AU FINANCIER (INDIA) LTD vs MANGI LAL

The Ld. Counsel for the petitioner submits that pay order of Rs. 2,00,000/- has been deposited with the District forum. This was a mistake on the part of petitioner since the pay order ought to have been brought before us for being handed over to the complainant. We therefore direct to District forum to release the aforesaid pay order of Rs. 2,00,000/- to the complainant within one week from today.

The complainant purchased a Mahindra pick up for a sum of Rs. 4,51,000/- out of which a sum of Rs. 3,48,800/- was got financed by him from the petitioner company. The aforesaid loan was payable in equated Monthly Installment of Rs. 12,765/- commencing 10.05.2008. The complainant however paid only the first installment which was due on 10.05.2008 and even that payment was made on 04.06.2008. The vehicle came to be seized by the petitioner company on account of non-payment of the EMIs. According to the complainant, the vehicle was seized on 11.07.2008 whereas according to the petitioner company, it was seized on 19.08.2008. The vehicle was thereafter sold for a consideration of Rs. 4,40,000/-. Being aggrieved, the complainant approached the concerned District Forum by way of a complaint seeking compensation to the extent of Rs. 1,50,000/- alongwith Rs. 3,00,000/- for the financial loss caused to him and Rs. 10,000/- as cost of litigation.

The complaint was resisted by the petitioner company primarily on the ground that there was default on the part of the petitioner in payment as many as three installments since only one installment was paid, till the vehicle came to be seized by them on 19.08.2008. It was further stated in the reply that the vehicle was sold after serving a notice dated 20.08.2008 upon the complainant.

Vide its order dated 19.03.2012 the concerned District Forum dismissed the complaint. Being aggrieved, the complainant approached the concerned Stated Commission by way of an appeal. Vide impugned order dated 29.09.2014, the State Commission allowed the appeal and directed the petitioner company to pay a sum of Rs. 2,00,000/- as compensation to the complainant alongwith interest on that amount @ 9% per annum from the date of filing of the complaint. Being aggrieved, the petitioner company is before us by way of this revision petition.

The first question which arises for our consideration in this case is as to when the vehicle in question was seized by the petitioner company from the complainant / respondent. There is no document evidencing the seizure of the vehicle. In the notice dated 20.08.2008 which purports to have been sent by registered post, it has been stated that the vehicle was taken back with the consent of the complainant on 19.08.2008. The petitioner has also filed a photocopy of the postal receipt whereby the said notice was dispatched to the complainant. The petitioner has also placed on record a copy of the inventory prepared at the time of repossessing the vehicle and as per the said document it was repossessed on 19.08.2008. Though the case of the complainant is that the vehicle was seized by the petitioner company on 11.07.2008, no notice was sent by him to the petitioner company at any point of time claiming therein that the vehicle was seized from his possession on the aforesaid date. Even after receipt of the notice dated 20.08.2008 which the complainant otherwise denies having received, no communication was sent by him to the petitioner company claiming that the vehicle was seized on 11.07.2008 and not on 19.08.2008. In these circumstances, we are inclined to accept the case of the petitioner company that the vehicle was seized on 19.08.2008 and not on 11.07.2008.

The main issue involved in this case is as to whether the seizure of the vehicle was justified or not. The case of the complainant is that he had given post-dated cheques to the petitioner company as security. Though in the reply filed by it before District Forum, the petitioner company denied having collected any post-dated cheques from the complainant, a perusal of the notice which the complainant placed before us during the course of the hearing would show that post-dated cheques were actually collected from the complainant as security. The aforesaid letter is a printed document bearing the name, address and other particulars of the complainant company as well as the name and address of the complainant. Though the aforesaid letter does not bear any signature, this is so because it is computer generated letter which does not require any signature. Though the aforesaid letter was not placed before the District Forum or the State Commission, considering the seeming authenticity of said letter, we are not inclined to interfere with the finding of fact recorded by the State Commission that infact post-dated cheques were collected from the complainant at the time of financing the vehicle. We will not be justified in interfering with the finding of fact recorded by the State Commission in this regard, unless the same is shown to be perverse. Considering the aforesaid letter, it would be difficult for us to say that the finding recorded by the State Commission in this regard was perverse so to call for interference by us in exercise of our revisional Jurisdiction. We therefore affirm the aforesaid finding recorded by the State Commission.

Since the petitioner company had collected post-dated cheques from the complainant, it should have, instead of seizing the vehicle presented those cheques to the bank of the complainant. Only in case of dishonor of the cheques, the petitioner company could have a cause for repossessing the vehicle in accordance with the provisions of law. Therefore, in our opinion, the petitioner company was not justified in seizing the vehicle in question even if there was a default on the part of the complainant in payment of as many as three equated Monthly Installments.

Another deficiency on the part of the petitioner company was that it did not prepare a proper seizure memo under signature of the complainant at the time the vehicle came to be seized. Though a inventory list is alleged to have been prepared by the petitioner company which repossessing the vehicle on 19.08.2008, the said documents does not bear signature of the complainant. We therefore, have no hesitation in holding that the petitioner company was deficient in rendering services to the complainant in as much as no proper seizure memo under acknowledgment from the complainant was prepared at the time the vehicle was seized.

Considering the above referred deficiencies, we are not going into the quantum as to whether the petitioner could have forcibly seized the vehicle or it should have availed an equal remedy for the purpose.

The complainant who is present before us states that in addition to Rs. 4,51,000/- paid for purchase of the chasis of the vehicle, he had spent about Rs. 70,000/- on errection of a body on the said chasis and incurred expenditure of Rs. 50,000/- on road tax and insurance of the vehicle. Thus according to him, the total expenditure incurred by him was about Rs. 5,70,000/-. Some other miscellaneous expenditures are claimed to have been incurred by the complainant. As against this, the petitioner company claims to have sold the vehicle for Rs. 4,40,000/-, just about four months after its chasis was purchased by the complainant. Though the petitioner company claims to have sold the vehicle by way of an auction no documentary evidence of any public auction having been held by the petitioner company for sale of the aforesaid vehicle was produced before the District Forum. There is no evidence that any advertisement in the newspaper for sale of the aforesaid vehicle was produced before the District Forum. The petitioner company in our opinion ought to have given due publicity to the sale of the vehicle so that best possible price could be obtained through the process of its sale by way of public auction or tender as the case may be. That having not been done, this was yet another deficiency on the part of the petitioner company in rendering services to the complainant.

For the reasons stated herein above, we are not inclined to interfere with the order passed by State Commission. The revision petition is accordingly dismissed, with no order as to cost.