Madhya Pradesh

StateCommission

FA/12/2314

SANTOSH SHRIVASTAVA - Complainant(s)

Versus

/ HDFC BANK - Opp.Party(s)

20 Dec 2023

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 2314 OF 2012

(Arising out of order dated 20.11.2012 passed in C.C.No.186/2012 by District Commission, Guna)

 

SANTOSH SHRIVASTAVA,

S/O SHRI HARI NARAYAN SHRIVASTAVA,

R/O HANUMAN COLONY, GUNA (M.P.)                                                     … APPELLANT.

 

                        Versus

 

1. MANAGER, HDFC BANK LTD.,

    COMMERCIAL VEHICLE BRANCH,

    M.P.NAGAR, BHOPAL (M.P.)

 

2. MANAGER, HDFC BANK LTD.

    COMMERCIAL VEHICLE BRANCH,

    GUNA (M.P.)                                                                                            …. RESPONDENTS.   

                     

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : ACTINIG PRESIDENT

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

                     

COUNSEL FOR PARTIES :

 

                Shri S. K. Saxena, learned counsel for the appellant.

           Shri Ajay Dubey, learned counsel for the respondents.

 

 

 O R D E R

(Passed On 20.12.2023)

                                The following order of the Commission was delivered by A. K. Tiwari, Acting President: 

           

                   This is an appeal by the complainant/appellant against the order dated 20.11.2012 passed by the District Consumer Disputes Redressal Forum, Guna (for short ‘District Commission) in C.C.No.186/2012 whereby the complaint filed by him has been dismissed.

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2.                     The brief facts of the case as stated by the complainant/appellant are that he got his vehicle Eicher bearing registration number MP-08 GA-0890 from the opposite party for earning his livelihood by means of self-employment. He was paying the instalments regularly for repayment of loan taken. It is submitted that on 22.05.2012 when he approached the opposite parties to deposit balance amount of Rs.1,16,392/- the opposite parties refused to deposit the same. It is alleged that on 24.05.2012, the opposite parties illegally took possession of his vehicle. The complainant therefore filed a complaint before the District Commission alleging deficiency in service on part of the opposite parties seeking relief.  

3.                The opposite parties/respondents by filing reply resisted the complaint stating that the complainant/appellant took the vehicle for commercial purpose and therefore, the complainant is not a consumer.  It is stated that the complainant stopped making payment of installments since April-2011 and despite repeated demands, when he failed to deposit the outstanding dues, as per agreement after informing the police, the opposite parties seized the truck. There has been no deficiency in service on part of opposite parties.  It is therefore prayed that the complaint be dismissed.

4.                The District Commission after considering the evidence and all aspects of the matter dismissed the complaint. Hence this appeal.

5.                Heard learned counsel for the parties. Perused the record.

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6.                Learned counsel for the complainant/appellant argued that the District Commission failed to consider the complaint and documents filed on record properly. He argued that the District Commission has not considered this important aspect that he regularly deposited the EMIs and whenever there were dues, he used to deposit the same. The questioned vehicle was the only source of the complainant to earn livelihood. Loan recall notice dated 02.01.2012 (R-6), loan recall notice dated 03.03.2012 (R-7) and loan recall notice dated 05.04.2012 (R-8) are in the same proforma and were prepared only by changing the dates. In clause 3 of the said notices it is clear that the opposite parties will sell the vehicle whereas before the CJM Court, Guna they denied to sell the vehicle. The opposite parties illegally kept the vehicle in their possession which amounts to unfair trade practice. He therefore argued that the impugned order deserves to be set-aside.  

7.                Learned counsel for the opposite parties/respondents bank argued that the complainant/appellant was defaulter in making repayment of loan advanced despite notices. The opposite parties/respondents after notice and after following the procedure and informing the police seized the vehicle of the complainant/appellant as per terms of agreement executed between the parties. The complainant was not entitled to get any relief from the District Commission. He further argued that under a hire purchase agreement the financer is the owner of the vehicle and in case of default in

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payment of instalments the financer has every right to repossess the vehicle financed. The District Commission has rightly considered all the aspects and passed a well-reasoned order. It is therefore prayed that this appeal be dismissed.

8.                We have perused the complaint, reply, affidavits and documents filed by the parties. The complainant/appellant has filed his affidavit and the documents marked as C-1 to C-3. The opposite parties/respondents have filed affidavit of Soumitra Tiwari, Legal Manager and documents marked R-1 to R-9. C-1 to C-3 are the bank statements. R-1 is copy of application of complainant filed before CJM, Guna, R-2 is bank statement, R-3 is pre-repossession & post-repossession intimation to police station, R-4 is copy of order dated 16.07.2012 passed by CJM, Guna, R-5 is legal notice and  R-6 to R-8 are loan recall notices regarding payment of outstanding dues.

9.                On perusal of record, we find that R-6, R-7 and R-8 are loan recall notices dated 02.01.2012, 03.03.2012 and 05.04.2012 respectively wherein it is written that inspite of requests and reminders you have failed and neglected to adhere to the terms and conditions expressly agreed by you in composite loan agreement (cum hypothecation) and the complainant/appellant was asked to make payment of outstanding dues within 7 days. In the said letters it is mentioned that we shall recover the

 

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possession of the said vehicle in the event you fail to entire amount within 7 days.

10.              On the other hand, the complainant has filed bank statement for the period from 01.12.2010 to 05.05.2012 (C-1=R-2) from which it is clear that so many times, the cheques were bounced. At some time, the complainant made payment of outstanding dues but thereafter the outstanding amount increased and on 05.05.2012 it reached to Rs.1,16,392/-. From the record we find that the complainant failed to produce any evidence in order to prove that he paid instalments regarding repayment of loan regularly and timely.

11.              Thus, from the record, it is well established that the complainant/appellant even after loan recall notices failed to deposit instalments towards repayment of loan as also outstanding amount, as a result of which the opposite parties/respondents possessed the vehicle in terms of hypothecation agreement. In such circumstances, we do not find any fault on part of the opposite parties/respondents in seizing the complainant’s vehicle and therefore the opposite parties/respondents bank cannot be held deficient in service.

12.              The law in case of repossession of the vehicle by the financer under Hire Purchase Agreement for default in payments is well settled. Hon’ble Supreme Court in Suryapal Singh Vs Siddha Vinayak Motors &

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Anr III (2012) CPJ 4 (SC), and in M/S Magma Fincorp Ltd. Vs Rajesh Kumar Tiwari II (2021) SLT 366 has held that “Under hire purchase agreement, it is the financer who is the owner of the vehicle and the person who takes loan retains the vehicle only as bailee/trustee. Taking possession of vehicle on ground of non-payment of instalment is legal right of the financer.”

13.              The point involved in this matter is squarely covered and concluded in favour of the opposite parties/respondents-bank and against the complainant/appellant by the aforesaid judgments of the Apex Court.

14.              In view of the above discussion, we find that the District Commission has considered all the aspects and passed a well-reasoned order and has committed no error while dismissing the complaint. Thus we do not find any illegality or infirmity in the impugned order and it is hereby affirmed.

15.              In the result, this appeal being devoid of any merit is hereby dismissed with no order as to costs.

 

                  (A. K. Tiwari)                          (Dr. Srikant Pandey)

            Acting President                                   Member