Per Mr.Dhanraj Khamatkar – Hon’ble Presiding Member:
1. This appeal takes an exception to an order dated 23.12.2011 passed by the District Consumer Disputes Redressal Forum, Mumbai Suburban in Consumer Complaint No.334/2009.
2. The facts leading to this appeal can be summarized as under:
The Respondent/Complainant had taken a loan of `5,11,000/- from the Opponent Bank vide agreement dated 25.01.2008 and she was paying the installments of the loan regularly. The complainant wanted to sell the said vehicle and hence, requested the Opponents for N.O.C. The Opponent refused to issue N.O.C. on the ground that she has not paid entire loan. It is the contention of the Complainant that the Opponent had not given her the details of outstanding loan amount. The Complainant further contended that she had taken personal loan from the Opponent for paying the loan amount taken for purchasing the vehicle. She further stated that the Opponent’s Agent used to come frequently and threatening to take the possession of the vehicle. The loan taken by the Complainant has already been paid and hence, the Complainant had filed a complaint alleging deficiency in service on the part of the Opponent praying direction to Opponent to give the information about the outstanding amount and no objection certificate in respect of the vehicle. The Complainant further prayed that the Opponent be directed not to take possession of the vehicle.
3. Complainant had filed an application for the interim relief. The District Forum had directed the Opponent to give their say. The Opponent had filed application on 26.06.2009 stating therein that they will proceed as per the terms of the agreement legally against the Complainant. On the same application, the Complainant’s Advocate had endorsed that the Complainant will not remain present before the Arbitrator, however, they will pay the outstanding amount as per law to the Opponent. In view of this assurance by the Opponent and the endorsement of the Complainant thereon, the District Forum had not passed any order.
4. On 12.08.2009 the Opponent had filed an application stating therein that on 26.06.2009 they have stated that they will only proceed against the Complainant legally. However, the Complainant had neither come forward for settlement before the Arbitrator nor paid the outstanding amount and hence, the Arbitrator had appointed a Surveyor and the Opponent had repossessed the vehicle. The Complainant had filed the contempt of court application on 01.02.2010 stating therein that the Opponent be directed to give back the vehicle repossessed by them and to pay compensation of `5,00,000/-.
5. The District Forum after perusal of the complaint, written version filed by the Opponent, evidence filed by both the parties and pleadings of their Advocates came to the conclusion that there is deficiency in service on the part of the Opponent and directed the Opponent to deliver possession of the vehicle No.MH-02-AL-7004 to the Complainant in roadworthy condition and the Complainant should take the possession. The District Forum further directed the Opponent to pay compensation of `1,00,000/- to the Complainant. The District Forum further directed that the Opponent should not send the recovery agent to the Complainant and recover the loan amount , if any, by following due process of law. Aggrieved by this order the Opponent has filed this appeal.
6. We heard Advocate Mr.Ramakant Yadav for the Appellant and Advocate Mr.P.K. Pandey for the Respondent.
7. Admittedly, the Respondent/Complainant had taken loan of `5,11,000/- for purchase of the vehicle from the Opponent and she was paying the loan installments regularly. It is also on record that the Respondent/Complainant had approached to the Appellant/Opponent in April, 2009 for the No Objection Certificate as she has paid the entire loan amount. However, the Appellant/Opponent refused to give her No Objection Certificate as she had taken another loan from the Opponent. Initially, the consumer complaint was filed for issuing the no objection certificate in respect of the vehicle, the loan taken for purchasing the same has already been paid by the Respondent/Complainant and the other prayers were: “the Opponent should furnish her the details of outstanding loan amount and the Opponent be directed to not to take possession of the vehicle”.
8. Along with the complaint, the Respondent/Complainant had filed an application for interim relief. After hearing both the parties, the Opponent had given undertaking that they will legally proceed against the Complainant as per the terms and conditions of the agreement. On the undertaking of the Opponent, the Complainant had endorsed that the Complainant will not remain present before the Arbitrator, however, they will pay the amount which is legally due from her. As both the parties had given assurance, before the District Forum, the District Forum had not passed any separate order on the interim application. Despite of this fact, the Opponent had filed an application before the District Forum on 12.08.2009, stating therein that they have repossessed the vehicle on 27.07.2009, through a Surveyor appointed by the Arbitrator vide Arbitrator’s order dated 26.06.2009 and claimed that they have repossessed the vehicle on the orders of the Arbitrator dated 26.06.2009. As against this, the Respondent/Complainant in her application dated 01.02.2010 stated that the ex-parte award dated 26.06.2009 passed by the Arbitrator has been set aside by the Hon’ble High Court by their order dated 28.11.2009. Said order was challenged by the Opponent before the Division Bench of the Hon’ble High Court. Division Bench has confirmed the order of the Hon’ble Single Bench dated 28.11.2009 by its order dated 08.01.2010. The appellant/opponent has challenged the said order before the Apex Court, however, the Opponent has withdrawn the SLP from the Apex Court and hence, the order of the Hon’ble High Court, setting aside the arbitration proceeding dated 28.11.2009 has achieved finality.
9. As the award passed by the Arbitrator is set aside by the Hon’ble High Court, the interim order dated 26.06.2009 passed by the Arbitrator is also set aside. The Opponent had not taken possession of the vehicle by following due process of law. It proves that the Opponent had not taken the repossession of the vehicle by following due process of law and the Opponent has followed the procedure which is not a due process despite of giving assurance that they will proceed as per the due process of law. The Hon’ble National Commission and the Apex Court in their judgements have held that the financial institutions can take the possession of the security by following due process of law.
10. From the aforesaid facts, it is clear that there is deficiency in service on the part of the Appellant/Opponent. This reflects the rude behavior of the financial institution. The Appellant/Opponent has taken a forceful possession of the vehicle despite of giving assurance to follow the due process of law. The possession of the vehicle was taken under the grab of the order passed by the Arbitrator, which is set aside by the Hon’ble High Court and the order has achieved finality. We do not find any substance or merit in the appeal filed by the Appellant. The District Forum has passed the order after taking into consideration the facts of the case and circumstances, under which the Opponent has taken the possession of the vehicle. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is dismissed. The order of the District Forum is hereby confirmed.
(ii) The Appellant should bear its own cost and pay `10,000/- as costs to the Respondent/Complainant within a period of 60 days from the date of this order.
(iii) Inform the parties accordingly.
Pronounced on 24th July, 2013.
