State Consumer Disputes Redressal Commission
Branch Manager, Icici Bank Ltd. vs Majed Khan on 21 January, 2014
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.FA/402/2012 (Arising out of order dated 14/06/12 in Case No.CC/121/2007 of District Consumer Disputes Redressal Forum, Purba Medinipur) DATE OF FILING:16/07/12 DATE OF FINAL ORDER:21/01/14 APPELLANT : Branch Manager ICICI Bank Ltd. ICICI Home Finance MS Tower, Ground Floor O.T. Road, P.O. Inda Kharagpur Paschim Medinipur- 721 305 RESPONDENT : Majed Khan S/o-Late Mohasin Khan Vill. & P.O. Bhogpore P.S. Kolaghat District-Medinipur BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Ms. Sumita Roychowdhury Ld. Advocate FOR THE RESPONDENT : Mr. Barun Prasad Ld. Advocate ------------------------------------------------------------------------------------------------------------ : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Purba Medinipur in CC No.121 of 2007 allowing the complaint and directing the OP to refund Rs.26,396/- towards the amount already paid by Complainant in four instalments. The OP was directed to pay Rs.2 lakh towards compensation for forceful possession and selling the vehicle in question. It was directed that in case of failure to pay the amount within 45 days from the date of communication of the order, the OP will have to pay interest @ 9% p.a. over the total awarded amount till realisation.
The case of the Respondent/Complainant, in short, is that he purchased a pick up van taking loan of Rs.1,96,000/- from the OP Bank. There was default in payment of instalment. But on 21/07/07 the OP engaged some persons who forcibly took possession of the vehicle from the driver. The Complainant contacted the OP for the release of the vehicle but they did not pay any heed. For the said reason, the complaint was filed before the Learned District Forum claiming compensation of Rs.1,50,000/- with interest.
The OP filed W.V. contending, inter alia, that the Complainant defaulted in payment of instalments and, as such, the OP was entitled to repossess the vehicle.
The Learned Counsel for the Appellant has submitted that the pre-sale notice was given on 22/07/07 and the vehicle was sold on 29/10/07. It is contended that the complaint case was filed on December 4, 2007. It is submitted that after pre-sale notice no attempt was made by the Complainant to liquidate the loan amount. It is contended that the Complainant engaged a driver which is sufficient to prove that the pick up van was purchased not for self-employment, but for commercial activity. It is submitted that bank employees seized the vehicle and there is no material to show that it was repossessed forcibly. It is contended that the Bank acted as per terms and conditions of the agreement. The Learned Counsel for the Appellant has referred to the decisions reported in I (2013) CPJ 203 (NC) [Dharampal Sharma Vs. Tata Motors Ltd.]; IV (2012) CPJ 322 (NC) [Surendra Kumar Sahoo Vs. Indusind Bank Ltd.]; I (2013) CPJ 456 (NC) [Ram Pal Singh Vs. Shri Transport Finance Co. Ltd.].
The Learned Counsel for the Respondent, on the other hand, has submitted that the pre-sale notice was posted on 23/07/07 and the repossession was made on 21/07/07. It is submitted that no A/D card for service of notice was filed and no demand notice was sent to the Respondent. It is contended that the pre-sale notice was an after thought and manufactured one. It is submitted that in the W.V. there is no averment as to the price of the vehicle at which it was sold. It is contended that the vehicle was repossessed without the consent of the Respondent. The Learned Counsel for the Respondent has referred to the decisions reported in III (2007) CPJ 161 (NC) [ Citicorp Maruti Finance Ltd. Vs. S. Vijayalaxmi]; III (2008) CPJ 65 (NC) [Tata Finance Ltd. Vs. Francis Soeiro]; (2007) 2 C Cr LR (SC) 315 [ICICI Bank Ltd. Vs. Prakash Kaur & Ors.].
We have heard the submission made by both sides and perused the materials on record. It has been admitted in Para-7 of the complaint that the first EMI fell due on 22/02/07 and the Complainant paid the amount on 22/03/07. There were 35 EMIs out of which 4th instalment was paid on 30/06/07 as per averment made in Paragraphs-8 and 9 of the complaint.
Admittedly, therefore, the Complainant defaulted in payment of EMI. The Hon'ble National Commission in Para-10 of the decision in the case of Dharampal Sharma Vs. Tata Motors Ltd. (supra) held as follows:
Instead of touching the heart of the problem, the Learned Counsel for the Petitioner just skirted it. It is not clear when the reply was sent to the notice issued by the Petitioner. In case, it was sent after the vehicles were sold, the offer given in the letter was nothing more than an eye wash. It is surprising to note that the Advocate did not mention the date on his reply. The onus to prove all these facts was upon the Complainant. He should have led evidence in this context before the lower Court. Above all, it should have complied with the requirements of the notice. He should have paid the arrears of loan immediately. The Counsel for the Petitioner himself admitted that the Petitioner waddled out of his commitments and did not pay the arrears of loan in time. After receipt of the notice, he should have immediately paid the amount. As per the agreement, he was not to be granted further time. The Petitioner wants to ride on both the horses. On the one hand he does not want to pay instalments and on the other hand, he wants to have both the buses. The petition is meritless and therefore the same is hereby dismissed.
In another decision in the case of Surendra Kumar Sahoo Vs. Indusind Bank Ltd. (supra) it has been held by the Hon'ble National Commission in Para-6 as follows:
As per the agreement there was no need to give the prior notice. The petitioner waddled out of his commitments and indisputably he was the defaulter. The moment he did not pay the instalment it gives the legal right to the financier to repossess the vehicle.
In another decision it has been held by the Hon'ble National Commission in the case of Ram Pal Singh Vs. Shri Transport Finance Co. Ltd. (supra) in Para-7 as follows:
When the Complainant failed to pay instalments it was within the domain of OP to repossess vehicle and dispose it as per agreement and law .
The vehicle was repossessed on 21/07/07. The pre-sale notice was posted on 23/07/07 and the sale was held on 29/10/07. During the period of 3 months the Complainant did not repay the loan amount and, as such, the OP/Appellant sold the vehicle. In view of the decisions aforesaid it is clear that in case of failure of the Complainant to liquidate the loan amount the OP as per terms of agreement will have the right to take possession of the vehicle. In the instant case the vehicle was repossessed and the pre-sale notice was given. After 3 months the vehicle was sold. The OP/Financier, under such circumstances, had the right to repossess the vehicle.
The only point for consideration whether the vehicle was forcibly repossessed or not as per allegation made in the complaint. It appears that no G.D. Entry was made at the instance of the complaint after such alleged forcible repossession of the vehicle. There is no material to show that the vehicle was repossessed forcibly.
In the decision reported in 2013 (2) CCC 38 (NS) [Muthoot Leasing & Finance Ltd. Vs. Karnail Singh] it has been held by the Hon'ble National Commission in Para-10 as follows:
Keeping in view the above facts, we are of the view that the Appellant Company acted well within the terms and conditions of the Hire Purchase Agreement and there is no evidence that they used musclemen or any other unwarranted coercive measure against the Respondent in violation of RBI guidelines and the orders of the Hon'ble Apex Court in this respect. Admittedly, the Respondent had failed to pay most of the EMIs and, therefore, the vehicle was justifiably repossessed and sold after notifying the Respondent and in terms of the Agreement entered into between the two parties.
In view of the foregoing discussion, we are of the considered view that the Learned District Forum was not justified in allowing the complaint and passing the order impugned. The Complainant is not entitled to get any relief.
The appeal is allowed. The impugned judgment is set aside. The petition of complaint is dismissed.
MEMBER(L) PRESIDENT