ORAL ORDER
Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
Heard Mr.Chinmay Gupte-Advocate I/b. Mr.Mohit Gadkari & Co. for the appellant and Mrs.Kanchan Kambli-Advocate for the respondent.
This appeal takes an exception to an order dated 20/04/2011 passed in consumer complaint no.71/2010, Mr.Siddheshwar Harichandra Mhamane v/s. Cholamandalam D.B.S. Finance Ltd.; by District Consumer Disputes Redressal Forum, Soapur. It is a case of alleged deficiency in service on the part of Financial Institution, which financed to the complainant to purchase a tempo. The complainant made default in payment of the loan and, therefore, the vehicle was taken in possession on 16/08/2008 and that too after giving due notice to the complainant by the Financial institution. Complainant thereafter filed this consumer complaint.
Forum as per the impugned order directed complainant to deposit all the defaulted installments and, thereafter, directed Financial Institution to hand over the possession of the tempo vehicle to the complainant. Feeling aggrieved thereby the Financial Institution has preferred this appeal.
Heard both the sides. Perused the record. It is a case of Financial institution that respondent was a chronic defaulter and, therefore, after giving due warning to him and demanding from him installments, the possession of the vehicle was taken and, thereafter, by following the due procedure the vehicle was also sold. It appears that after taking possession of the vehicle by the financial institution, the complainant issued notice dated 14/03/2009 to the financial institution requesting it some sort of accommodation to make defaulted installments and to which the Financial institution replied on 28/03/2009 inter-alia stating that as under:-
“We deny your clients averments relating to high handedly taking possession of the vehicle and put your client to strict proof of such averments. We also wish to state that your client has been highly irregular in payment of installments despite several reminders by us, we were constrained to take possession of the said vehicle peacefully with your clients knowledge and acceptance, and reiterate that the same was done after exercise of due procedures and formalities like intimations, demand notices, etc. We also state that after taking possession a demand notice was issued to your client calling upon your client to remit the termination value and take release of the vehicle, but your client has not responded to the same showing the malafide intentions of your client to willfully default and thus cause monetary loss to the company.
We state that after exercise of due procedures and formalities, in rights of exercise of our right to sell, the said vehicle was sold. We also state that after crediting the sale proceeds, your client shall be liable for any shortfall arising in your clients account for which accordingly necessary legal process shall be initiated.”
The Loan agreement is on record. Clause 10.1 of Article 10 defines Events of default in case of individual borrower like complainant and Article 11 clause 11.1 further gives right to Financial institution to take possession of the vehicle. Therefore, in the light of correspondence between the parties including demand notices and the above referred reply, it is made clear that the financial institution cannot be said acting arbitrary while taking possession of the vehicle and, subsequently, selling the same. Therefore, no deficiency in service on the part of financial institution could be alleged. Forum did not appreciate these facts properly and erred in passing the impugned order. Judgement should not be a moral judgement as it appears from the impugned order. Under the circumstances, we hold accordingly and pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 20/04/2011 is quashed and set aside.
In the result, consumer complaint stands dismissed.
In the given circumstances, both the parties to bear their own costs.
Pronounced on 21st August, 2012.
