Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 26-02-2016 passed by the Ld. District Forum, Paschim Midnapore in C. C. No. 104/2015 whereof the complaint has been allowed.

Case of the Complainant, in short, is that he purchased a pick-up van with the financial assistance rendered by the OP.  Admittedly, the Complainant could not adhere to the payment schedule strictly because of some business constraints.  However, it is claimed by the Complainant that he had been paying monthly instalments without fail till 14-08-2015, when allegedly the OP forcibly detained his vehicle from him and refused to release the vehicle till he cleared the slate.  Hence, the complaint.

Case of the OP, briefly stated, is that the details, as mentioned in the repayment history, clearly shows that the Complainant has failed to repay the loan instalments within stipulated time and also faulted in making full payment of the amount as agreed under the contract.  Due to such default, late and part payment, delayed payment charges or overdue charges shot up considerably.  Since the Complainant himself violated the terms and contract, he cannot complain of any deficiency in service on the part of the OP.  The OP further raised question about maintainability of the case over stipulation of the Arbitration Clause in the Loan-cum-Hypothecation Agreement in question.

Decision with reasons

Heard the Ld. Advocates of both sides and gone through the material on record, including the citations relied upon by the parties.

As regards the maintainability issue agitated by the Appellant, I am to say that Consumer Fora being not a Judicial Authority in the stickiest sense of the term, presence of Arbitration Clause in the Loan-cum-Hypothecation Agreement is no bar to adjudicate a dispute which has all the resemblances that of a consumer dispute under the 1986 Act.  In this regard, the decision of Hon’ble Supreme Court in the matter of Sky Parking Carriers Ltd. vs. Tata Chemicals Ltd., reported in 2000(5) SCC 294 and also in the matter of Trans Mediterranean Airways v. Universal Exports, reported in 2011 (10) SCC 316 is worth mentioning.  Further, this Commission has also dealt with the issue quite extensively in its order dated 21-06-2017 passed in MA/334/2016 (arose out of CC/324/2015).

It is not in dispute that the Respondent is a chronic defaulter which has led to accumulation of outstanding dues.  It is also not in dispute that in terms of the Loan-cum-Hypothecation Agreement, the Appellant enjoys every right to repossess the hypothecated vehicle from a defaulter of loan. 

Having said that, it is equally important to keep in mind that whatever action Financer contemplates/initiates, that has to be done following due process of law because the law does not authorize anyone to become a law unto oneself.

In this case, the allegation against the Appellant is that it repossessed the vehicle in question from the Respondent by use of force.  On the other hand, it is claimed by the Appellant that the Respondent voluntarily handed over the vehicle to it after executing a surrender letter. 

On going through the purported surrender letters (prescribed form written in English and Bengali) it transpires that it only contains the signature of the Respondent without any date.  It was not signed in presence of any witness.  It appears from the Statement of Account that as on 14-08-2015, the Respondent owed an amount of Rs. 96,057/- to the Appellant.  It is hardly believable even after making payment of an amount of 3,05,883/- towards EMIs, one would willingly surrender the hypothecated vehicle to the financier due to non-payment of Rs. 96,057/-. 

On a thoughtful consideration of the claims and counter-claims of the parties and documents on record, I see no reason to take a differing view vis-à-vis Ld. District Forum in the matter of forcible repossession of the vehicle in question.  I have already stated that forceful repossession of vehicle by pressing into action musclemen/intimidate a defaulter over phone day in and day out has no legal mandate and accordingly, such unlawful activities cannot be endorsed under any circumstances. 

No doubt, because of such illegal act of the Appellant, the Respondent was rendered totally jobless, leaving him with no such possibility to repay the dues.  Since the Appellant itself is wholly responsible for non-payment of outstanding dues w.e.f. 14-08-2015, I make it clear that the Appellant would not be entitled to claim any overdue charge for the period from 14-08-2015 till the vehicle is released in roadable condition.

The impugned Order appears to be quite reasonable and as such, I refrain from interfering with the same in any manner.

The Appeal, thus, fails.

Hence,

O R D E R E D

that A/309/2016 be and the same is dismissed on contest, but without any costs.  The impugned Order hereby stands affirmed.