Sri Shyamal Gupta, Member
This Appeal is directed against the order dated 29.06.2016 of the Ld. DCDRC, Paschim Midnapore passed in CC/168/2015 by the Appellant/OP.
The case of the Complainant in a nut shell is that the Complainant purchased one private car bearing registration No. WB-34AC/0467 with financial assistance through purchase/loan agreement with Indusind Bank Ltd., the O.P., Tamluk branch vide WMG0037C dated 13.10.2012 through payment of 48 monthly installment covering period of 07.08.2016.
The Complainant contended in his petition that the monthly instantllment was fixed of Rs. 13,601/- which was commenced on 12.11.2012 against the total installment of Rs. 6,82,457/-. Complainant has paid Rs. 6,42,078/- on 07.10.2015. Complainant states in the petition of complaint that due to some finaicial crisis the Complainant make less payment of Rs. 40,379.62. The O.P.—Indusind Bank issued a demand notice without mentioning the date for the payment of remaining Rs. 1,76,389.62 within 19.10.2015 including outstanding amount of Rs. 40,379/- i.e. in total amount of Rs. 1,76,389.62 within 19.10.2015 failing which the O.P shall repossess the aforesaid vehicle of the Complainant.
Finally the OP Bank repossessed the vehicle and the Complainant filed the case for bring back the vehicle.
On hearing both sides Ld. DCDRC allowed the Complaint Case.
Being aggrieved with the said order dated 29.06.2016, OP filed this Appeal.
The observation of the Ld. DCDRC is as follows:-
“It is agreed by the Ld. Advocate for the Complainant that the contract for hire purchase with the O.P made on 13.10.2012 with a commitment that the Complainant repaired the loan amount by 48 installment covering date on 07.08.2016. But the O.P illegally sent the demand notice for the amount of Rs. 1,76,389.62 instead of outstanding amount of Rs. 40,379.62. So near about one year is remaining for repay the loan amount. Ld. Advocate for the Complainant argued that the O.P illegally demand Rs. 1,76,389.62 at a time within 19.10.2015. The O.P violated the terms and condition of the said argument and illegally repossessed the hypothecated vehicle by creating unfair trade practice. It is submitted by the Advocate for the Complainant that due to some personal financial crisis the Complainant make less payment of Rs. 40,379/-. Being received the demand notice the O.P denied to accept the outstanding amount of Rs. 40,379.62. But the O.P—Bank denied to accept the amount. They threatened the Complainant to repose the aforesaid vehicle. The Ld. Lawyer states that as because the Complainant could not collect the whole amount within their ultimate period, the O.P—Bank repossessed the aforesaid vehicle being No. WB-34AC-0469 on 19.10.2015.”
Considering the entire position, it appears to me that:-
- Contract for Hire-Purchase taken place here
- There is no question of force for repossession (Annexure E & F)
- Complainant failed to make payment due to some personal financial crisis.
Now the observation of the Hon’ble Apex Court on the point of ‘Hire-Purchase & Repossession’ is as follows:-
K.A. Mathai @Babu & Anr –Vs- Kora Bibbikutty & amp; Anr (1996) 7 SCC 212 + Charanjit Singh Chadha & Ors-Vs- Sudhir Mehra (2001) 7 SCC 417
“A financer has a right to repossess the hired vehicle on account of default made by the hirer in payment of instalments in terms of agreement, and therefore no offence can be made out against the finance company or the owner.”
M/s Magma Fincorp Ltd –Vs- Rajesh kr Tiwari 2020(4) CPR 197 (SC)
“When agreement between Financier and hirer permits Financier to take possession of a vehicle financed by Financier , there is no legal impediment to Financier taking possession of vehicle—When possession of vehicle is taken. Financier cannot be said to have committed theft.”
Maruti Finance Ltd –Vs- S. Vijalaxmi IV (2011) CPJ 67 (SC)
“In Hire Purchase Agreements, the recovery to be effected in dueprocess of law and not by force.”
Charanjit singh Chadha & amp; Ors-Vs- Sudhir Mehra (2001) 7 SCC 417
“Hire Purchase Agreement is an executor contract of sale, conferring no right in rem on the hirer, until the conditions for transfer of the property to him have been fulfilled.”
Damodar Valley Corpn-Vs- State of Bihar AIR 1961 SC 440
“A contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions.”
K.L.Johar & Co –Vs- Dy Commercial Tax Officer, Coimbatore AIR 1965 SC 1082
“A hire purchase agreement has two elements: 1. Element of bailment. 2. Element of sale, in the sense that it contemplates an eventual sale.”
Anup Sarmah-Vs- Bhola Nath Sharma & Ors (2013) 1 SCC 400
“In an agreement of hire-purchase, the purchaser remains a trustee /bailee on behalf of the financier and ownership with the latter.”
ICICI Bank Ltd-Vs- Prakash Kaur & Ors (2007) 2 SCC 711
“The Bank should resort to procedure recognized by law to take possession of vehicles in cases where the borrower may have committed default in payment of the instalments instead of taking resort to strong –arm tactics.”
Citycorp Maruti Finance Ltd-Vs- S. Vijaylaxmi (2012) 1 SCC 1
“The hirer normally continues to be the owner of the goods, but that does not entitle him on the strength of the agreement to take back the possession of the vehicle by use of force.”
In view of the same repossession of the vehicle by the Appellant/OP is not illegal. Liberty is given to the Complainant/Respondent to settle the loan accounts within two months from this order. On payment of the same, being satisfied, the Appellant must release the vehicle in question after observing statutory norms.
Thus the Appeal is allowed in part.
