prays for dismissal of the case.
Points for consideration:-
- Whether there was/ is any negligent and whimsical act on the part of the O.P(s)/Bank which gives rise cause of action to file the case?
- Whether the complainant is entitled to get relief (s) as prayed for?
D e c i s i o n w i t h r e a s o n s
Admittedly, the complainant Tanweer Alam intend to purchase a tractor and contacted with the O.P.No-3 M/s Baba Parash Automobiles who quoted price of tractor Rs.7,25,000/- & the complainant paid down payment of Rs.3,00,000/-.
It is also admitted that complainant Tanweer Alam and Mahasin Khatun as joint borrower applied for a loan and O.Ps Bank Authority on 25.11.2016 sanctioned & disbursed loan of Rs.4,25,000/- vide A/c No:-36244951688[TL-Tractor], payable by 36 EMIs of Rs.14,005/- & the complainant got delivery of the tractor and got it registered in his name on 16.12.2016 vide Registration No:-WB59B/5056.
The complainant stated that due to illness he was unable to pay the monthly installment in the year 2017 and for that O.P.No-1 served legal notice on 22.11.2017 demanding Rs.3,49,808/-.
O.P/Bank denied it stating that the complainant did not pay installment regularly as consequence of the same legal notices dated 28.08.2017, 04.10.2017, 22.11.2017 were served by O.Ps bank upon the complainant demanding Rs.3,71,156.35, 3,73,471/- & 3,49,808/- respectively (notices produced).
From statement of account it appears that the complainant has failed to pay installment in time and he had paid one time Rs.55,000/- on 19.12.2017.
Complainant stated that after receiving the said amount O.P/Bank pressured him to pay the outstanding dues and another legal notice dated 27.05.2018 was served on him demanding Rs.2,78,002.42 & he had paid one time Rs.1,00,000/- on 20.06.2018 (reflected in statement of account).
Whatever complainant stated that thereafter he paid Rs.26,911/- on 18.12.2018 appears partially true, because statement of account shows that Rs.6,911/- was debited towards un realized Intt reco and Rs.20,000/- credited by cash payment, showing closing balance Rs.1,76,070.77 Dr.
O.P/Bank Authority stated that the loan account No:-36244951688 became irregular & declared NPA and SARFAESI proceeding was initiated and Bank Authority issued possession notice on 18.01.2019 claiming outstanding dues of Rs.2,78,002.42 as on 30.04.2018 + accrued interest thereon and Muktar, brother of complainant voluntarily handed over the tractor to the Authorized Representative of the Bank and Muktar and Bank Representative signed in possession letter (possession letter produced by bank) dated 18.01.2019 and IC, Karandighi P.S was intimated on that date vide REF No:-BM/64/2018-19.
Documents produced by O.P/bank shows that the complainant was served with a notice dated 21.01.2019 REF No:BM/73/2018-19 requesting the complainant to pay the outstanding dues in full within 30 days from the notice, in default, the tractor/moveable security asset taken to it’s possession will be sold as per the provision of the Act.
It appears that no amount has been deposited in the loan account of the complainant from 19.12.2018 to 22.04.2019 but in the meantime the complainant filed this complaint case on 13.03.2019 & prays for injunction and an injunction order has been passed in the fashion that “the complainant will deposit 30% of total outstanding dues within 30st Match, 2019 positively and the rest amount will deposit subsequently within the repayment period of the loan as noted in the sanction letter of the bank. O.P.No-1 & 2 is directed to receive the amount as ordered failing which O.P.No-1 & 2 may proceed as per bank norms, fixing 12.04.2019 for S.R, appearance and W.V.
It further appears that the record was put up on 26.03.2019 on the prayer of complainant and it was ordered/added further that “the O.Ps are further directed not to sell the tractor without giving prior intimation to the complainant as well as to this Forum” & earlier order dated 13.03.2019 will remain in force.
According to O.P/Bank the total outstanding dues as on 22.04.2019 was Rs.1,76,070.77 (supported by statement of accounts) and complainant has to deposit 30% thereof i.e Rs.52,821.23 but he did not pay any amount as per direction of this Commission within stipulated date 30 March 2019, rather he deposited Rs.34,000/- on 17.04.2019 in his savings account.
Immediate after getting the order dated 26.03.2019 an amendment petition has been filed by the complainant which was allowed on 24.07.2019 & on that date the complainant files a petition U/s 94 (C) read with section 151 CPC, with a prayer not to sell the tractor during pendency of this case.
Upon contested hearing the petition dated 13.03.2019 praying for injunction was rejected on contest and accordingly the petition U/s 94 (C) read with section 151 CPC was disposed of.
Under above facts and discussion, we subscribed the view of Bank Authority that the object of filing this case is to block the tractor from selling by O.P/Bank Authority & as the loan is still outstanding and tractor was hypothecated with the Bank/Authority and it is the primary security, unless and until the outstanding dues is paid in full, there is no other option but to sell the tractor in-question. We find no negligent or whimsical act on the part of O.P/Bank Authority, so the complainant is not entitled to get ant relief(s) as prayed for.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-14/2019 be and the same is dismissed on contest against the O.P.No-1 & 2 and ex-parte against Proforma O.P.No-3 but without any cost.
Restraining order not to sell the tractor, if any, stands vacated.
The Bank Authority will be at liberty to proceed as per Law.
Let a copy of this order be given to the parties free of cost.
