State Consumer Disputes Redressal Commission
Nikhil Enterprises vs Magma Fincorp Limited on 23 May, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/12/370
Instituted on : 18.07.2012
Nikhil Enterprises,
Through - Proprietor - Nand Kishore Agrawal,
S/o Late Shri Surajlal Agrawal, Age 50 years,
Baikunthpur, Raigarh,
Tahsil and District Raigarh (C.G.) ... Appellant
Vs.
Magma Fincorp Limited,
Kirti Complex, Rajendra Nagar Chowk,
Bilaspur, District Bilaspur (C.G.) ... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Mukesh Sharma, for appellant.
Shri Sunil Otwani, for respondent.
ORDER
Dated : 23/05/2014 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against order dated 19.06.2012, passed by District Consumer Disputes Redressal Forum, Raigarh (C.G.) (henceforth District Forum") in Complaint Case No.118/2010. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Briefly stated the facts of complaint are : that the appellant (complainant) purchased vehicle bearing registration No.C.G.13-D-
// 2 // 0275 from the respondent (O.P.) after obtaining loan The appellant (complainant) had paid the installments in time. The respondent (O.P.) sent notice to the appellant (complainant) on 01.07.2010 which was received by him on 19.07.2010 in which it was mentioned to pay a sum of Rs.1,60,555/-. The said notice sent by the respondent (O.P.) was not according to the Hire Purchase Agreement, therefore on 02.08.2010 the appellant (complainant) sent a sum of Rs.1,07,036/- through D.D. dated 31.07.2010 to the respondent (O.P.) towards the amount of remaining installments. No loan amount was outstanding against the appellant (complaint) but even then on behalf of the respondent (O.P.) Mukesh Agrawal, Jitendra Bajpai by giving threat had forcibly repossessed the vehicle from crusher of Gautam Enterprises, at Badmal. The appellant (complainant) reported the incident at Police Station, Pusaur and on 14.08.2010 sent notice to the respondent (O.P.) saying that if any delay was occurred in making payment of installment, then to charge interest and to return the vehicle, but inspite of it, the respondent (O.P.) had not returned back the vehicle and had also not replied the notice sent by the appellant (complainant). Therefore, the appellant (complainant) filed consumer complaint before the District Forum, seeking direction to the respondent (O.P.) to pay compensation under different heads to him as mentioned in the complaint.
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3. The respondent (O.P.) filed written statement and denied the allegations leveled by the respondent (complainant) in the complaint. The respondent (O.P.) pleaded that the appellant (complainant) filed the complaint suppressing the true facts. The appellant (complainant) obtained loan to the tune of Rs.15,50,000/- from the respondent (O.P.) for purchasing the vehicle in question and a Hire Purchase Agreement was executed between the parties. The appellant (complainant) agreed to pay the amount of loan in 35 installments of Rs.53,519/- each for the period 20.05.2007 to 19.04.2010 and the total amount payable was Rs.18,73,165/-. The appellant (complainant) had not paid the installments regularly, therefore, Delay Payment Charges (D.P.C.) was payable. In addition to D.P.C., the cheque bouncing charges was also payable. The appellant (complainant) had not paid most of the installments in time and paid the installments belatedly. The respondent (O.P.) sent demand notices to the appellant (complainant) on 01.04.2010, 01.05.2010, 01.06.2010 and 01.07.2010 but inspite of sending demand notices, the appellant (complainant) had not made payment of the outstanding amount. Then the respondent (O.P.) sent intimation to the Superintendent of Police, Raigarh (C.G.) before repossessing the vehicle in question on 18.07.2010 and also sent pre- sale notice to the appellant (complainant), but in spite of it, the appellant (complainant) had not paid the outstanding amount and thereafter the respondent (O.P.) repossessed the vehicle in question.
// 4 // The appellant (complainant) purchased the vehicle for commercial purpose and had given the vehicle on rent to Gautam Enterprises. As per Consumer Protection Act, 1986 the appellant (complainant) is not a consumer. As per terms of the Hire Purchase Agreement executed between the parties, if any dispute arise between the parties, the same shall be heard at West Bengal and learned District Forum, has no jurisdiction to hear the case. The appellant (complainant) has not followed the conditions of the Hire Purchase Agreement. Intimation was also given to the appellant (complainant) regarding initiation of arbitration proceedings by the Arbitrator, but even then he filed consumer complaint before the District Forum, which is not maintainable. The appellant (complainant) is not entitled for getting any compensation and the complaint is liable to be dismissed.
4. Learned District Forum, after having considered the material placed before it dismissed the complaint by the impugned order.
5. Shri Mukesh Sharma, learned counsel appearing for the appellant (complainant) argued that the appellant (complainant) was depositing the installments regularly and even then the muscleman of the respondent (O.P.) forcibly took possession of the vehicle in question. The appellant (complainant) reported the matter to the concerned Police Station. He further argued that the appellant (complainant) had deposited the entire loan amount with the // 5 // respondent (O.P.) and when the vehicle was parked in crusher of Gautam Enterprises at Village Badmal, the muscleman of the respondent (O.P.) came there and forcibly took possession of the vehicle in question. The respondent (O.P.) has no right to t ak e possession of the vehicle. The vehicle in question was still in possession of the respondent (O.P.) and the vehicle was completely damaged, therefore, the appellant (complainant) is entitled for a new vehicle in stead of vehicle in question and is also entitled for getting present value of the vehicle in question from the respondent (O.P.) and the impugned order passed by the District Forum, and is not sustainable in the eye of law and the same is liable to be set aside.
6. Shri Sunil Otwani, learned counsel appearing for the respondent (O.P.) has supported the impugned order and he further argued that the before taking repossession of the vehicle, the respondent (O.P.) sent notices to the appellant (complainant) and had also given intimation to the concerned Police Station and thereafter took possession of the vehicle. The impugned order passed by the learned District Forum, is just and proper and does not call for any interference by this Commission.
7. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
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8. The appellant (complainant) filed documents. Document 1 is bill dated 21.05.2007 issued by Shubhankar Marketing Private Limited, document 2 is notice dated 01.07.2010 sent by the respondent (O.P.) to the appellant (complainant) demanding payment of over dues, document 3 is acknowledgement, document 4 is copy of demand draft, document 5 is intimation given by Gautam Enterprises, Raigarh to Police Station, Pusaur, District Raigarh on 21.07.2010, document 6 is notice dated 14.08.2010 sent by Shri Y.K. Shadangi, Advocate on behalf of the appellant to the respondent (O.P.).
9. Respondent (O.P.) has also filed documents. Document 1 is Hire Purchase Finance Agreement, document 2 is statement of account, document 3 to 6 are notices sent by the respondent (O.P.) to the appellant (complainant) on different dates demanding payment of over dues, document 7 is letter dated 14.05.2010 sent by the respondent (O.P.) to the appellant (complainant), document 8 is letter of authority, document 9 is pre-intimation to Local P.S. by Magma Shrachi Finance Limited, document 10 is Post Intimation to Local P.S. by Magma Fincorp. Ltd., document 11 is Inventory of Items in vehicle,, document 12 is Pre-Sale Notice to Hirer sent on 22.07.2010, document 13 is letter dated 06.09.2010 sent by Sinha & Company, Advocates to Mr. Y.K. Shadangi, Advocate, document 14 is letter sent by Jitendra Bajpai, Magma Finance Ltd. to the Police Station, Pusaur, District Raigarh, // 7 // document 15 is postal receipt,, document 16 is acknowledgement, document 17 is acknowledgement.
10. Looking to the documents filed by both the parties, it appears that the appellant (complainant) had obtained loan from the respondent (O.P.) for purchasing the vehicle in question and the respondent (O.P.) sent notices on different dates to the appellant (complainant) for depositing the installments. According to the appellant (complainant), he deposited the entire loan amount with the respondent (O.P.), but he has not been able to prove that he had deposited the entire amount of the loan with the respondent (O.P.). Document 3, 4, 5 & 6, which have been filed by the respondent (O.P.) are demand notice of payment of over dues sent by the respondent (O.P.) to the appellant (complainant) on different dates. From the above documents, it appears that the respondent (O.P.) sent notices to the appellant (complainant) for depositing the loan amount which was due, but the appellant (complainant) did not deposit the same and thereafter the respondent (O.P.) gave pre-intimation to the Superintendent of Police, Raigarh on 18.07.2010 and also sent post intimation on 19.07.2010 and the vehicle was repossessed by the respondent (O.P.) and inventory was prepared.
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11. In the case of Suryapal Singh v. Siddha Vinayak Motors & Anr., III (2012) CPJ 4 (SC), Hon'ble Supreme Court, has observed thus :-
"2. This Court vide its judgment in Trilok Singh & Ors. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is 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. v. Kora Bibbikutty & Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119; Charanjit Singh Chadha & Ors. v. 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. v. The State of Kerala & Anr., AIR 1966 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."
12. In the case of Pramod Kumar Rai v. Shriram Transport Finance Co. Ltd., III (2012) CPJ 553 (NC), Hon'ble National Commission has observed that Finance Company is well within its right to seize the vehicle as per the agreement. Hon'ble National Commission has observed thus :
"3. Learned Counsel for the petitioner argued that the petitioner is a poor person. When we asked whether he was ready to deposit the instalments in three months, he wanted another one month to deposit the above said three instalments. It is, thus, clear that the petitioner // 9 // has no intention to pay off the loan. The but and ben stand set up by the petitioner cannot produce the desired result.
4. Again, it is well settled that as per agreement, the respondent, finance company is well within its right to seize the said truck. This view is supported by National Commission in the case of Surendra Kumar Agrawal v. Telco Finance Limited & Anr., II (2010) CPJ 163 (NC)."
13. In the case of Shriram Transport Finance Co. Ltd. and Anr. v. Mr. Chaman Lal., 2012 (4) CPR 75 (NC), Hon'ble National Commission has observed thus :
"6. .........Hon'ble Supreme Court has recently in Suryapal Singh v. Siddha Vinayak Motors and Anr., II (2012) CPJ 8 (SC) held :
"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. v. Satya Deo Tripathi, AIR 1979 SC 850, has categorically held that under the Hire Purchase Agreement, the financier is 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. v. Kora Bibbikutty & Anr., 1996 (7) SCC 212; Jagdish Chandra Nijhawan v. S.K. Saraf, IX (1998) SLT 477 = IV (1998) CCR 118 (SC) = 1999 (1) SCC 119; Charanjit Singh Chadha & Ors. v. 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. v. The State of Kerala & Anr., AIR 1966 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."
14. In the case of Magma Fincorp Ltd. v. Sh. Subhankar Singh, I (2013) CPJ 27 (NC) , Hon'ble National Commission observed that :
"9. It is apparent that the learned Counsel for the respondent has raised copious objections merely for the sake of cavil. Notice dated 16.6.2009 has been placed on record. It is clear that he did not pay the instalments for the months of April, May and June. He also did not // 10 // pay delay payment charges, total being Rs.59,246/-. Notice dated 11.7.2009, reveals that the said amount stood enhanced to Rs.80,050/-. Payment of one instalment in the month of July is no compliance of the terms and conditions of the agreement, placed before this Commission. There was no need to give the notice. The petitioner Company could have no moto taken the possession of the vehicle. The relevant extracts of the agreement reads, as under :-
"14. Events of default rights and remedies Thereon : (i) in case the Hirer/s shall during the continuance of this Agreement do or suffer one or more of the following :
Fail to pay in time any of the hire instalments or part thereof herein reserved or any other sum of money payable under this agreement. To (p) xxxxxxxxx (ii). (a) xxxxx (b) MAGMA SHRACHI shall be entitled to take possession of the said assets(s)/vehicle(s) and sell and/or cause to be sold or otherwise dispose of all or any part of the said asset(s)/vehicle(s) or any fittings thereof in such manner and/or made as prescribed more fully and particularly in appendix "A" hereto and apply the net sale proceeds of such sale in or towards liquidation of the amount outstanding due to MAGMA SHRACHI from the said hirer(s) as on the date of such sale. It, therefore means that there was no need to give notice, however, the petitioner gave two notices in this respect".
11. The National Commission, in case reported in Surendra Kumar Agrawal v. Telco Finance Ltd. & Anr., II (2010) CPJ 163 (NC), Hon'ble Mr. Justice Ashok Bhan, President, was pleased to hold as under :-
6. Aggrieved by the order passed by the District Forum petitioner filed the Appeal before the State Commission. The State Commission relying upon the judgment of Hon'ble Supreme Court of India in Managing Director Orix Auto Finance (India) Ltd. Vs. Sh.
Jagmandar Singh & Anr. reported in 127 (2006) DLT 278 (SC) = II (2006) BC 108 (SC) = II (2006) SLT 166 = II (2007) CPJ 45 (SC) = (2006) 1 SCC 708, dismissed the Appeal. It was held that no settlement of account showing details of repayment of loan installments is filed by the petitioner/complainant. That the petitioner had defaulted several times. That the said judgment of the Apex Court has clearly endorsed the rights of the finance in respect of repossessing the vehicles in case of default by the hirer.
7. xxxxx
8. xxxxx
9. It is not disputed before us that the petitioner had raised a loan of Rs.6,15,000/- to purchase the truck. No statement of account showing repayment of loan instalments has been filed by the petitioner. It was admitted before the State Commission that the petitioner had defaulted several times in making the payment on the date when it was due. Further it is not disputed that as per Hire Purchase Agreement the financier was authorized to repossess the vehicle in case of default in // 11 // repayment of loan instalments. Supreme Court of India in Managing Director Orix Auto Finance (India) Limited case (supra) has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of financed vehicle. There is nothing to show that the vehicle was repossessed forcibly. Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced. We agree with the view taken by the State Commission".
15. The respondent (O.P.) sent reply of the legal notice of the appellant (complainant) and also reported the matter to the Police Station, Pusaur District Raigarh (C.G.). It appears that the respondent (O.P.) had provided proper opportunity to the appellant (complainant) for depositing the due loan amount, but the appellant (complainant) could not deposit the same. Thereafter the respondent (O.P.) gave pre intimation to the Superintendent of Police, Raigarh and concerned Police Station and seized the vehicle and also prepared the inventory of the vehicle. After seizure of the vehicle in question, further intimation was given by the respondent (O.P.) to the Superintendent of Police, Raigarh (C.G.). It is undisputed fact that the appellant (complainant) had purchased the vehicle in question with the financial assistance of the respondent (O.P.) and Hire Purchase Finance Agreement was also executed between the parties. It is also established that the appellant (complainant) did not deposited the due amount, therefore, the vehicle was repossessed by the respondent (O.P.).
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16. The appellant (complainant) utterly failed to prove that the vehicle in question, was forcibly repossessed by the respondent (O.P.). with the help of muscleman. The pleading advanced by the complainant, is not reliable and is not acceptable, therefore, the order passed by the District Forum is just and proper and does not suffer from any inherent infirmity or illegality and does not call for any interference by this Commission.
17. Hence the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
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