H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 173/2007.

Date of Decision 08.04.2009.

1. Branch Manager, M/s Mahindra & Mahindra Financial

Services Branch Office NH-21, Lunapani, PO Bhangrotu,

Tehsil Saddar, Distt. Mandi, Himachal Pradesh.,



2. The Managing Director, M/s Mahindra & Mahindra Financial

Service Sadna House, 22nd Floor, Mumbai 400 018.

……..Appellants.

Versus



Shri Raj Kumar Chauhan S/o Sh. Ranjit Singh, MD IIC,

Dev Pal Chowk, Hamirpur, Himachal Pradesh.

…….Respondent.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.



Whether Approved for reporting? Yes.



For the Appellants. Mr. Rahul Mahajan, Advocate.



For the Respondent. Mr. Shashi Bhushan Singh Chandel, Advocate.



O R D E R:



Justice Arun Kumar Goel (Retd.) President.



Respondent filed complaint against the appellants alleging therein, that vehicle bearing registration No. HP-22-5602, Armada Jeep was got financed by him from the appellants in the sum of Rs. 2 lacs. Financed amount with interest was repayable in 36 monthly instalments. As per version of the appellants vehicle was voluntarily surrendered by the respondent vide surrender letter dated 3.3.2005, Annexure R-7 filed with their reply to the complaint. Financing of vehicle by the appellants and respondent having defaulted in the payment of instalments is made out from the stand of both the parties as per record.

2. Since respondent was in default he was called upon by the appellants to pay a sum of Rs. 72,000/- on or before 31.3.2005. Respondent having paid a sum of Rs. 35,000/- through a bank draft is again admitted by the appellants, but according to them cheque of Rs. 12,000/- dated 14.1.2005 was dishonoured by the banker of the respondent due to insufficiency of funds as per Annexure R-4 the memo shows that this cheque was returned on 26.4.2005 by the banker of the appellants.

3. In this background the plea of the appellants that vehicle was voluntarily surrendered neither stands to reason nor to logic. Reason for making this observation is, that appellants themselves had called upon the respondent to pay Rs. 72,000/- on or before 31.3.2005 out of which admittedly he had paid Rs. 35,000/-. We are unable to understand muchless appreciate, why would he pay Rs. 35,000/- and would then voluntarily surrender the vehicle in question vide Annexure R-7 on 3.3.2005. We specifically confronted Mr. Mahajan with this aspect of the case. His only arguments was that this is not a case of forcible repossession by his client, but of voluntary handing over of the vehicle by the respondent vide Annexure R-7, as such District Forum below was not justified in allowing the complaint in the following terms:-

“The opposite parties are ordered and directed to return the vehicle bearing registration No. HP-22-5602 to the complainant in the same condition, in which it was taken by them on 03.03.2005 within 30 days fro the receipt of certified copy of this order. The opposite parties are further ordered and directed to supply the copy of statement of accounts of the vehicle and return the power of attorney taken by the opposite parties qua the vehicle at the time of execution of agreement of loan and to pay a sum of Rs. 30,000/- as compensation for causing harassment to the complainant besides litigation cost, which we assess at Rs. 1000/-. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room.”



4. Case as set up in the complaint was, that the vehicle in question was forcibly repossessed by the hired hoodlums of the appellants who made him to vacate the vehicle under threat to his life, as well as persons accompanying him named in paragraph 4 of the complaint file. When a reference is made to reply to this particular para, appellants have reiterated what has been noted above regarding voluntary surrender of the vehicle.

5. Mr. Mahajan in support of this appeal urged that neither the vehicle was forcibly repossessed nor any exception can be taken to Annexure R-7. He further submitted that in the face of admitted default, his client was fully justified in taking over the vehicle and the allegations to the contrary are incorrect to the knowledge of the respondent. These pleas have been seriously resisted by Mr. Chandel, learned counsel for the respondent. Per him this is a case of high handedness on the part of the appellants who repossessed the vehicle in question by employing extra legal/constitutional means by deputing hoodlums who took forcible possession of the vehicle from his client. Further according to him there was no question of his client to have surrendered the vehicle after having paid Rs. 35,000/-, particularly when he had been allowed time by the appellants till 31.3.2005 for liquidating Rs. 72,000/- as per admitted case of the parties. This fact is admitted even in reply by the appellants in its paragraph 3.

6. In the light of these circumstances we are constrained to observe, that stand of the respondent regarding appellants having obtained signatures on some papers from him while providing finance, and Annexure C-7 being one of such papers appears to have been used on 3.3.2005 after forcibly repossessing the financed vehicle. Therefore submission of Mr. Mahajan to the contrary is hereby rejected.

7. Mr. Mahajan also submitted, that after the vehicle in question was allegedly surrendered by the respondent, it has been disposed by his clients. Therefore it is not possible for his clients to return it in the same condition, though he hastened to add that there was no question of his clients returning the vehicle in the face of the terms and conditions of the document Annexure R-1, the loan agreement subject to which was financed.

8. This plea again is without substance. Reason being that so long we are governed by rule of law in civil society, appellants cannot be permitted to take law into their own hand and or becoming law unto themselves. Vehicle could not have been repossessed by the appellants without taking recourse to law. This matter has been set at rest by the Hon’ble Supreme Court.

9. We specifically asked Mr. Mahajan to point out from the complaint file anything to suggest that after the alleged voluntary surrender of the vehicle and before it was put to sale by his clients whether the respondent was put to notice to liquidate the balance amount, or else his clients would be constrained to dispose of the same, he could not refer to anything in this behalf from the complaint file. Further whether at the time of taking over and or before putting the repossessed vehicle to sale it was got evaluated, Mr. Mahajan had no answer except for justifying the sale, and he submitted that no wrong has been committed by the appellants.

10. Similarly when the appellants were again called upon by us to explain that before confirming the sale and handing over the vehicle which according to Mr. Mahajan was sold for Rs. 85,000/- to the purchaser, whether any notice of sale was given to the respondent calling upon him to bring a better buyer within a reasonable time or else the sale would be confirmed and the vehicle would be delivered to the purchaser, Mr. Mahajan had again no answer, except for harping on the fact that the complaint was malafide and action of his clients is as per terms of loan agreement Annexure R-1 to which no exception can be taken.

11. This is a case which shows that how the appellants abused and misused their position by use of musclemen which action needs to be strongly deprecated for the view that we have taken on examination of the material what is thereon the complaint file.

12. Now the question arises as to how to settle the issue because the vehicle is already sold. Before examining this fact, another fact needs to be mentioned here is that the vehicle was sold after filing of the complaint by the clients of Mr. Mahajan. This was stated in reply to our pointed query in this behalf. We are unable to appreciate as to what was the hurry for the appellants to have sold the vehicle in this manner. Since vehicle stands sold, we feel that ends of justice would be well met if the appellants are directed to pay Rs. 50,000/-, in addition to the sum of Rs. 30,000/- allowed by the District Forum below. Appellants are further held liable to pay punitive damages to the respondent which we quantify at Rs. 25,000/- in the facts of this case, as also cost of this appeal fixed at Rs. 5,000/- in addition to the cost allowed by the District Forum below, and lastly we also direct that appellants shall not be entitled to recover any amount from the respondent on the basis of Annexure R-1 the loan agreement, because of their acts of ommission and commission and also due to abuse of their position as a high contracting party against the respondent. Steps if any initiated by the appellants including arbitration for recovery of its outstanding claim shall stand terminated forthwith against the respondent at the instance of the appellants. Appellants shall return all original documents including cheque(s) etc., if any, power of attorney etc. to the respondent forthwith. Subject to this modification appeal is dismissed.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

8th April, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.