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Judgment
I have had the benefit of going through the order passed by my learned colleague Hon''ble Mr. Justice V.B. Gupta in RP No. 2438 of 2014, I respectfully disagree with the same.
AFTER hearing the learned Counsel for the petitioner and having gone through the pleadings, the entire record as also the documents placed on record as also the grounds raised in the revision petition, I am of the opinion that the crucial questions to be decided are (a) whether the petitioner was guilty of deficiency of service for not returning the tractor on repayment of full amount of the loan; (b) whether respondent No. 2 was guilty of deficiency of service in not collecting the tractor from the petitioner and returning to respondent No. 1; (c) whether both were guilty of deficiency of service; and (d) whether respondent No. 1 himself had failed to collect the said tractor after the loan of the petitioner had been fully paid. It is seen from the records placed on the file that after respondent No. 2 paid of the loan of respondent No. 1, he had also entered into a loan -cum -hypothecation agreement on 15.10.2010 by which the said tractor now stand hypothecated to respondent No. 2. On receiving the full payment of the loan the petitioner gave a ''No Objection Certificate'' (NOC) to respondent No. 1. The NOC is placed on record and reads as under: "We confirm that we have received all the instalments due to the company with respect to above mentioned asset.
This No Due Certificate is being issued on the express condition that you shall indemnify and keep us indemnified at all times against any claims or liabilities on account of any other statutory dues arising out of the agreement thereof with respect to the above mentioned asset".
PETITIONER had also addressed a letter of NOC to Regional Transport Officer, Raipur, Chhattisgarh on 6.12.2010 which reads as under: "Sub: Cancellation of endorsement -
Dear Sir/Madam,
We bring to your notice that our Loan -cum -Hypothecation/Lease Agreement with Narendra Verma son of Daniya Prasad Verma for the below mentioned vehicle has been closed.
Details of Assets financed -
Description - Tractor
Registration No. CG 04 DA 4313
Engine No. NYT6172
Chassis No. NYT 6172
Machine Serial No.
We certify that we have no objection in cancellation of the endorsement made in favour of M/s. L & T Finance Limited from the Registration book for the above vehicle."
ALONG with the NOC, a notice of termination of Hire Purchase/Lease/Hypothecation for the said vehicle, certificate of registration was also returned. Petitioner as per the written statement before the District Forum also issued a report release letter dated 20.2.2010 which was placed before the District Forum. The said letter is placed on record and addressed to M/s. Heavy Movers, Ring Road No. 2, Raipur (CG) and reads as under: "Sub: Release of M&M 275 NST
Dear Sir,
Kindly release one M&M 275 NST, whose details given below -
RESPONDENT No. 1 had also got issued a legal notice through their Advocate Shri B.L. Dubey to respondent No. 2 - Shriram Transport Finance Ltd. The said legal notice read as under: "2. You had paid the amount in the name of my client to L & T Finance Ltd., and after being given the tractor my client was to pay the instalments of Rs. 7,702 but till date you have failed to receive the tractor from L & T Finance Ltd., despite your agent Mr. Rajkumar Nirmalkar having been given written NOC authorizing him to receive the tractor. Till date you have failed to get the tractor released and hand it over to my client which is breach of terms of agreement and my client is being unnecessarily being harassed by demand of instalments every month and he is assured that the tractor would be given shortly. Since you have failed to get the vehicle released and hand over to my client and is facing loss of Rs. 20,000 per month.
My client would have paid the instalments on time but you have, till date not given the vehicle to my client after taking from L & T Finance Ltd. Before refinance it was agreed that you would pay balance amount to L & T Finance Ltd., and get the vehicle release for my client and thereafter payment of instalments shall be made as per schedule. However, you have failed to get the vehicle from L & T Finance Ltd., till date for my client Despite that you have been sending notices for payment of instalments and threaten to repossess the vehicle on default and on discussion you say that it is printed perform and is not for my client and hence, sway my client.
Because of your actions my client is suffering mental and financial difficulties and it amounts to deficiency of service for which you are responsible.
That my client has paid two instalments but despite this you had not given the tractor to my client which amounts to deficiency in service.
That you have repeatedly being tried to be contacted and it is said that the vehicle shall be returned after payment of next instalment and till date monthly instalments are being demanded without return of vehicle which is causing loss of agricultural work to my client. Under these circumstances without any income, it is not possible to pay instalments and the acts of yours are in violation of terms of agreement."
IT is apparent from the above that respondent No. 1 had received a copy of the NOC from the petitioner and given the same to Mr. Rajkumar Nirmalkar, the agent of respondent No. 2 and that respondent No. 2 had failed to get the tractor released and handed over to respondent No. 1. Respondent No. 2 has in fact corroborated this by requesting in his written statement before the District Forum that complainant/respondent, who was a habitual defaulter, be directed to pay the balance outstanding amount to the opposite party otherwise the opposite, party shall recover from the loan as per the terms of the agreement.
FROM the above it appears that after respondent No. 2 paid the outstanding balance loan amount to the petitioner, the petitioner issued NOC both to the complainant and the RTO to facilitate transfer of the tractor back to respondent No. 1. The directions to release to the tractor were issued to M/s. Heavy Movers, Ring Road No. 2, Raipur (C.G.) in whose yard the tractor had been kept. Respondent No. 1 had an agreement with respondent No. 2 and expected Respondent No. 2 to collect the tractor from respondent No. 1 and deliver the same to him. As per the version of Respondent No. 2 before the District Forum the respondent No. 1 defaulted in the loan repayment even to respondent No. 2 and as such he did not initiate any action to collect the tractor and deliver to respondent No. 1.
IN view of the above, I am of the view that the findings of the State Commission as given in paras below need to be re -examined and reconsidered: "20. From the arguments of OP No. 1 it is apparent that it had taken possession of the vehicle and when the complainant through OP No. 2 made the complete payment to OP No. 1 then it was the duty of the OP No. 1 to return the vehicle, however, OP No. 1 did not return it and kept it in its yard. It was the duty of OP No. 1 to inform the complainant that payment of loan has been made and vehicle is free of loan. Hence, the complainant takes back the vehicle and if even thereafter complainant failed to take back the vehicle then it could be accepted that complainant had failed to fulfill its responsibility but OP No. 1 failed to issue any communication for taking back the vehicle and hence, OP No. 1 failed to fulfil its responsibility and hence, non -return of vehicle amounts to deficiency in service.
District Forum has passed the impugned order against OP No. 1 -L & T Finance Ltd., for keeping the seized vehicle in yard is legal and correct. The finding of District Forum that vehicle was kept in yard beyond reasonable time and it is not possible to return it back in the same condition and repair costs involved it is proper and does not require any interference and, hence, the order passed by District Forum in respect of OP No. 1 is liable to be sustained.
As far as appeal presented by the OP No. 2 is concerned, District Forum has held the OP No. 2 responsible which is wrong. OP No. 2 had made the payment of loan amount of complainant to OP No. 1. From the documents it appears that OP No. 2 had assured the complainant that it would receive the vehicle from OP No. 1 and hand over to complainant. In such a scenario in case OP No. 1 did not hand over the vehicle. OP No. 2 cannot be held responsible. The payment made by OP No. 2 is for the loan taken by the complainant from OP No. 2 and hence, in such a case OP No. 2 cannot be held responsible for making payment to complainant and hence, the order of the District Forum is wrong and not sustainable."
The matter came up for hearing for the first time on 11.6.2014 after the complaint was filed on 2.6.2014 and orders were reserved. In view of the above -mentioned facts, I am of the view that the matter cannot be decided in limine and that arguments need to be heard in this matter on the merits of the case after giving due notice to the parties.