DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 10th day of October, 2017
C.D.Case No.34 of 2015
Sri Jayakrushna Jena
S/o: Late Madhusudan Jena
Vill/Po: Todanga
Via: Barikpur
Po/Dist: Bhadrak
……………………. Complainant
(Versus)
- The Branch Manager
State Bank of India, Kenduapada Branch
At/Po: Kenduapada
Dist: Bhadrak
- Sri Soumya Ranjan Das & Co.
Advocate & Enforcement Agent
Pratikshya, Gapabandhu Nagar
Nayabazar, Cuttack- 753004
…………………………..Opp. Parties
For the Complainant: Sri Radhakanta Nayak & Others
For the OP No.1: Sri Rabindra Prasad Ray
For the OP No. 2: Ex-parte
Date of hearing : 15.03.2017
Date of order : 10.10.2017
SRI RAGHUNATH KAR, PRESIDENT
The complainant has filed this complaint against the O.Ps being persecuted by them in view of deficiency of service are to the effect that as follows.
The complainant is a poor farmer and approached to the OP No. 1to provide financial assistant to purchase a tractor with other agriculture equipments. The OP No. 1 is the pioneer leading organization of banking. The complainant submitted the quotation for sanction of loan for the sum of Rs 6,80,000/-.So the OP No. 1 asked to the complainant to submit original land records (R. O. R’s) & seven no’s of blank cheques of putting his signature without writing any specific date as security for the vehicle. After compliance of all the formalities of official norms & the forms duly filed up by the OP No. 1, the complainant signed on the same with good faith & the OP No. 1 provided a finance to the amount of Rs 4,80,000/- & assured to provide the amount of Rs 2,00,000/- & enhanced the limit within two months & the vehicle was registered under R.T.O, Chandikhol. The tractor was kept in the complainants premise due to non providing of the plough, casual and other agricultural equipments & also due to manufacturing defects, the said tractor showed various problems for which the complainant could not able to incur any profit without any activeness of any business for which the complainant could not repay the installments of the loan amounts. It is pertinent to mention here that due to manufacturing defect of the vehicle the complainant approached before this Hon’ble Forum, Bhadrak vide C.D Case No. 70/2011 against the OP No. 1, and dealer and manufacture of the vehicle and the Hon’ble Forum has been pleased to order and directed on 12.11.2012 that “Keeping in view the judgment reflected above, the complainant is partly allowed against the O.Ps No. 1 & 2 are hereby directed to repair the case tractor in order to bring it into running condition within one month, hence, O.Ps No. 3 & 4 are free from any liabilities”. The complainant wanted to deposit the amount less than the EMI amount but the OP No. 1 refused to accept. The complainant could not deposit the EMI in time because of the illness, financial crisis of the complainant. So the OP No. 1 & 2 without observing the norms & guidelines issued by the R.B.I repossessed the vehicle on 05.07.2014, without serving any prior notice to the complainant. The complainant approached the OP No. 1 of reason of repossession but the said OP No. 1 assured the complainant if he would deposit Rs 60,000/- in favour of him a part of the loan than the vehicle could be released. The complainant is ready to deposit the moneys but the OP No. 1 is replied that the said vehicle would be released only after mutual discussion. On 22.01.2015 the complainant received a legal notice that if he would deposit Rs 20, 58,000. 14/- then the vehicle could have been released. After receiving such letter the complainant enquired & came to know that the vehicle was already auctioned & ownership of the vehicle has been transferred.
It is also averred by the complainant that the OP No. 1 also forfeited & adjusted the amount Rs 1,30,000/- which was deposited as fixed deposit in the branch & deducting the amount Rs 1500/- till today from the pension account of her mother & subsidy sanctioned by the Govt. for agriculture propose. The OP No. 1 has neither served any demand notice to the complainant nor gave any opportunities to the complainant before repossession of the vehicle on 05.07.2014. As the agreement was made between the parties was valid up to 2016, the matter was within the knowledge of OP No. 1. The vehicle could not be used for profitable propose due to the manufacturing defects. The said vehicle was sold away much less price than the market value. It is unreasonable on the part of the OP No. 1 neither the vehicle was a assed by the MVI nor given any offer to determine the real value of the vehicle or assed vehicle as per IDV given by the insurance policy. The cause of action errors on 05.07.2014 when the O.Ps repossessed the vehicle on 22.10.2015 issued legal notice to the O.Ps. In spite of all the requests made by the complainant to the O.Ps, the later became silent & lethargic. Hence the complainant filed the complaint against the O.Ps sought for the following reliefs.
(i) The learned Forum direct the OP No. 1 for grant of NOC in favour of complainant along with the landed documents pledged before him against the loan.
(ii) The complainant also claimed Rs 4,00,000/- for mental agony unnecessary harassment upon the O.Ps.
(iii) The cost of the litigation & other compensation what the learned Forum thinks fit to awarded him.
The complainant has filed some documents on the shape of Xerox copies such follows.
(1) Copy of registration certificate.
(2) Repossessed vehicle inventory list dt 05.07.2014 by the OP No. 2.
(3) Representation of complainant to the OP No. 1.
(4) Legal Notice on 22.01.2015.
(5) Copy of order dt. 12.11.2012 passed by D.C.D.R.F, Bhadrak C.D Case No. 70/2011.
On the other hand the OP No. 1 has filed the written version describing the following facts. He has challenged the maintainability of this case in this Forum. He has also challenged the cause of action of this case. The OP No. 1 has also challenged that the complainant is not a consumer. The OP has also denied the averments made in the paragraph number 2 & 3. He has also denied the averments made in the paragraph number 5 & 6.
The complainant borrowed a sum of Rs 4,80,000.00/- from the OP No. 1 bank for purchase of a tractor. He also executed the loan documents and his mother Smt. Laxmipriya Jena and sister Bishnupriya Jena were guarantors. The complainant purchased the tractor but he did not repay the loan and very beginning the account became irregular. He was repeatedly noticed to regularize the account. He was served with notice on 22.08.2011, 11.09.2013, 17.12.2013, 06.02.2014, 24.04.2014 & on 31.12.2014 etc. As the outstanding balance became Rs 3,41,577.00/- as on 02.04.2014 the OP No. 1 reluctantly became compelled to serve seizure notice on 24.04.2014 and seized the vehicle on 05.07.2014 in presence of the mother and sister of the complainant. Therefore it is false to say that no notice was served before the seizer of the vehicle. Similarly after due public notice on 10.10.2014 the vehicle was sold in public e-auction on 15.11.2014 by SAMIL, the authorized agent of the OP No. 1. The notice was also duly served in public. The vehicle was sold in e-auction for Rs 2, 5,000.00/- and after adjustment of the said amount the balance outstanding became Rs 2,05,810/- as on 31.12.2014. He was also further noticed to pay the same. As the complainant still then did not clear up the loan the OP No. 1 has filed the suit bearing M.S. No. 769/III/15 in the court of Civil Judge (Senior Division), Bhadrak for recovery of balance outstanding and the same is pending for disposal. There is no deficiency in service or negligence on the part of the OP No. 1 but the complainant with the malafide intention of harassing the OP No. 1 and avoiding its legitimate dues has filed this case, which requires to be dismissed with cost.
The OP No. 1 has also filed certain documents on behalf of him in the shape of Xerox copies such as:-
(i) Loan application form.
(ii) Question.
(iii) Sanction letter.
(iv) Letter of arrangement.
(v) Loan agreement.
(vi) Notice to the borrower.
(vii) Valuation report.
(viii) Statement of account.
The OP No. 2 has neither appeared before the Forum, nor he has filed the written version & nor he has filed a single sheet of document on behalf of him. Hence he has been set ex-parte.
OBSERVATION
We have perused the complaint in the written version of the OP No. 1 as well as the documents filed both the parties. The complainant has not claimed any relief against the OP No. 2 but only the allegation is that the OP No. 2 was having a collusion with the OP No. 1 at time of repossession of the vehicle. In this case the OP No. 2has been granted several opportunities to appear before the Forum & to file the written version but the OP No. 2 has not paid any heed to this case. Hence due to non appearance & non filing of written version in this Forum he has been set ex-parte.
The complainant has described in his complaint that after purchasing of the said tractor for the purpose of agriculture it could not be moved due to manufacturing defect. The complainant is completely aware that the manufacturing company is a necessary party to this case but he has not impleaded the manufacturing company as part to this case. It is further to say that in the CD Case No. 70/2011 the present OP No. 1 & the dealer & the manufacturer of this vehicle had been directed to repaire the said tractor in order to bring it into running condition within one month, but the said O.Ps have carelessly disobeyed the order of the Forum.
As the said tractor could not become any use of the complainant for the purpose of agriculture, it is obvious he could not earn a single pie out of the same. So the complainant could not repay the loan amount or the EMI in time which led him to become a defaulter. The complainant also offered less amount then the EMI to the OP No. 1 but he refused to receive the same. The OP No.1 repossessed the said tractor on 05.07.2014 from the custody of the complainant without serving any prior notice upon him. According to law the OP No.1 should have served demand notices up to three times upon the complainant before repossessing the vehicle. Those notices should have been served within the gap of the time. But in this case the OP no. 1 has auctioned the tractor without the knowledge of the complainant without serving any auction notice upon him.
It was also the mandatory duty of the OP No. 1 to enquire about the cause of the default of payment of EMI on part of the complainant. When the tractor could not be run due to manufacturing defect as per the order passed by the D.C.D.R.F, Bhadrak in CD Case No. 70/2011, neither the OP No. 1 nor the manufacturing company repaired the vehicle for which the purpose of purchasing the said tractor became fruitless. So the complainant became seriously harassed & persecuted.
As per the request of the complainant to release the said tractor, the OP No. 1 assured him to release the same after payment of Rs 60,000/- in favour of the OP No. 1 in respect of the loan amount. When the complainant is ready to pay the said amount the OP No. 1 cleverly avoided the said proposal in did not receive Rs 60,000/- saying that the said vehicle would be released only after mutual discussion. The OP No. 1 also avoided to receive the amount taking the false plea of mutual discussion. On 22.01.2015 the OP No. 1 had demanded Rs 2,058,10.14/- by means of a letter on 12.02.2015 from the RTO Chandikhol. After receiving the said letter the complainant went to the OP No. 1 and at that time the vehicle was already auctioned.
Primarily the complainant had applied the loan to the extend of the amount Rs 6,80,000/-, but actually he received the loan amount Rs 4,80,000/- practically, but on good faith he has signed on the receipt as Rs 6,80,000/-. The OP had assured the complainant to provide rest Rs 2,00,000/- within two months. The said tractor was kept in the complainant premises due to non providing of the plough, casual & other agriculture implements. The OP No. 1 without seeking any consultation from the complainant forfeited Rs 1,30,000/- which has been deposited as fixed deposit in the branch & deducting the amount Rs 1,500/- till the date of filing of this case from the pension account of his mother & subsidy sanction by the Govt. as it has been sanctioned in agriculture purpose. As the agreement was valid of 2016 and it was the knowledge of the OP No. 1 but he has caused serious deficiency of service & the repossessed the vehicle on 05.07.2014 without serving any prior notice. It is also breach of trust which is amounting to commit offence or criminal activity. The OP No. 1 has neither given any pre-sail notice nor given any reasonable opportunity to the complainant before the vehicle was sold away by much less amount then the market price. The OP No. 1 has neither assessed the value of the vehicle in presence of MVI, nor given any offer to determine the real value of the vehicle or assessed the vehicle as per the IDV given by the insurance policy. The OP No. 1 has neither informed to the complainant nor the learned Forum by means of his written version the total cost of the auctioned vehicle. It is presumed that after forfeiting the fixed deposit of the complainant Rs 1,30,000/- and deducting the amount Rs 1,500/- from the pension account of the complainant’s mother the total loan amount of t\has been paid to the OP . So the complainant has no liability of loan amount.
In the findings of this case we have reached at the conclusion that although the complainant is a defaulter of loan due to his abject poverty and non recurring of any agriculture profit due to the manufacturing defects of the said tractor the OP NO. 1 has forcibly repossessed the vehicle, auctioned the same without performing any legal norms and adopting procedure repossessed & auctioned the vehicle in which he has caused serious deficiency of service & adopted dishonest trade practice. Hence it is ordered;
ORDER
The complaint is & the same be allowed on part against the O.Ps. The OP No. 1 is here by directed to grant NOC in favour of the complainant with return of original land documents pledged before him against the loan. Both the O.Ps are also directed to pay Rs 5,000/- for mental agony, un necessary harassment and Rs 5,000/- for cost of the litigation, to the complainant within 30 days on receipt of this order.
This order is pronounced in the open Forum on this day of 10th October, 2017 under my hand and seal of the Forum.
(Sri Raghunath Kar)
President
(Sri Basanta Kumar Mallick)
Member
Typed to my dictation & corrected by me
(Sri Raghunath Kar)
(Apsara Begam) President
Member
