by save net"> Finance
Ltd,
9/3, Kaikhali, Daspara, DGP House, 4th Floor,
Near Garden Complex, Old Prabhadevi Road,
P.O. & P.S. Airport, Mumbai- 400025
Kolkata-700052, 24 Pgs(n) having its local branch office
presently residing at Dashadron, B.T.Rd,nearTobin Rd crossing
F.P. School, Airport, P.S. Baranagar,
P.O.R- Gopalpur, Kolkata, 24 Pgs(N).
P.S. Baguiati, 24 Pgs(N).
J U D G E M E N T
The fact of the case, in brief, is that the complainant is maintaining a Bank Account with AXIS Bank of 7B, Motijheel Avenue, P.O. Motijheel, Dum Dum, Kolkata- 700074, having A/c. No. 911010007941308.
The complainant stated that the O.P is a financial institution, from which the complainant took credit facilities and obtained the said vehicle, when the EMI has been settled to the tune of Rs. 12,775/- only, which would be credited, as agreed by and between the parties, in the mode of ECS, from the account of the complainant. Some of the ECSs were honoured.
The complainant further stated that at late stage, as the ECS were not honoured, the complainant was advised paying the EMIs in cash by the O.P. Accordingly, the complainant started paying such amount of monthly instalments in cash and the O.P issuing receipts through different modes.
The complainant also stated that it was agreed by and between the parties that such payment of monthly instalments would be paid by the complainant to the O.P between 25th and 30th in every month. Accordingly, it was done by the
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complainant without making a single default. But all on a sudden, on 22.02.13, at about 6.30 P.M, the people from the O.P concern, illegally and / or forcefully, without any responsible ground repossessed the said vehicle from the lawful possession of the complainant in Sodepur B.T. Road, Crossing, situates within the limits of Khardah P.S. Hence the complaint.
The O.P has contested the case by way of filing written version.
The O.P stated that the complainant had availed the loan to purchase the said vehicle on hypothecation basis. The complainant after being satisfied with the terms and conditions of the Hypothecation cum Loan Agreement has availed the loan and has put his signature in the agreement. It was agreed upon that the due date of payment of monthly instalment is/was 2nd of every English calendar month. The complainant did not pay the instalment within the due date. The O.P does not comment on this issue due to want of knowledge.
The O.P further stated that as pr the judgement of Surendra Kr. Sahoo –Vs- Indusind Bank the financer is the real owner of the vehicle till the last payment due and the purchaser is merely a bailiff and the purchaser can repossess the vehicle to recover the amount due even without serving any notice to the customer/ purchaser. Hence the O.P prayed for dismissal of the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Both parties filed affidavit-in-chief and documents in support of their contention.
We have heard the submission of Ld. Lawyers for the complainant and O.P at length.
It appears that the O.P filed the statement of account showing the instalments paid by the complainant.
It appears from the said statement of accounts which is marked annexure ‘D’ in this case the complainant has defaulted in paying the instalments against the loan account.
Ld. Lawyer for the complainant relied on a decision reported in the Apex Court in a recent judgement reported in Suryapalsingh vs Siddha V inayak Motors & Anr. III (2012) CPJ 4 (SC) has held as under:-
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“Under the Hire Purchase agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier.
The Court vide its judgement in Trilok Singh and Ors. Vs Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financer is the real owner of the vehicle, therefore, there cannot be any allegation against him for having the possession of the vehicle. This view was again reiterated in K A Mathai @ Babu @ Anr. Vs Kora Bibbikutty @ Anr., 1996 (7) SCC 212, Jagadish Chandra Nijhawan Vs S.K. Saraf,, IX ( 1998) SLT 477- IV (1998) CCR 118 (SC) -1999 (1) SCC 119; Charanjit Singh Chandra & Ors. Vs Sudhir Mehra, VI (2001) SLT 883-III (2001) CCR 232(SC) – 2001 (7) SCC 417, following the earlier judgement of this court in Sundaram Finance Ltd, vs The State Bank of Kerala and Anr, AIR 1966 SC 1178, Smt.Lalmuni Devi vs State of Bihar and Ors, 1 (2001) SLT 26-1 (2001) CCR 9 (SC) -2001 (2) SCC 17 and Balwinder Singh vs Assistant Commissioner, V (20050 SLT 195-III (2005)CCR 8 (SC)-CCE 2005 (4) SCC 146”
This Commission in a recent judgement presided over by Hon’ble Justice Ashok Bhan in the case of ‘Surendra Kumar Agarwal vs Telco Finance Ltd and Anr [ (II (2010) CPJ 163 (NC) ] decided on 11.03.2010 has held as under:-
“It is not disputed before is that the petitioner had raised a loan of Rs. 6,15,000/- to purchase the truck. No statement of account showing repaying of loan instalments has been filed by the petitioner. It was admitted before the State Commission that the petitioner had defaulted several times in making the payment on the dates when it was due. Further it is not disputed that as per Hire Purchase Agreement the financier was authorized to repossess the vehicle in case of default in repayment of loan instalments. Supreme Court of India in Managing Director Orix Auto Finance (India) Limited Case (supra) has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of the financed vehicle. There is nothing to show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced. We agree with the view taken by the State Commission”.
We have applied our considered mind over the matter and it appears that there is no merit in this case as the complainant has defaulted in paying the instalments according to the terms and conditions of the loan agreement.
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Hence
Ordered,
that the complaint be and the same is dismissed on contest against the O.P.
Parties to bear their own cost.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
