Orissa

Jajapur

CC/1/2019

Rashmita Jena - Complainant(s)

Versus

Hinduja Leyland Finance Ltd.,Jajpur Road. - Opp.Party(s)

L.D.Nayak.

26 Jul 2019

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3. Miss Smita Ray, Lady Member.                      

                                                  Dated the 26th  day of July,2019.

                                                      C.C.Case No.01 of 2019

Rashmita Jena   W/O Babuli Jena

Vill./P.O. Mirchandpur  , P.S.Jajpur Sadar

 Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

Hinduja Ley land Finance Ltd, Jajpur Road, At.Chorda

P.O./P.S.  Jajpur Road , Dt. Jajpur

                                                                                                                                ……………..Opp.Party.                  

For the Complainant:           Sri L.D.Nayak, Advocate.

For the Opp.Party    :           Sri B.K.Tripathy,Advocate.                                                                                               

                                                                                              Date of order:   26.07.2019.

SHRI  JIBAN BALLAV DAS, P R E S I D E N T  .

The petitioner has filed the present dispute alleging deficiency in service against the O.P.

            The facts  relevant as per complaint petition shortly are that  she is an unemployed house hold lady and  to  maintain her livelihood purchased a  ALFA Passenger Diesel Auto Rickshaw                           by the  financial assistance of the O.P. The O.P has sanctioned   loan a sum of Rs 1,88,620/ for purchase of the above vehicle .To  repay of the loan dues by the petitioner to  the O.P ,  41 installments including interest  was fixed and the installment was fixed  @ Rs 6494 /- for 10  installments  and for Rs.6,094/- for  20 installments and Rs. 5694/-  for remaining 11   installments which will be   paid by the complainant to the O.P . As  the petitioner’s  husband is the Auto driver  the husband  was  driving the Auto . The petitioner has already paid all the loan dues to the O.P but the O.P demanded Rs 8,594/-  as O.D  interest but due to financial hardship the petitioner did not pay the same. In the mean time unfortunately  dt.  21 .12.18 at about 2 P.M the husband of the petitioner  was going from  jajpur Town to Adanga  by driving the Auto   suddenly 4 numbers  young persons of O.P at Gandarpur   obstructed and snatched away  the Auto rickshaw .  The husband of the petitioner  asked regarding their illegal act ,  they told that they are the personnel’s  of the O.P .Thereafter the petitioner  with her husband immediately  reached at  the office of the O.P  and enquired about the repossessing of the Auto  . The O.P relied her to come after 8 days   after calculation  of her loan account  to  take her Auto  if  no outstanding dues against her  . Thereafter on 10.12.18 the officials  of the O.P   told the petitioner  that the Branch officer is absent   and she has to  come on 14.12.18  at about 12 noon.  On that day ,  the O.P  told the petitioner  to pay Rs.  20,000/-  so the vehicle would be returned . Thereafter  finding no other alternative  the petitioner made a written report to the I.I.C, Jajpur    regarding the illegal act of the O.P  but no action has been taken by the police till date.    The O.P has  committed unfair trade practice, for which the petitioner  has sustained mental agony and monetary loss . Accordingly finding no other alternative  the petitioner  has filed the present dispute  to direct the  O.P   to return the alleged vehicle in favour of the petitioner and the O.P may be  directed   to pay Rs 500 /- per day  i.e on 2.12.18  till delivery of  vehicle to  the petitioner along with  to pay compensation  of Rs 20,000/-  for harassment.

            After notices the O.P appeared through their learned advocate  and filed the  written version  . In the written version the O.P  took  the stand that the present complaint petition is not maintainable in view of the prayers made in the  consumer complaint petition. That the petitioner had approached the O.P in the year 2014 for sanction  of the loan amount of Rs.1,63,000/- for the purpose of purchasing a ALFA PASSENGER  vehicle under hypothecation . After being satisfied with the financial credibility of the petitioner the O.P sanctioned and disbursed the loan amount of Rs.1,63,000/- to the petitioner with the agreement value ( including interest) to be repaid by the petitioner was Rs.2,46,457/- and an agreement to that effect was executed on 13.06.2014 vide loan agreement No. ORBUJP0014 . The petitioner purchased a vehicle of her choice being a ALFA PASSENGER vehicle bearing Engine no. MAILE2FYSE3C65725 and chasis No.R4C2469441, which was registered vide registration No.OD-04-E-7144 from the dealer of her choice. This O.P has no role in choosing the vehicle or dealer.

            The agreement value of Rs.2,33,457/- was to be repaid by the petitioner in 41 equated monthly installments starting from 15^th July,2014 and ending on 15^th November ,2017 .The said installments were to be paid within the 15^th day of every month. The complainant after availing the loan from the O.p had paid the installment of E.M.I amounting to Rs.2,32,363/- and the last payment was received from her on 16.04.2018 and had failed to pay the subsequent E.M.Is. Since the complainant has executed loan agreement, the terms and conditions are binding upon her. As per the clause of the agreement, the borrower ( complainant) is supposed to make the payment of the periodical installments in time and on failure of the borrower to do the same, the O.P shall be entitled to the remedies as available under the said agreement.  The complainant is a chronic defaulter of the loan and as on date a sum of Rs.14,094/- is due and payable by the complainant. When the complainant became a defaulter the O.P had issued a loan recall notice to him vide letter dt.15.10.2016 through registered post demanding a sum of Rs.34,573/- to be paid by her.

         On the date of hearing we heard the argument from the learned advocate of both the sides .  After perusal of the record and documents in details we observed that it is undisputed fact that the petitioner purchased the alleged vehicle with the financial assistance of the O.Ps. ,.After repayment of the E.M.I  the  petitioner  alleged that a sum of Rs 8594/ -   illegally has been    demanded by the O.P as OD charges. On the other hand the O.P submits  in the   written version   that the  petitioner   is a chronic defaulter  for  repayment of the loan  dues . As on date    22.02.19      a sum of Rs. 14,094/-   is due against the petitioner  and the O.P has issued a loan recall notice vide letter dt. 15.10.2016 through R.P demanding Rs. 34,573/- .

            In the present peculiar circumstances   we verified  the entire case record where as we do not found a single scrape of paper which will  establish  that  the  O.P has  served  a re-repossession  notice  before repossessing  the alleged vehicle . On the other hand  the O.P  has annexed  the letter dt.15.10. 16  where it is  mentioned that  there is  an  outstanding of Rs. 34,573/-  but   in the written version  the O.P,  demanded  Rs. 14,094/   against the alleged vehicle   till 22.2.19  though    the vehicle  was seized on  21.12. 18 .

                        However the petitioner also alleged that the O.P demanded Rs. 8,594/  as OD charges where as she  has already paid  all  installments dues against the vehicle .  In this contest though the O.Ps are entitled to charge DPC on delayed  payment on installment but charging of DPC  can not be 36% interest  instead of  9%  as per observation of Hon’ble  Odisha High Court vide W.P(C) No.17720/2008 since it is contrary to constitution bench of Hon’ble Supreme Court reported in AIR-2001-3095-S.C..  it is also a fact that the petitioner was a defaulter as well as contract period has already been over.

                        The next aspect comes for consideration whether the made of seizure and sale of the alleged vehicle is tenable in the eye of law.            In this context after perusal of the observation of Hon’ble supreme court reported in 2006-CTJ-209-SC(M.D Orix Auto Vrs. Joginder Singh) we are inclined to hold that though the O.Ps are empowered as per term and condition of the agreement to seize and sale the financed vehicle in case of default of monthly installments towards the loan but such seizure and sale must be as per law as per observation of Hon’ble Supreme Court reported in 2007(36) OCRCSC-815(Manager ICICI Bank Ltd, Vrs .prakash Kaur & Otrs) In this context we make it clear no where the hypothecation agreement of the alleged vehicle empowers the O.Ps. to take such action  violating the  guide line of Hon’ble Supreme Court ,National Commission and State Commission Delhi reported in 2012 (2) CLT-72 Sc,2007(3)-CPR-191,2005-CTJ-522 respectively   ( Citi crop Maruti Finance Ltd  Vrs. S.Vijay Laxmi) wherein it is held that

                                “ seizuring of the vehicle must be through court .”

                        In view of the above observation  from our side it is crystal clear  that  the O.P has committed gross deficiency in service  by repossessing  the vehicle on the road without serving pre repossession notice .

Hence this Order

In the result the dispute is allowed against the O.P .The op is directed to recalculate  only the DPC amount charging 9% interest per annum and after recalculation of the statement of outstanding amount if any   shall be served to  the petitioner .by R,P  within one month after receipt of this order .The petitioner also  directed to repay the outstanding  amount if any within one month after receipt the copy of the outstanding statement if any  .  The O.P  also directed  to release the vehicle within 7 days  ( seven days )  after receipt of outstanding  dues if any , and further the O.P is  directed to pay Rs 10,000 /- (ten thousand )  as compensation for their illegal act  within one month after receipt of this order. No cost

       This order is pronounced in the open Forum on this the 26th  day of  July,2019. under my hand and seal of the Forum.