Ld Advoactes are present. Judgement is ready and pronounced in open Commission in 4 pages 2 separate sheet of paper. 

BY -    SRI ASISH DEB, PRESIDENT

     Brief facts of the complainant’s case are that the Complainant has permanent residencewithin this jurisdiction. The Opposite Party is the Manager of finance company whose office is within this Jurisdiction. The Complainant purchased a vehicle (Lorry 14 Wheels) being No. WB-29B/6737 having Chassis No. MAIPHAPHDJ6J98611 Engine No.- VCJZJ22434 to led her livelihood by taking loan from the Opposite Party against said vehicle by an loan agreement being No. WMT01511D dated 16.11.2018 of Rs. 26,73,000/- for EMI of Rs. 79,500/- but the opposite did not give any copy of agreement and copy of EMI. The loan shall be paid within 84 months. After taking loan the Complainant was paying EMI regularly, but due to mechanical problem again the complainant took more loan by increasing the time for payment of EMI and it was settled of Rs. 50,500/- EMI. The last EMI is due on 21.10.2025. The Complainant was paying EMI regularly, but there was due only two EMI. The Complainant received a letter dated 17.08.2021 from the Opposite Party that there is overdue of two EMI of Rs. 51,000/- + Rs. 50,000/- interest of Rs. 10,100/- and the Opposite Party directed the Complainant to the pay said over due within 24.08.2021. After receiving the said letter the Complainant has paid Rs. 50,000/- on 21.09.2021 and Rs. 40,000/- +Rs. 11,000/- on 25.09.2021. But unfortunately the Opposite Party has taken possession of the said vehicle on 20.10.2021 from Seuri in the district of Birbhum from Driver Sahidul Sk of the said vehicle by force without any legal authority and till now the said vehicle is in custody of the Opposite Party for which the complainant has been suffering from great financial loss. Thus the Opposite party has taken illegal possession of the said vehicle without any legal authority though there was only due of two EMI. The present value of the said vehicle is Rs. 30,00,000/- and the complainant is facing great financial loss due ill legal possession by Opposite Party without any legal authority. Thus the Opposite Party has done deficiency in banking service for which the complainant has been suffering from mental agony and financial loss. Therefore, the complainant has prayed for directing  Opposite Party, to return the said vehicle to the Complainant immediately, to pay a compensation of Rs. 10,00,000/- to the complainant for mental agony and financial loss, to pay a litigation cost of Rs. 15,000/- for conduct of this case, and to pass such other order or orders which may this commission deem fit and proper.

     Notice of the case was duly served upon the op. The OP has contested the case by filing written version thereof.

The sum and substance of the written version can be stated as follows: The Complainant can not get any relief from the Opposite Party which he has prayed in this complainant. According to op this case is liable to be dismissed with cost.The Complainant/borrower purchased one vehicle bearing registration No. WB29B/6737. The vehicle was hypothecated and/or charged in favour of the Complainant as security towards repayment of the outstanding dues of the Complainant in terms of the said agreement and the said Deed of Hypothecation Cum Loan agreement dated 16.11.2018, a copy whereof is annexed hereto and marked ”A”. In terms of the said agreement the complainant was required to pay the principal sum of Rs. 26,73,000/- along with interest @ 5% flat rate in 41 equated monthly installments. The Complainant failed and neglected to repay the installment in terms of the said agreement. However, on request made by the Opposite Party on various time, the complainant has paid the loan amount in his own accord. The Complaint even after availing the loan amount failed to make payment of the loan amount in terms of the agreement dated 16.11.2018. The Opposite Party requested the complainant herein to make payment of due installment amount several time, but the Complainant intentionally refused to pay such amount. As the complainant failed to pay installment amount to this Opposite Party as per terms and condition of agreement Opposite Party Bank filed an Arbitration case before the Ld. City Civil Court at – Calcutta, Bench No. VIII, being case No. Mise Case-444/2021(CNR No. – WBCC01-001165-2021) and prayed for receiver and after hearing Ld. Judge has been pleased to appoint Sri Subhra Sankar Chatterjee, Advocate, as receiver for seizing the vehicle in question, order dated on 18.03.2021, a copy whereof is annexed hereto and marked “B”. After receiving the order of the Ld. Court of Bench - VIII, City Civil Court, Receiver Sri SubhraSankar Chatterjee, Advocate, has been pleased to appoint Mr. Ranjit Mondal, S/O Lakshmi Narayan Mondal as Attorney, an agent on behalf as well as on behalf Opposite party bank t take possession of the vehicle being registration No. WB29B/6737, Eng No.CVJZJ22434, Chassis No. MA1PHAPHDJ6J98611. The receiver appointed Mr. Ranjit Mondal, S/O – Lakshmi Narayan Mondal, as Attorney, an agent of the Receiver as well as on behalf Opposite Party Bank to take possession of the vehicle of the on 20.10.2021 from Suri, kept that vehicle in Swasti Auto parking at Suri and tat time complainant derive that vehicle and taking possession of vehicle of the Complainant driver and also after preparation inventory list on spot. Plaintiff put his signature on that inventory list as per the order and as well as direction of Ld. Court of Bench No. VIII, City Civil Court, Calcutta possession of the vehicle of the Complainant has been taken in possession of the Opposite Party and said vehicle has been kept in parking area, at Suri and as such prayer for return of vehicle of complainant does not arise and same be rejected with cost. Having no other option, the Opposite Parties being the office bearers of Indusind Bank Limited, took possession of the vehicle bearing registration No. WB29B/6737 and sent various notices to clear the dues. But the complainant herein refused to pay any amount. The Complainant had every knowledge that the Indusind Bank Limited has lien over the vehicle bearing registration NO. WB29B/6737 in terms of the agreement dated 16.11.2018 wherein the Complainant acknowledged the liability of said Sajnananamda Bhunia and the Complainant is liable to pay due amount in terms of the agreement dated 16.11.2018. Thereafter due to Covid-19 Complainant Sumita Bhunia availing of Covid-19 Moratorium further requested to extend the tenure from 71 months to 83 months for the low EMI. For that consideration O.P Bank repayment schedule change as per request of Complainant Sumita Bhunia loan amount of Rs. 26,73,000/- along with interest @ 5.80% flat rate accrued thereupon in 83 monthly installment commencing from 21.12.2018 to 21.10.2025 and the 1^st installment of Rs. 50,704/- 2^nd to 23^rd installment would be Rs. 50,750/- each 24^th to 30^th installment would be Rs. 01/- each , 31^st to 82^nd installment would be Rs. 50,000/- each and 83^rd installment of Rs. 40,666.53/- a copy where of its annexed hereto and marked “D” “D-1”. The Complainant is not entitled to any of the reliefs as prayed for. According to the contesting op the case is liable to be dismissed.

Points for determination are:                                                            

1. Is the case maintainable in its present form and in law?    

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the complaint on affidavit of the complainant, written version filed by op, evidence of both parties, and other documents.

We have given thoughtful consideration of the rival arguments of Ld Advocates for both parties.

Having regards had to the facts and circumstances of the case, it is evident that  the complainant being a consumer has alleged deficiency in service against the op; the bundle of facts indicate that this case is maintainable in its present form and in law.

Now, on careful analysis and evaluation of the evidence on record it appears that there is no dispute that The Complainant purchased a vehicle (Lorry 14 Wheels) being No. WB-29B/6737 having Chassis No. MAIPHAPHDJ6J98611 Engine No.- VCJZJ22434 to lead her livelihood by taking loan from the Opposite Party against said vehicle by an loan agreement being No. WMT01511D dated 16.11.2018 of Rs. 26,73,000/- for EMI of Rs. 79,500/-. The Complainant received a letter dated 17.08.2021 from the Opposite Party that there is overdue of two EMI of Rs. 51,000/- + Rs. 50,000/- interest of Rs. 10,100/- and the Opposite Party directed the Complainant to the pay said over due within 24.08.2021. Then the complainant pleads that after receiving the said letter the Complainant has paid Rs. 50,000/- on 21.09.2021 and Rs. 40,000/- + Rs. 11,000/- on 25.09.2021. But unfortunately the Opposite Party has taken possession of the said vehicle on 20.10.2021 from Seuri in the district of Birbhum from Driver Sahidul Sk of the said vehicle by force without any legal authority and till now the said vehicle is in custody of the Opposite Party for which the complainant has been suffering from great financial loss. But complainant has not filed any document to show that he has met up the said demand or paid the amount of Rs. 50,000/- on 21.09.2021 and Rs. 40,000/- + Rs. 11,000/- on 25.09.2021. From Annexure – 6 filed by the complainant that in the notice she was asked to pay a sum of Rs.1,11,100/-within 24.08.2021 otherwise the op would be constrained to take legal action. It is very much clear from the averment of the complainant himself that he has made default in payment of EMI on time. The OP- issued notice to the complainant on time , it was received by the complainant. On the other hand from the un rebutted version of op to the effect that . As the complainant failed to pay installment amount to this Opposite Party as per terms and condition of agreement Opposite Party Bank filed an Arbitration case before the Ld. City Civil Court at – Calcutta, Bench No. VIII, being case No. MiscCase-444/2021 (CNR No. – WBCC01-001165-2021) and prayed for receiver and after hearing Ld. Judge has been pleased to appoint Sri SubhraSankarChatterjee, Advocate, as receiver for seizing the vehicle in question, order dated on 18.03.2021, a copy whereof is annexed hereto and marked “B”. After receiving the order of the Ld. Court of Bench No. VIII, City Civil Court, ( Annexure – B)Receiver Sri SubhraSankarChatterjee, Advocate, has been pleased to appoint Mr. Ranjit Mondal, S/O Lakshmi Narayan Mondal as Attorney, an agent on behalf as well as on behalf Opposite party bank t take possession of the vehicle being registration No. WB29B/6737, Eng No.CVJZJ22434, Chassis No. MA1PHAPHDJ6J98611. The receiver appointed Mr. Ranjit Mondal, S/O – Lakshmi Narayan Mondal, as Attorney, an agent of the Receiver as well as on behalf Opposite Party Bank to take possession of the vehicle of the on 20.10.2021 from Suri, kept that vehicle in Swasti Auto parking at Suri and tat time complainant derive that vehicle and taking possession of vehicle of the Complainant driver and also after preparation inventory list on spot.

So, it is evident that the op took repossession of the hypothecated vehicle in question on following the due process of law. There is no fault or deficiency of service or unfair trade practice on the part of the op. The complainant has failed to bring home the iota of evidence showing elements of fault or deficiency of service or unfair trade practice on the part of the op. Therefore, the complainant is not entitled to get any relief in this case .

Both the points are disposed of accordingly.

Thus, the case does not succeed.

Hence, it is

O R D E R E D

That CC/130 of 2021 be and the same is dismissed on contest against the op. No order of costs is passed.

Let a copy of the Judgment be supplied to each of the parties free of cost.