Madhya Pradesh

StateCommission

A/09/1414

Shree Ram Transport Finance - Complainant(s)

Versus

Vimal Automobiles - Opp.Party(s)

SH. SATISH SHARMA

10 Nov 2022

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 1414 OF 2009

(Arising out of order dated 19.05.2009 passed in C.C.No.58/2009 by District Commission, Shivpuri)

 

BRANCH MANAGER,

SHRIRAM TRANSPORT FINANCE CO.LTD.

VARDHMAN COMPLEX, KAMLA GANJ,

A.B.ROAD, SHIVPURI (M.P.)                                                                  … APPELLANT.

 

                        Versus

 

HAFIZ IRSHAAD AHMED QADRI,

S/O SHRI RIYAZ AHMED QURESHI,

R/O MIG-5, HOUSING BOARD COLONY,

SHIVPURI (M.P.)                                                                                     …. RESPONDENT.   

                     

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : PRESIDING MEMBER

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

            HON’BLE SHRI D. K. SHRIVASTAVA   :          MEMBER

                     

COUNSEL FOR PARTIES :

                Shri Satish Sharma, learned counsel for the appellant.

           None for the respondent.

 

 O R D E R

(Passed On 10.11.2022)

                                The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:              

                   This is an appeal by the opposite party /appellant against the order dated 19.05.2009 passed by the District Consumer Disputes Redressal Forum, Shivpuri (for short ‘District Commission) in C.C.No.58/2009 whereby the complaint filed by the complainant/respondent has been allowed.

2.                The brief facts of the case as stated by the complainant/respondent (hereinafter referred to as respondent) are that he

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after getting finance for a sum of Rs.8,00,000/- from the opposite party/ appellant (hereinafter referred to as ‘appellant’) on 29.10.2007 purchased a truck Model 2005 bearing registration no. MP-06 E-5983. On the same day the appellant transferred the vehicle in his name and has obtained signature at 90 places on blank stamps and took 18 signed blank cheques. The EMI was fixed at Rs.23,000/-. The respondent till September-2008 deposited Rs.2,30,000/- on different dates.  The appellant after encashing the blank signed cheque nos. 18158, 18159, 18160 and 33529 received amount of Rs.2,02,592/- from the respondent. Thus he had paid total Rs.4,32,592/- which is in excess to monthly instalments. Despite that the appellant on 24.10.2008 possessed the vehicle through stamp which is still in possession of the appellant, who after using damaged the new tyres. The respondent became unemployed. Legal notice was also sent but the appellant did not response. He therefore filed a complaint before the District Commission alleging deficiency in service on part of the appellant seeking compensation of Rs.19,00,000/-

3.                The appellant resisted the complaint stating that the appellant did not take any signatures of the respondent on blank paper. At the time of finance, the respondent after going through the agreement voluntarily signed the same. The respondent took finance for a sum of Rs.7,50,000/-, the agreement value, insurance amount and other expenses total

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Rs.11,44,800/- was fixed but the respondent failed to deposit the instalments regularly.   The respondent was defaulter in making payment of instalments of loan. Notices were also sent to him to deposit the instalments but he failed to pay the same. Therefore, the appellant as per agreement taken custody of vehicle and sold the same and the amount was adjusted towards his loan account. The respondent not paying the instalments filed complaint on false grounds. It is therefore prayed that the complaint be dismissed.

4.                The District Commission holding the appellant deficient in service allowed the complaint directing the appellant to give the details of the outstanding amount with interest and penalty within 15 days thereafter on receiving the statement the respondent shall pay remaining instalments to the appellant. The appellant shall return the subject vehicle or return the vehicle of same model and price to the respondent.  Compensation of Rs.5,000/- along with cost of Rs.1,000/- has also been awarded to the respondent.

5.                Heard learned counsel for the parties. Perused the record.

6.                Learned counsel for the appellant argued that from the complaint as also his affidavit it is an admitted fact that the complainant/respondent had financed the truck from appellant. The District Commission has erroneously passed the impugned order without

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considering the complaint, affidavits and documents which is liable to be set-aside. It is argued that the appellant repeatedly issued notices to respondent but he failed to pay the due instalments. The District Commission has also erred in not considering this aspect. The complainant was not entitled to get any relief from the District Commission. He further argued that under a hire purchase agreement the financer is the owner of the vehicle and in case of default in payment of instalments he has every right to repossess the vehicle financed, the District Commission has also not considered this aspect.

7.                Learned counsel for the respondent argued that only few instalments were due at the time of seizure of the truck, no notice had been given prior to the seizure, it amounted to highhandedness on part of the financer. He argued that due notice was not given either before seizure or after seizure before sale. The District Commission has rightly considered all the aspects and passed a well-reasoned order. It is therefore prayed that the appeal be dismissed.

8.                We have perused the complaint, reply, affidavits and documents filed by the parties. The respondent/complainant had filed his affidavit along with documents marked as C-1 to C-25. The appellant had filed affidavit of branch manager along with documents marked as R-1 to R-11. 

 

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9.                It is an admitted fact that the respondent failed to deposit certain instalments as a result of which the appellant possessed the vehicle and even after notice when dues were not paid they sold the same. The appellant had sent notices dated 12.09.2008 and 24.10.2008 before seizure and on 21.11.2008 after seizure of the vehicle. In such circumstances, we do not find any fault on part of the appellant in seizing the truck, selling it and appropriating the sale price towards the outstanding dues against the respondent. In such a situation, the appellant cannot be held for deficiency in service.

10.              The law in case of repossession of the vehicle by the financer under Hire Purchase Agreement for default in payments is well settled. Hon’ble Supreme Court in Suryapal Singh (supra) and recently in M/S Magma Fincorp Ltd. Vs Rajesh Kumar Tiwari II (2021) SLT 366 has held that “Under hire purchase agreement, it is the financer who is the owner

of the vehicle and the person who takes loan retains the vehicle only as bailee/trustee. Taking possession of vehicle on ground of non-payment of instalment is legal right of the financer.”

11.              The point involved in this matter is squarely covered and concluded in favour of the appellant and against the respondent by the aforesaid judgments of the Apex Court.

 

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12.              In view of the above discussion, we find that the District Commission has committed grave error while allowing the complaint against the law settled on the point.

13.              In the result, following the law laid down by the Apex Court we allow this appeal and set-aside the order passed by the District Commission and consequently dismiss the complaint with no order as to costs. However, the respondent is free to take recourse of such other remedy as may be available to him in law.

           

     (A. K. Tiwari)       (Dr. Srikant Pandey)     (D. K. Shrivastava)

Presiding Member             Member                      Member