RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No.1704 of 2008
1- Magma Leasing Limited, Magma House,
24, Park Street, Kolkata- 700016
2- Magma Leasing Limited, 2nd Floor,YMCA
Building.13, Rana Pratap Marg,
Lucknow-226001 . ...Appellants.
Versus
Rajesh Kumar Tiwari s/o Shri Ram Jugir Tiwari,
R/o Village, Rammanpur, P.O., Banganv Dihwa,
District, Ambedkarnagar. ….Respondent.
Present:-
1- Hon’ble Sri Vijai Varma, Presiding Member.
2- Hon’ble Sri Sanjai Kumar, Member.
Sri Rajesh Chaddha for the appellants.
Sri K.M. Dubey for the respondent.
Date 31.8.2017
JUDGMENT
(Delivered by Sri Vijai Varma, Member)
This appeal has been filed against the judgment and order dated 13.6.2008, passed by the District Forum, Ambedkar Nagar in complaint case no.105 of 2005.
The facts leading to this appeal, in short, are that the respondent/complainant had taken a loan of Rs.3,15,000.00 after depositing the margin money of Rs.1,04,000.00 for purchasing a vehicle for Rs.4,21,121.00 from the appellant/OP no.1. The respondent/complainant had deposited 7 instalments but due to financial constraints could not pay 2 instalments in the 8th months onwards. A case of accident was registered against the complainant's vehicle and his vehicle was detained and the complainant accordingly, informed the
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OP. In the month of June, the complainant deposited the instalment and thereafter started plying his vehicle but the appellant/OP no.2 got the vehicle repossessed on 14.7.2003 whereas the complainant by then had deposited Rs.1,19,335.00 as instalments. When the complainant contacted the OPs then he was told that the instalments were due against the complainant. When the complainant asked to release the vehicle and he would keep depositing the instalments regularly then they refused to do that. The complainant made representation to the Government as well as to the appellant/OP no.2 but his vehicle was sold to someone. The complainant's vehicle was sold without giving him the opportunity to deposit the balance amount which comes within the definition of unfair trade practice. Hence, a complaint was filed by the complainant in the Forum below wherein the appellant/OPs filed their WS submitting therein that the complainant had not deposited the instalments properly and that the OPs had had the authority to repossess the vehicle and in that situation the entire amount due becomes payable. The complainant did not try to deposit the balance instalments and was not ready to make payment even after repossession of the vehicle. The appellant/OPs were entitled to repossess the vehicle and sell it after informing the complainant. The complainant has flouted the terms and conditions of the agreement and has not made payment due therefore, the complaint was liable to be dismissed. After hearing the parties, the Forum below passed the impugned order on 13.6.2008 as under:-
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"परिवाद का परिवाद विपक्षीगण के विरूद्व स्वीकार किया जाता है कि विपक्षीगण को आदेशित किया जाता है कि वह परिवादी को 223335/- रूपया मूलधन पर 10 प्रतिशत साधारण वार्षिक ब्याज की दर से परिवाद प्रस्तुत होने की तिथि से ता अदायगी तक देवे तथा परिवादी को विपक्षी आर्थिक मानसिक व शारीरिक क्षति के रूप में 10000/- रूपया तथा खर्चा मुकदमा के रूप में 1000/- रूपया आदेश की तिथि से 45 दिन के अन्दर में अदा करेगा।"
Feeling aggrieved with the impugned order that the appellants have filed this appeal on the ground that the complainant had paid only 8 intalments. Hence, his vehicle was repossessed and after sending the information to the complainant for making payment of the outstanding amount of Rs.2,80,132.00 else the vehicle would be disposed of but he complainant did not make any payment hence, the vehicle was sold in November, 2003 after giving opportunity to the complainant. There is no case of deficiency in service on the part of the appellants and the Forum below has allowed the complaint for directing the refund of amount of Rs.2,23,335.00 with interest which is totally wrong and hence, it is liable to be set aside and the appeal allowed.
Heard counsel for the parties and perused the entire records.
In this appeal, an application for condonation of delay was moved by the appellants and the respondent had filed objection to that application. So now it is to be decided as to whether this appeal was filed with delay or not. If so, its effect.
The appellant had moved an application for
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condonation of delay on the ground that the certified copy of the impugned judgment dated 13.6.2008 was made available on 21.6.2008 to the local counsel of the appellants at Ambedkarnagar but its copy was sent by the lawyer to the appellants at Lucknow office which was received on 16.8.2008. It is thereafter that the appellants asked for explanation as to why so much delay was caused in sending the copy of the impugned order and when no response was received from the lawyer concerned then he was asked to withdraw from all the cases and to handover all the files and when again no response was received then the Manager of the appellant visited Ambedkarnagar on 3.9.2008 and after procuring the files, the appeal was prepared and hence, the delay in filing this appeal should be condoned. Against this application objections have been raised by the respondent that the appeal has been preferred after lapse of more than 6 months and the order was passed in the presence of the parties and the appellants kept waiting regarding compliance of the order of the lower court and it is at the time of the execution of the award that they preferred this time barred appeal. The appellants have taken the grounds which are not supported by any piece of evidence and that there is no justification for such grounds for condoning the delay. We find that the appellants have shown the negligence of their lawyer in providing the appellants copy of the order and has made him responsible for the delay in filing the appeal. Obviously, the grounds whereby a lawyer is considered to be responsible for dealing the matter in sending the copy
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of the impugned order etc. can not justify the delay in filing the appeal. In fact, the appellants have taken flimsy grounds to justify the condonation of delay and have utterly failed in justifying day to day delay in filing the appeal as they or their lawyer are responsible for the delay in filing the appeal. Therefore, there is no justification for condoning the delay, thus this appeal deserves to be dismissed as time barred.
Now we come to the main issue as to whether the appellants committed any deficiency in service in first repossessing the vehicle and then selling it out without resorting to the norms. If so, its consequences.
The appellants have taken the ground that the respondent/complainant defaulted in making the payment of certain instalments and therefore, they repossessed the vehicle. It is also their stand that after repossession they issued notice to the respondent/complainant to deposit certain amount due to them else the vehicle would be disposed of. In this regard, we find that the respondent/ complainant himself has admitted that he defaulted in making payments of certain instalments but it is argued from the side of the respondent that he wanted to make payment of the instalments due but he was not given any opportunity of doing so and even the notice for selling the vehicle was never given to him and the entire gamut of incidents leading to the sale of vehicle was done in a hush-hush manner. There is no dispute that as per the agreement of the financial deal, the financer is authorized to repossess the vehicle in case there is default in payment of
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instalment due to them. So, if the complainant defaulted in making certain instalment then the appellants/OPs have had the right to repossess the vehicle and thereby to proceed in accordance with the terms of the agreement for its sale etc. In this regard, the appellants have taken the stand that a sale notice dated 26.7.2003 was sent to the respondent/complainant and a copy thereby has been filed to support the allegation. In this regard, the ld. counsel for the respondent argues that no such notice was ever received by the respondent/complainant and he points out the error in the address of the notice wherein the place mentioned as "Rampur Bangaon" whereas the address of village is shown in the complaint is "Rammanpur" and the Post is "Bangaon Dihwa". So it is clear that the address is not correctly mentioned in the notice, therefore, there is no question of its delivery to the respondent/complainant. So there is substance in the arguments advanced by the ld. counsel for the respondent that the complainant did not receive the notice as it was deliberately wrongly addressed so that the complainant could never receive it to serve the ulterior motive of the appellants to sell the vehicle without the knowledge of the complainant. So basically the complainant has been deprived of an opportunity to deposit the amount due to him to obviate the sale of the vehicle. Besides, there is no mention of the amount due to be paid by the complainant to the appellants/OPs in the written statement filed by them in the Forum. Besides, there is complete silence as to when the vehicle was sold and for what amount it was sold out and whether the
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vehicle was sold for the amount which was more than due or less than that, as per this para of the notice which is as under:-
"Further please note that sale proceeds shall be adjusted against the balance amount of the hirer. If any deficit left after adjustment shall be compensated by you, the Hirer within 7 days from the date of receipt of such notice or if any surplus amount left after such adjustment shall be paid to you as per the Terms and Conditions of the Hire Purchase Agreement."
So the eerie silence on the part of the appellants/OPs in not divulging anything about the sale makes sale transaction to be a dubious one. It is noticeable that the complainant had made payments of Rs.1,19,335.00 till repossession of the vehicle and Rs.1,04,000.00 as margin money. Thus, he had made payment of Rs.2,23,335.00 for the vehicle but the appellants had surreptitiously sold out the vehicle without knowledge of the complainant and without giving details of the sales etc. and without the notice to the complainant for the sale or demand for payment of the amount due and therefore, the appellants have committed serious deficiency in service and also unfair trade practice. Therefore, the ld. Forum has passed a very reasoned order finding the appellant guilty of deficiency in service. Therefore, there is no scope to interfere in the impugned order and the appeal is liable to be dismissed.
ORDER
The appeal is dismissed.
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No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules.
(Vijai Varma) (Sanjai Kumar)
Presiding Member Member
Jafri PA-II
Court No.3
