By :  SMT. BANDANA ROY, PRESIDENT

           The case of the petitioner in brief is that for his livelihood, the complainant purchased a 12 wheeler Multi Axle Goods Vehicle being registration No. WB 29A 9218 from the OP no.1. A loan agreement being no. RLNHHLD 000285193 between the complainant and the OP no.1 took place for a loan of Rs. 19,00,000/-. The mode of payment of the EMI was Rs, 54,100/- for first 31 instalments and next EMI was for Rs. 36,810/- for another 27 instalments which started from 01.01.2015. The OP no.1 did not hand the agreement to the complainant. The complainant made repayment of the EMIs regularly from 01.01.15 to 27.04.2016 by receipt in each case. Thus the complainant paid total of Rs. 7,00,000/- and the EMIs were  collected by the OP no.2 and other various agents from his residence at Haldia. On 21.05.16 the truck was loaded at Kharagpur for Gowhati. On 22.05.16 the OP no.1 2 and their associates forcibly took possession of the said truck from Durgapur without giving any prior notice of any kind. They also threatened the complainant and his helper on mild protest for such repossession. The complainant informed the matter to IC Durgapour New Town PS and OP no.1 also intimated the incident to new Kaushal Road Carriers, Khargpur through courier on 30.05.16 where the vehicle was loaded. On 22.05.16 the complainant got one legal notice for pre-sale of the said vehicle to which the complainant replied but in vain. The complainant alleged that he had no due of EMI till the date of repossession of the truck and the OPs did not give any kind of intimation regarding due of EMI or so so.

          Hence, the complainant has filed this case on the ground of  unfair trade practice on the part of the Opposite parties with the prayers against the OPs as made in the complaint petition.

The OP no.1 has contested the case by filing written version. The OP no1 has prayed for dismissal of the complaint on the principle of allegation contra factum non est admittednda”

          It is the specific case of this OP that they are  a Non-banking Financial Co. and arranges for the facility of loan to different  end users as per their requirement. The loan agreement as stated by the petitioner is admitted to be executed between the parties. It is the specific defense of this OP that the complainant defaulted for five consecutive times to pay the EMIs and so, as per terms and conditions of the agreement  and invoking the grounds of default they took rightful possession of the vehicle. After repossession of the vehicle a copy of seizure list was handed over to the complainant on the spot and the goods loaded was taken over by the transport Co. The OP resorted to Arbitration proceedings of the loan agreement dispute for recovery of the due amount but the complainant did not turn up in spite of receipt of notice of the proceeding.

          In the aforesaid circumstances, the OP no1 prays for dismissal of the complaint with exemplary costs for filing of this vexatious proceeding.

          On the basis of the above pleadings the issues to be considered ion the case is whether the case is maintainable and whether the complainant is entitled to get the reliefs as prayed against the OP.

                                                                                       Decision with Reasons.

Both the issues are taken up together for consideration for the sake of convenience and brevity.

We have perused the petition of complaint, the written versions as well as documents filed by the respective parties.

Admittedly the complainant took a commercial loan  for financing a heavy commercial truck being registration No. WB 29 9218 under an agreement dated 27.10.15 for an amount of Rs. 19,00,000/- being repayable  in 59 EMIs  starting from 01.01.15. According to the OP  against the financial loan of  Rs. 19 lakhs the complainant paid instalments of amount of Rs. 5,95,100/- and defaulted in payment of five regular instalments and   then the financial Co. i,e the OP  on 22.05.16 as per terms and conditions of the agreement  and invoking the ground of default took rightful possession of the vehicle. Besides that the OP also alleged that the OP resorted to Arbitration Proceeding as per Clause 23(XVI)  of the loan agreement for recovery of the dues and due notice of reference date was issued to the complainant on 15.06.16.But in spite of receipt of the notice of Arbitration proceeding the complainant did not appear before the ld Arbitrator and as per order passed by the ld. Arbitrator Sri R.N Singh on 11.07.16 in an application U/Sec 17 of the Arbitration and Conciliation Act, 1996 the OP repossessed the vehicle and put up it on auction sale. The Arbitration Proceeding order is marked as Annexure C in this case.

It appears from the order dated 1107.16 that the ld Arbitrator observed that OP took possession of the vehicle as complainant defaulted in payment of the instalments and vehicle was lying in the go down of the claimant.  The value of the commercial vehicle is depreciating day by day and as the complainant of this case did not appear before the ld. Arbitrator, ld. Arbitrator ordered the matter to come up on 18.07.16 at 4 PM on same place for report to the sale proceeding awaiting respondent i.e complainant of this case. In case the complainant fails to appear on the next date, the matter shall be ex parte against them.

It appears that the complainant has filed the present complaint case after the order was passed in the Arbitration Proceeding. But this Forum is not the Appellate Forum on Arbitration Proceeding. When the order has been passed in the Arbitration Proceeding it was the duty of the complainant to come to the proper Forum for setting aside the order of Arbitration.

We have perused the Loan - Hypothecation Agreement between the complainant and the OP and from Clause 23 (i) we find that in case of default, the RCL has right to recall the loan and to repossess the asset and to demand the borrower to surrender the asset and the borrower shall forthwith comply with the same. In the absence of the borrower failing to comply with the same the borrower is liable for criminal misappropriation, criminal breach of trust and such other civil and criminal consequences and proceedings without prejudice to RCL’s other rights and privileges. Clause XII (Miscellaneous) of the agreement says that this agreement shall become binding on the borrower and the lender on and from the date of execution hereof. It shall be in full force till the loan is Amortize/repaid and any other moneys due and payable to the lender under the Agreement as well as all other agreements, documents which may be subsisting/executed hereafter between the borrower and the lender  is fully paid.

It is settled law that Financer is the owner of the vehicle till the loan amount is not fully repaid or completed. If complainant makes default then the OP has every rights to repossess the vehicle.

We have perused the repayment schedule which has been filed by the complainant.  It appears that payment of instalment was started on 01.12.14 and it will be completed on 01.09.19. Though the complainant has paid instalments of 6 lakhs approx. but 14 lakhs Apprx. is due and also the complainant has to pay the loan amount within 01.09.19.

The OP send notice to the complainant claiming a sum of Rs 17,36,711/- which was payable by the complainant towards the loan amount. The complainant /borrower was requested by the said notice to pay off said amount within seven days from the date of receipt of the notice and it was also stated therein that if complainant fails to comply said notice the OP would take necessary steps to dispose of the vehicle a per terms and conditions of the agreement and sell proceeds would be adjusted against the loan amount.  We have also perused the copy of the letter given by the complainant to the Zonal Manager of M/S. RCL regarding repossession of the vehicle without any notice.

After applying out anxious thought over the matter we are of the view that when 01.09.19 is the last date of payment of the instalments, the  complainant/customer should be given a chance  to repay the loan amount within a reasonable period specially when he admittedly paid Rs. 5,95,100/-towards repayment of the loan in question. If complainant fails then the OP will have the right to take action against the complainant as per the terms and conditions of the Hypothecation agreement.

In view of the above, the complaint may be allowed in part against the OP.

Hence, it is

                                                                                             ORDERED

That the C.C. No. 264 of 2016 be and the same is allowed in part on contest against the OP

The complainant is directed to clear off all the dues at a time, according to the Hypothecation Agreement dated 27.10.2015 within six months hereof and if the complainant pays the due in time, then the OP will hand over the truck to the complainant.

Regarding other reliefs, prayed by complainant, the same are rejected.

Parties do bear their respective cost.

Let copy of judgment of the case be supplied to the parties free of costs.