IMPORTANT POINT
Financier is real owner of vehicle and there cannot be any allegation against him for having possession of vehicle.

J.M. Malik, Presiding Member—This case is received on transfer. Counsel for the petitioner is present. Counsel for respondent No.3 has filed the Vakalatnama but he is absent. Respondent No.1 was served through registered AD but he is absent. They be proceeded against ex parte. Respondent No.2 is RTO Officer. He is not a necessary party. His name is deleted.

2. Arguments heard.

3. Shri Aslam Sarfaraj Shaikh, the complainant, purchased Mahindra Max vehicle from Sriram Automobiles, Ahmednagar in the month of July 2005. The complainant obtained loan in the sum of Rs.3,82,000 from the petitioner OP No.1, M/s. Mahindra & Mahindra Financial Services Ltd.. The petitioner found some technical problem in the car’s gear box but the District Forum has come to the conclusion that there was no manufacturing defect. This is indisputable fact that the complainant could not make the payment of installments of loan to the above said finance company. The finance company gave notice dated 26.10.2007 demanding the outstanding loan of Rs.51,047. Another notice was sent on 5.12.2007 demanding a sum of Rs.76,489. The petitioner also gave ultimatum that the said amount be paid within seven days otherwise the vehicle would be seized. The needful was not done. Therefore, the finance company repossessed the vehicle on 7.2.2008. The District Forum allowed the complaint partly and directed the opponent finance company to issue no dues certificate to the complainant and also to pay Rs.10,000 towards the mental and physical harassment and Rs.1,000 as costs to the complainant.

4. Aggrieved by that order, the respondent Mahindra & Mahindra Financial Services preferred an appeal before the State Commission. The State Commission without any material on the record came to the following conclusion:

“There are also no documents on record to show the price at which the said vehicle was sold. Had the opponent finance company given pre-sale notice the complainant could have availed the opportunity to participate in the sale proceeds of the said vehicle. However, though as per the case laws relied upon by the Ld. Counsel Shri Patani, the opponent finance company was empowered to reposses the vehicle it has not followed due procedure of selling of the vehicle which amounts to deficiency in service on the part of the opponent finance company.”

5. The counsel for the petitioner finance company submits that this finding is incorrect, as the vehicle is still lying with the finance company. It is yet to be sold. He further submits that the vehicle is not in a usable condition, therefore, it cannot be sold. However, we are not satisfied with the explanation given by the counsel for the petitioner. It is not understood why the vehicle has not yet been sold even after the expiry of seven years. This must have caused harassment and mental agony to the complainant. It is difficult to understand why after two or three years the truck has become non-usable. This is how the finance company play fraud with their customers. There should be explanation why the vehicle was not sold for a period of seven years.

6. At this stage, the counsel for the petitioner submits that his statement be recorded to the effect that the counsel has given instructions to his client not to sell the vehicles generally where the litigation is pending. This goes to show that the counsel has more powers than the Act itself. The counsel should not have given such instructions. He should have asked the company to proceed further in accordance with law and Act. The pre-sale notice should have been sent to the complainant and the vehicle should have been sold in accordance with law. The instructions given by the counsel has caused a great harm to the complainant. Now the counsel submits that he has not given any such instructions.

7. However, since the petitioner has waddled out of his commitments, therefore, the vehicle was repossessed in accordance with law. This view is supported by the Supreme Court aut