The case of the complainant  in a nutshell is that the complainant decided to purchase a Truck of 10 Wheeler branded as ‘EICHERGALAXY’ from one Monoco Sales Pvt. Ltd., Kolkata , being financed by Op no.1 amounting to Rs.8,89,000/-

after making down payment of Rs.1,50,000.00 to “Monoko Sales Pvt.Ltd.” The Opposite party executed a loan-cum-hypothecation agreement with the complainant in the month of August, 2004 and monthly instalment of Rs.24,956/- per month for 47 instalments with effect from 1.9.2004 but the said agreement was not handed over to the complainant and for the payment of the instalment of E.M.Is the complainant has to issue 9 post dated blank cheques  in favour of the OP no.1. The further case of the complainant is that he purchased the vehicle known as ten wheeler Truck being Chassis no. 40LC4C000101 being Engine no.E683CD4C002126 and it was registered in the motor Vehicle Dept. being Registration no.WB15A 1364. Complainant paid EMIs upto 7.6.2005 amounting to Rs.1,74,736/- on different dates. Unfortunately , on 19.9.2004 the said vehicle met with an accident near Full Bari Toll Tax Plaza and due to that reason the complainant failed to clear up the EMIs in due time. But soon after receiving the accident claim, the complainant cleared up or paid three EMIs of amounting to Rs.74,868/- on 8.6.2005. The Op thereafter repossessed the vehicle of the complainant on 25.10.2005 from Ghosh POarking, Serampur and the Op also intimated the same to the petitioner through a letter dated 26.10.2005. Thereafter, the complainant sent three letters on different dates to settle up the

matter but the oP did not pay any heed to his request. Suddenly, on 8.8.2006 the oPs issued a letter to the complainant stating that his total outstanding is Rs.9,82,221.44 for which they have disposed of or sold his repossessed vehicle for Rs.3,00,000/- and the complainant is liable to pay Rs.6,82,221.44 to the oP.  Hence, this complaint filed by the complainant praying for relief as stated in his petition of complaint.

            Both the Opposite parties contested the case by filing Written version denying inter alia all material allegations. The positive case of the Opposite parties is that on July 2004, the petitioner approached the Opposite party bank for a loan of Rs.9,89,000/- for purchasing a vehicle. Thereafter, by an agreement dated August 1, 2004 bearing no. LVCAL00002418474 the OP bank agreed to disburse the sum of Rs.9,89,000/- to the complainant for the purchase of the vehicle and the said amount would be repaid with interest @ 8.81% per annum in 47 instalments of Rs.24,956/- each. The complainant has agreed and undertook to repay the loan in Equated monthly instalments of Rs.24,956/- each . Inspite of being obliged to do so, the complainant refused , failed and/or neglected to make payment of the 7 monthly instalment , which fell due on 1^st December, 2004 and all instalments thereafter. In the above facts and circumstances, on 29^th July,

2009, a sum of Rs.6,82,221/- is due and payable by the petitioner to the OP and total outstanding as on 9^th January, 2010 is Rs.8,94,698/-. The Opposite party has issued demand notices to the petitioner vide different letters requesting him to clear the outstanding dues in the captioned loan account. But inspite of aforesaid notices no payments were received by the OP and thus the op was constrained to take the possession of he vehicle on 25.10.2005 strictly in terms of the default clauses  contained in the said loan cum hypothecation agreement. The Op has given numerous opportunities to the petitioner before possessing the vehicle as well as after possessing the vehicle to pay his outstanding liabilities which he failed to do so. A pre sale notice dated 26.10.2005 was also issued wherein he was peremptorily called upon to liquidate the entire outstanding amount within a stipulated date. Thereafter, the vehicle was sold on 31.7.2006 through auction for Rs.3,00,000/- . A post sale notice dated 1.8.2006 was issued to the petitioner and requested to pay the balance amount. The Op prays for dismissal of the case.

            Complainant filed photocopy of the sale certificate  of he vehicle dated 14.8.2004, Photo copy of the Regd. certificate of the said vehicle Annexure B, Photo copy of the payment slip on different dates upto 18.3.2005, Photo copy of the Bank statement dated 1.7.2005, Photo copy of  letter , photo copy of letter 

and some other photo copy of documents. Complainant also filed Affidavit in chief and Written Notes of Argument. OP  on the other hand filed Written version, Affidavit in chief and Written Notes of argument.

            Upon pleadings, Written version and  the documents filed by all the parties the following points are framed for proper adjudication of this case.

                                                            Points

1. Whether the petitioner is a Consumer ?
2. Whether there is any deficiency in service on the part of the oP ?
3. Whether the complainant is entitled to get relief as prayed for ?

DECISION WITH REASONS

            All the points are taken up together for easiness of discussion.

It appears from the record that the complainant took loan of Rs. 9,89,000/-. But he paid Rs.1,74,836/- upto 8.6.2005. It is also complainant’s case that Op sold the vehicle after realisation Rs.3,00,000/- as total outstanding of complainant was Rs.9,82,221/-. The Opposite party sent Demand notice to the complainant for getting the due amount but the complainant did not act as per the Demand notice of the Bank regarding the vehicle. After that the oP /Bank took possession of the vehicle and sold the same.

            After going through the records and case of both sides and point of dispute stands that the complainant did not pay the debt of Rs.9,82,221/- approximately for the vehicle purchased by the complainant. So, the Op was compelled to take possession and sold the vehicle only Rs.3,00,000/-. Therefore, there is no negligence of duty or unfair trade practice of the oP. As such, material on record fails to convince us to allow the prayer of the complainant. Therefore, the complainant has not been above to substantiate his case and thus the case fails. Hence –

                                                                        It is ordered

            That the CC no. 65 of 2008 be and the same is dismissed on contest. No order as to cost.

            Let a copy of this order be made over to the parties free of cost.