Punjab

Ludhiana

CC/18/331

Jaswinder Singh - Complainant(s)

Versus

HDB Finance Service Ltd - Opp.Party(s)

10 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                         Complaint No: 331 dated 15.05.2018.                                                                          Date of decision: 10.07.2018  

         

Jaswinder Singh aged 55 years s/o S.Malkiat Singh, r/o 338, Ward No.21, Officers Colony, Malerkotla Road, Khanna, District Ludhiana-141401.                                                                                                                     ..…Complainant                                                                      Versus

1.HDB Financial Services Limited, Plot No.384, Ist Floor, DVS Tower, Near Petrol Pump, R.K.Road, Cheema Chowk, Ludhiana-141003, through its Branch Head.

2.HDB Financial Services Limited, Registered Office: Radhika, 2^nd Floor, Law Garden Road, Navrangpura, Ahmedabad-38009, Gujarat, through its Chairman/Managing Director.

3.Ravi Garg s/o Ved Parkash Garg, r/o 126-127, Block-B, Satjot Nagar, Ludhiana.                                                                                 …..Opposite parties

            Complaint under Section 12 of Consumer Protection Act, 1986.

QUORUM:

SH. G.K. DHIR, PRESIDENT                                                                        SH. VINOD GULATI, MEMBER

COUNSEL FOR THE COMPLAINANT:-

For complainant            :         Sh.Surjit Pal Sood, Advocate.                        

ORDER

PER G.K. Dhir, PRESIDENT                                                                        1.                 Complainant purchased new Eicher 1110 make vehicle bearing registration No.PB-10-FF-9239 by getting the same financed from OP1 on 31.05.2016 for amount of Rs.12,31,799/-. Loan for commercial vehicle was contracted by way of hypothecation of the same. OP1 disbursed Rs.11,79,750/- only to the complainant. Jaswinder Kaur, wife of complainant was co-applicant. That vehicle was insured with HDFC Ergo General Insurance Company Limited vide Goods Carrying Package Insurance Policy No.2315 2013 9950 5700 000. Said loan was repayable in 54 equated monthly installments @Rs.32,400/-. Signatures of the complainant and his wife on various blank stamp papers, simple papers, printed forms were obtained without disclosing or reading over the contents of those documents. Complainant had been regularly depositing the monthly installments. Suddenly the complainant had to get medical treatment for liver problem from the Government Medical College & Hospital, Sector 32, Chandigarh. Due to this ailment, complainant could not ply the vehicle for earning livelihood and as such, he arrived at amicable settlement with OP3 by taking Op1 in confidence and after obtaining its due consent, agreement dated 4.5.2017 was executed with Op3 for sale of the vehicle for Rs.14,09,575/-. It was agreed that OP3 will pay Rs.1,40,000/- in all to the complainant in lieu of the sale of the said vehicle, but will deposit the balance amount of Rs.12,69,575/- with OP1 on behalf of complainant in 43 equated monthly installments @29,525/-. It was agreed that until OP3 cleared all the loan dues, he will not be entitled to dispose of the vehicle or part with the possession of the same or transfer the same. OP3 paid Rs.40,000/- to the complainant as       earnest money in consideration of the agreement between the complainant and OP3. As per that agreement, in case, due to default of OP3 in paying the installments, the vehicle impound by the OP1, then OP3 will be responsible for all the consequences and losses suffered by the complainant. Further, in view of this default (if committed by OP3), OP3 is liable to deliver back the vehicle to the complainant. As per term of that agreement, balance amount of Rs.1 lac will be paid by OP3 to the complainant and on such demand, the agreement will stand cancelled and earnest money will stand forfeited. Complainant in the event of default committed by OP3 will also be entitled to  get  back the possession of the said commercial vehicle. OP3 neither got transferred the said loan case and nor deposited the agreed loan installments and nor paid the balance agreed amount of Rs.1 lac to the complainant, but he has threatened to sell the said vehicle to someone else and as such, wife of complainant filed the complaint with the Commissioner of Police, Ludhiana and also with the Incharge, PP, Miller Ganj, PS Division No.2, Ludhiana. Complainant was shocked to learn from Pre-sale notice dated 5.3.2018 sent by Op1 that OP3 by conspiring with the erring officials of OP1 had delivered the possession of said vehicle to Op1. Further, complainant got knowledge as if OP3 paid some installments to Op1 only. Then complainant along with his wife rushed to OP1 for making of balance payment of outstanding amount. On inspection of the vehicle on 15.03.2018, the same was found lying parked in the yard of OP1. Stepney and several other parts of the vehicle were missing due to removal of same by Ops. Even the original tyres were changed with old rotten ones. Rims even were replaced with old rusted rims. Complainant and his wife protested against this high handedness of OP1, but OP1 and its erring officials did not care. OP1 sent the post sale notice dated 4.4.2018 for informing the complainant about the sale of the vehicle. Demand of Rs.2,08,878/- as balance amount even was put forth. It is claimed that OP1 has connived with OP3 for causing undue loss, mental agony   and harassment to the complainant and that is why, this complaint for direction to OPs to deliver back the actual and physical possession of the said vehicle to the complainant along with All India National Route Permit, original registration certificate and other accessories in working condition. Compensation for mental agony and harassment of Rs.5 lac along with interest @24% per annum also claimed.

2.                Arguments at admission stage heard.

3.                After going through complaint as a whole along with supporting affidavit and letter dated 31.5.2016 issued by HDB Financial Services Limited, it is made out that complainant got financed the commercial vehicle in question for contracting loan amount of Rs.12,31,799/-. This letter dated 31.5.2016 further has contents to the effect that amount of Rs.11,79,750/- only disbursed. In view of this, it is contended by counsel for complainant that amount of Rs.32,400/- less disbursed by OP1 to the complainant. That submission of counsel for complainant has no force because after depositing installments of Rs.32,400/-, the balance amount has been disbursed because date of repayment of loan installments to commence w.e.f.4.6.2016. Details of amount of margin money etc specifically mentioned in this letter dated 31.5.2016. As the first deposited installment of Rs.32,400/- has been duly credited in the account of complainant along with due interest amount and as such, certainly no deficiency in service committed by Ops. Schedule of payment also shows that EMI of amount of Rs.32,400/- is payable on account of loan contracted by the complainant from Op1. If the EMI for the contracted loan is of Rs.32,400/-, then how can complainant enter into an  agreement with Op3 for enabling OP3 to pay the balance amount in 43 equated monthly installments @Rs.29,425/-. However, this has been done is a fact borne from the contents of para no.3 and 5 of the complaint and incorporation of that fact made in the agreement dated 4.5.2017 arrived at between the complainant and Op3. Copy of this agreement dated 4.5.2017 is produced on record. This means that complainant in connivance with OP3 contracted with OP3 to pay lesser amount of installments, than actual due  as per payment schedule. That certainly is   detrimental to the interest of OP1. Moreover, the agreement dated 4.5.2017 arrived at between the complainant and OP3 without written consent of OP1 or OP2 and as such, it is obvious that this agreement was arrived at for committing breach of terms and conditions of agreement between the complainant and OP1, on the basis of which, complainant was able to contract loan against the vehicle in question.

4.                Copy of agreement for loan and guarantee arrived at between the complainant and OP1 is produced on record. As per clause 3.1 of the terms and conditions of this agreement, the loan amount, interest and other charges shall be repayable by the borrower or by the guarantor in installments as per the repayment schedule. Complainant undertook through clause 6.2 of terms of borrower agreement that he as borrower hypothecated the vehicle in question by professing or representing that vehicle is free from any encumbrance. Obligation to indemnify OP1 against the losses or damages even was undertaken by the complainant through clause 7 of the terms and conditions of the agreement arrived at with OP1. As per clause 9.1 of terms and conditions of the agreement with Bank, complainant as borrower undertook to keep the hypothecated asset specifically appropriated to the security given for contracting the loan. As per clause 9.4 of this agreement, complainant undertook not to sell, encumber, transfer or otherwise dispose of or suffer or allow to suffer any attachment (including installation of LPG/CNG kit) or distress to the hypothecated asset or any parts thereof or allow anything that may prejudice or endanger the security except without the express consent in writing of HDBFS i.e. Op1. Further as per clause 9.5 of this agreement, complainant as borrower undertook to make the vehicle available to OP1 by delivering the possession immediately because of its being hypothecated asset. The guarantee of the vehicle is undertaken to be a continuing security as per clause 12.1 of said agreement. As per clause 12.2 of the agreement, the guarantee to be deemed to have been given separately for payment of each installments of the loan and interest thereon. Events of default consisting of non-payment of dues etc., specified in clause 13 of agreement. In the event of occurrence of any of this default, OP1 given right, without the specific intervention of the Court to declare that loan amount       is payable immediately. Right of taking possession of vehicle to HDBFS specifically given by clause 14(v) of terms and conditions of the agreement. Even right of sending pre sale notice to borrower given to OP1 as per clause 14(vi) of the agreement. In case, the borrower fails to comply with pre-sale notice within the stipulated time and does not pay the entire outstanding dues, then the vehicle liable to be sold in the manner provided by clause 14(2) of the agreement. The powers of taking possession or of sale or of issue of pre sale notice specifically given to the officers/agents or nominees of OP1 as per clause 18.3 of the agreement. Further, as per clause 21.2 of this agreement, complainant along with guarantors expressly recognized and accepted the full powers and authority of OP1 in respect of hypothecated vehicle. As per clause 26.1 of this agreement, the same is binding upon the complainant, his heirs, executers, administrator legal representatives and successors.

5.                In view of above referred clauses of the agreement of financing of loan arrived at between the complainant and Op1, it is obvious that the vehicle in question being hypothecated vehicle to remain as a security with complainant and he is not entitled to part with possession thereof or sell the same in any way without                  express written consent of OP1. That written express consent of OP1 not obtained by the complainant for arriving at agreement dated 4.5.2017 with OP1 and as such, it is obvious that actually complainant arrived at agreement with OP3 for committing violation and breach of the terms and conditions of the agreement with OP1. Hypothecated asset to remain in the custody of borrower in the capacity of bailee as per second part of clause 9.4 of the agreement and as such, complainant bound to perform the obligation of bailee by way of keeping the vehicle in safe custody for and on behalf of OP1, till the loan amount in entirety paid by him to OP1.

6.                Section 151 of the Indian Contract,1872 Act provides that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own gods of the same bulk, quantity and value as the goods bailed. That due care not taken by the complainant and that is why he entered into an agreement with OP3 without the express written consent of OP1 for committing breach of terms and conditions of loan agreement and as such, the act of filing of this complaint itself suggests that the complainant after committing violation of the terms and conditions of the loan agreement himself wants to act as per his own whims and fancies by not bothering about the statutory obligation caste on him by the provision of Sections 151, 154, 160 and 161 of the Indian Contract Act, 1872. A person who himself commits violation of the statutory provisions and terms and conditions of the loan agreement, on the basis of which, he got benefits not entitled to any relief through consumer complaint like this, which virtually is filed for abusing the process of    law so as to prevent Op1 from exerting their right of compelling the complainant as bailee to keep the goods in safe custody.

7.                Section 154 of the Indian Contract Act, 1872 provides that if the bailee makes any use of the bailed goods in contravention of the condition of the bailment, then he is liable to make compensation to the bailor for any damage arising to the goods from or during such use of them. As complainant in violation of the specific condition of loan agreement contracted to dispose of the hypothecated vehicle bailed with him through agreement arrived at with Op3 and as such, complainant liable to make compensation to OP1 for the damages caused to the vehicle in question, if any. In view of this statutory provisions also, OP1 entitled for actual possession of the vehicle in question because the loan installment in entirety has not been paid is a fact admitted by the complainant through the contents of complaint.

8.                Section 160 of the Indian Contract Act, 1872 further casts duty       on the bailee to return or deliver the goods to bailor by the bailee without demand on expiry of the time limit for bailment or the purposes, for which, they were bailed has been accomplished. Section 161 of the Indian Contract Act, 1872 provides that if the goods are not returned, delivered or tendered at the proper time, then bailee is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. As complainant as bailee himself agreed to sell the vehicle in question to OP3 in violation of the terms and conditions of the loan agreement for causing wrongful loss to OP1 and as such, Op1 legally entitled to take possession of the vehicle and put the same on sale as per conditions of the loan agreement referred in detail above. As the vehicle in question, being the property  hypothecated with   OP1, is the property of OP1 and as such, if OP1 took the possession of the vehicle as per terms and conditions of the loan agreement executed by the complainant in favour of OP1, then the same is done by Op1 for                                              exerting its option of using the vehicle in the way it likes because of inability of complainant to repay the loan. The inability to repay the loan admitted by the complainant through the contents of complaint on account of execution of agreement dated 4.7.2017 with OP3. So, this complaint virtually has been filed for abusing the process of law and for shirking the statutory and contractual obligation of paying the due EMIs to OP1. Being so, complaint merits dismissal at the admission stage itself.

9.                As a sequel of above discussion, complaint dismissed at admission stage itself, but with the observations that complainant, if desires, may avail remedy from the appropriate Court/Forum for redressal of his grievance. Copy of order be supplied to complainant free of costs as per rules.

10.              File be indexed and consigned to record room.

                             (Vinod Gulati)                                    (G.K. Dhir)

                              Member                                              President

Announced in Open Forum.

Dated: 10.07.2018.

Gurpreet Sharma