The complainant Abdullah Haque of Vill. Selimpur, P.O. Jalalpur, Dist. Malda had booked ZEN ESTILO VXI Car from J.K. Wheels Malda. The Manager and Proprietor and other officials of J.K. Wheels persuaded the complainant to take loan from Mahindra & Mahindra Finance. The complainant booked the vehicle on 23/03/2012 and he took the loan of Rs. 7,00,000/- (Rupees Seven Lakh Only) from Mahindra & Mahindra Finance Service Limited.
The complainant states that he was very regular in making payment of the EMIS but on 02/12/2014 suddenly the vehicle was forcibly possessed by Mahindra & Mahindra Finance Services Limited. The complainant met the officials of J.K. Wheels and narrated the story of forceful possession of the vehicle. The complainant approached Kaliachak P.S. to file a complainant against the respondent. Meanwhile the officials of the Mahindra & Mahindra Finances Services assured the complainant that the vehicle will be returned back to the complainant. The complainant sent a letter on 09/02/2015. The postal receipts are marked Ext. 8 & 9. After repeated request by the complainant the O.P. Nos. 2 and 3 did not return the vehicle which was taken in possession from Jalalpur area of Kaliachak P.S. The cause of action of this case arose on 02/12/2014 the day the vehicle was taken possession by the O.Ps. The O.P. Nos. 2 and 3 entered appearance and filed their W/V. The O.P. inter alia stated in their written version that on request of the complainant to avail financial assistance to purchase the vehicle the O.P. financer after being satisfied with the credentials of the complainant agreed to provide loan to the complainant. The financer O.P. provided loan to the tune of Rs. 2,17,000/-(Rupees Two Lakhs Seventeen Thousand Only) together with interest of Rs.4,17,172/-(Rupees Four Lakhs Seventeen Thousand One Hundred Seventy Two Only). The complainant executed a loan agreement accepting the terms and condition of the loan transaction being Agreement No. 1916159 on 30/01/2012. With such financial help on loan the complainant purchased a Maruti ZEN ESTILO VXI car being Engine No. K10BN 4356764 Chassis No.MA 3ENDF1S00368753 from the dealer, the O.P. No. 1, J.K. Wheels Pvt. Ltd. The agreement value was of Rs.4,17,172/-(Rupees Four Lakh Seventeen Thousand One Hundred Seventy Two Only) which was to be paid in 47 periodical installments started from 05/02/2012 ending on 05/12/2015. The O.P. stated in his W/V that on 16/09/2014 the complainant were supposed to pay 32 installments whereas he paid only 21 installments and there was default of Rs. 97,475/- (Rupees Ninety Seven Thousand Four Hundred Seventy Five Only) i.e. 11 installments together with late payment charges of a sum of Rs. 22,323/- (Rupees Twenty Two Thousand Three Hundred Twenty Three Only) and there were remaining 15 installments amounting to Rs. 1,33,125/-(Rupees One Lakh Thirty Three Thousand One Hundred Twenty Five Only) The O.P. further states that the complainant failed to pay the 34th installments and was in default of Rs. 1,15,225/-(Rupees One Lakh Fifteen Thousand Two Hundred Twenty Five Only) i.e. 13 installments and also late payment charges of Rs. 13,487/-(Rupees Thirteen Thousand Four Hundred Eighty Seven Only)on 02/12/2014. Further there were 13 installments remaining payable for a sum at Rs.1,15,375/-(Rupees One Lakh Fifteen Thousand Three Hundred Seventy Five Only). The O.P. in their written version stated that the complainant is a guilty of breach of the terms and condition of the loan agreement. Therefore, the finance company O.P. was constrained to take possession of the vehicle and accordingly sold the vehicle in due process of law. The O.P. also raised a point that as per arbitration clause of the agreement the complainant has agreed to refer the dispute to an arbitrator. On 22/02/2015 the Ld. Arbitrator has passed an award asking the complainant to pay the outstanding dues.
The complainant filed documents in support of his case which are marked exhibits accordingly in Srl No. 1 to 9. Order No. 45 dt. 18/11/2019 the case was fixed ex parte against the O.P. The case is also fixed for ex parte vide Order No. 09 dt. 09/09/2015. The complainant filed cash receipt, order booking receipt on 02/02/2012, 26/01/2012, 05/01/2012 and a letter dt.09/02/2015 along with registration certificate, tax receipt etc. No loan agreement executed between the parties were filed by the O.Ps.
Now the point for determination:- Whether there is any unfair trade practice on the part of the O.Ps or not ?
::DECISION WITH REASONS::
The vehicle was taken possession on 02/12/2014 and the complainant sent the letter on 09/02/2015 asking the General Manager, Mahindra & Mahindra Corporation that he is willing to pay the dues if any. On perusing the document we do not find any copy of agreement executed between the complainant and the Financial Company as stated in their written version. Though the O.P. referred the loan agreement as Annexure –A and Statement of Account as Annexure –B. Howsoever, a Finance Company without executed a loan cannot take possession of the vehicle without issuing any notice to the borrower i.e. the complainant here. In the instant case the O.P. not only possesses the vehicle but also sold the vehicle to recover their dues. From the letter dt. 09/02/2015 it is clear that the complainant was in default in making regular payment of the installments.
It is also clear from the statement made by the O.P. that the O.P. in their written version has no where stated that they had sent any notice to the complainant regarding outstanding dues payable by the complainant. Furthermore, the O.P. has neither furnished any document before this Forum to show that they had made endeavor to intimate and /or inform the complainant that the vehicle will be repossessed by them or will be sold to recover the dues. The act, however, is the better protection in the case of the consumer. This is a case of a company at one side and a common consumer on the other side. It is an admitted fact that the complainant was a defaulter but the O.P. also has not performed the duties on their part. The O.P. has nowhere stated that on which day the said car was sold to recover their dues. Therefore, it can be presumed that after sale of the car and payment of dues there may be some extra amount payable to the complainant after clearing all dues that is not done by the O.P. Howsoever, the complainant having tried to make payment of dues outstanding from him since after 09/02/2015. As said, if the payments are not made as per your agreement, it is deemed to be a default. The obvious fallout of this is that the lender/bank might repossess the car. Depending on the loan agreement, the lender/bank will send a written notice as defaulter asking to pay the remaining balance on Car Loan or face repossession. If the notice is not honoured within the time mentioned in it, then car will be repossessed.
The Hon’ble Supreme Court in his finding in the case of Maruti Finance Vs. S. Vijaylaxmi it has been reiterated that even in case of mortgaged goods subject to higher purchase agreement, the recovery process has to be in accordance with law and the recovery process referred to in the agreement also contemplate such recovery to be effected in due process of law and not by using force. Till such time as the owner the ownership is not transferred to the purchaser, the hirer normally continues to be the owner of the goods. But that does not entitle him to the strength of the agreement to take back possession of the vehicle by use of force. In the case of M/s. Magma Finance Corp. Ltd. Vs. Tikeswar Barik decided by the Hon’ble National Commission, New Delhi reported in 2015 Volume II CPR 584(NC) it is held that it is an admitted case that the vehicle in question was neither surrendered by the complainant to the Company O.Ps nor was it re-possessed by Finance Company with his consent. No order from a competent Court of Law was obtained before re-possessing the vehicle. The agency appointed by the Company for such purpose / repossession seized the vehicle without the direct knowledge of the complainant which in the aforesaid case was absolutely illegal and unjustified. If the vehicle is seized in such a manner it is bound to casuse tremendous harassment and mental agony to the owner of the vehicle besides damaging his reputation. Therefore, ground of appropriate compensation is highly solicited monthly installments by the complainant to the financer and whatever the ground of problem as to default for payment may be the vehicle is not have to be re-possessed without knowledge and consent of the complainant so he will suffer harassment.
In view of our forgoing discussion we came to the conclusion that the O.Ps are held to be guilty for illegal seizure of the vehicle. Thereafter keeping in mind the hire purchase agreement no information of possession was given by the financer to the borrower. No inventory sheet was prepared after such seizure.
As such the O.P.s. are directed to refund the total amount of installment paid by the borrower to the financer together with interest @ 9% p.a. from 02/12/2014 till payment along with compensation of Rs. 20,000/- (Rupees Twenty Thousand) and litigation cost of Rs. 10,000/-(Rupees Ten Thousand Only) within 45 days of passing of this order, failing which the financer shall have to pay fine for a sum of Rs. 150 per diam from the 46th day till payment in toto.
C.F. paid is correct.
Hence, ordered that
The case is dismissed against O.P. No.1 and the same is allowed ex parte against O.P. Nos. 2 and 3. and the O.P. Nos. 2 and 3 are directed to refund the total amount of installment paid by the borrower to the financer together with interest @ 9% p.a. from 02/12/2014 till payment along with compensation of Rs. 20,000/- (Rupees Twenty Thousand) and litigation cost of Rs.10,000/-(Rupees Ten Thousand Only) within 45 days of passing of this order, failing which the financer shall have to pay find for a sum of Rs. 150 per diam from the 46th day till payment in toto.
Let a copy of this judgment be given to the Complainant/O.P. free of cost on proper application.
