IMPORTANT POINT
Where vehicle had been possessed on account of default in payment of instalments and has been sold after due notice, no deficiency on part of financier can be presumed.

K.S. Chaudhari, Presiding Member—This revision petition has been filed by the petitioner against order dated 03-08-2012 passed by the learned State Consumer Disputes Redressal Commission, Maharashtra (in short, ‘the State Commission’) in Appeal No. A/00/2028 – Director, Berar Finance Ltd. Vs. Satishkumar Prabhakarrao Borker, by which while dismissing appeal, order of the District Forum allowing complaint was upheld.

2. Brief facts of the case are that one Mr. Shaikh Imam borrowed loan of Rs.30,000/- from opposite party/petitioner on 18-11-1998 and purchased motor cycle for Rs.44,960/- and hypothecated with opposite party. Amount was to be repaid in 24 monthly instalments of Rs.1,688/- and agreement was executed between them. Complainant/respondent on 16-02-1999 purchased aforesaid motor cycle from Shaikh Imam through agent of opposite party and opposite party agreed to transfer the loan amount of Shaikh Imam in complainant’s name and complainant agreed to re-pay outstanding dues of loan amount of Shaikh Imam. Complainant paid Rs.28,416/- to opposite party from time to time and also issued four cheques for payment of balance amount which could not be encashed due to mistake of opposite party. On 06-12-1999 opposite party without prior notice visited house of the complainant and seized the vehicle. Alleging deficiency on the party of the opposite party, complainant filed complaint before District Forum. Opposite party resisted complaint and admitted grant of loan to Shaikh Imam but denied purchase of vehicle by complainant from Shaikh Imam through agent of opposite party. It was also denied that opposite party agreed to transfer loan account of Shaikh Imam in the name of the complainant. It was further submitted that there was no privacy of contract between the complainant and the opposite party but admitted seizure of vehicle from the complainant as there was default in payment of instalment. It was further submitted that Shaikh Imam was necessary party and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to refund Rs.52,416/- with 18% p.a. interest or in the alternate allot new motor cycle and further granted compensation of Rs.10,000 and cost of Rs.2,000/-. Appeal filed by the opposite party was dismissed by learned State Commission vide impugned order against which this revision petition has been filed.

3. Heard learned Counsel for the parties finally at admission stage and perused record.

4. Learned counsel for the petitioner submitted that on account of default in payment of instalment petitioner rightly seized the vehicle and sold it and learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal, hence revision petition be allowed and impugned order be set aside. On the other hand learned counsel for the respondent submitted that petitioner had no right to seize motor cycle without due procedure and order passed by learned State Commission is in accordance with law, hence revision petition be dismissed.

5. It is not disputed that Shaikh Imam got vehicle financed from opposite party and later on Shaikh Imam sold the vehicle to complainant. Perusal of record reveals that complainant also made payment against the due instalments and in such circumstances it can be inferred that loan account of Shaikh Imam was shifted to the complainant and complainant was under an obligation to pay balance dues and instalments.

6. It is also not disputed that there was outstanding amount against the aforesaid loan account and opposite party by notice dated 07.12.1999 asked complainant to pay balance amount of Rs.32,548/- up to 20-12-1999 failing which vehicle will be sold. Complainant by telegram dated 16-12-1999 while admitting receipt of notice asked opposite party to refrain from disposal of vehicle and later on sent legal notice on 17-12-1999 in which it was expressed that compl