By ADV. RAVI SUSHA, MEMBER.<br /> <br /> Complainant has filed this complaint for getting an order allowing to recover an amount of Rs. 36138/- as the price of the scooter or to recover of the said scooter and an amount of Rs.25,000/- as compensation and also an amount of Rs.1000/- as cost from the opp.party. <br /> <br /> The contention in the complaint is summarized as follows:<br /> <br /> <br /> The complainant had taken a loan of Rs.24,138/- from M/s. H.D.F.C. Bank Ltd., in the year 2003 for purchasing scooter [Honda Activa] frpm M/s. E.V.M. Motors, Trivandrum and accordingly the petitioner had entered into a “Loan Cum Hypothecation” agreement with the said bank and purchased a Honda Activa Scooter bearing No.KL-2Q/3425 on 30.6.2033 valued Rs.36,138/-The loan amount repaid in 17 instalments. [One instalment is Rs.1761/-] and for that purpose the complainant had given 17 post-dated cheques of his bank M/s. South Indian Bank Ltd.,Kollam. After the purchase of the said scooter, the complainant had been regularly paying the instalments but defaulted on the 10th, 11th and 16th instalments But in fact on every time of default, the complainant had approached the bank for making the payments directly and asked for a written statement of account regarding the amount he had already paid and the defaulted instalments. But the bank was not ready to give a written statement of account. After making the 17th instalment, the complainant had again approached the bank for making the payment of the defaulted instalment and insisting on getting a statement of account. Then the bank issued the complainant with a computer bill for Rs.8874.10/- which did not bear the name, signature or seal of the bank. The complainant was not ready to give payment of that amount as he felt that the bill was a wrong one. Men of the bank had approached the complainant and suggested a settlement of the entire amount due to the bank for Rs.6,000/- and asked the complainant to come to the bank office at about 7.00 p.m. believing these words, the complainant went to the bank office at about 7.00 p.m. and the above said scooter was parked in the courtyard of the bank building. At about 7.20 p.m. the complainant was attacked by the gundas of the bank and they forcefully taken away the vehicle and an amount of Rs.6,000/- and other articles which were kept in the box of the scooter. In the instant case there was serious deficiency of service from the part of M/s. HDFC Bank. Hence this complainant is filed for getting reliefs<br /> <br /> The opp.party filed a version contending that inter alia, the complainant had entered into an hypo0thecation agreement with the opp.party on 24.6.2003 for a vehicle loan. As per the agreement the complainant is bound t9 repay the amount into 17 monthly instalments and in default the opp.party is have got liberty to repossess the vehicle. As per the complaint he is a defaulter for the instalments of 10,11 and 16. As per the hypothecation agreement the complainant is liable to pay an amount of Rs.250/- as overdue charge with 2.5% interest for the delay in repayment. Moreover the hypothecated vehicle having 1st and exclusive charge to the opp.party. As per clause 8 of the said agreement the opp.party had every right to repossess the vehicle and realize the amount advanced to the party through sale of the said agreement. On repeated no material record had not cared to repay the amount, hence the opp.party had constrained to repossess the vehicle on 29.5.2005. There is no deficiency in service committed by the opp.party and prays for the dismissal of the complaint. <br /> <br /> The point that would arise for consideration are:<br /> <br /> [i] Whether there is deficiency in service on the part of the opp.parties:<br /> [ii] Cost and compensations:<br /> <br /> For the complainant PW.1 is examined and Ext.P1 to P9 are marked.<br /> <br /> For the opp.party DW.1 is examined and Ext. D1 to D3 are marked.<br /> <br /> Points [I] & [ii]<br /> <br /> The main contention of the complainant is that he had taken a loan from opp.party and entered in a loan cum hypothecation agreement with the opp.party and purchased a Honda Activa Scooter. By defaulting the 10th, 11th and 16th instalments, without issuing notice to the complainant, the opp.parties gundas attacked the complainant and forcefully taken away the vehicle and sold it.<br /> <br /> Opp.party contended that as per the agreement, in default of repayment, they have got liberty to repossess the vehicle and realize the amount advance to the party through sale of the said vehicle. Here the question to be decided is whether in case of hypothecation of goods by way of loan agreement, the financier has light to repossess the vehicle forcibly. We heard the argument from both sides. The basic fact is not in dispute that complainant had entered into a hypothecation agreement with the opp.party for a vehicle loan. Ext.D1 also shows that the complainant had entered into a hypothecation agreement. In Tarum Bhasgava V/s. State of Haryana 2003 [3] KLT.397, the court held that in case of hypothecation of goods by way of loan argument, a forcible repossess is made by the financier, the financier is criminally liable. The court further held that if a specific clause is inserted in an agreement authorizing repossession of the vehicle, such a clause may be unconscionable and void. In Shibi Francis V/s. State of Kerala 2007 [3] KLT 923; the Hon’ble High Court held that the financier will have light to take physical possession of the vehicle can be enforced only through lawful means. Opp.party contended that on repeated demand the complainant had not cared to repay the amount, hence the opp.party had constrained to repossess the vehicle. But the opp.party has not produced any material worth believable to show that they have demanded for repayment. There is only a vague statement that they had made demand to the complainant on several times. While cross examining DW.1 deposes that In city corporation Maruti Finance Ltd. V/s. S. Vijaya Lexmi in [2007] CPJ 161 {NC].<br /> <br /> In hire purchase agreement recovery of loans or seizures of vehicle permitted only through legal means. Vehicle seized forcefully and sold without notice given to the complainant. Before repossession and sale of vehicle in unjust. <br /> <br /> We perused the record and heard the arguments and citations produced by the parties, direct the opp.party bank to make up the deficiency to the complainant. Since the ear has already been sold we cannot direct the opp.party to restore the car to the complainant. According to he complainant and opp.party, the complainant has paid Rs.30855/- But having regard to the fact that the complainant had used the vehicle for 2 years he is entitled to the market value of the car.<br /> <br /> In the result the complaint is allowed, considering the market value we direct the opp.party to refund the amount of Rs.23,000/- along with interest 9% per annum from the date of filing the complaint till the date of payment. The opp.party shall also pay Rs.10,000/- towards compensation, mental harassment and cost of litigation. The order shall be complied with within one month of the receipt of the copy of the judgment.<br /> <br /> Dated this the 17th day of January, 2008.<br /> <br /> <br /> <br /> K. VIJAYAKUMARAN ACHARY : <br /> <br /> ADV. RAVI SUSHA : <br /> <br /> <br /> <br /> INDEX<br /> <br /> List of witnesses for the complainant <br /> PW.1. – Benzy<br /> <br /> <br /> List of documents for the complainant<br /> P1. – Computer bill dated 30.6.2003<br /> P2. – Receipt<br /> P3. – Copy of R.C. Book<br /> P4. – Copy of Pass book<br /> P5. – Copy of complaint filed before the Legal Authority <br /> P6. – Complaint filed before the C.J.M<br /> P7. – Complaint filed before the S.P., Kollam<br /> P8. – Postal receipt<br /> P9. – Acknowledgement card.<br /> <br /> List of witnesses for the opp.party<br /> PW.1.- Sreenath<br /> <br /> List of documents for the opp.party<br /> D1. – Hypothication agreement<br /> D2. – Statement of Account<br /> D3. - Notice<br /> <br /> <br /> <br />