State Consumer Disputes Redressal Commission
Indusind Bank Ltd vs Shri Ganesh Dilip Birange on 13 March, 2019
A/15/97 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/15/97
(Arisen out of order dtd.25/11/2014 in Complaint No.54 of 2012 of
Additional District Consumer Disputes Redressal Forum, Sangli)
Indusind Bank Ltd.,
Priti Apartment, Shop No.15,
Behind Mali Chitra Mandir,
Tal. Miraj, Dist. Sangali. .....Appellant/
Through Mr.Nilesh Madhukar Jadhav (Org. Opponent No.1)
Versus
1. Shri. Ganesh Dilip Birange,
R/at- Bethelnagar, Adjacent .....Respondent/
Krapamai, Tal. Miraj, Dist.Sangali. (Org. Complainant)
2. Auto India,
Sangli Madhavnagar Road, .....Respondent/
Tal. Miraj, Dist. Sangali. (Org. Opponent No.2)
.
BEFORE: Usha Thakare, Presiding Judicial Member
A.K. Zade, Member
PRESENT: Advocate Mr.Padmakar Garad for Appellant.
None present for Respondent.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This appeal filed by the appellant/original opponent no.1 against the impugned order dtd.25/11/2014 in consumer complaint No. 54/2012 passed by the Additional District Consumer Disputes Redressal Forum, Sangli, by which opponent no.1 was held guilty of deficiency in service and was directed to pay to complainant, amounts of Rs.15,695/- and Rs.20,000/- paid by complainant to opponent no.1 towards loan repayment and margin money respectively, thus a total of Rs.35,695/- alongwith 9% interest till realization with effect from 10/04/2012. Opponent No.1was also directed to pay the said amount within a period of 4 weeks from receipt of the said order and was also directed to pay Rs.15,000/- towards compensation for unfair trade practice and loss caused thereby and Rs.25,000/- towards mental and physical A/15/97 2 harassment and Rs.5,000/- towards costs of the complaint, the entire amounts to be paid within a period of 4 weeks from the date of receipt of the order.
2) Perused record. Heard arguments.
3) Appellant had filed this appeal on the ground that the Ld.District Forum had erred in passing impugned order without taking into consideration the documents submitted by appellant/opponent no.1 such as loan agreement, notice dtd.02/01/2012, notice dtd.16/01/2012 sent to Complainant. As per appellant, complainant/respondent no.1 was defaulter and his loan account was irregular at the time of repossession of the vehicle by appellant-bank. Appellant also submitted that the Ld.District Forum have not considered the fact that pre-sell notice dtd.16/01/2012 was duly received by complainant and before taking re-possession of the subject vehicle, appellant-bank had issued notice dtd.02/01/2012 to complainant. It is also contended by appellant that possession of the said vehicle was handed over by complainant/ respondent no.1 to appellant bank and repossession inventory list was duly signed by respondent no.1/complainant, but Ld.District Forum failed to consider the same. Appellant also contended that the Ld.District Forum failed to consider the case laws submitted by appellant bank in its defence. As per appellant, it acted as per terms and conditions of the loan agreement which were accepted and agreed by the respondent no.1/complainant and possession of the said vehicle was taken by appellant-bank under the Lender's Rights Clause of the said agreement. Appellant therefore, prayed for setting aside the impugned order with costs.
4) The complainant had filed this complaint stating that he had purchased vehicle Bajaj Discover 100 CC bearing No.MH-10-AX-2540 from opponent no.1 after paying an amount of Rs.20,000/- to opponent no.2 and availing loan of an amount of Rs.28,968/- from opponent no.1 which have been paid to opponent no.2, but the said vehicle was taken away forcibly by opponent no.1by applying physical force illegally/ A/15/97 3 unlawfully, in December, 2011 although only one installment was outstanding and other installments which were due by that time had been paid by him. Complainant had therefore, prayed for compensation for per day loss and compensation for unfair trade practice/deficiency in service with 12% interest from the date of complaint till realization and in case the opponent no.1 had sold the vehicle, then cost of the vehicle alongwith compensation for mental harassment and cost of litigation.
5) Complainant had mentioned in his complaint, the details of payments made by him to appellant-bank towards the said loan repayment. Complainant has shown 10 payments of total amount of Rs.15,695/- against ten EMI's of Rs.1,353/- each, i.e. total Rs.13,530/-. However, the payment at Sr.No.10 is of Rs.1,300/- only and not of Rs.1,353/- as per para 4 of the complaint. Moreover, it is written therein that no receipt for the said payment of Rs.1,300/- at Sr.No.10 is available. Also no date of said payment is mentioned in complaint. As the amount of EMI is Rs.1,353/-, contention of complainant in respect of payment of Rs.1,300/- towards it cannot be accepted especially when no details of said payment are given and no receipt is produced by the complainant and the same is denied by Opponent No.1. Complainant had produced receipts in respect of only nine earlier payments to Opponent Bank, made during the period March, 2011 to November, 2011 and not in respect of the abovesaid tenth one. We therefore, observe that this payment at Sr.No.10 of Rs.1,300/- cannot be relied upon and only 9 payments made by Complainant to Opponent No.1 can be considered for the purpose of this instant matter. We have also gone through the loan agreement. The loan agreement shows the cost of asset as Rs.48,968/- showing loan amount of Rs.31,468/-and margin money paid by complainant as Rs.17,500/- and the loan amount to be paid in 30 installments of Rs.1,353/-with effect from 21/02/2011. The said loan agreement is signed by Complainant as borrower and on behalf of opponent no.1 bank as Lender. Therefore, the loan agreement is an admitted document.
A/15/97 46) The Ld.District Forum had observed that an amount of Rs.20,000/- was paid by complainant towards margin money as claimed by complainant. However, as discussed above, schedule in loan agreement shows the amount of margin money as Rs.17,500/- in the statement relating to said loan account of complainant issued by opponent bank, the details are mentioned as invoice amount Rs.48,968/-, GPA premium Rs.500/-, process fee of Rs.2,000/- and IHM total Rs.20,000/-. Therefore, it can be reasonably held that the margin money paid by complainant was Rs.17,500/- and not Rs.20,000/- as held by Ld.District Forum. Moreover, although the complainant contended that he had paid an amount of Rs.15,695/-, it was against nine EMIs of Rs.1,353/- only which amount comes to Rs.12,177/- only. The additional amounts paid by complainant are because of penalty, interest, penal interest, recovery charges, etc. for which the complainant himself is responsible because of irregular payments. Appellant/ opponent no.1 has stated in its written statement that the complainant was irregular in payments and out of 30 cheques given by him, only 4 cheques were enchased and 8 cheques were bounced back because of which the amount against those failed installments were recovered from complainant by sending recovery officer to him and which amounts were recovered in cash from complainant alongwith penalty. Opponent no.1 had sent notice dtd.02/01/2012 to complainant in respect of non- payment of EMIs, by post even then complainant did not pay the said amount and therefore, opponent no.1 bank sent its authorized person to take the vehicle (repossess) from complainant and accordingly it was taken from complainant on 07/01/2012. Thus, it is evident that during the period from February, 2011 to December, 2011, eleven installments were due against which 9 installments were paid by complainant alongwith penalty and other charges and only two installments were remaining unpaid in December, 2011. In our view when complainant had paid the earlier installments alongwith penalty and other charges, which were duly received by the bank till November, there was no reason for the bank to repossess the vehicle for failure of one or two A/15/97 5 installments, the amounts of which were not very big as compared to the cost of vehicle and the amounts already paid to Complainant.
7) The Ld.District Forum had observed in its impugned order that there is no evidence to show that notice dtd.02/01/2012 sent by the bank before possession was received by complainant. We agree with this finding of the Ld.District Forum. The advocate for appellant brought to our notice the clause of Lender's Rights inviting our attention to the loan agreement. We have gone through the loan agreement and clauses 15.1 and 15.2 in respect of Lender's Rights. The same show the right of recovery of an amount from borrower alongwith other amounts including extra percentage of interest on amounts due from borrower. It is also provided in the said clauses that borrower is bound to return the asset to lender in case of default and lender or his authorized officer have right to enter in premises and to take the vehicle in possession. However, 'Event of Default' is defined in sub-clause 14.1, under clause 14 as "the borrower failing to repay the loan or any fee, charges or costs in the manner herein contained and any one of the installments or any other amount due hereunder remains unpaid after the date on which it is due." However, in the instant case when the installment due in December, was outstanding against the complainant, the same was required to be demanded by Opponent No.1 alongwith penalty and other charges if any but the opponent no.1-bank had directly proceeded to repossess the vehicle. It is contended by the Opponent no.1 in its written statement that even after repossession notice, the complainant did not take steps to pay the outstanding amount and take the vehicle back. However, the appellant/opponent bank itself stated that it had sold the vehicle on dtd.20/03/2012 to the 3rd party. This shows that without giving due opportunity to complainant, the opponent no.1-bank had hastened to sell the said vehicle. The Ld.District Forum also observed in impugned order that although opponent no.1 stated in written statement that it received proper amount in sale of the said vehicle, the exact amount was not mentioned by the bank in written statement and therefore, it is not clear as to at what price the vehicle was sold.
A/15/97 68) As regards the judgments cited by appellant/opponent no.1-bank before the Ld.District Forum, no details are given by the appellant in respect of the said judgments in memo of appeal and therefore, we cannot make any comment in respect of the observations of the Ld.District Forum that the judgments cited by opponent no.1-bank were not relevant. So far as opponent no.2/respondent no.2 herein is concerned, opponent no.2 in its written statement mentioned that it was the dealer/seller of the vehicle and it was not concerned with the loan transaction between complainant and opponent no.1-bank. The Ld.District Forum had not passed any order against opponent no.2 in the impugned order.
9) During arguments, learned advocate for appellant cited judgment of the Hon'ble High Court at Bombay, Appellate Side, Bench at Aurangabad in Criminal Application No.2432 of 2010 decided on 02/08/2018. In the said judgment the Hon'ble High Court held that "It can be said that the debtor had avoided to make the payments of installments and the defaulted amount was big and there was no other alternative before the bank to take action." However, in the instant case the previous installments were paid by the complainant although with penalty and other charges and only one or at the most 2 installments of Rs.1,353/- each were remaining unpaid at the time of repossession of the vehicle by the bank. There does not seem any effort on the part of bank to recover the said amount alongwith penalty and other charges from the complainant as it had done earlier in respect of delayed payments. Payments made by complainant in respect of those defaulted EMI's alongwith penalty and other charges show the willingness of complainant to pay defaulted amounts to bank even with penalty and other charges. Therefore, in our opinion, the action of repossession by bank was not required as the amount involved was not big and other alternative of recovery alongwith penalty and other charges through recovery officer was available to the bank as it had done in respect of earlier defaulted payments. Moreover, the above judgment is related to criminal case in which theft was alleged against the financer. Thus, facts A/15/97 7 in the instant case are different. Therefore, we do not find the ratio in above said judgement applicable in the instant case.
10) Since the cost of the vehicle involved is Rs.48,968/- and as the amount paid by complainant is already directed to be refunded to him alongwtih compensation of Rs.15,000/- + Rs.25,000/- + Rs.5,000/- by the Ld.District Forum by impugned order, we observe that the impugned order will result in refunding more amount than the cost of the vehicle to the complainant although he himself had not repaid the entire loan amount or paid full cost of the vehicle and although he was irregular in payments.
In view of the above discussion and for the reasons mentioned above, we find it necessary to direct Opponent no.1 to pay an amount of Rs.12,177/- less ten percent of the cost of vehicle i.e. Rs.4,897/-(invoice amount Rs.48,968/- x 10%) towards use of the vehicle for almost one year which is equal to Rs.7,280/- and also the amount of Rs.17,500/- paid towards margin money i.e. total Rs.24,780/- alongwith interest @ 9% p.a. for the period from date of filing of the complaint till realization. The question of refund of processing fee of Rs.2,000/- and GPA premium of Rs.500/- does not arise as the complainant had availed the loan. We also find it necessary to direct opponent no.1 to pay to complainant Rs.1,000/- towards compensation for loss/damages and unfair trade practice/deficiency in service and Rs.1,000/- towards cost, which amounts we find reasonable in view of the cost of vehicle, amounts paid by complainant and other facts of the case.
We therefore pass the following order -
ORDER
i) Appeal No.A/15/97 is partly allowed.
ii) The Clause Nos.3, 4 and 5 of the impugned order are replaced by new clause nos.3, 4 and 5 as below -
3. Opponent no.1 is directed to pay to complainant an amount of Rs.24,780/- (Rs.Twenty Four Thousand Seven Hundred Eighty Only) alongwith interest @9% p.a. for the period from the date of filing of complaint i.e.11/04/2012 till realization A/15/97 8
4. Opponent no.1 is directed to pay to complainant an amount of Rs.1000/-(Rs.One Thousand Only) towards compensation for loss/damages due to deficiency in service/unfair trade practice.
5. Opponent no.1 is directed to pay to complainant an amount of Rs.1,000/-(Rs.One Thousand Only)towards compensation and Rs.1,000/- (Rs. One Thousand Only) towards cost of complaint.
iii) The remaining part of the order is unchanged.
iv) No order as to costs of this appeal.
v) Copy of this order be furnished to both the parties.
Pronounced on 13th March, 2019.
[Usha Thakare] Presiding Judicial Member [A.K.Zade] Member aj