Orissa

Cuttak

CC/144/2016

Sayed Anwar Alli - Complainant(s)

Versus

The Branch Manager,Hinduja Leyland Finance Ltd - Opp.Party(s)

B M Mohapatra

18 Aug 2020

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK

  C.C No.144/2016

Sayed Anwar Alli,

S/O:Sayed Ansar Alli,

Res. of Qr. No.A/2,OPSC Colony,

Sector-6,C.D.A,P.S:Bidanasi

Dist:Cuttack

Vrs

1.        The Branch Manager,

Hinduja Leyland Finance Ltd.,

Franch Office at Plot No.692/A/4,

3^rd Floor,Manisha PLaza,Link Road

PO:Arunodaya Market,

Dist: Cuttack

 

1.         R.T.O,Cuttack.                                                                                             … Opp. Parties.

                

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    02.11.2016

Date of Order:  18.08.2020

 

For the complainant.  :    Mr. B.M.Mohapatra,Adv. & Associates.

For the O.P .1.              :    Mr. A.K.Samal,Adv. & Associates.

For the O.P No.2.         :       A/R.

 

Sri Dhruba Chran Barik,President.

The complainant having attributed deficiency in service to the O.Ps has filed this case against them seeking appropriate relief in terms of his prayer in the consumer complaint.

1. The brief facts of the case are that the complainant for earning his livelihood and for his self employment had purchased a motor cycle bearing Regd. no.OD-05-Q-3826 by taking finance from the O.P.No.1.  Copy of the registration certificate issued by the O.P.2 is annexed as Annexure-1.
2. The cost of the complainant’s vehicle was Rs.65,409.00  Complainant paid for insurance and road tax.   Complainant paid margin money/down payment of Rs.20,144/-. 
   So the remaining cost of vehicle was Rs.45,556.00.   But O.P. No.1 illegally collects excess money from the complainant.
3. It is pertinent to mention here that the above vehicle purchased by the complainant by availing loan/financial assistance from the O.P company by executing an agreement vide Agreement No,.ORCUCTTW01533, but without the Repayment Schedule. The copy of no other document was supplied to the complainant.  It was agreed upon that the complainant had to clear the loan amount in 36 nos. of monthly installments @ Rs.2,077/- each.  The commencement date of E.M.I is 5.11.2015 and the date of expiry is 5.10.2018.  The repayment receipt through bank has been annexed as Annexure-2.
4. That after completion of all the formalities the complainant plied the vehicle and paid the E.M.I dues to the O.P regularly.  While the matter stood thus, due to frequent defects in his vehicle and illness of the complainant, he defaulted the repayment of 4 nos. of E.M.Is.  As the complainant could not be able to ply his vehicle, he wanted to deposit the defaulted EMI with the O.P No.1.  The complainant also intimated the above facts to the O.P.No.1 and requested him to give him one day more time to pay the defaulted EMI.  The O.P assured the complainant that he would not seize the vehicle.
5. That after getting such assurance from the O.P. the complainant plied his vehicle.  When the matter stood thus,, the O.P.1 by violating the principle of natural justice and without giving any prior notice or intimation and without observing due process of law forcibly and illegally repossessed the vehicle of the complainant on 25.10.2016 at 5.30 P.M from Jobra Chhak, Cuttack from the possession of the complainant.  When the complainant requested the recovery squad not to seize the vehicle, as he was assured by the O.P for the purpose, they did not listen to his request and forcibly took away the vehicle.  While taking repossession of the vehicle, they did not issue Inventory/Seizure list to the complainant.  The said actions of the recovery squad of the O.P.No.1 are grossly illegal and unfair on their part.
6. That after forcible seizure of the vehicle, the complainant was deprived of earning his livelihood.  Having no other alternative, the complainant visited the office of the O.P No.1 and requested him to release his vehicle.  He also intimated him that he was ready to pay the defaulted EMI dues.  But the O.P Company played hide and seek with the complainant and ultimately refused to release the vehicle in his favour, unless he pays the total loan dues for which the complainant was suffering from harassment and severe mental agony.  In spite of repeated requests by the complainant on several occasions, the O.P No.1 was bent upon not to release the vehicle which shows their malafide intention and ulterior motive to harass the complainant.  In spite of several requests of the complainant the O.P No.1 did not supply him the statement of account pertaining his loan which is tantamount to deficiency in service.   Due to such gross deficiency in service, undue harassment and betrayal of faith committed by the above named O.P Company, the complainant is compelled to seek redressal of his grievances before this Hon’ble Court for appropriate relief.  Accordingly it is prayed that the O.Ps may be directed to supply a copy of agreement, latest statement of account to the complainant and not to sell or dispose of the vehicle and release the vehicle in favour of the complainant in the interest of justice.  He has also further prayed that the O.P No.1 be directed to pay compensation of Rs.1.00 lakh and to return the excess amount collected by him towards loan together with cost and other reliefs as deemed fit and proper.
7. The O.P No.1 has filed the written version by materially traversing the averments in the complaint petition.  He has filed the photo copies of the loan agreement and of the statements of the loan account of the complainant which have been marked as Annexure-A & B respectively.  He has also filed the copy of hypothecation termination letter in respect of the vehicle No.OD-05N-3539 as well as the memo showing waiver of the outstanding amount against the complainant.  Those are respectively marked as Annexure-C & D.
8. O.P No.2 has filed the written version affirming the averment of the complainant with regard to seizure and repossession of the vehicle by O.P No.1.
9. We have heard the learned counsels of the parties and gone through the case records.  The complainant has claimed relief on the ground of non-supply of copies of loan agreement, statement of loan account and refund of excess amount collected by the O.P No.1 to the complainant.  The O.P No.1 has submitted the above documents during course of hearing.  So far as refund of excess payment to O.P No.1 is concerned, it is clearly denied by O.P No.1.  Rather O.P No.1 has stated the excess payment if any, has been made due to default in payment of E.M.I and consequential penal charges accrued on it.  However, O.P No.1 has filed a memo stating there in that the balance amount standing against the complainant has been waived and as a gesture of good will, O.P No.1 has closed the loan amount of the complainant and the latter is under no further liability to pay any amount to the O.P. financier.  It is contained in a memo dt.30.7.2019 filed in this case.  There is no objection to it by the learned advocate for the complainant.  So the memo was accepted.
10. The moot question for consideration in this case is the seizure or repossession of the vehicle of the complainant bearing No.OD-05-Q-3826 on 25.10.2016 at Jobra,Cuttack by the henchmen of O.P by violating the principle of natural justice.  Even the copy of the seizure list and other documents were not supplied to the complainant.  The O.P No.1 has taken a plea clear denial of such allegations and further stated that in view of the terms and conditions of the loan agreement, O.P No.1 can effect seizure of the vehicle under hypothecation without any impediments. Strong exception has been taken to it by the learned advocate for complainant stating that no prior notice has been served on the complainant nor any order for seizure of the vehicle has been obtained prior to it from the competent court.  In this connection he has  relied upon a decision of the Hon’ble NCDRC,New Delhi reported in (2015) 2 CFPR584(NC) (M/s. Magma Finance Ltd. Vrs. Tikeswar Barik) wherein it has been held that repossession of the vehicle for default in payment of installment is not proper.  When the vehicle has not been surrendered nor was it repossessed with the consent of the complainant, the O.P is liable for compensation.  Same view has been taken by the Hon’ble Apex Court in a decision reported in (2007) 2 SC-711(ICICI Bank Ltd. Vrs. Prakash Kaur and others).

In view of the above, it is held that seizure of the vehicle in question with the help of the henchmen of O.P.1 without following the principle of natural justice and due procedure of law is unfair and illegal.

 

The next point of argument advanced by the learned advocate for O.P No.1 is that there exists an arbitration clause in the loan agreement and it was agreed upon by the parties that all disputes arising out of that agreement shall be referred to the jurisdiction of an arbitrator at Chennai only.No objection has been raised on this point by the learned advocate for complainant.

From the pleadings of the parties, it is not clear that any such arbitration proceeding has been heard and finally disposed of.Law is well settled that pendency of an arbitration proceeding if any cannot bar the jurisdiction of consumer For a to adjudicate the matter.The remedies under the C.P.Act are additional remedies available to the parties in the best interest of justice.In that view of the matter the objection raised by the learned advocate for the O.P. No.1 to the maintainability of the present case is not sustainable.All other points raised at the instance of O.P are not of much concern.

From the above, it is held that seizure/repossession of the vehicle No. OD-05-Q-3826 of the complainant without prior notice or observing due procedure of law is unfair and grossly illegal which has caused serious mental agony and harassment to the complainant.Hence ordered;

 

                                                                        ORDER

The consumer complaint be and the same is allowed on contest against O.P No.1.But in the fact and circumstances of the case, O.P.1 is directed to pay compensation of Rs.40,000/-(Rupees forty thousand only) towards the harassment and mental agony caused to him together with litigation cost of Rs.10,000/(Rupees ten thousand) to him in the interest of justice within a period of 45 days from the date of receipt of copy of this order.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 18^th   day of August,2020  under the seal and signature of this Forum.

                                                                               

                                                                                                                                (Sri D.C.Barik)

 President.

 

        ( Smt. Sarmistha Nath )

                                Member (W)