1. COUNSEL for the Respondent No.1 was not present. After the counsel for the Appellant had argued the case, the Court Master pointed out that a request for adjournment has been received from the counsel for the respondent No.1. Request for adjournment declined. Respondent No.1 be proceeded against ex-parte.
2. APPELLANT which was the Opposite Party No.1 before the State Commission has filed this Appeal against the order and judgment ; dated 9.12,05 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh (in short, ''the State Commission '') in Complaint Case No.121/1998 whereby the State Commission while partly allowing the complaint has directed the Appellant to pay a sum of Rs. 1,51,500/- to the Complainant/Respondent (hereinafter to be referred to as ''Respondent '') within a period of two months failing which the amount would carry interest @ 9% p.a.
Complainant/Respondent with a view to purchase a Mahindra Commander Jeep approached the Appellant for financial assistance. The total cost of the vehicle was Rs.3,02,397/-. Appellant gave a loan of Rs. 1,60,000/- ® 16% p.a. interest with the stipulation that in case the Respondent was regular in making payment of the installments, the rate of interest shall be reduced by 2% by way of rebate. After completing the necessary formalities the possession of the vehicle was taken and the vehicle was registered as UP 70L -2144. Respondent purchased the vehicle for Rs.3,02,397/- after paying a sum of Rs. 1,42,397/- from his own pocket. The loan was to be repaid in equated installments of Rs.9,100/- per month. Respondent did not pay the first three installments and paid a sum of Rs.9100/- only on 21.1.98. Appellant issued re-possession notice on 27.1.98 asking the Respondent to pay the balance amount failing which the vehicle will be re-possessed. As the loan amount was not repaid, the vehicle was re-possessed by the Appellant on 4.2.98. On 17.2.98, Appellant issued a pre-sale notice to the Respondent requiring him to pay the outstanding amount of Rs.2,13,474/- within 10 days failing which the vehicle shall be auctioned and amount recovered shall be adjusted against the outstanding dues. In response to the said notice, Respondent sent a letter dated 2.7.98 to the Appellant informing it that he was not in a position to pay the loan amount and that he had entered into an agreement to sell the aforesaid vehicle to M/s. Radha Vanaspati Ltd. He requested that the vehicle be handed over to M/s. Radha Vanaspati Ltd. and the amount received be adjusted against the loan account. It was prayed that he may be released from the Hire Purchase Agreement.
3. AFTER receipt of the said letter, Appellant handed over the vehicle to M/s: Radha Vanaspati Ltd. against the payment of Rs.2 lakh.
4. RESPONDENT filed the complaint alleging that the Appellant had sold the vehicle without giving him reasonable time to pay the outstanding dues.
State Commission partly allowed the complaint and directed the Appellant to pay a sum of Rs.1,51,500/- to the Respondent within a period of two months failing which the decreed amount would carry interest @ 9% p.a.
5. IN the present case, .Hire Purchase Agreement was entered between the parties on 14.9.97. The total cost of the vehicle was Rs.3,02,347/- out of which Rs. 1,42,397/- were paid by the Respondent from his own pocket. Appellant had extended a loan of Rs. 1,60,000/- @ 16% p.a. interest to the respondent which was to be re-paid in equated installments of Rs.9,100/- per month. Admittedly, Respondent was a defaulter. He paid only one installment of Rs.9100/- to the Appellant on 21.1.98. No other payment was made by him. As per agreement entered into between the parties, Appellant had the right to re-possess the vehicle in case of default of payment after issuing pre-possession notice and could sell the same by giving pre-sale notice. Appellant had issued notice on 27.1.98 asking the Respondent to pay the balance amount failing which the vehicle would be re-possessed. Vehicle was re-possessed on 4.2.98. Pre-sale notice was issued on 17.2.98 requiring the Respondent to pay the balance amount of Rs.2,13,474/- within 10 days failing which the vehicle would be sold. In response to the said notice, Respondent wrote a letter to the Appellant that he was not in a position to pay the outstanding amount and that he had entered into an agreement of sale with M/s. Radha Vanaspati Ltd. He requested the Appellant to hand over the vehicle to M/s. Radha Vanaspati Ltd. and adjust the amount received against the loan amount. In view of the letter written by the Respondent, Appellant gave the possession of the vehicle to M/s Radha Vanaspati Ltd. against the payment of Rs.2 lakh. There was no deficiency in service on the part of the Appellant. State Commission has clearly erred in directing the Appellant to refund the '' j sum of Rs. 1,51,500/- to the Respondent on the presumption that the Respondent was entitled to Rs. 1,42,397/- paid by him towards purchase of vehicle from his own pocket and Rs.9100/- paid towards I the installment of loan. Since the vehicle was sold for a sum of Rs.2 lakh and the Appellant had advanced the loan of Rs. 1,60,000/- the appellant was entitled to recover the same along with interest from the sale proceeds.
6. ACCORDINGLY , appeal is partly allowed. Direction given by the State Commission to the. appellant to pay Rs. 1,51,500/- to the respondent is modified and the amount payable is reduced to Rs.50,000/-. Appellant is directed to pay a lumpsum amount of Rs.50,000/- towards full and final settlement of the dispute. Sum of Rs.35,000/- was deposited by the appellant at the time of filing of the appeal towards statutory deposit. We direct the Registry to release the said amount to the Respondent with accrued interest. Appellant is directed to pay the balance amount of Rs. 15,000/- to the Respondent within a period of 8 weeks failing which the amount shall carry interest @ 9% p.a. No order as to costs. Appeal partly allowed.
