Ashok Laxman Gulhane vs Tata Finance Co. Ltd

BEING aggrieved by order dated 9.1.2007, passed by Consumer Disputes Redressal Commission, Mumbai (in short, "Consumer Commission "), Petitioner/complainant has filed the present revision petition.

BRIEF facts are that petitioner wanted to purchase a tractor and for that purpose, he took financial assistance from respondent No. 1/opposite party No. 1. The total outstanding dues were Rs. 7,50,176. Admittedly, petitioner had failed to pay EMI as per schedule. As per terms and condition of the Hire Purchase Agreement, the vehicle was repossessed. Respondent No. 1 issued notice to the petitioner and asked him to pay the outstanding dues till 28.6.2002. Respondent No. 1 had specifically informed the petitioner that on failure to deposit the outstanding dues, the vehicle will be sold in auction. Petitioner did not pay the outstanding dues. Hence, the vehicle was sold for Rs. 4,30,000 and sale proceeds were adjusted against the outstanding dues and petitioner was supposed to pay remaining amount of Rs. 77,000 to respondent No. 1. District Consumer Disputes Redressal Forum, Yavatmal (for short, "District Forum ") before whom petitioner filed a complaint under Section 12 of the Consumer Protection Act, 1986, (for short, "Act ") dismissed the same, holding that there is no deficiency on the part of respondent No. 1.

BEING aggrieved by order of the District Forum, petitioner filed appeal before the State Commission, which dismissed the same, vide its impugned order.

HENCE , the present revision petition. We have heard learned Counsel for the petitioner as well as Counsel for respondent No. 1 and have perused their written arguments.

IT is contended by learned Counsel for the petitioner that no notice for termination for Hire Purchase Agreement, as required was given. Only thereafter, respondent could have taken the possession of the vehicle. Since, no notice for termination of the agreement was given, the impugned order cannot be sustained. Learned Counsel for petitioner has cited a decision of this Commission, L and T Finance Ltd. Anr. v. Vithal and Vithoba, IV (2010) CPJ 402 (NC).

ON the other hand, it has been contended by learned Counsel for respondent No. 1, that there are concurrent findings of fact given by the fora below, that petitioner was a defaulter and after notice to the petitioner, vehicle in question was auctioned. There is no infirmity in the order passed by fora below. In view of the concurrent findings of facts, no legal issue is involved. District Forum, in its order held: "After taking loan, it is the responsibility of borrower to regularly pay the loan instalments. However, applicant has paid total amount of Rs. 2,50,113 only on different dates i.e. 29.3.2001, 27.6.2001, 1.10.2001 and 3.4.2002. In this connection, it is the say of non-applicant that total amount of loan payable by applicant with interest is Rs. 7,50,176, in case applicant would have regularly paid instalments, no amount would have outstanding, but applicant has not regularly paid instalments. It is the say of applicant that without giving notice non-applicants have seized his vehicle. As per column No. 18 of hire purchase agreement non-applicant No. 1 is empowered to take possession of vehicle without giving notice to applicant. So also, they have reserved rights with them to sold the vehicle. For that in agreement words ''with or without notice '' are used. It appears that non-applicant No. 1 issued notice to applicant on dated 27.10.2001. It also appears that notice dated 27.2.2002 is issued to applicant and his guarantors wherein, amounts due at that time are mentioned, it is also mentioned that amount be paid within 14 days or vehicle be returned back. Non applicant No. 1 has filed posting certificate with list about issuing of notice dated 27.2.2002 on dated 9.3.2002 to applicant. Non applicant No. 1 has filed document wherein there is letter about possession dated 21.5.2002 in which there is entry of taking possession of said vehicle from concerning driver and thereon there is also his signature. It appears that applicant has wrongly mentioned in his complaint that said vehicle was taken from his possession on 26.10.2002. In this connection, it is the say of applicant that truck was parked in concerning service centre and it was kept idle during the period 1.5.2002 to 30.6.2002 and for that permission was obtained from non-applicant No. 4. However, applicant has not filed documents about the same. Further, it is the say of applicant that as said vehicle was not repaired it was kept there as it is. Further, as applicant was busy in his other work and as he has paid amount of Rs. 1,00,000 he has not paid amount of installments and non-applicant No. 1 has taken said vehicle on 26.10.2002, this say of applicant also appears unreliable. Because in fact, said vehicle appears to have taken in May, 2002 and further notice was issued by non-applicant No. 1 to applicant and his guarantor on 18.6.2002 by registered post informing them that said vehicle will be sold, for that they have filed certificate dated 19.6.2002 issued by postal department. As per said notice non-applicant No. 1 have taken possession of said vehicle as applicant committed breach of agreement dated 25.5.2002 and by that time amount of Rs. 1,15,863 was due against applicant. It was communicated to applicant that said amount be paid up till 28.6.2002, otherwise said vehicle will be disposed of as per agreement. Despite this applicant has not made any complaint with non-applicant about the same. So also he has not issued any notice and after lapse of about one year he has directly filed this complaint before the District Consumer Disputes Redressal Forum. "

DISTRICT Forum, in its order has specifically held, that notices dated 27.10.2001 and 27.2.2002, were issued to the petitioner as well as his guarantors, specifically demanding that amount be paid within 14 days and also to return the vehicle. Thus, this plea of the petitioner that no notice was issued to him falls to the ground. It is also not in dispute that, petitioner was a defaulter and has not paid the entire EMI as agreed by him.

UNDER Section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. There is no illegality or material irregularity on the part of the State Commission in this case. Hon ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=2011 (3) Scale 654, has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora. "

THUS , no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of the Act. Since, two Fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with cost of Rs. 5,000 (Rupees five thousand only).

PETITIONER is directed to deposit the cost of Rs. 5,000 (Rupees five thousand only) by way of demand draft in the name of ''Consumer Welfare Fund '' as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization. List on 12.4.2013 for compliance. Revision Petition dismissed.