State Consumer Disputes Redressal Commission
Icici Bank Ltd. vs Sou.Renu Jitendra Bhandvalkar on 25 January, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 1460 OF 2007 Date of filing : 15/11/2007 @ MISC. APPL. NOS. 1978 & 1979 OF 2007 Date of order : 25/01/2008 IN CONSUMER COMPLAINT NO. 491 OF 2006 DISTRICT CONSUMER FORUM : PUNE ICICI Bank Ltd. 870/1, Suma House, 1st floor, Bhandarkar Institute Road, Pune 411 005. Appellant/org. O.P. V/s. Sou.Renu Jitendra Bhandvalkar R/at Row House No.2, Konark Kinara, Talera Park, Kalyani Nagar, Pune 411 006. Respondent/org. complainant Corum : Justice Mr.B.B. Vagyani, Honble President Shri P.N. Kashalkar, Honble Judicial Member
Smt. S.P. Lale, Honble Member Present: Mr.Parineet Paradkar, Advocate for the appellant.
- : ORAL ORDER :-
Per Justice Mr. B.B. Vagyani, Honble President This appeal filed by org. O.P. is directed against the order dated 15/10/2007 passed by District Consumer Forum Pune. The Forum below allowed the complaint filed by owner of the vehicle and directed the ICICI Bank Ltd. to pay Rs.1 Lakh to the complainant by way of compensation.
We heard Mr.Parineet Paradkar, Advocate for the appellant.
There is delay of 1 day in filing appeal. Therefore, application for condonation of delay is filed. Delay is of one day. Delay is not deliberate or intentional. We are therefore inclined to condone the delay. Application is allowed and delay is condoned.
We propose to examine the correctness of the order under challenge.
The complainant obtained a car loan of Rs.4 Lakhs from ICICI Bank to purchase an old car. The Bank disbursed the loan amount to the complainant in October 2003. The rate of interest was 12% p.a. The E.M.I. was Rs.10,632/-. The Bank had taken 48 post-dated cheques from the complainant. The Bank had also taken two blank cheques duly signed by the complainant. The complainant had invested Rs.58,000/- in Fixed Deposit. Two cheques were dishonoured for want of sufficient bank balance and therefore the vehicle was repossessed on 13/09/2004. The complainant therefore filed consumer complaint. The said complaint was resisted by the Bank by filing written statement. The Bank has taken a stand that the vehicle was repossessed because cheques were dishonoured.
The loan agreement is not placed on record. The Forum below has rightly observed in Para 6 of the judgement that the copy of the loan agreement is not placed on record. However, it is admitted by the Bank that the complainant has invested Rs.58,000/- in Fixed Deposit. The Bank failed to justify the action of repossession of the vehicle. The action of repossession springs from the legal authority. The legal authority would be a contract. However, nothing is placed on record to show that the Bank was allowed to repossess the vehicle in case of failure to pay installments. The Bank could have deducted the installments from the deposit money.
It is well settled position of law that the Financer cannot repossess the vehicle by use of muscle power. The Supreme Court in the case of Manager, ICICI Bank Ltd. V/s. Prakash Kaur & Ors., 2007(1) DRTC Page-685 (SC) has made it clear that the Bank has to adopt legal means to repossess the vehicle.
The Bank has already filed a criminal complaint under Section 138 of Negotiable Instrument Act against the complainant. The said criminal complaint No.19241/2005 is pending in the Court of Additional Chief Judicial Magistrate.
Four-Five unknown persons had been to the house of complainant, who is lady at the odd hours of night. The gang of 4-5 persons visited the house of the complainant at 10.15 p.m. and represented to the complainant that they were Recovery Agents of the Bank. It is interesting to note that the key of the vehicle was with the complainant. Those 4-5 persons, who represented as Recovery Agents of the Bank prepared a duplicate key of the vehicle and took away the vehicle. The complainant has filed a complaint of theft at Yerawada Police Station, Pune. The Officer-in-charge of Police Station registered Crime No.428/2004 under Section Nos.451, 379, 504 r/w 34 of the Indian Penal Code against the so called Recovery Agents of the Bank. A criminal complaint is pending. The complainant was required to move Judicial Magistrate for possession of the vehicle. The custody of vehicle is now restored to the complainant because of order of the Judicial Magistrate. The Criminal Revision filed by ICICI Bank is dismissed by the Session Court. The complainant was required to spend money for getting custody of the vehicle. She suffered mental pain and agony. The Forum therefore awarded Rs.1 Lakh to the complainant by way of compensation. The procedure adopted by the Bank for repossessing the vehicle is bad in law. Taking away the car by duplicate key amounts to theft. The Recovery Agents are not permitted to commit theft on the basis of so called loan agreement.
Copy of loan agreement is not placed on record along with appeal memo. However, during the course of arguments, the Learned Advocate showed us copy of loan agreement. The org. complainant is not before us. The relevant clause with regard to repossession is as under :-
1. Without prejudice to ICICI Banks other rights, if the Borrower/s fails to pay any amount payable by the Borrower/s to ICICI Bank under this Agreement within 15 days of demand or of such amount becoming due and payable or if any event of default occurs or on account of the Borrower/s failure to perform his obligation under this Agreement, ICICI Bank shall be entitled to forthwith take physical possession of the Vehicle(s) either by itself or through its agents and sell or otherwise deal with the Vehicle (s) to enforce ICICI Banks security and recover the Borrower/ss outstandings dues.
As per terms and conditions of the agreement, the Bank is required to issue 15 days Demand Notice to the owner of the vehicle and in case of failure to comply the Demand Notice, the Bank is allowed to repossess the vehicle. Nothing is placed on record to show that such 15 days Demand Notice was duly served on the complainant. In absence of Demand Notice, the Bank is not at all justified to repossess the vehicle by muscle power. The Bank did not give any opportunity to the borrower to pay the default money. The Bank adopted illegal means for the purpose of repossession of the vehicle. We are therefore not inclined to modify the quantum of compensation. The appeal filed by the appellant/Bank is without any merit. In the result, we pass the following order :-
-: ORDER :-
1. Misc.
Appl.No.1978/2007 is allowed. Delay is condoned.
2. Appeal stands dismissed summarily.
3. No order as to costs.
4. Misc. Appl.No.1979/2007, which is for stay stands disposed of.
5. Copies of the order be furnished to the parties.
(S. P. Lale) (P.N. Kashalkar) (B.B. Vagyani) Member Judicial Member President