DATE OF FILING                    :     16.01.2013.

DATE OF S/R                            :      25.02.2015.

DATE OF FINAL ORDER      :     20.09.2016.  

Sri Shyam Sundar Hatui,

son of late Murari Mohan Hatui,

resident of village and P.O. Gujarpur, P.S. Amta,

District Howrah. …………………………………………………… COMPLAINANT.

• Versus   -

1.         The Manager,

Tata Motors Finance Limited,

5/1A, Hungerford Street,

Kolkata 700 017.

2.         The Manager,

Lexus Motor,

138, G.T. Road ( South ),

P.S. & District Howrah. ……………………………………OPPOSITE PARTIES.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Shyam Sundar Hatui, against the Manager, TATA Motors Finance Ltd. and the Manager, Lexus Motors of 138, G.T. Road ( South ),  praying for a direction upon the o.ps. to handover possession of the case mentioned truck which was illegally taken possession by them on 05.07.2011 and compensation of  Rs. 1 lakh and costs.  

2. The case of the petitioner is that he purchased one first hand truck i.e., LPT 1109 (2008 model)  from o.p. no. 2 bearing registration no. WB 41SD – 2908  with Engine  no. 497TC93 HRZ 842729 and chassis no. 416403 HRZ 732432 for the purpose of earning his livelihood by means of self employment. The petitioner approached o.p. no. 1 for a loan for purchasing the truck and he took a loan of Rs. 6,71,000/- on 21.10.2008 and agreed to repay the loan by 21.09.2012. The petitioner paid Rs. 4,37,300/- as on 30.12.2010 along with a sum of Rs. 33,000/- on 31.07.2011 but the petitioner was unable to pay the requisite installments to the o.ps. as the truck met with an accident in  the first week of June, 2011 and thereafter it was out of use for the next six months and the petitioner had to incur huge expenses for repair of the same.

3. On 05.07.2011 the petitioner found that 7 to 10 persons forcibly seized  the said truck from the residence of the petitioner and took it away. The petitioner contacted the o.p. no. 1 and asked  for return of the truck and prayed for easy installments considering his financial condition but the complainant was asked to pay Rs. 33,000/- immediately and then the truck would be returned. The petitioner on good faith paid Rs. 33,000/- on 31.7.2011 with the hope that he would get back the possession of the truck. Later on the petitioner had approached the o.p. for a number of times but every time the o.p. assured him to deliver the truck as soon as possible and lastly on 05.08.2011 the petitioner was told that the said truck shall not be handed over to him as already sold out. The conduct of the o.ps. reveal deficiency in service as well as unfair trade practice. The o.ps. be directed to handover the case mentioned truck to the petitioner and also to pay compensation.

4. The o.p. no. 1 contested the case by filing a written version denying the allegations made against him and submitted that the case is not maintainable and also the case is barred by limitation. The o.p. no. 1 further stated that the petitioner is not a consumer. The o.p. no. 1 is a non banking financial company engaged in the business of letting out motor vehicle loan and this petitioner approached the o.p. for availing commercial loan in October, 2008 and availed of the loan from the o.p. no. 1 with condition that he would repay the loan in due time and he hypothecated the vehicle to the o.p. no.1. The o.p. no. 1 sanctioned loan against the vehicle which costed of  Rs. 9,40,700/-. It was agreed that the petitioner would repay the loan by 47 with equal monthly installments of Rs. 20,000/- each except the first installment being Rs. 20,700/- commencing from 21.11.2008. The vehicle was handed over to the petitioner but he was neglecting the repayment. In spite of demand the petitioner failed and neglected to pay the monthly installments. By reason of non payment of EMI the agreement was terminated and the o.p. repossessed the vehicle on 05.07.2011 with intimation to local police station and it was intimated to the petitioner that in case of non payment by him the vehicle would be sold to 3^rd party. Valuation of the vehicle was fixed Rs. 4,50,000/- on 27.07.2011 and the o.p. sold the vehicle on 26.08.2011 at the highest price of Rs. 4,81,000/-. As the petitioner failed and neglected to clear the dues so the vehicle was repossessed and there is no latches on the part of the o.ps. and the case be dismissed against them.

5. The o.p. no. 2 did not appear and contest the case and thus the case is heard ex parte against o.p. no. 2.                  

6. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioner has any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.Ps. ?
4. Whether the complainant is   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

7. All the issues  are  taken up together for the sake of convenience and  brevity for discussion and to skip off reiteration. In support of their case the petitioner filed affidavit as well as documents being the receipt of his payment of installments wherefrom it is noticed that he did not repay the loan as agreed upon between him and the o.p. no. 1. In this case the o.p. no. 1 filed the loan cum hypothecation cum guarantee agreement duly signed by the petitioner in all pages and it is noticed that the petitioner agree to pay the loan amount in 47 monthly installments of Rs. 20,000/- but making a payment of  Rs. 4,37,300/- the petitioner stopped payment resulting which the o.p. no. 1 repossessed the vehicle which was hypothecated against the loan.   

8. Further it is noticed from the loan agreement that the petitioner agreed to repay the loan by 47 monthly installments of Rs. 20,000/- each and making a payment of Rs. 4,37,300/- he stopped in the half way of repayment of loan. It is categorically mentioned in Clause 18 of the loan agreement that in the event of defaulting  payment of installments the lender by a notice in writing would recall the loan with all interests and also the lender shall be entitled to take possession of the asset mortgaged against such loan. In the instant case also the petitioner having utterly failed to repay the loan and stopping payment in the half way violated the terms and conditions of the agreement of loan which was nothing but a contract between the parties and wherein it is specifically mentioned that in the event of repayment of loan the o.p. lender would be at liberty to repossess the vehicle for fulfillment of the loan amount.

9. In the instant case the o.ps. filed decision of our Hon’ble National Commission being 2013 CPJ page 27 wherein our National Commission opined that in case of default in repayment, the vehicle being repossessed and sold by the o.ps. lender, there was no deficiency in service on the part of the o.ps. / lender because he acted as per terms of the agreement between the parties. In the instant case also the petitioner having stopped payment of loan in the mid way and the o.ps. taking possession of the vehicle and selling the same for repayment of the loan amount and there is no deficiency in service on the part of the o.ps. Thus, the petitioner miserably failed to prove his case.       

In the result, the application fails.

Court fee paid is correct.

      Hence,

                O     R     D      E      R      E        D

      That the C. C. No. 10  of  2013  be  and the same is dismissed on contest without cost against the o.ps.   

      Supply the copies of the order to the parties, free of costs.  

     DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.