Oral:The complainant namely Ms. Kalpana Roy Sarkar and Mr. Prodip Kumar Roy Sarkar obtained a loan from the predecessor in interest of petitioner hereinafter referred to as the petitioner lender for purchasing a vehicle from Respondents No. 3 to 5. The loan so taken by them was payable in instalments. They having defaulted in payment of the instalments a notice dated 18.02.2006 was issued to Smt. Kalpana Roy Sarkar requiring her to pay a sum of Rs.22,720.94 and informing that if the said amount was not paid within seven days the lender would be forced to re-possess the vehicle and/or take legal action against her at her cost. The said amount having not been paid, the petitioner filed an application under Section 9 of Arbitration & Conciliation Act whereupon , the concerned court vide order dated 07.09.2007 appointed an advocate namely Seema Chaubay to take over possession of the vehicle. She was also authorized to appoint agent and to take police help for this purpose.2. The petitioner thereafter wrote a letter to police station, Kotwali in Cooch Behar on 26.09.2007 enclosing a copy of the court order and seeking police assistance in taking charge of the vehicle. The vehicle was re-possessed on 26.09.2007. A perusal of the inventory list prepared at that time would show that the possession of the vehicle was taken by a field officer of the petitioner Bank namely Mr. Bhomik. The vehicle is stated to be in the custody of the petitioner Bank.3. Earlier, on receipt of the notice from the petitioner Bank, the complainant had approached the concerned District Forum by way of a consumer complaint seeking a direction for issuance of the receipts of Rs.1,60,000/- which they claimed to have paid against the vehicle.4. The complaint was resisted by the petitioner as well as by the other opposite parties. During pendency of the consumer complaint the vehicle was re-possessed by the petitioner. The District Forum vide its order dated 09.04.2010 directed OP-4 & 5 in the consumer complaint, who were the officials of Ashok Leyland Finance Ltd., predecessor in interest, of the petitioner Bank to pay a sum of Rs.2,06,820/- to the complainant, along-with compensation quantified at Rs.10,000/-.5. Being aggrieved from the order passed by the District Forum the petitioner approached the concerned State Commission by way of an appeal. The appeal having been dismissed the petitioner is before this Commission.6. As noted earlier, when the petitioner approached the concerned court by way of a petitioner under Section 9 of the Arbitration & Conciliation Act, Ms. Seema Chaubay was appointed as the receiver to re-possess the vehicle. However, the re-possession report would show that the vehicle was re-possessed by the field officer of the petitioner Mr. Bhomik and not by the receiver. Though the court had authorized the receiver to appoint an agent for the purpose of re-possession the vehicle, there is no evidence of receiver Mrs. Seema Chaubay having appointed Mr.Bhomik as the agent to re-possess the vehicle. It thus appears that instead of requesting the court receiver to re-possess the vehicle, the petitioner took law into its own hand by asking its field officer to re-possess the vehicle.7. Though there is evidence of the petitioner having intimated the concerned police station about the order passed by the concerned court under Section 9 of the Arbitration & Conciliation Act, there is no credible evidence to prove that any police official was actually present at the time the vehicle was re-possessed. The re-possession memo. does not bear signatures of any police official. No affidavit of any police official was filed before the District Forum to prove that he was present at the time the vehicle was re-possessed and that the re-possession was peaceful and without any resistance. By re-possessing the vehicle through its field officer instead of re-possessing the same through the court receiver, the petitioner, in my opinion, committed a deficiency in rendering services to the complainants. They were not expected to take law into their own hands and were required to re-possess the vehicle through their field officer, they having already obtained an order for appointment of the court receiver and the said receiver having been appointed not only to re-possess the vehicle herself but also to appoint an agent for this purpose. Taking forcible possession through the field officer of their lender would be sheer high handedness and constitutes a deficiency in the service. A reference in this regard can be made to the decision of this Commission in RP No. 1790 of 2013 SHRIRAM TRANSPORT FINANCE CO. LTD. & ORS. Vs. PANNALAL BAGHEL Order dated 01.07.2020 where this Commission inter alia held as under:-“7. In ICICI Bank Ltd. Vs. Prakash Kaur & Ors. (2007) 2 SCC 711, the petitioner purchased a truck getting it financed from ICICI Bank. He having defaulted in payment of the instalments, the possession of the truck was taken by the Bank by use of force. The truck having not been returned to him, a Writ Petition was filed by him, seeking registration of an FIR. Disapproving the course of action adopted by the Bank, the Hon’ble Supreme Court directed the Bank to forthwith release the truck to the petitioner. The Hon’ble Supreme Court was of the view that instead of taking resort to strong arm tactics, the bank should resort to procedure recognized by law to take possession of vehicle in cases where borrower itself defaulted in payment of instalments. During the course of a separate judgment, Hon’ble Dr. Justice A.R. Laxmanan noted that the recovery/collection agents who are contractors hired by the banks, physically and mentally torture them and force them into paying the dues and the self-respect of a man and his stature in society is immaterial to such agents. His Lordship also observed that many a times even notice is not given to the borrowers who purchased the vehicles on hire-purchase basis and the vehicle is seized in public places deliberately in order to cause embarrassment to the borrower. In a subsequent decision CITICORPN. Maruti Finance Ltd. Vs. S. Vijalaxmi IV (2011) CPJ 67 (SC), a Three Judges-Bench of the Hon’ble Supreme Court reiterated as under:“We reiterate the earlier view taken that even in case of mortgaged goods subject to Hire Purchase Agreements, the recovery process has to be in accordance with law and the recovery process referred to in the Agreements also contemplates such recovery to be effected in due process of law and not by use of force. Till such time as the ownership is not transferred to the purchaser, 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 possession of the vehicle by use of force”.8. Relying upon the aforesaid decisions, this Commission vide its order dated 13.03.2015 in R.P. No.3054 of 2014 (Manager, Shri Ram Transport Finance Co. Ltd. vs. R. Suresh & Ors.) inter-alia held as under:-11. … In our opinion, the seizure of the vehicle in such circumstances constitutes deficiency in service causing tremendous mental torture and stress to the borrower who all of a sudden finds himself without the vehicle which he had purchased albit with the financial assistance taken from the lender. The borrower in such circumstances does not get an opportunity to arrange the requisite finances to repay the amount which he defaulted in paying to the lender before the vehicle comes to be repossessed by the lender. The mental torture and agony would be greater when the vehicle is repossessed in his absence.”For the reasons stated hereinabove, the complainant/petitioner is entitled to appropriate compensation from the respondent for the aforesaid deficie
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ncy in the service.”8. For the reasons stated hereinabove, the revision petition is disposed of with the following directions:-(i) The petitioner shall pay a sum of Rs.1,00,000/- as compensation to the complainant for the deficiency in rendering services to them.(ii) If any amount is due from the complainants to the petitioner they shall be entitled to recover the same in accordance with law.(iii) As far as the vehicle in question is concerned the petitioner shall be entitled to deal with the same in accordance with the law.(iv) The petitioner had made a deposit of Rs.1,00,000/- with the concerned District Forum in compliance of an interim order of this Commission with the concerned District Forum. The principal amount shall be released to the complainant whereas the interest which may have been accrued on that amount would be released to the petitioner.