JUDGEMENT

Shri Aswini Kumar 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   named above alleging negligence & deficiency in service on the part of Opposite Parties for their repossession of the financed vehicle without serving prior notice to the Complaint & violating the direction of the Hon’ble Supreme Court of India there during pandemic  Civid-19.
3. The complainant seeks for an order directing the Ops :- (a) to release the tractor vide Regd. No.OD08L0268, Engine No.1VYMABJHUI125,Chassis No. MCBHDU5S528, Model No. FT-35 Champion,(b) to seek the installment un deposited covering the period of Covid-19 from March 2020 to January 2021 which may be adjusted on dt.21.12.2020 onwards and further prayed for all other relief(s) as the commission deemed fit & proper.
4. (i) The factual matrix leading to the case of the complainant is that, the complainant has purchased a tractor vide Regd. No.OD08L0268  from the OP 2(two) vide EngineNo.1VYMABJHUI125, ChassisNo.MCBHDU5S528 Model No.FT-35C champion    on being financed by the OP 1(one) on dt.30.06.2018.The  total loan amount  sanctioned was Rs.506626/- repayable in monthly 53 numbers of EMI @ Rs14,300 . The complainant started depositing the Monthly EMI of Rs.14,300/-  as fixed by the OP 1(one)  from the month of August,2018 i.e. from 24.08.2018. The complainant had to repay the loan amount in 53 monthly installments but till the date of filling of this complaint he has deposited 26 numbers of EMIs   with the OP 1(one) .The total 53 EMIs had to be paid within 21.12.2022.

3(ii).  Due to Covid-19 situation the business and daily activity of the tractor was laid off from the period of March 2020 till December 2020 for which the complainant could not deposit the monthly premium of the tractor regularly during the Covid-19 period of March 2020 to till the date of filling of this complaint. The complainant was paying the installment with the OP 1 & 2 directly by way of cash and withdrawal of premium by the OP 1 through the Account No.918010045907839 of the complainant maintained with the Axis Bank, Bhawanipatna.

3(iii) The complainant alleged that, said tractor was snatched by the staff of OP 1(one) on dt.29.11.2020 from her home at Godampada, Bhawanipatna on her back & behind while she was absent. The OP 1 (one) never think it proper on their part to either intimate by way of writing or physically meeting her and informing her about their intention to lift away the tractor while she was not at home. Knowing the fact from her neighbors on her return to home on dt.30.11.2020 the complainant met personally to the Branch Manager of the OP 1 (one) but he  expressed his  helplessness and made no help to the complainant.  It is further submitted that, the subject tractor was the only means of livelihood for the complainant and the lifting illegally on the back & behind of the complainant by the OP 1(one) is not tenable in the eye of law.

3(iv) The Complainant further submitted that, the Hon’ble High Court of Odisha, Cuttack while disposing the WP(C) No.9095 of 2020 has delivered judgment giving direction to Banks or Financial Institutions not to take any action for auction in respect of any property of any citizen or person or party or anybody corporate till 18^th June 2020 which was extended till 5^th January 2021. Similarly Hon’ble  Supreme Court of India in Writ Petition (Civil) No.825 of 2020 has categorically given relaxation to a person taken loan from Bank or any Financial Institution from interest during this pandemic period and also given relaxation in payment of monthly premium to a person taken finance during the period of Covid-19 from March 2020 to till January 2021.

3(v) It is further submitted by the complainant that, the complainant had her effort to ensure the reconciliation from the side of Ops is advanced but on failure from the side of the Opp.Parties for reconciliation as regards to the finance tractor, the complainant had left with no other alternative but to take shelter of this Commission.

5. To substantiate her claim the complainant has filed the following documents:-  (a) Copy of original money receipt dt.28.06.2018 of Rs.53,000/- with  OP 2, (b) copy of original money receipt deposited by the complainant on dt.01.10.2018 with the OP 2 of Rs.10000/-(c) copy of money receipt available with the complainant  of various dates such as dt.24.08.2018, dt.21.09.2018,dt.22.11.2018,dt. 29.10.2019, dt. 30.11.2019,det. 02.12.2019 & dt.29.12.2010 deposited with   OP 1, (d) copy account statement of Pass book of the complainant bearing A/c No.918010045907839 there maintaining with  Axis Bank, Bhawanipatna (e) Copy of Online Order as passed by the Hon’ble High Court of Odisha, Cuttack in WP(C) No.9095 of 2020, (f) Copy of Online Order as passed by the Apex Court of India, in Writ Petition(Civil) No.805 of 2020. (g) Account statement of loan account vide Contract No.ORJEBPOO164 with the OP 1/ HINDUJA LEYLAND FINANCE as on 12/04/2020.
6. The complainant has also filed his evidence on affidavit as prescribe under C.P Act 2019 and proved her case , the averment of which is corroborating with the averment of the complaint petition.
7. Being notice, the Opp.Party No.1 appeared and filed their written version inter alia denying the petition allegations on all its material particulars.
8.   As per the order dt.10.10.2023 passed by this commission on the written submission of the complainant the case against the OP 2(two) is dismissed.
9. The  Opp.Party No.1(one) admitted the facts that, the complainant has availed a loan of Rs.5,06,626/- from the OP 1(one)/ finance Company vide Contract No.ORJEBP00164 on dt.30.06.2018  for purchasing of a tractor bearing Model No.FT-35 Champion and the interest amount payable is calculated  at Rs.2,17,267/- and the agreement value is Rs.7,37,893/- which the complainant is agreed to  pay in 53 Nos. of EMIs @ Rsa.13,714/- for first 11 months and  @Rs.13658/- for the next 42 months. The commencement of payment of EMI starts from 21.08.2018 and is to be ended on date is 21.12.2022. It is further contended that, since, the beginning, the complainant  committed defaults in payment of EMIs dues for which the OP 1(one)/ finance company has made several telephonic calls so also sent Demand Notice on dt.24.11.2020  calling upon the complainant to pay the outstanding dues  within 3(three) days  failing which the OP company will enforce the terms of the contract including seizure of the vehicle  but the complainant did not pay any heed to the said demand notice and due to the continuous defaults committed by the complainant, the OP Finance Company was compelled to take repossession of the vehicle/tractor on dt.29.11.2020 from the custody & possession of the complainant. After repossession of the tractor the OP 1(one)/Company has intimated the fact to the nearest Police Station i.e. IIC, Bhawanipatna intimating that, due to nonpayment of monthly installments, they have repossessed the above vehicle into their custody. On dt.30.11.2020 the OP 1(one) issued a pre sale notice to the complainant intimating the borrower/complainant that, the vehicle has been taken possession in peaceful manner as there is an outstanding dues of Rs.5,22,003/-payable by her towards the loan account even after adjusting the installment amount and requested the complainant  to settle the loan account by paying Rs.5,22,003/-   within 7(seven) days  failing which they would be constrained to sell the vehicle at the best possible price in “as is where is condition” .But without  paying any heed to the above notice, the complainant by creating a false story and by making vague & absurd allegations against the OP finance company has filed this complaint  before this learned commission by narrating false and baseless story and by suppressing several material facts for which the instant consumer complaint is not maintainable and liable to be dismissed by this learned commission.
10. The Op/finance Company further submitted that, the vehicle/tractor was financed for commercial purpose and as such the dispute between the parties does not fall within the ambit of consumer disputes as provided under the Consumer Protection Act 2019. The complainant was also not able to establish that, the vehicle is being used exclusively by her and she has purchased the same for earning her livelihood by means of self employment. Thus, the complainant is not coming under the definition of “Consumer” as provided under the C.P.Act 2019. Further submitted that, this consumer complaint filed before this learned commission is not maintainable in view of the Arbitration clause and Jurisdiction Clause of the Agreement. Hence, this consumer complaint is not maintainable before this learned commission and as such the same is liable to be dismissed against the OP 1(one).
11. To substantiate their pleadings, the OP 1 (one)/finance Company has filed the following documents:-  (i) Photo copy of Loan Agreement  vide Annexure –A (ii) Photo Copy of Demand Notice dt. 24.11.2020 vide Annexure –B (iii) Photo Copy of Seizure/Inventory list dt.29.11.2020 vide Annexure –C,(iv) Photo Copy of Post Intimation Letter to Bhawanipatna PS vide Annexure –D (v) Photo Copy of Pre-Sale Notice dt.30.11.2020 vide Annexure –E ,(vi) Photo Copy of account statement vide Annexure-F of w/v without authenticated . The  averments of the written version is supported by an affidavit of one Sri Abhimanyu Parida ,the legal executive & Authorized signatory of OP1(one)

12.  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 for consideration before this Commission is whether the Opposite Party No1(one)/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 causing injuries to the complainant?
13. Here it is found that , the complainant has purchased the subject  vehicle  being financed by the OP 1(one)  vide loan –cum -hypothecation agreement dt.30.06.2018 and that, the loan amount had to be paid within 21.12.2022 and that, the complainant got default in repayment  of the loan/EMIs  as per the agreement  and that, on default the finance company/Op1 has repossessed the vehicle on 29.11.2020 are  not disputed.
14. It is submitted by the complainant that, complainant has already paid 27 numbers of EMIs out of 53 EMIs but the vehicle in question was taken away by the financer on 29.11.2020 during pandemic Covid-19 ignoring the Orders as passed by the Hon’ble High Court of Odisha, Cuttack in WP(C) No.9095 of 2020 and  Order as passed by the Apex Court of India, in Writ Petition(Civil) No.805 of 2020 and without serving prior intimation  & without reasonable cause and without giving any opportunities of being heard to the complainant. During hearing ,the complainant 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 but nothing material placed on the record to hold that the subject vehicle has already been sold by the OP1(one) to any other person pending disposal of this complainant .
15.  On the other hand Ops/ finance company have submitted that, demand notice dt. 24.11.2020 vide Annexure B of the written statement is issued to the borrower /complaint asking the complainant to clear the pending dues within 3(three) days of receiving of said notice of and on default the OP 1(one) has taken possession of the vehicle rightly on 29.11.2020 informing the Bhawanipatna police Station vide Annexure D of the written version and that, Seizure/Inventory with respect to the subject vehicle is prepared on the same time dt.29.11.2020 vide Annexure C of the written version. It is stated that,  Op 1/Finance Company issued a pre- sale notice dt. 30.11.2020 to the complainant requesting him to make the payment of the loan dues amounting to Rs.5,22,003/- within 7 (seven) days from the date of receipt of the notice towards full & final discharge of the said loan- cum -hypothecation agreement falling which the subject vehicle would be sell at the best possible price “as is where is condition” but the complainant failed to make the payments. We have seen that, those annexure are not authenticated by the authorized signatories of the OP1 /Finance Company may not be acceptable as evidence for consideration.
16. The inventory of the subject vehicle is required to be  made in presence of the complainant at the time of taking repossession but we found no signature of the complainant/borrower or any elderly member of her family there in the inventory report placed on the record vide Annexure C of the W/V  .  No cogent evidence is placed on the record to hold that, said Pre- Repossession intimation to Bhawanipatna Police Station dt. 30.11.2020 vide Annexure D of the W/V or any Post -Repossession intimation to Police Station so also the  Pre sells Notice dt.30.11.2020 vide Annexure E of the W/V were properly served to the complainant. Op 1 (one) /Finance Company has failed to show that, there is any provision in the agreement to give 3(three) days time only to make necessary arrangement   for clearing the loan dues & failing which the Op/finance company has every right to repossession of the finance vehicle even during the agreement period .Rather this Commission has  seen that/ the Op 1/financer is in hurry mood to take repossession of the subject vehicle & to sell it during pandemic Covid -19 ignoring the   Orders as passed by the Hon’ble High Court of Odisha, Cuttack in WP(C) No.9095 of 2020 and  Order as passed by the Apex Court of India, in Writ Petition(Civil) No.805 of 2020  clearly proved the  act of unfair trade practice and deficient service there on the part of the financer/OP1(one) certainly caused financial loss as well as mental agony to the borrower/complainant shall not be denied..
17. It is not disputed that, the vehicle is repossessed by the financer /ops on dt. 29.11.2020 towards outstanding loan amount of Rs 5,22,003/- there as on dt. 29.11.2020 but there is nothing contended that, the subject vehicle was properly evaluate to fixed it’s price at the time of the repossession. Nothing cogent evidence is placed on the record that, the Op 1 has ever take pain to assess the value of the subject vehicles soon after its repossession is nothing but we are of the opinion that it is clearly proved the unfair trade practice of there on the part of  OP 1(one) .
18. It is contended that, the financer has issued pre -sale notice to the complainant /borrower but did not responded but   nothing cogent evidence is placed on record to hold that, any pre -sale notice has ever been duly served to the complainant. The Ops has failed to prove 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, demand notice dt.24.11.2020, pre- sale notice dt. 30.11.2020 of the vehicle or notices of recall of the loan were properly served to the complainant.
19. We have gone through the citation of Judgment relied by the OPs which is passed in different facts & circumstances not applicable to this case in hand.
20. The Ops finance company contended that, subject vehicle was repossessed on 29.11.2020 and they have issued pre-sale notice dt.30.11.2020 requesting there in to settled the loan amount by paying Rs.522003/-payable by the complainant/borrower towards loan account within 7(seven) days of receiving of the said notice failing the OP would be constrained to sell the vehicle at best possible price in “as is where is condition”.  We found no auction /sale paper placed on record as on date so also, there is no explanation assigned any excusable cause for delayed in sale of the subject vehicle is clearly prove the unfair trade practice on the part of the OP which certain caused depreciation of price as well as depreciation of the usefulness of the vehicle itself may not be disbelieved. As such we are of the opinion that, restoration of the subject vehicle to the borrower /complainant as prayed for by the complainant as on date may not be proper.
21. Here we found that, copy of notices placed on the record and most specifically demand notice dt.24.11.2020 vide Annexure –B & pre sale notice dt. 30.11.2020 are nothing but a mere formalities  without proper service of the same to the complainant  & without giving a reasonable  time to the borrower /complainant to think about is certainly goes against the interest of the borrower is an unfair trade practice of the OPs /Finance company.
22. The complainant has proved on affidavit that, she has purchased the subject vehicle for earning of his livelihood remain un-rebutted, no contrary evidence is adduced by the ops to hold that, the complainant has availed service of financial assistances/loan of the OP 1(one) solely for commercial or further business purposes as such we are of our opinion that, this complaint is well maintainable under C.P.Act 2019. Further, law is well settled that, any arbitration clauses or jurisdictional clauses if any  contended there in the loan-cum-hypothecation agreement shall not debar the complainant to present complainant before this Commission if she suffered any deficient    service & unfair trade practice.
23. In the above facts & circumstances we are of the opinion that, there is sufficient cause of action to present this complaint before this Commission and it is found that, this complaint is filed in time well within the jurisdiction of this Commission.
24. 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 1(one)/Finance Company in this case is not proper rather, it is proved that ,there is deficiency in service & unfair trade practice on the part of the Op 1(one)  / finance company which certainly caused mental agony & financial loss to the borrower/ complainant for which the Op 1(one) is liable to compensate the complainant adequately . As it is observed  that, restoration of the subject vehicle to the borrower /complainant as on date, as prayed for by the complainant, is not  proper we are of the opinion that ,the Op 1(one) / Hinduja Leyland Finance Ltd is to compensate the complainant by way  of sets up of the loan dues if any against the complainant with said repossessing of the subject vehicle in question towards full & final settlement of the alleged loan dues against the borrower/complainant under said loan –cum -hypothecation agreement vide No.ORJEBP00164 dt.30.06.2018 and further be restrained themselves from further claiming of any loan dues there from the borrower/complainant. It is also not in dispute that, the complainant was enjoying the subject vehicle while paying EMIs .Accordingly, the complainant is allowed in part on contest against the OPs with the following direction.

ORDER

The OP 1 (one) / Hinduja Leyland Finance Ltd. is here by directed to sets up the loan dues if any against the complainant with said repossession of the subject financed vehicle in question towards full & final settlement of the alleged loan dues against the borrower/complainant under said loan –cum -hypothecation agreement vide No.ORJEBP00164 dt.30.06.2018 and further be restrained themselves from claiming any loan dues there from the borrower/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 31^st January  2024 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. Ccomplaint is disposed of accordingly.