Judgment On 18.12.2006

Present. Sri B.K. Samanta, President

     Sri Kumar Mukhopadhyay, Member

      Smt. Jyotsna Sarkar, Member

                The case was originally filed before the Ld. Forum, Paschim Medinipur Vide No.56/04. Subsequently the case has been transferred as per order of the Hon’ble State Commission vide order dt. 28/04/2005 and the instant case received by this forum subsequently on 28/10/2005 and the case has been re-numbered in this Forum as CC-67/2005.

                This is a case for claim and compensation.

                The complainant’s case in short is that the complainant being an unemployed person purchased a truck for maintenance of this livelihood after taking loan from the defendant Rs.5,70,000/- on 12/03/1999 and the rest amount for the said project was borne by the petitioner himself. The petitioner purchased TATA/LP/Truck Model 1613 duly registered by the RTA, Tamluk on 23.04.1999 bearing no. WB-29/2834. The complainant made payment to the defendant Rs.3,57,231.  The petitioner was not in a position to manage the said truck due to heart attack and at that time one Sri Debasis Bhowmik, Chief Executive Officer in charge advised him to surrender the said truck to the defendant. The complainant submitted an application to the defendant for statement of loan account and a copy of bond agreement, but failed to secure the same from the defendant. The defendant seized the said vehicle on 17.03.2003 and made auction sale of the said vehicle. The actual price of the vehicle was Rs. 6 lakhs but auction sale was made at a price of Rs.2.71 lakhs. The complainant was not in a position to meet the challenges against the defendant. Under the circumstances, he prays for an enquiry to the matter and for steps against the defendant and for relief to which he is entitled to.

                The case was contested by the defendant by filling a written statement wherein he denied the material allegation of the case and stated that the petitioner took loan of Rs.5,32,115/- from the bank on 19.03.1999 being 1^st installment, on 26.03.1999 another Rs.37,885/- being 2^nd installment for purchase of TATA truck at the rate of 16.5% percent per annum. The amount of loan recoverable in 60 monthly installments excluding 6 months moratorium period. As per norms, bank has taken re-finance from NAVARD through West Bengal State Co-operative Agriculture & Rural Development Bank Ltd. It appeared from the record that the character of payment of loan was not at all satisfactory from the character of payment of loan was not at all satisfactory from the very beginning though Mobarak Ali has good financial capacity. That in spite of giving him demand notice in each month, he had been depositing very meager amount. As a result, he has become a defaulter member. In spite of several requests and reminders he has deposited Rs.50,000/- lastly on 23.04.2002 against demand of Rs.2,09,083/- after a lapse of 8 months when he deposited “Rs.50,000/- (on 03.07.2001). The demand notice has been sent regularly to Mobarak Ali. The bank official personally met with him and requested him to repay banks demand time and again. Ample opportunity has been given to him but he willfully avoided making payment. Having no other alternative, the bank authority has been compelled to seize the vehicle in question when the overdue amount stood at Rs,3,38,036/- up to 28.02.2003. The notice was published for auction in newspaper namely Tamralipta, Pradi, Dainik Setu etc. Posturing  was also made widely both in the area of operation under Tamluk and Haldia Sub-division. The auction for sale took place on 23.04.2003 at the meeting hall of the bank with proper intimation to the complainant. All the times the OP informed the complainant through letters by Registered Post but the petitioner did not give any importance for repayment of bank’s loan. After maintaining all formalities, auction lastly took place on 26.05.2003 where the highest bidding amount stayed at Rs. 2,72,00/-. The sale proceeds has been adjusted in the loan amount of the complainant on 19.06.203. It has already been intimated to the complainanat. The vehicle in question has already been handed over to the highest bidder named Sri Satyabrata Sautya on 2306.2003 as per norms of Motor Vehicles Act. A sum of Rs.3,09,896/- stands as outstanding balance of loan as on 19.06.2003 and Sri Mobarak Ali has taken a plea lastly on 30.07.2003 as a heart patient for exemption of interest on loan.     

Points for decision

                On the basis of above pleadings of the parties the following points are taken up together for consideration.

1. Is the case maintainable?
2. Is there any deficiency in service on the part of the OP?
3. Is the complainant entitled to get any relief as prayed for?

                                                         Decisions

Point No.1 It is admitted by both parties that the complainant rook a loan from the OP and also made some payment. So, as per Consumer Protection Act, the complainant is a consumer under the OP and he is entitled to have relief, if there is any violation on the part of the OP. So filing this case in this way is maintainable being a consumer under Consumer Protection Act.

Point No.2. It is stated by the complainant that he has taken some loan but could not repay the loan amount in time as the vehicle failed to run properly due to his heart attack. The Op stated I his written statement that due to default in payment of loan, the vehicle was seized and made auction and the auction money has been adjusted with the loan account of the complainant and the vehicle has been handed over to one Sri Satyabrata Sautya on 23.06.2003. This has not been denied by the complainant. So, we can say that due to failure in making payment of loan, the vehicle has been seized by the OP and after auction that has been handed over to the highest bidder. Ext. A shows that  demand notice was issued to the complainant. As per decision reported in 2003 C Cr. LR (Cal) 1025, it has been decided in a case that Hire Purchase Agreement. Financier Bank taking possession of vehicle for default in payment of installment. No legal proceeding initiated such action illegal police authority directed to restore possession to the purchaser. In the instant case, the petitioner purchased the vehicle under hire purchase Agreement and loan amount was due. But without initiating any proceeding, the bank authority seized the vehicle. As per decision mentioned above, the action taken by the bank authority is void as no proceeding was initiated and the complainant was not given any opportunity of being heard. No one can be deprived of the possession of any property without due process of Law. The OP has not stated that any proceeding has been initiated by him before taking possession. So, admittedly it can be said that no proceeding has been initiated at any point of time before seizure of the  vehicle. Therefore, as per the decision of the Hon’ble Court mentioned above, we are of opinion that the seizure by the bank autbhority without any proceedings, is not proper. This is no doubt deficiency in service on the part of the Op and the Complainant is entitled to have possession of the vehicle as well as compensation at stage. The OP can recover his dues, if any from the complainant after initiating proceedings according to law.

Point No.3. On the basis of foregoing discussions and material o9n record we say that the complainant is entitled to have re-possession of the vehicle and compensation.

Hence,

                                                                                                    Ordered

That the case be and the same is allowed on contest against the OP. The complainant is entitled to have re-possession of the vehicle in question and compensation Rs.10,000/- from the OP. The OP is directed to handover the vehicle to the complainant as well as compensation. Rs. 10,000/- by one month from this date failing which the complainant may execute the same through proper way. The OP is at liberty to recover his dues, if any from the complainant after initiating proper proceeding according to law.