State Consumer Disputes Redressal Commission
Jitender Singh Guleria vs Icici Bank Ltd. & Ors. on 1 October, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. --- FIRST APPEAL NO.254/2008. RESERVED AT DHARAMSHALA ON 19.9.2009. DATE OF DECISION: 1.10.2009 Jitender Singh Guleria, son of Sh. Moti Singh, village and Post Office, Nagrota Surian, Tehsil Jawali, District Kangra, H.P. Appellant. Versus 1. ICICI bank Ltd. through its Managing Director, Corporate Office, ICICI Towers, Bandra-Kurla Complex, Mumbai 400 051 India. 2. ICICI Bank Ltd. through its Collection Manager, ICICI Home Finance IInd Floor, Chaman Complex, Seri Bazar, Mandi, H.P. 3. ICICI Bank Ltd. through its Collecting Agent Sh. Sandeep Kakkar & Co. near Income Tax Office, Palampur, H.P. Respondents. -------------------------------------------------------------------------------------------- Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? Yes For the Appellant: Mr. Viney Soni, Advocate. For the Respondent. None. -------------------------------------------------------------------------------------------- O R D E R
Justice Arun Kumar Goel (Retd.), President.
1. Application for the grant of interim relief was filed by the appellant.
Therefore, we thought it fit to issue notice in this appeal as well as in the said application i.e. M.A. No.656/2008.
When this case was listed at Shimla on 28.11.2008, respondent No.3 was duly represented. On that date, it was ordered that the case will be listed during the next circuit at Dharamshala and parties will be duly informed.
2. Complaint No.97/2007 was filed;
by the appellant against illegal repossession of the financed vehicle by the respondents without following due process of law forcibly as well as without any information and knowledge of the appellant on 29.3.2007. Vehicle was repossessed not from the appellant but from his driver, Tilak Raj son of Sh. Rodu Ram, resident of Vill. Sakri, Tehsil Dehra, District Kangra, from the place Nagrota Surian (Spail) Tehsil Jawali.
3. Admitted facts giving rise to this appeal are that vehicle bearing registration No.HP-54-6308 was financed by the respondents in the sum of Rs.3,50,000/-.
This amount alongwith interest etc. was repayable in 48 equated monthly instalments of Rs.8638/- commencing from November, 2006.
As per appellant, he was in default of one instalment of March, 2007. Notice, Annexure C.8 dated 16.4.1976 (it should be 2006) was issued whereby appellant was called upon to clear the entire amount of Rs.3,03,100/-towards full and final settlement of his loan account as on 16.4.2007. Thus he was called upon by the respondents to remit the amount alongwith overdue charges @ 24% per annum and other charges till the date of payment within 7 days, failing which steps to dispose of the bus in question to the best quote received by them will be initiated. Bus was repossessed by the persons of respondent No.2 who even did not allow the driver to inform the appellant, as he (the driver) was thrown out of the vehicle at Matour. Next day i.e. on 30.3.2007, he went to the office of respondent No.2 at Mandi when a lady Ms Deepika told that she had no knowledge of the repossession of the vehicle in question. Further according to him, she informed the appellant that vehicle has been repossessed by their person and it can only be returned if the appellant cleared the entire loan amount. He lodged rapat No.6 on 31.3.2007 with the Police and its copy is Annexure C.7. Further case of the appellant is that he was informed regarding outstanding dues and he sent a bank draft payable to respondent at Palampur of Rs.17,276/- and a cheque also payable to the respondent for Rs.18,028/- drawn on Punjab National Bank. These were sent by registered post and a copy of postal receipt is Annexure C.5. Copy of the envelope in which it was sent bearing postal endorsement is annexed as Annexure C.6 which shows that addressee refused to accept. Addressee in this case is respondent No.3, Collection Agent of the bank at Palampur, Sh. Sandeep Kakkar & Co.
While justifying the repossession of the vehicle, stand of the respondents is that they were well within their rights to have repossessed the vehicle and in this behalf reference is made to a decision of the Honble Supreme Court, as well as of the National Commission. It was denied that at any point of time appellant approached respondent No.2.
4. Before proceeding further, we consider it necessary to refer to pleadings of the parties and in this behalf, paragraph-6 of the complaint which according to us has material bearing on the decision of this appeal together with its reply. For ready reference, these are extracted hereinbelow:-
COMPLAINT
6. That the opposite party No.2 vide letter dated 16.3.2007 directed the complainant to pay sum of Rs.26,664/- within seven days from the receipt of above mentioned letter, it is pertinent to mention here that the above said letter delivered to the complainant on 26.3.2007 and the complainant on 28.3.2007 sent a Demand Draft bearing No.TGU-472242 dated 28.3.2007 amounting to Rs.17,276/- and Cheque bearing No.626996 dated 28.3.2007 amounting to Rs.18,028/- to the opposite party No.3 vide registered letter No.3574 dated 29.3.2007 and also informed the opposite parties No.2 and 3 through telephonically. The photo copy of the letter dated 28.3.2007 alongwith photo copy of cheque and demand draft as well as copy of postal receipt are attached herewith as Annexures C.2 to C.5.
REPLY TO COMPLAINT
6. Contents of para No.6 to 8 of complaint are admitted to the extent of letter dated 16.3.2007 in which letter complainant was directed to pay the defaulted instalments and their overdues within 7 days, but rest of the para is wrong and not admitted to be correct.
However, it is submitted that complainant has not deposited the defaulted payment of instalments within the stipulated period and for want of instalments the opposite parties have repossessed the vehicle.
It is pertinent to mention here that opposite parties have rightly re-possessed the vehicle in view of the various judgments of Apex Court i.e. Charanjeet Singh Chadha Versus Sudhir Mehra 2001 VI SLT page 312 i.e. M.D. Orix Auto Finance Versus Jagminder Singh and ors JT 2006 (2) SC 344 and by Ld. National Commission i.e. 1995 (III) CPJ (NC) 58 and 1998 (I) NC 374 in which it is held that financer can re-possess the vehicle if there occurs defaults in payment of loan instalment. Rest of the contents of all these paras are wrong and not admitted to be correct. Statement of account is annexed herewith.
5. A perusal of the above extracted pleadings clearly suggests that the amount having been sent by registered post by means of a cheque and a demand draft and the same having been refused by the Collecting Agent of respondent No.1 at Palampur is not specifically disputed. It is also not the case of respondents 1 & 2, that Sanjeev Kakkar and Co. was not their Collecting Agent at Palampur.
6. Another fact that needs to be noted here is that when complaint was filed, an application was also filed by the appellant, whereby respondents were directed not to transfer/dispose of the vehicle of the appellant in any manner whatsoever till the next date. They were called upon to show cause. This clearly shows that the vehicle was not permitted to be sold by the respondents.
7. After hearing the parties, District Forum below allowed the complaint and directed the respondents jointly and severally to pay Rs.35,000/- to the appellant within 30 days after receipt of the copy of the said order, failing which it shall carry interest @ 7% per annum from the date of complaint, i.e. 30.4.2007 till its realization alongwith Rs.2,000/- as litigation cost. Hence, this appeal.
8. While filing the appeal, an application for grant of interim relief was filed as already noted, however no order was passed on it as we thought it fit to dispose of the appeal finally.
9. Repossession of the vehicle by use of force is clearly made out in the circumstances of this case. It is by now well settled that so long rule of law prevails in the civil society, financiers like respondents cannot be allowed to become law unto themselves and/or to use muscle power. Why notice was not issued to the appellant before repossessing the vehicle by the respondents, there is nothing on record. Annexure C.8 is a copy of notice dated 16.4.2007. This is after repossessing the same on 29.3.2007. In these circumstances, repossession of the vehicle is not only illegal and contrary to law, but also is against the law of the land as declared by the Honble Supreme Court in the case of Manager, ICICI Bank Ltd. Versus Prakash Kaur & Ors., AIR 2007 SUPREME COURT 1349, and Citicorp Maruti Finance Ltd. Versus S.Vijayalaxmi, III (2007) CPJ 161 (NC). In the light of the these decisions, right of the respondent as financier is akin to that of a hypothecatee and the loan documents are like any other loan agreement between the parties, therefore if any right accrues in their favour on account of default in the repayment of instalments, respondents are duty bound to take recourse to law and not to use force as is the situation in this case.
10. From the documents on record placed by the parties, it is evident that appellant had defaulted in the payment of instalments due for the month of March, 2007, however without giving him breather or atleast having been called upon to liquidate the same, the vehicle was repossessed, that too by use of force on 29.3.2007 and without following law. This shows the act and conduct of high-handedness on the part of the respondents as a high contracting party, as a financier.
11. The vehicle has remained in illegal possession of the respondents, therefore according to Mr. Soni, his client is entitled to be adequately compensated for such illegal repossession. Further according to him compensation awarded by the District Forum below is an excuse in its name. While buttressing this submission, Mr. Soni pointed out that his client offered the money to the Collecting agent of respondent-bank as is clear from Annexures C.3 to C.5, who refused to accept the same.
Further according to him in case vehicle had not been illegally repossessed by use of force, the entire outstanding amount would have been liquidated. In these circumstances, we are of the view that the compensation needs to be enhanced and we order accordingly.
12. Suffice it to say that appellant was paying monthly instalment of Rs.8638/- towards the loan amount. Atleast this much amount he was earning every month, besides this he shall be presumed to be making money for his livelihood after defraying the expenses of running the bus. As such due to aforesaid acts of highhandedness of the respondents, the appellant was deprived of his recurring monthly income.
13. In these circumstances, we are of the view that compensation needs to be enhanced from Rs.35,000/-. Taking a very conservative view of the income after defraying the amount of monthly instalment besides salary of driver and conductor, maintenance and running cost of vehicle etc. he must be making Rs.7,500/- per month for his living. Vehicle continues to be in possession of the respondents for approximately 30 months as on date, therefore we are of the view that appellant is entitled to be compensated in the sum of Rs.2,25,000/-. Ordered accordingly. In addition to this amount since we have held that the vehicle was repossessed without following the law of the land, as well as due process of law by use of force without intimating the appellant/prior notice to him, as such respondents are liable to be burdened with punitive costs which we assess at Rs.25,000/- as well as cost of this appeal fixed at Rs.5,000/-, in addition to the cost as awarded by the District Forum below. At the same time respondents are directed to return the vehicle forthwith on production of certified copy of this order in the office of respondent No.2 at Mandi, failing which they shall be liable to indemnify the appellant at the rate of Rs.250/- per day with effect from the date of production of the copy till the date of delivery of the vehicle. After the vehicle is delivered to him, the appellant will be liable to pay instalments after 3 months when the vehicle is returned to him by the respondents. Appellant is further held not liable to pay amount of interest including penal interest as well as any other charges like parking and watch and ward charges etc. during the period the vehicle remained in the illegal possession of the respondents.
This appeal is allowed subject to this modification in the order of the District Forum below dated 29.8.2008 passed in Consumer Complaint No.97/2007, and it stands disposed of.
Office is directed to send a copy of this order forthwith to the respondents free of cost and at the same time to Shri Viney Soni, Advocate, District Courts, Kangra at Dharamshala in the like manner.
Shimla, October 1, 2009.
( Justice Arun Kumar Goel ) (Retd.) President ( Saroj Sharma ) Member /BS/ ( Chander Shekhar Sharma ) Member