State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. : FA/09/78



DATE OF FILING : 19.02.2009 DATE OF FINAL ORDER: 29.07.2009


APPELLANT



ICICI Bank Ltd.

ICICI Bank Towers,

Bandra, Kurla Complex,

Mumbai-400 051



RESPONDENTS



1. Sri Subrata Saha

S/o Late Promatha Nath Saha

Residing at 144, S.K.Deb Road,

P.S. Lake Town, Kolkata-700 048.

2. Subrata Saha & Associate

A proprietorship firm having its office at

144, S.K.Deb Road, P.S. Lake Town,

Kolkata-700 048.
PROFORMA RESPONDENTS



3. The Collection Manager, ICICI Bank

3-A, Gurusaday Road

Kolkata-700 019.

4. Sri Debojyoti Dey, Collector

ICICI Bank

3-A, Gurusaday Road,

Kolkata-700 019.

5. Sri D.Barman

Regional Sales Manager

ICICI Bank, Construction & Equipment Finance

3-A, Gurusaday Road

Kolkata-700 019.



BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY

MEMBER : MR. S.COARI



FOR THE PETITIONER / APPELLANT : Mr. P.Banerjee, Ld. Advocate

FOR THE RESPONDENT / O.P.S.: Mr. B.Prasad, Ld. Advocate (Res.1&2)

Mr. P.Mitra, Ld. Advocate (Res.3,4&5)





: O R D E R :


MR. S.COARI, LD. MEMBER

The present Appeal has been preferred by ICICI Bank Ltd. against the judgement and order dt. 22.8.08 passed by the District Consumer Disputes Redressal Forum, Unit-I, Kolkata in CDF/Unit-I/Case No. 150/2006 wherein the Ld. District Forum directed the complainant/Respondent to pay the due installments up to May, 2006 within three months and to carry on payment of balance monthly installments from January, 2009 till liquidation of loan along with a direction upon the OP/Appellant to return the dumper within three months from the date of the judgement.

The case of the complainant/Respondent before the Ld. District Forum, in brief, was that the complainant obtained financial assistance from the Appellant/Bank for the purpose of purchasing a dumper (vehicle) valued at Rs. 14,65,200/-. The complainant paid Rs. 1,00,000/- towards booking money and made down-payment to the tune of Rs. 4,29,200/-. The repayment schedule was fixed for 35 months @ Rs. 33,676/- per month. The transaction commenced on and from 1.10.04. From 1.10.04 to February, 2006 seventeen installments were payable by the complainant, out of which the complainant paid 14 installments, i.e. Rs. 4,72,112/- against a sanctioned loan amount of Rs. 10,26,000/-. The complainant requested the OP to extend the period of installments as the complainant experienced difficulty in his business atmosphere. But the OP did not agree to such proposal though the installments due were only for two months. But ultimately the OP was successful in rescinding the agreement in question between the parties arbitrarily after taking forcible possession of the vehicle in question to the detriment of interest of the complainant. The complainant was all along ready and willing to pay the installments, but the OP was not in a position to accommodate the complainant. The complainant finding no alternative preferred the petition of complaint before the Ld. District Forum for redressal.

The OPs contested the case with a plea that the complainant having willfully defaulted in payment of installments as agreed upon between the parties, there was no alternative left before the OP but to rescind the agreement and take back the possession of the vehicle in question. In absence of any contrary agreement between the parties, the action taken by the OP was legal and justified and as such, the petition of complaint was liable to be dismissed with cost.

The Ld. District Forum while disposing of the petition of complaint has observed that when the complainant was ready and willing to fulfil his part of the agreement for repaying the amount through installments, it was improper and unjust on the part of the OP to rescind the agreement unilaterally and take back the possession of the vehicle in question, which was unjust and amounted to deficiency in service and ultimately disposed of the petition of complaint in the manner discussed above.

The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified in disposing of the petition of complaint in the manner as discussed above.

At the time of hearing it has been submitted on behalf of the Appellant/OP that the petition of complaint filed by the Respondent was not at all tenable as the ingredients of deficiency of service was practically absent in the allegations put up by the complainant. When it is an admitted position that the complainant obtained loan facilities for the purpose of purchasing the vehicle in question and more so, when the complainant failed to pay the installments on two consecutive months, there was nothing wrong on the part of the Appellant to rescind the agreement in question and take back the possession of the vehicle. While criticizing the impugned judgement it has been submitted on behalf of the Appellant that as per decisions reported in 2007 (2) CPR 155 and 2005 (1) CPR 123 it has become crystal clear that a transaction of the present nature, which is nothing but a Hire Purchase Agreement transaction, the same has been put outside the purview of the Consumer Protection Act. Similarly, according to the Ld. Advocate for the Appellant, there was no deficiency in service at the instance of the Appellant/Bank as per decision reported in Supreme Court Cases 2006 Page-598 and 2001 Supreme Court Cases 417 where the Apex Court has held that a financier can repossess the vehicle in question on default. While concluding his submissions, the Ld. Advocate for the Appellant has submitted that from the facts and circumstances of the case it has become crystal clear that there was absolutely no deficiency in service on the part of the Appellant/Bank and the action taken on behalf of the Appellant so far as it relates to rescinding the agreement in question and taking back the possession of the vehicle is not against the law and as such, the impugned judgement is not sustainable under the law and is liable to be set aside.

We have duly considered the submissions put forward on behalf of the Appellant and have gone through the materials on record, pleadings of the parties and the impugned judgement and find that in this case it is an admitted position that the Respondent obtained loan facilities from the Appellant/Bank for the purpose of purchasing the vehicle (dumper) and that as per agreement between the parties the complainant/Respondent deposited some amount of money before entering into the transaction of re-paying the amount through 35 installments. It is also an admitted position that out of 17 installments the Respondent did pay 14 installments and he was a defaulter in respect two installments, i.e. January and February, 2006. It is also noticed from the pleadings of the parties and materials on record that subsequently the complainant/Respondent approached the Appellant/Bank for reconsidering the matter after accepting the defaulted installments and to extend the number of installments so as to accommodate the complainant/Respondent. In this connection, we find that the bank neither accommodated the complainant nor put forward any alternative proposal so as to keep alive the agreement in question and in a high-handed action has forcibly taken possession of the vehicle in question after unilaterally rescinding the agreement in question. In this connection, we also take note of the decision reported in 2006 CPJ 46 (NC) wherein it has been observed by the Hon’ble National Commission that banking and financial institution are not permitted to seize the financed vehicle due to default in payment of installments without intervention of the Court and that if the vehicle is seized without intervention of Court, the vehicle should be released and the complainant is to pay remaining installments to the bank in question. Keeping in mind this proposition we find that there is practically no merit in the present Appeal when a party has taken fiancé from the Appellant/Bank and has complied with substantial portion of the agreement in question, there was no point on the part of the Appellant to unilaterally rescind the agreement in question when admittedly there was a default of only two installments and not only that when the Respondent/Complainant was very much willing to continue with the transactions in question by paying the defaulted amount within a very short time. In our opinion, the Appellant/Bank without considering the complainant/Respondent’s difficulties has acted in a high-handed nature which is not at all supportable under the law. In this connection, we are of the opinion that the Ld. District Forum was justified in designating the Appellant to be deficient in service as regards the transaction in question. However, from the materials on record we find that the vehicle in question has already been sold out at the instance of the Appellant. In that case it would not be feasible to return the vehicle in question to the Respondent at this stage. In this connection, we are of considered opinion that ends of justice would be met if the Appeal be allowed in part on contest with cost of Rs. 2,000/- and keeping in mind that the complainant has initially paid Rs. 4,39,200/- to the Appellant/Bank and towards the balance amount, i.e. Rs. 10,26,000/-, of the price of the vehicle in question the complainant having paid Rs. 4,13,000/-, we think that it would be just and proper if the Appellant be directed to repay the Respondent a sum of Rs. 3,00,000/- towards 14 installments paid and Rs. 4,00,000/- towards initial deposit made by the complainant in favour of the Appellant. Along with this, we think it would be just and proper if the Respondent be awarded a compensation to the tune of Rs. 1,00,000/- only. In the result, the Appeal is according disposed of with the modification as mentioned above.

Hence, it is ORDERED that the Appeal stands allowed on contest in part with cost of Rs. 2,000/- (Rupees two thousand only) payable to Respondent Nos. 1 & 2. The impugned judgement stands modified to the extent that the Appellant be directed to pay Rs. 7,00,000/- (Rupees seven lakhs only) along with compensation of Rs. 1,00,000/- (Rupees one lakh only) to the Respondent Nos. 1 & 2. The Appellant is also directed to comply with the directions within 45 (forty-five) days from the date of this order, in default it will be held responsible for damages by way of penalty @ Rs. 200/- (Rupees two hundred only) per day.



MEMBER MEMBER