24/04/15
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Revision Petition is directed against orders dated 25/02/14 and 04/03/14 whereby W/A was issued against the Revision Petitioner/OP of the complaint.
It is submitted by the Learned Counsel for the Revision Petitioner that the Learned District Forum vide order dated 20/12/13 passed an ex parte interim order directing the OP not to repossess the vehicle in connection with an application u/s 13(3B) of the C. P. Act, 1986. It is contended that the Learned District Forum while passing the ex parte interim order directed that if any violation is made by the OP by any means penalty of Rs.40,000/- will be imposed. It is submitted that when the complaint case was filed the Complainant was, admittedly, a defaulter and till date the Complainant did not repay the loan amount. It is submitted that the complaint was filed as per the office address of the OP at 8, Lyons Range, Kolkata-700 001, but the notices were allegedly sent to 41, Shakespeare Sarani, Kolkata-700 017. It is submitted that repossession was done by the OP’s office at 41, Shakespeare Sarani, Kolkata-700 017 and there was no privity of contract with the office of the OP at 8, Lyons Range, Kolkata-700 001.
The Learned Counsel for the Respondent/Complainant has submitted that the order of injunction passed by the Learned District Forum was communicated to the OP through DTDC Courier Service, but the OP did not appear before the Learned District Forum to oppose the contention of the Complainant, but has filed the Revision Petition before the Commission. It is submitted that the Learned District Forum was justified in passing the impugned orders.
We have heard the submission made by both sides and perused the papers on record. It is submitted that the complaint was filed against the Manager, IndusInd Bank Ltd., 8, Lyons Range, Kolkata-700 001. But after the interim order was passed by the Learned District Forum it was communicated to AGM, IndusInd Bank, 41, Shakespeare Sarani, Kolkata-700 017. The Learned Counsel for the Petitioner has referred to the decision of the Hon'ble National Commission in RP 1485 of 2012 [Pramod Kumar Rai vs. M/s Shriram Transport Finance Co. Ltd. decided on 26/07/12] wherein it has been held that as per agreement the Respondent Finance Company is well within its right to seize truck. The Learned Counsel for the Revision Petitioner has referred to another decision of the Hon'ble National Commission in RP 3319 of 2012 [Surendra Kumar Sahoo vs. Branch Manager, IndusInd Bank decided on 01/10/12] wherein it has been held relying on a decision of the Hon'ble Apex Court reported in III 2012 CPJ 4 (SC) [Surya Pal Singh vs. Siddha Vinayak Motors & Anr.] that under hire purchase agreement it was the financier who was the owner of the vehicle and the person who took loan retained the vehicle only as bailee/trustee and, therefore, taking possession of the vehicle on the ground of non-payment of instalment was a legal right of the financier. The Learned Counsel for the Revision Petitioner has filed the statement of account wherefrom it would appear that on several occasions there was mention of “cheque returned”. The Learned District Forum did not consider whether the Complainant made repayment regularly. In absence of such finding the order passing an injunction restraining the OP from repossessing the vehicle was not according to the settled principle of law as laid down by the Hon'ble National Commission. The Learned District Forum committed material irregularity in passing the impugned order.
The Revision Petition is allowed. We set aside the impugned orders. The Learned District Forum will hear the case on merits and dispose of the same as early as possible. Parties are directed to appear before the Learned District Forum on 18/05/15.
