Standard Chartered Bank vs SHAKIR IQBAL MOTONWALA

THIS appeal arises from order dated 5.3.2003 rendered by the learned Consumer Disputes Redressal Forum, Surat in Case No. 723 of 2002 directing the opponent to return the car and directing the complainant to pay whatever amount that has remained outstanding with regard to the car loan/car finance in question with a rider that the complainant would not be liable to pay interest on the instalments which were due during the period when the car remained in possession of the opponent.

THE complainant approached the learned Forum with allegations of facts that he had taken car finance in the sum of Rs. 2,80,000/- from the opponent with repayment schedule of payment of Rs. 6,675/- every month for a period of six months in the form of post-dated cheques taken by the opponent from the complainant. THE complainant alleged that one or two instalments could not be paid in time as the cheques were not honoured on presentation. But the complainant gave assurance to the opponent (oral assurance) to pay up the amount within short time and yet the persons of opponent namely Mr. Ketan S. Desai and Yahayabhai had seized the vehicle in question from the Manager of the complainant. Even at that point of time, the complainant informed (orally) the opponent that he was prepared to pay up the outstanding amount but the opponent did not listen to the complainant and had taken possession of the car in question. THE complainant, on these allegations of facts, alleged that the possession of the car was taken without any lawful action and, therefore, it was an illegal action on the part of the opponent to take possession of the car from the complainant. THE complainant, therefore, prayed for compensation in the sum of Rs. 50,000/- as also compensation on the head of mental agony and hardship in the sum of Rs. 15,000/-, in all Rs. 65,000/- over and above return of the car. He has also prayed for interest @ 18% p.a. Opponent did not appear before the learned Forum though duly served. After considering the complaint and the averments made in the complaint, as also the receipts dated 28.2.2002 and 25.10.2001, the learned Forum came to the conclusion that action of the opponent in taking the possession of the car was not legal particularly when the complainant assured to pay the outstanding amount as per letter dated 9.5.2002 addressed by the complainant to the opponent. THE learned Forum, therefore, passed the impugned order. We have heard the learned Advocates appearing for the parties. At the outset we would like to observe that the opponent defaulted in not appearing before the learned Forum without any reason and, therefore, the matter went ex parte. In order that the matter could be heard on merits even in this appeal, it would be just and proper to impose appropriate cost upon the opponent-appellant before us in order to deter such parties in not appearing before the Fora and defending their just cause.

Referring to the averments and allegations of facts made by the complainant, it would prima facie appear that the complainant''s case related to car finance obtained by the complainant from the opponent. It would also prima facie appear that the complainant himself was defaulter in the matter of repayment of the car finance as agreed between the parties. He clearly indicated that he had issued post-dated cheques for monthly instalments and there were instances of returning of cheques resulting into seizure of the vehicle. Merely because the complainant informed that he was ready and willing to clear up the dues of default that were made by the complainant and admitted by him in his complaint the defaults did not stand rectified. Therefore, prima facie it would appear that he was out to take advantage of his own wrong. This clearly is not permissible. Time and often this Commission has taken a view that whenever there is a dispute which pertains to accounts, such a dispute cannot be said to be consumer dispute. Even if this Commission were to entertain the dispute which was presented by the complainant before the learned Forum, as stated above, it was an admitted position that the complainant was a defaulter. He did not produce the agreement of finance before the learned Forum. The agreement clearly provided for seizure of the vehicle in case there was default of payment in the instalment in the sense in case the post-dated cheques would bounce back on presentation thereof on due dates. Thus, when the possession of the car is taken by the financier upon admitted default on the part of the complainant, such an action could not be said to be an unlawful action. In fact it was clearly authorised by agreement of parties. This can be visualised from a decision of the Honourable National Commission in the case of Manager, St. Mary''s Hire Purchase (P) Ltd. v. N.A. Jose, reported in III (1995) CPJ 58 (NC), where it has been observed that when the agreement between the parties gave right to the opponent to recover possession of the vehicle, such recovery of possession is in exercise of rights of the opponent and will not amount to deficiency in service. Having gone through the statement of accounts, it has not remained in dispute now between the parties and it would clearly appear that the complainant was repeatedly a defaulter in the matter of post dated cheques getting honoured on presentation thereof on due dates. Even after the clearance of the default instalments of the two post-dated cheques noted by the learned Forum as per the receipts shown by the complainant to the learned Forum, there are successive defaults which remained to be answered by the complainant which he ought to have answered before the learned Forum. In fact, he suppressed the facts with regard to such defaults. On going through the notice correspondence, it is also not in dispute and it would appear that the opponent had given opportunity to the complainant to clear up the dues in order to get the vehicle in question released. Instead, the complainant rushed to the learned Forum by way of the complaint in question. It is difficult to appreciate such a course of conduct on the part of the persons approaching the learned Forum under the provisions of the Consumer Protection Act, 1986.

IN view of what is stated above, we do not find any alternative except to dismiss the complaint. But, as stated above, we propose to impose cost on the opponent. We, therefore, pass following order. ORDER This appeal is allowed. The opponent, now appellant before this Commission, will pay cost quantified at Rs. 500/- to the complainant within six weeks from today. Appeal allowed.