(1.) ADMITTED facts giving rise to this appeal are that the appellant had financed a Mahindra & Mahindra vehicle (Jeep) bearing Registration No.HP -31B -0298, Model -2004. This vehicle was financed in the sum of Rs.3,30,000/ - plus interest thereon in the sum of Rs.96,760/ -. It was payable in 47 equated monthly instalments, commencing from 31.7.2004 and ending on 31.5.2008. According to the respondent, he was regularly paying the installments except a few which could not be paid as the
vehicle had met with accident. Appellant was apprised in this behalf.
(2.) IN this background, according to the respondent while the vehicle was parked at Subzi Mandi Complex , Dhanotu, Tehsil Sundernagar, District Mandi, on the intervening night of 30.7.2007 and 31.7.2007, appellant through its hired musclemen wrongly, illegally, unauthorisedly and in an arbitrary manner clandestinely removed the same without his consent and knowledge, as well as without adopting due process of law. No prior notice was given by the appellant before initiating any such action. In this background vide Annexure C.II dated 31.7.2007 after repossessing the vehicle in the aforesaid manner, appellant insisted on liquidation of the whole amount. As per this document, the appellant claimed that the vehicle was surrendered by the respondent. When and where, it is silent. What is the effect of Annexure C.II, we shall deal with it in subsequent paras of this order.
(3.) WHEN put to notice, defence of the appellant by way of preliminary objections in its reply was, that the complaint was bad for non -joinder of necessary parties; Forum had no jurisdiction to decide the complaint in the face of the terms and conditions entered into between the parties; and respondent having not approached the Forum with clean hands, having suppressed material facts. Besides this, complicated questions of fact and law being involved could not be decided summarily and respondent was not a consumer in the eyes of law. Further case of the appellant was that default having been admitted and intimation of accident was not given as alleged by respondent, and of accident it came to know through other sources. It was reiterated in its reply by appellant, that the vehicle was voluntarily surrendered by the respondent, when and to whom on behalf of the appellant, reply is silent. Thus while justifying the repossession of the vehicle being as per law as well as in terms of the agreement subject to which the vehicle was financed and the default having been admitted, it was sold for Rs.2,00,000/ - by the appellant to one Pawan Kumar son of Sh. Lekh Ram, resident of Village and Post Office, Lohara, Tehsil Sadar, District Mandi. On the date of sale of the vehicle, overdue amount of Rs.59,180/ - was still payable by the respondent to the appellant. A cheque of Rs.50,100/ - issued by the respondent to the appellant was dishonoured and action under Section 138 of the Negotiable Instructions Act is pending in the Court of law. District Forum below after examination of the whole case and also keeping in view the value of the truck which was insured on the date of its repossession on I.D.V. basis at Rs.3,00,000/ - while allowing the complaint has ordered as under: -
17. In view of our findings on point No.1 and 4 above, the complainant is entitled to relief. The complainant is entitled to compensation of Rs.1,00,000/ - against the opposite party. The complaint under section 12 of the Act of the complainant for recovery of Rs.1,00,000/ - is allowed against the opposite party with interest at the rate of 12% PA from the date of institution of the complaint till payment with costs assessed at Rs.2000/ - .
In the aforesaid background, learned Counsel for the appellant submitted that repossession of the vehicle by his client is legal and valid, particularly when default in repayment of installments is admitted by the respondent in the complaint itself. Therefore, according to him, impugned order is liable to be set aside. In this behalf reference was made to Annexure R.32, copy of the surrender letter.;