DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE NO.15/2007 Date of filing of the Case: 14.02.2007 Complainant | Opposite Parties | 1. Baddrun Nesha Bewa aged 55 years W/o. Late Based 2. Sk. Bablu, aged 27 years S/o. Late Based Both of Vill. & P.O. Ariadanga P.S. Ratua, Dist. Malda | 1. | State Bank of India Malda Branch, P.O. & Dist. Malda To be served through its Chief Manager State Bank of India, Malda Branch, P.O. & Dist. Malda | 2. | The Chief Manager State Bank of India Malda Branch, P.O. & Dist. Malda |
Present: | 1. | Shri S.K. Chakraborty, President | 2. | Smt. Sumana Das, Member | 3. | Shri A.K. Sinha, Member |
For the Petitioner :, Balaram Pandey, Tapasi Saha, Advocates. For the O.P.s : Narendra Mohan Mojumder ,Mausami Mojumder & Manjari Mojumder, Advocates Order No. 17 Dt.18.09.2007 The gist of the case is that the petitioner purchased one Tractor bearing Registration No.WB/65/6384 on 01.01.2003 at Rs.3,04,000/- through hire purchase agreement with S.B.I. Malda Branch on condition to repay the said amount with interest by instalments. The petitioner paid last two instalments amounting to Rs.90,642=78 on 02.03.2006 and the said truck which was taken away from the possession of the petitioner by the O.P. on 18.03.2006. The petitioner has deposited Rs.1,18,000/- prior to and even after the vehicle was taken away by the O.P. and this gives rise to the institution of present case praying for reliefs as have been mentioned in the petition of complaint. O.Ps. contest the case by submitting joint written version denying the material allegations and claiming that the petition is not maintainable according to SRFAESI Act.2002, this court has no jurisdiction as per provision of law and the petitioner has no locus-standi to file this case against the O.Ps. The O.Ps. ,however ,admitted that after observing all formalities they have sold the Tractor in question at Rs.71,100/- on 02.03.2006 although the outstanding loan amount against the Tractor was calculated to the tune of Rs.1,88,456=00. On pleadings of both parties the following points have emerged for effective disposal of the case. 1. Whether there is any deficiency in service of the O.Ps.? 2. Whether the petitioner is entitled to get the reliefs as prayed for? DECISION WITH REASONS Point No. 1 The word ‘hypothecation’ has been defined as a ‘charge’ in or upon any movable property, existing or future, created by a borrower in favour of a secured creditor without delivery of possession of the movable property so such creditor, as a security of financial assistance and includes floating charge and crystallization of such charge into fixed charge on movable property. Accordingly, thus a person who becomes a ‘borrower’ of a securitisation consequent upon acquisition of any right of any bank or any financial institution in relation to such person. Now the pertinent question arises. In this connection this Forum has gone into the hypothecation agreement (Ext. – H) which specifically states that the said agreement shall operate as a security to the bank or any other security for the repayment to the bank on demand of the balance due to the bank by the borrower of the amount of Rs.3,04,000/- and some other clauses referred to in para 3 of the hypothecation agreement (Ext. – H). The deed of guarantee (Ext. I) also indicates some conditions non-fulfillment any of them may result in variation of terms laid down therein. It appears that notices (6 in nos) of different dates have been issued in the name of the present petitioner which includes registered notice, demand notice as well. Thus, it cannot be said that the demand notice dated 01.02.2006 (Reg. With A/D) sent in the name of the present petitioner cannot be said to have not been received by the present petitioner. In the above perspective let us see as to whether the service rendered by the bank towards the present petitioner suffers from deficiency. Be it noted herein that the hire purchase agreement between the financer and the hirer permits the financer to take possession of the financed vehicle, can it be said that such agreement creates any legal impediment on such possession being taken. In the instant case though the petitioner has deposed that no notice was served upon him about taking of the vehicle by the Bank yet the Bank has filed Ext.1 which appears to have been signed by one Apsari Bibi who admittedly is the wife of Sk. Bablu, the present petitioner. On scrutiny of the hire purchase agreement (Ext. H) its appears that on the occurrence of any event noted therein, the Right of the Hirer under the agreement shall forthwith stand terminated ipso-facto without any notice to the hirer and all the instalments paid by the hirer shall be absolutely forfeited by the owner who shall there upon be entitled to enter into any house or place where the said vehicle may then be, removed and retake possession of the same. According to the Bank there was the default in making payments of the monthly instalments vide Ext. J series and the petitioner was requested to clear the amount due by several letters. Inspite of such several requests the petitioner has not paid the amount due. Accordingly, the Bank re-possessed the vehicle and sold the same in question for which public auction notice by SBI Malda Branch was issued as is evident from Ext.O. Ld. counsel for the petitioner has submitted that possession taken by the bank is clearly contrary to law; merely because the petitioner signed the agreement which permitted repossession that would not give arbitrary power to the Bank to take possession of the vehicle. So far as question of repossession is concerned its seems permissible in terms of agreement. In the facts and circumstances stated herein-above and being fortified with the salutary observation appearing in many a occasion by Their Lordships this Forum is of considered opinion that if the agreement permits the financer to take possession of financed vehicle, there is no legal impediment on such possession being taken, of course, mere fact the possession has been taken cannot be a tenable ground to contend that the petitioner has been prejudiced. In the instant proceeding we can re-iterate the view expressed above that after service of proper notice upon the wife of the present petitioner who is an adult person and after making publication of auction sale in news paper vide Ext.O. it cannot be said that seizure of the vehicle in question has improperly been made and in that view of the matter it can also be not said that the service of the S.B.I. Malda Branch suffers from deficiency which disposes of the present point in the negative. In this connection the observation of the Hon’ble High Court, Calcutta may also be mentioned herein that the act of taking possession of the vehicle for non-payment of instalment without consent does not even be seemed to be a case of theft. Point No.2. In the result the petitioner is not entitled to get reliefs as prayed for. Proper fees have been paid. Hence, ordered, that the Malda D.F. Case No.15/2007 stands dismissed on contest. In the peculiar circumstances of the case there will no order as to cost. Let a copy of this order be given to both parties free of cost. Sd/- Sd/- Sd/- Sumana Das A. K. Sinha S.K. Chakraborty Member Member President D.C.D.R.F., Malda D.C.D.R.F., Malda D.C.D.R.F., Malda | 
