JUSTICE J. M. MALIK, PRESIDING MEMBER (ORAL) 

1.      Learned counsel for the parties present.  Arguments heard.

2.      Shri Upendra Kumar Pandey, the complainant/respondent purchased a second hand truck for a consideration of Rs.6,37,000/- by taking loan from Kotak Mahindra Bank Ltd.-petitioner/opposite party.  The complainant made repayment to the tune of Rs.5,42,000/-.  The

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Opposite party-Bank sent a letter dated 7.5.1999 to the complainant and demanded Rs.1,12,200/- towards outstanding amount.  The complainant made a representation dated 18.5.1999 to the opposite party to extend the time for repayment of actual amount by installments.  It is alleged that opposite party snatched away the truck suddenly with connected papers on 17.6.1999.

3.      The complainant filed a writ petition before Kolkata High Court.  The Kolkata High Court directed that the name of the complainant instead of third party/purchaser be recorded by the Registering authority. They did not adjudicate the rest of the disputes but directed the parties to approach the proper forum.

4.      Thereafter, the complainant filed a complaint before the District Forum.  The District Forum allowed the complaint and directed the opposite party-Bank to pay jointly and severally a compensation in the sum of Rs.5,42,000/- to the complainant together with interest @ 9% per annum from 1.7.1999 till the date of realization.  The opposite party-Bank  was also directed to pay severally and jointly a compensation of Rs.2,50,000/- only to the complainant for his tremendous harassment and mental agony and litigation cost of Rs.20,000/- only within 45 days.

5.      The State Commission, however, modified the order and directed the opposite party-Bank to pay a compensation of Rs.2,50,000/- and

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litigation costs of Rs.20,000/- to the complainant.  The State Commission placed reliance on Citicorp Maruti Finance Ltd. vs. S. Vijayalaxmi 2012 (1)C Cr. LR (SC) 139 wherein the Hon’ble Apex Court held that recovery of vehicle pursuant to hire purchase agreement should be in pursuance of due process of law and use of muscle power was not permissible.  It must be mentioned here that in that case (Citicorp Maruti Finance Ltd ), no prior notice was given.

6.      Learned counsel for the respondent/complainant submits that the complainant had purchased a second hand vehicle and he had to spend heavy amount towards the repair of engine and change of tyres to make the vehicle roadworthy.  Although, the truck remained in possession of the complainant, yet, he had to pay a sum of Rs.5,42,000/-.  The complainant never tried to avoid the making of payment as such.  He wanted time, which was not granted and it was also brought to our notice that the complainant had filed a revision petition against the order of the State Commission for enhancement of the amount, which was dismissed by this Commission on 20.1.2014.

7.      All these arguments have left little impression upon us.  The complainant had purchased a second hand vehicle at his own peril.  He must have known what repairs the second hand vehicle required.  In the

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instant case, the most important factor is that the notice for demand was sent.  The parties are bound by the agreement, which is entered into between the parties at the time of taking the loan.  This is an admitted fact that the complainant waddled out of the commitments he made.  The Apex Court in the celebrated authority reported in Surya Pal Singh vs. Siddha Vinayak Motors & Anr. III (2012) CPJ 4 (SC), was pleased to hold:

“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.

This Court vide its judgment in Trilok Singh & Ors. Vs. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier 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; Jagdish Chandra Nijhawan vs. S. K. Saraf, IX (1998) SLT 477=IV (1998) CCR 118

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(SC)=1999(1) SCC 119; Charanjit Singh Chadha & Ors. Vs. Sudhir Mehra, VI (2001) SLT 883=III (2001) CCR 232 (SC)=2001(7)SCC 417, following the earlier judgment of this Court in Sundaram Finance Ltd. vs. The State of Kerala & Anr. AIR 1996 SC 1178; Smt. Lalmuni Devi v. State of Bihar & Ors. I (2001) SLT 26=I(2001) CCR 9 (SC)=2001(2) SCC 17 and Balwinder Singh v. Asstt.  Commissioner,

V (2005) SLT 195=III(2005) CCR 8 (SC)=CCE 2005(4) SCC 146.”

8.      Again, in Orix Auto Finance (India) Ltd. vs. Jagmander Singh and anoterh (2006) 2 SCC 598, it was held:

“Before we part with the case, it is relevant to take note of submission of learned counsel for the Hirer that in several cases different High Courts have passed orders regarding the right to re-possess where the High Courts have entertained writ petitions including writ petitions styled as PIL on the question of right of financiers to take possession of the vehicle in terms of the agreement.  It is stated that directions have been given to the RBI for framing guidelines in this regard. If it is really so, the orders prima facie have no legal foundation, as virtually while dealing with writ petitions subsisting contracts are being re-written.  It is still more surprising that petitions styled as PIL are being

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entertained in this regard.  Essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petitions in such contractual matters is practically non-existence. If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But mere fact that possession has been taken cannot be a ground to contend that the hirer is prejudiced. Stand of learned counsel for the respondent that convenience of the hirer cannot be overlooked and improper seizure cannot be made. There cannot be any generalization in such matters. It would depend upon facts of each case. It would not be therefore proper for the High Courts to lay down any guideline which would in essence amount to variation of the agreed terms of the agreement.  If any such order has been passed effect of the same shall be considered by the concerned High Court in the light of this judgment and appropriate orders shall be passed.”

9.      However, the petitioner has not placed on record to prove the fact whether the said vehicle was sold and if sold, for how much amount.  In absence of any evidence, we will presume that such vehicle was sold for

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a sum of Rs.4 lakhs.  The petitioner is entitled to deduct the amount of Rs.1,12,200/-.

10.    Learned counsel for the petitioner vehemently argues that this point was never considered by the fora below.  No point has been raised in the revision petition itself and the revision petition was filed by the complainant was also dismissed as already stated.

11.    According to the learned counsel for the petitioner, only the issue is whether the order passed by the fora below are correct or not.  It is also stated that there is no finding of any fora that the vehicle was forcibly taken by the opposite party.  Neither there is any pleading to that effect.

12.    All these arguments are bereft of force.  The petitioner has not explained how the vehicle came into their hands.  They are conspicuously silent about that.  The main purpose of this Commission is to impart justice to the parties.  The duty is to winnow the truth from the falsehood.  The petitioner wants to avoid this point which is in favour of the consumer.   The duty of the Commission is to see that the consumer should not suffer on any count.  It should have been mentioned in the written statement that the vehicle has been sold for how much amount but the written statement is conspicuously silent

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about it.  The silence on the part of opposite party is pernicious and smacks of mala fide intention.  The OP is guilty of suppression of facts.

13.    Under the facts and circumstances of the case, we presume that the vehicle was sold for Rs.4 lakh.  The petitioner can deduct Rs.1,12,200/-.  Rest of the amount be paid to the complainant.  We hereby set aside the order passed by fora below and modify the same and direct the petitioner to pay the remaining amount with interest @9% per annum from the date of sale till its realization.

14.    The revision petition stands disposed of.