West Bengal

Siliguri

CC/2/2019

SAROJ KUMAR THAKUR - Complainant(s)

Versus

THE MANAGER HERO FINCORP LTD - Opp.Party(s)

KAUSIK CHATTERJEE

14 Sep 2023

ORDER

Sri Ranjan Ray, Ld. Member

 

FINAL ORDER/ JUDGEMENT

This complaint under section of the C.P. Act, 1986 was filed against the Opposite Party- 1. The Manager, Hero Fincorp Ltd., Registered Office at 34 Community Centre, Basant Lok, Vasant Vihar, New Delhi- 110057 having its Branch Office at Burdwan Road, Ward No. 5 of S.M.C., Mahananda Para, Siliguri,P.O.- Siliguri Bazar, P.S.- Siliguri, District- Darjeeling and Opposite Party- 2. The Manager, Maa Monosha Solutions, Authorised Collection Agent of Hero Fincorp Ltd., Office at Khaprail More, State Bank of India Building, P.O. & P.S. - Matigara, District- Darjeeling and the case runs ex- parte against O.P. No. 1, and 2.

 

          The case of the complainants as per his complaint is as follows-

The complainant stated in his plaint that he took a two wheeler loan on 02.05.2016 vide Loan Account No. SLGTWL00100000802847 from the O.P. No.1 and had been repaying the said loan by EMI of Rs. 1,998/- (Rupees One Thousand Nine Hundred and Ninety Eight) only and in the year 2017, the OP No.1 requested and approached the complainant to take a personal loan from him (OP No.1) which was subsequently sanctioned in the name of the complainant vide Loan Account No. SLGLPL00100001971939 but in spite of several requests the OP No.1 did not supply any copy of personal loan agreement to the complainant and the complainant could not maintain personal loan account but was repaying both the loans.

The complainant also stated in his plaint that suddenly the OP No.1 stopped receiving monthly installment from him and forced the complainant to pay the loan installment through OP No.2 (collection agent of O.P. No.1) and from the month of August, 2018 the OP No.2 started threatening the complainant to pay amount in excess of the fixed amount or to seize the two wheeler from the complainant.  The complainant several times requested the OP No.1 to regularize both the loans (two wheeler and personal) and allowing him for transacting the monthly installment through respective Bank Account instead of through the OP No.2 but the O.P. No1 deliberately ignored the complainant’s request.

The complainant also stated in his plaint that on 07.12.2018, the OP No.2 (the collection agent) forcefully seized the two wheeler being no. WB74AL4782 from the complainant without his consent. The complainant also added that he informed of such forceful seizure to OP No.1 but all were in vain and both the OPs were intentionally putting pressure upon the complainant for paying a lump sum money to them otherwise they would not return the said two wheeler.

The complainant also stated in his plaint that several occasion he approached the O.P. No.1 to return his said two- wheeler but did not get any result and finding no other alternative the complainant sent legal notice on 21.12.2018 to the OP No.1 and on 28.12.2018 to the OP No.2 but the O.P.s did not make any response.

The prayers of complainant are as follows: -

 

1. To pass an order directing the O.P.s to return the aforesaid vehicle of the complainant being no. WB74AL4782; or to pass a direction upon the O.P.s to refund the total price of the vehicle complainant being no. WB74AL4782

 

2. To pass an order directing the O.P.s not to alienate the aforesaid vehicle of the complainant being no. WB74AL4782 to any third party without the consent of the complainant.
3. To pass an order directing the O.P.s to pay a sum of Rs. 5, 00, 000/- (Rupees Five Lac.) only to the complainant as compensation for deficiency in service and for harassment, mental torture and agony caused to the complainant.
4. To pass an order directing the O.P.s to pay a sum of Rs. 2, 00, 000/- (Rupees Two Lac.) only to the complainant as compensation for unfair trade practice.
5. To pass an order directing the O.P.s to pay a sum of Rs. 30, 000/- (Rupees Thirty Thousand) only as legal expenses and cost of the proceeding.
6. Interest @18% p.a. on the amount of award till realization.
7. Any other relief or reliefs for which the complainant may be found entitled to under the law.

 

List of Documents filed by the complainant:

1. Photocopy of Two-Wheeler Certificate cum policy schedule of the vehicle of the complainant being no. WB74AL4782. (Annexure 1)
2. Photocopy of Retail Invoice of the complainant being no. WB74AL4782. (Annexure 2)
3. Photocopy of Pollution under Control Certificate of the complainant being no. WB74AL4782. (Annexure 3)
4. Photocopy of Life Time Tax token issued by the Govt. of West Bengal of the complainant being no. WB74AL4782. (Annexure 4)
5. Photocopy of Certificate of Registration of the complainant being no. WB74AL4782. (Annexure 5)
6. Photocopy of Bank Statement of complainant Payment Receipt of the loan installments by the O.P.s till the month of August, 2018. (Annexure 6)
7. Photocopy of loan payment acknowledgement sent by the O.P. to the complainant through SMS. (Annexure 7)
8. Photocopy of Lawyers Notice dated 21.12.2018 send to the O.P. No.1. (Annexure 8)
9. Photocopy of postal track dated 28.12.2018 showing the delivery of the said notice to the O.P. No.1 duly endorsed by the Post Master, Siliguri Post Office. (Annexure 9)
10. Photocopy of Lawyers Notice dated 28.12.2018 sent to the O.P. No.2. (Annexure 10)
11. Photocopy of postal receipt dated 28.12.2018. (Annexure 11)
12. Photocopy of postal acknowledgement dated 29.12.2018. (Annexure 12)

          Regarding this instant case, the Opposite Party- 1, The Manager, Hero Fincorp Ltd., Registered Office at 34 Community Centre, Basant Lok, Vasant Vihar, New Delhi- 110057 having its Branch Office at Burdwan Road, Ward No. 5 of S.M.C., Mahananda Para, Siliguri,P.O.- Siliguri Bazar, P.S.- Siliguri, District- Darjeeling and Opposite Party- 2, The Manager, Maa Monosha Solutions, Authorised Collection Agent of Hero Fincorp Ltd., Office at Khaprail More, State Bank of India Building, P.O. & P.S. - Matigara, District- Darjeeling and they did not turn up before this Commission and the case runs ex- parte against O.P. No. 1and 2.

 

It revels from the record that as per Order No. 06, dated 08.04.2019 the case runs ex- parte against O.P. No.2 and also on 25.07.2019 being Order No.13 the case runs ex- parte against the O.P. No.1.   

 

Having heard, the Ld. Advocate of the complainant and on perusal of the Complaint and documents filed by the complainant the following points are taken to be decided by this Commission.

 

 

 

 

Points for consideration

 

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

         

Decision with reasons:-

 

                              All the points are taken up together for consideration and decision.

Seen and perused the complaint petition which is supported by the affidavit, documents filed by the complainants. We are also heard arguments of the complainant in full length.

The complainant resides in the jurisdiction of P.O. & P.S. – Pradhan Nagar, District- Darjeeling and the O.P. No. 1 was carrying his business in. Siliguri, District- Darjeeling having its registered office at New Delhi and the O.P. No.2 also resides in Matigara, District- Darjeeling.  Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act, 1986 as well as per the Consumer Protection Act, 2019 and also there is no doubt that this Commission has its jurisdiction to decide this case.

 

In order to prove the case the Complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the Complaint and has stated on which day he took the two wheeler loan and the personal loan from the O.P. No.1 and also narrated that on which date the OP No.1 stopped receiving monthly installment from him and forced the complainant to pay the loan installment through OP No.2 (collection agent of O.P. No.1). The complainant also stated that from which month the OP No.2 started threatening the complainant to pay amount in excess of the fixed amount and on which date the O.P. No.2 seized his two- wheeler from him.  The complainant several times requested the OP No.1 to regularize both the loans (two wheeler and personal) and allowing him for transacting the monthly installment through respective Bank Account instead of through the OP No.2 but the O.P. No1 deliberately ignored the complainant’s request. In his evidence the complainant also stated that on several occasions he approached the O.P. No.1 to return his said two- wheeler but did not get any result.

 

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through their Written Deposition but also by producing documents.

 

The notice was duly served upon on the O.P.s but the  O.P. No. 1, and 2 did not turn up before this Commission and the case runs ex- parte against O.P. No. 1and 2.

 

In this instant case, the complainant requested the O.P.1 to regularize both the loans (two wheeler and personal) and allowing him for transacting the monthly installment through respective Bank Account instead of through the OP No.2 but the O.P. No1 deliberately ignored the complainant’s request and the O.P. No. 2 forcefully seized his two- wheeler from him without his consent. In this context, it should be mentioned that in the case of ICICI Bank Ltd. v. Prakash Kaur and Ors. (2007), the vehicle with the defaulting petitioner was taken away from the petitioner by force employing “musclemen”. This is a common expression in almost every litigation that agitates against repossession. The Hon’ble Supreme Court deprecated the practice adopted by banks of taking forcible possession of vehicles by hiring recovery agents. It ruled that neither force can be utilized nor musclemen or hooligans can be hired by a private or nationalized bank in order to recover the amount of a loan.

          Around this time, National Consumer Disputes Redressal in the matter of Citicorp Maruti Finance Ltd. vs S. Vijayalaxmi on 27 July 2007 stated that, on occasions, borrower suffers harassment, torture, or abuses at the hands of the musclemen of the moneylender. Such a behavior is required to be prohibited and the process of repossession is required to be streamlined so as to fit into a culturally civilized society. Let the rule of law prevail and not that of the jungle where might is right.

 

A year after the Prakash Kaur ruling, another landmark judgment on this issue was delivered by the Supreme Court in ICICI Bank vs Shanti Devi Sharma & Ors (2008). In this case, the recovery agents of ICICI Bank forcibly took possession of a vehicle financed by the bank from the borrower’s residence without any legal authority or due process. The Appellant’s son committed suicide due to the humiliation faced by him in front of family and neighbors by the recovery agents. The Supreme Court condemned this practice and held that banks must resort to the procedure recognized by law to take possession of vehicles in case of default, instead of using musclemen or strong-arm tactics. The court also suggested that banks should be vicariously liable for the unlawful acts of their recovery agents and that the RBI should take strict action against such violations.

 

In a recent judgment of the Hon’ble Patna High Court in Civil Writ Jurisdiction Case No. 3456 of 2021 that the bank and finance companies cannot use recovery agents to forcefully seize vehicles of customers who have defaulted on car loans, without following the proper procedure under law.

 

So, as per the above discussion it is very much clear that there was a deficiency of service and unfair trade practice in the part of O.P.s and this Commission has no doubt that the said  deficiency of services and unfair trade practice was conducted by the O.P.s. In the instance case, the O.P.s are directed to return the said two- wheeler being no. WB74AL4782 to the complainant within 30 (Thirty) days from the date of this order. The complainant is also entitled to get Rs. 5,000/- (Rupees Five Thousand) only for harassment, mental pain and agony and litigation cost and O.P.s are also directed to deposit Rs. 5,000/- (Rupees Five Thousand) only to Consumer Legal Aid Account of this Commission.

 

That the Consumer Case No. 02/2019 be and same is allowed in ex-parte against the O.P. No. 1 (Hero Fincorp Ltd.) and O.P. No.2 (Maa Monosha Solutions). The O.P. No. 1 and 2 are jointly and severally liable in this case.

 

Hence it is,

 

ORDERED

 

That the Consumer Case No. 02/2019 be and same is allowed on ex-parte against the O.P. No. 1 (Hero Fincorp Ltd.) and the O.P. No.2 (Maa Monosha Solutions). The O.P. No. 1 and 2 are jointly and severally liable in this case.

 

The O.P.s are directed to return the said two- wheeler being no. WB74AL4782 to the complainant within 30 (Thirty) days from the date of this order. The complainant is also entitled to get Rs. 5,000/- (Rupees Five Thousand) only for harassment, mental pain and agony and litigation cost and the O.P.s are also directed to deposit Rs. 5,000/- (Rupees Five Thousand) only to Consumer Legal Aid Account of this Commission.

This Commission also gives liberty to the O.P.s to recover the loan from the complainant with due process of law.  

 Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.