SUNDARAM FINANCE LTD vs Atul Kumar S/O Rajeshwar Parsad Goyal

CHALLENGE in this revision petition is to the order dated 06.08.2012 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula in First Appeal No.1444 of 2010 whereby the State Commission has dismissed the appeal filed by the petitioner company against the order dated 30.08.2010 passed by the District Forum, Yamuna Nagar in Complaint No.1147 of 2005, thus upholding and confirming the finding of the District Forum returned in favour of complainant, who is respondent herein.

BRIEFLY stated, the factual matrix of the present case are that the respondent/complainant purchased a vehicle of TATA 207 make from Metro Motor Pvt. Ltd. for an amount of Rs. 3,96,000/ - (including the cost of the accessories). In order to meet the cost of the purchase of the vehicle, the respondent/complainant took loan of Rs. 2,80,000/ - from the petitioner/OP finance company which was to be repaid in 24 equal instalments of Rs. 12,960/ - per month. The OP finance company received 23 blank cheques from the complainant/respondent for this purpose. As per the allegations, the complainant had paid 20 installments to the OPs but could not deposit the remaining instalments in time for which he received a telegram from the OPs asking him to deposit the outstanding amount. Although, the respondent contacted the OPs to explain the circumstances in which default in payment of some instalments had taken place and also assured the OPs that he will deposit the said amount within 1 -2 months, the OPs resorted to forcibly snatch the vehicle on 29.10.2005 through its musclemen. The complainant thereupon reported the matter to the police station on 31.10.2005 followed by another complaint lodged with the police station on 05.11.2005 against the OPs. He requested the OPs to give the vehicle in question but the OPs refused to return the vehicle. Thus, alleging deficiency in service on the part of the OPs, the complainant/respondent filed a complaint before the District Forum.

ON notice, the OPs contested the case against them raising the plea that the complainant had committed default in payment of instalments which led to the issuance of legal notice by the OPs to him on 17.06.2005 and again on 05.08.2005 but no reply was given by the complainant and hence, the OPs repossessed the vehicle on 29.10.2005. They further submitted that an amount of Rs.85,835/ - was outstanding against the complainant and there was no deficiency in service on their part and thus, the complaint was liable to be dismissed. On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum accepted the complaint and granted the following relief by its order mentioned above:

"Resultantly, we allow the complaint of the complainant and directing the respondents to refund a sum of Rs. 2,16,220/ - along with interest @ 9% p.a. from the date of repossession of the vehicle i.e. 29.10.2005 till its realization and further to pay Rs. 5500/ - as compensation for mental agony and harassment as well as cost of proceedings. Order be complied within one month from the date of this order failing which penal action under Section 27 of the C.P. Act shall be initiated against them. File be consigned to record room after due compliance."

WE have heard Sh. Sunil Dutt, Advocate for the petitioner company and Sh. Sandeep Khatri, Advocate, who has appeared for respondent. We have also perused the record.

LEARNED counsel for the petitioner has contended that the fora below have failed to appreciate that in the given facts and circumstances of the case, no relief could be granted to the respondent/complainant by the District Forum as the respondent himself had defaulted in payment of the instalments and, in spite of due notice, failed to settle the contractual obligation under the financing agreement between him and the petitioner company. He submitted that the repossession of the vehicle and its sale thereafter had been done by the petitioner after following the procedure including sending of a telegram in this regard. Another limb of his argument was that the respondent had got the vehicle financed and the same was being used for commercial purpose and in this view of the matter, the fora below should have appreciated that the complainant is not covered within the definition of a consumer in terms of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and as such, his complaint was not maintainable and should have been dismissed on this ground alone. Denying the allegation that the repossession of the vehicle was done by the petitioner forcibly, learned counsel submitted that the possession of the vehicle was given by the driver of the complainant to the petitioner company and intimation regarding repossession was also issued by the petitioner company to the complainant as well as to the guarantor. In view of these aspects, which were ignored by two fora below, learned counsel urged that the impugned orders cannot be sustained in the eye of law and the same are liable to be set aside with costs.

ON the other hand, learned counsel for respondent supported the impugned orders and contended that both the fora below have returned their concurrent finding of facts which could not be faulted with. He submitted that even though the respondent had defaulted in payment of some instalments after paying initial 17 installments because of some unforeseen circumstances, it was wrong to say that the petitioners had followed due procedure in repossessing the vehicle which was resorted to illegally with the help of its musclemen. He submitted that no notice of sale was given by the petitioners. Regarding the contention of the petitioners to the effect that the complaint is not maintainable because of the vehicle having been purchased for a commercial purpose, learned counsel pointed out that specific submission has been made by the complainant in para 14 of his complaint wherein it has been stated that the vehicle was being used by the respondent to earn his livelihood and that the earning from the said vehicle was the only source of livelihood of the complainant. It was therefore pleaded by him that there is no merit in the revision petition and the same should be dismissed.

WE have considered the rival contentions.

WE may note that broad facts of the case are not in dispute. So far as the legal question regarding the maintainability of the complaint is concerned, we find that the petitioners have simply denied the averment of the complainant, no evidence was produced by them to prove their contention. In the absence of any evidence to the contrary to rebut the averment of the complainant, the District Forum rightly ignored the contention of the OPs in this regard and proceeded to deal with the complaint. Nothing has been produced before us to take a different view. In this view, the only question for our consideration in this revision petition is as to whether the vehicle in question was repossessed by the petitioner illegally by force or after following due process of law. The District Forum has dealt with this aspect at length in its order. It has observed thus: "3. We have heard the learned counsel for the complainant and gone through the pleadings as well as documents placed on the file. This fact is admitted that the complainant had purchased TATA -207 for Rs.356000/ - on payment of Rs.68000/ as down payment and this fact is also not denied that the complainant had paid Rs.40000/ - for accessories, in this way the total cost of the vehicle has become Rs.396000/ -and remaining amount Rs.280000/ - has been got financed from the respondents, which was to be paid in 24 equal installments @ Rs.12960/ - each. This fact is also admitted that the complainant had paid seventeen installments and thereafter on 29.10.2005 due to non payment of some installments the vehicle of the complainant has been snatched by the respondents. The only point of controversy between the parties is whether the vehicle of the complainant has been repossessed by the respondents illegally or not, whether the complainant is entitled for relief or not, if so to what effect ? The repossession of the vehicle has been admitted by the respondents but it is settled law by the Apex Court of India that no musclemen can be allowed to interfere with the peace of society and the vehicle cannot be repossessed without the intervention of the Court but in the present case in hand firstly the respondents illegally repossessed the vehicle of the complainant and the respondents nowhere mentioned in their reply whether they have sold the vehicle or not and now at this stage after about five years no reliance can be placed on the returning of the vehicle. In this way the act of the respondents is negligent regarding repossessing of the vehicle or selling of the same. The question of payment is concerned, in their reply the respondents alleged that the complainant in default of 18 installments is not tenable because of the fact that the complainant had already paid 17 installments as is clear from the bank pass book. The vehicle has been purchased by the complainant on 4.8.2003 and the same has been repossessed by the complainant on 29.10.2005 even the complainant lastly paid the installment on 25.5.2005 and further relief upon the judgment passed by the Hon''ble Supreme Court in the case titled as Manager ICICI Bank ltd. Vs. Prakash Kaur and ors. 2007 (2), wherein it has been held that loan for purchase of vehicle -default in repayment -seizure of vehicle by use of force -recovery of vehicle or seizure of vehicles could be done only through legal means -banks cannot employ goondas to take possession by force. Loan for purchase of vehicle -seizure of vehicle by use of force -Practice of hiring recovery agents, who are musclemen deprecated which needs to be discouraged -Bank should resort to procedure recognized by law to take possession of vehicles in cases where the borrower may have committed default in payment of the installments instead of taking resort to strong facilities -Complainant counsel further placed reliance upon the case titled as Tata Motors Ltd. Vs. Indrasen Choubey and ors, 2009 2 CPJ 368, wherein it has been held that vehicle financed -installments defaulted -vehicle seized -auctioned without intimation to complainant -complaint dismissed by Forum - Order set aside in appeal -illegal, unjust method resorted by bank for forcibly repossessing vehicle proved -Order of lower For a upheld and further relief upon the judgment passes by Hon''ble Punjab and Haryana High Court in the case titled as Narinder Kumar Singla vs. State of Punjab and ors., 2006 3 RCR(Cri) 890 wherein it has been held that Contract Act sections 172 and 176 Hire Purchase -Vehicle purchased under hire purchase agreement -Installments not paid by the hirer -vehicle could not be seized by financer -In case, there was any such condition in the hire purchase agreement, the same was unconscionable and in the case titled as ICICI Bank vs. Shanti Devi Sharma and ors., 2008 3 RCR(Cri) 463, it has been held that hire purchase -Recovery of loans by bank and financial institutions -recovery of loans or seizure of vehicles can only be done through legal means and not by musclemen."

THE State Commission has upheld the finding of the District Forum and thus, returned its concurrent finding while dismissing the appeal of the petitioners vide its impugned order. We agree with the view taken by the State Commission and the District Forum. It must be kept in view that the Consumer Protection Act confers rather limited powers under Section 21 (b) on the National Commission in exercise of its revisional jurisdiction. Under this Section, the National Commission can use its revisional power only in a case where it appears to the National Commission that the 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 jurisdictional illegally or with material irregularity. We have not come across any such infirmity which would justify or call for our interference with the concurrent orders of the fora below. In the circumstances, we dismiss this meritless petition with the parties bearing their own costs.