State Consumer Disputes Redressal Commission
Hdfc Bank, The Mall, Amritsar, Through ... vs 1. Suresh Kumar S/O Sh. Ram Ashrey R/O ... on 3 April, 2012
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First Appeal No.1397 of 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1397 of 2007
Date of institution : 15.10.2007
Date of Decision : 03.04.2012
HDFC Bank, The mall, Amritsar, through its Manager.
....Appellant/OP no.2
Versus
1. Suresh Kumar S/o Sh. Ram Ashrey R/o House No. 87, Gali No.3,
Sudarshan Nagar, Sultanwind Road, Amritsar.
Respondent no.1/complainant
2. National Financer 12 G.S.Bagga Hussainpura Chownk, G.T.Road,
Amritsar through Reshad, Agent/director/Manager.
Respondent no.2/OP no.1
3. M/s Amrit Auto Dealer Batala Road, Verka, Amritsar.
Respondent no.3/OP no.3
First Appeal against the order
dated 08.05.2007 of the District
Consumer Disputes Redressal
Forum, Amritsar.
Before:-
Shri Jagroop Singh Mahal, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
Shri Vinod Kumar Gupta, Member Argued by:-
For the appellant : Sh. Sandeep Suri, Advocate
For respondent no.1&3 : Ex-parte
For respondent no.2 : None
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER:
This is OP's appeal under section 15 of the Consumer Protection Act (hereinafter referred to as the Act) against the order dated 08.05.2007 passed by the Learned District Consumer Disputes Redressal 2 First Appeal No.1397 of 2007 Forum, Amritsar (hereinafter referred to as the District Forum) allowing the complaint and directing the OP/appellant to return the Motorcycle of the complainant in the same condition as it was at the time of taking its possession. Complainant was directed to pay the entire amount as agreed at the time of financing the same. The OP no.2/appellant was also directed to pay Rs.5,000/- as compensation and Rs.1,000/- as litigation expenses.
The order was to be complied within a period of one month from the date of receipt of copy of the order.
2. The case of the complainant/ respondent no.1 is that he had purchased from OP No.3/respondent no.3 a motor cycle for Rs. 34,990/- after obtaining a loan of Rs. 25,000/- from the appellant/OP no.2. He had submitted 24 cheques for repayment of the loan and was liable to pay installments of Rs. 1259/- each month. The total value of the vehicle including charges of Registration and Insurance policy was paid at the time of purchase. It was alleged that OP No. 1 National Financer assured him that the registration certificate of the vehicle would be delivered to him within one month. The complainant had been paying the installments of the vehicle regularly. After about one month he approached OPs No. 1 & 2 for delivering the registration certificate of the vehicle as he was facing problems from the Traffic Police, they however used to put him off on one pretext or the other. He then told them that if the registration certificate was not given within one month he would stop payment of the installments but it had no effect on them. The complainant therefore, stopped paying installments with effect from February, 2006. According to the complainant on 21.3.2006 (wrongly mentioned as 21.3.2005) the appellant with the help of OP No. 1 forcibly, illegally and unlawfully took the custody of the vehicle and refused to listen to his genuine requests. The complainant suffered 3 First Appeal No.1397 of 2007 grave mental torture at their hands on account of illegal harassment caused by them. He therefore, filed the present complaint for return of the vehicle and also for a compensation of Rs. 20,000/- apart from the litigation expenses.
3. The complaint was contested by OP No. 1 alleging that it is not the National Financer but Mahindra and Mahindra Finance Service which is conducting business from the given address. It was alleged that they have no concern with the complainant or the remaining OPs. The other allegations were denied.
4. According to the appellant, the complaint was not legally maintainable and the complainant was estopped by his acts and conducts and the complaint had been filed on forged and fabricated facts. It was admitted that they had advanced loan to the complainant for purchase of the vehicle and he had executed a loan cum hypothecation agreement in their favour. It was denied if the complainant was regularly paying the installments or if the registration certificate which was to be delivered by OP No. 1 was not delivered to him. It was admitted that the appellant took the custody of the vehicle but it was done legally as per terms and conditions of agreement and not forcibly as alleged by the complainant. They denied if they are liable to pay any compensation.
5. The contention of OP No. 3 is that the complainant has purchased the vehicle from them. He has paid Rs. 11,000/- in cash and took away the motor cycle and the remaining amount of Rs. 24,073/- was paid through the cheque. Their contention is that they have no concern with the dealings between the complainant and OPs No. 1 & 2.
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6. The parties were given opportunity to produce evidence in support of their contentions.
7. After hearing the Ld. Counsel for the parties and perusing the record, the Learned District Forum vide impugned order dated 08.05.2007 allowed the complaint as mentioned in para no.1 above. The OP/appellant has challenged the same through this appeal.
8. We have heard the arguments of the Ld. Counsel for the appellants and have perused the record. None appeared for the respondents to argue the case.
9. The first contention of the learned counsel for the appellant is that the vehicle has since been sold by them, further and therefore, the impugned order cannot be complied with. In this respect we may first refer to the order dated 31.3.2006 passed by the Ld. District Forum which is to the following effect:-
"After considering the application, we direct the opposite party not to sale the motor cycle CT 100 Bajaj which was repossessed till the time of deciding the matter in the District Consumer Forum, Amritsar."
The Ops were summoned for 9.5.2006 and the summons was duly served on them. Sh. Sambir Lamba, Sales Manager of the OP No. 2/appellant appeared before the learned District Forum on that date. The OP No.2/appellant filed the written reply and affidavit of Sh. Sambir Lamba on 27.10.2006 but no mention was made therein if the vehicle has already been sold. However, it was for the first time that in reply to the application for stay the OP No.2/appellant submitted on 6.2.2007 that the vehicle has been sold by them to Gurdev Singh on 23.6.2006. A certificate dated 5 First Appeal No.1397 of 2007 11.1.2007 was produced by the OP No.2/appellant obtained from District Transport Officer to this effect. It shows that the vehicle had been sold by the OP No.2/appellant not only after a stay order was served on them by the learned District Forum but even after they had appeared before the Ld. District Forum, and that too without seeking permission from the learned District Forum and without giving notice of the same to the complainant. It shows the extent of high handedness to which the OP No.2/appellant can go and also the scant regard they have for the orders of the Consumer Fora.
10. The learned counsel for the appellant argued that since the complainant had stopped paying installments, the OP No.2/appellant was within its right to repossess the vehicle. His contention is that the loan and hypothecation agreement authorized the OP No.2/appellant in this respect and the step taken by them was fully justified under the law. When we go through the record of the learned District Forum, we do not find any loan- cum-hypothecation agreement placed on file by them and the question of possessing any such power by the appellant to take possession of the vehicle is therefore, a far cry. The Ld. District Forum therefore, rightly discarded the self assumed powers by the appellant to take possession of the vehicle.
11. Even otherwise, even if any such agreement gave the power to the appellant to take possession of the vehicle even in that situation, the remedy for the appellant was to approach the competent Court for an order to enforce the said condition of the agreement. The appellant could not take law in his own hands to take possession of the vehicle without recourse to law.
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12. It is further argued by the learned counsel for the appellant that there is no evidence produced by the complainant if the vehicle was forcibly possessed by them and therefore, their action cannot be challenged before the Consumer Fora. This argument also is devoid of merit. In fact the complainant has filed his affidavit in para No. 5 of which it was specifically mentioned that the vehicle was forcibly, illegally and unlawfully taken away by the OP No.2/appellant with the help of OP No. 1. The appellant also admitted that they had taken the possession of the vehicle. There is no evidence to suggest that the same was voluntarily handed over by the complainant to them. There is no surrender document to prove the surrender of the vehicle by the complainant to the appellant. The appellant has not produced the person who took the possession of the vehicle nor the persons in whose presence the possession was taken to prove that the delivery was not forcible. Under these circumstances, when the possession was not delivered by the complainant voluntarily, he was not willing to hand over the possession but even then it has been taken over, no further evidence would be needed to prove that it was taken forcibly. The contention of the complainant as contained in para no.5 of the complaint and affidavit goes unrebutted and the contention of the learned counsel for the appellant that the possession was not taken forcibly, therefore, cannot be accepted as correct.
13. The learned counsel for the appellant has referred to the case "SUENRA KUMAR AGGARWAL VS. TELCO FINANCE LIMITED & ANR." (I) 2010 CPJ 163(NC). In that case OP was authorized to repossess the vehicle in case of default in payment of loan installment but as discussed above in the present case no such agreement exists under which the said authority may have been given to the OP No.2/appellant to 7 First Appeal No.1397 of 2007 repossess the vehicle. Moreover in that case the vehicle was under hire purchase agreement which also is not the case here. Learned Counsel then referred to "NEELAM PURI VS. ICICI BANK LTD." Revision Petition No. 4212 of 2008 decided by the Hon'ble National Commission on 24.11.2009. This case also is not applicable to the present case because in that case the vehicle was surrendered and surrender documents had been executed in pursuance of which possession was taken. It is not so in the present case. The next authority cited by the learned counsel for the appellant is "PARMESWARI VS. THE GENERAL MANAGER" 2010 II CPJ 45 (NC). In that case the financer was the owner of the vehicle under the hire purchase agreement and had the right to repossess the vehicle, the vehicle had been delivered to the service station for repair who handed over the same to the Financer without any intimation to the appellant/complainant. The hire purchase agreement authorized the financer to take possession of the vehicle. It is not so in the present case. In this manner, none of these authorities is therefore, applicable in the present case.
14. Our case is squarely covered by the judgment of the Hon'ble National Commission in "Capital Trust Ltd. Versus Sanjay Dutt and Anr.", III 2009 CPJ 79(NC). In that case vehicle was financed, the appellant defaulted in payment of installments and the vehicle was repossessed and sold, the complaint was allowed by the Forum which order was upheld in appeal holding that vehicle was taken with force. The revision petition filed by the Financer was dismissed with an exemplary costs of Rs. 25,000/-.
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15. In another case, "CITYCORP MARUTI FINANCE LTD. VS. S.VIJAYLAXMI" III 2007 CPJ 161 (NC), it was held as follows:-
1. Where a vehicle is purchased by a person by borrowing money from the money lender /financer/banker, the consumer would be the owner of the vehicle and not the money lender /financier/banker unless the ownership is transferred.
2. In a democratic country having well established independent judiciary and having various laws it is impermissible for the money lender/financier/banker to take possession of the vehicle for which loan is advanced by use of force.
3. Legal or judicial process may be slow but it is no excuse for employing musclemen to repossess the vehicle for which loan is given. Such type of 'instant justice' cannot be permitted in a civilized society where there is effective rule of law.
Otherwise, it would result in anarchy that too when the borrower retorts and uses the force.
B. 1. A hire-purchase agreement is a normal one under which owner hires goods to another party called the hirer and further agrees that the hirer shall have an option to purchase the chattel when he has paid a certain sum, or when the hire- rental payments have reached the hire-purchase price stipulated in the agreement.
2. As against this, when a person desires to purchase vehicle/goods and not having sufficient money on hand, 9 First Appeal No.1397 of 2007 borrows the amount needed from a money lender/financier/banker and pays it over to the vender of the vehicle, the transaction between the consumer and the money lender will unquestionably be a loan transaction. In such a case the vehicle purchased by the consumer is registered in the name of the consumer and remains at all material times so registered in his name. The consumer remains quo the world at large the owner and remains in possession of the vehicle. By an agreement the vehicle can be given as security for the loan advanced. In such a case, the right to seize the vehicle is merely a license to ensure compliance with the terms of the so called hire purchase agreement C.1. It is to be stated that many financier/banks are in race for giving loan for purchase of vehicles or various articles. After giving loan and taking interest in advance, the polite behavior changes because of the documents which are signed on the dotted lines by the borrower. On occasions, borrower suffers harassment, torture, or abuses at the hands of the musclemen of the money lender. Such a behavior is required to be prohibited and the process of repossession is required to be streamlined so as to fit in cultural civilized society. Let the rule of law prevail and not that of jungle where might is right.
16. In that case of "CITICORP MARUTI FINANCE LTD. VS. S. VIJYALAXMI" (Supra) damages of Rs. 50,000/- were imposed on the financer besides refunding the market value of the vehicle with interest. Fortunately for the OP/appellant, the learned District Forum, is the present 10 First Appeal No.1397 of 2007 case, did not take appropriate action against the OP/appellant for their illegal acts.
17. Learned counsel for the appellant has again reiterated his stand that in view of the vehicle having already been sold, it would not be possible for them to implement the order, and therefore, the same be modified. Since the vehicle was taken possession of by the OP/appellant forcibly and illegally even without giving an advance notice of the same to the complainant and was lateron sold in contravention of the stay order issued by the learned District Forum they should ordinarily be bound to restore the vehicle to its rightful owner in the same condition in which it was seized. However, by imposing on them special costs of Rs.25,000/- for selling the vehicle in contravention of the stay order and then requesting for modification of order on the ground that they cannot comply with the direction having already sold the vehicle, we take a lenient view against the appellant and direct it that instead of restoring/releasing the vehicle they would pay to the complainant the amount of Rs. 34,990/- the price of the vehicle, alongwith interest @10% per annum from the date of seizer i.e. 21.3.2006 when it was forcibly taken possession of by them till its payment to the complainant in addition is special damages of Rs.25,000/- and the compensation and costs of litigation awarded by the learned District Forum. The balance of loan amount if any due from the complainant shall be retained by the OP/appellant under intimation to complainant/respondent by furnishing complete details and A/c statement thereof.
18. In view of the above discussion, we are of the opinion that there is no merit in this appeal and with the modification referred to above the 11 First Appeal No.1397 of 2007 same is dismissed. If the amount of Rs.34990+25000+5000+1000= 65,990/- and interest @10% per annum minus the amount due from him on 21.03.2006 is not paid within 30 days the OP No. 2/appellant would be liable to pay the penal interest thereon @ 12% per annum w.e.f. 21.3.2006 on the amount of Rs. 34,990/- and w.e.f. today on the remaining amount till its payment to the complainant/respondent.
19. Amount of Rs. 3,000/- was deposited by the appellant on 15.10.2007 at the time of filing the appeal. This amount be sent to the complainant by the registry by way of a crossed cheque/demand draft after the expiry of the period of revision, if no stay order is received from the Hon'ble National Commission.
Copies of this order be sent to the parties free of cost.
(Jagroop Singh Mahal) Presiding Judicial Member (Jasbir Singh Gill) Member (Vinod Kumar Gupta) Member 03 April,2012 Rashmi Refer to reporter 12 First Appeal No.1397 of 2007