Dilwale 1 3-WP-7642-16.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 3 WRIT PETITION NO. 7642 OF 2016 Jaskaursingh Gangasingh Atwal VERSUS The State Of Maharashtra And Others ... Advocate for the Petitioner : Ms. Priyanka R. Dubey h/f Mr. Munde Suresh W. AGP for Respondents: Mr. B. A. Shinde Advocate for Respondents : Mr. Gangakhedkar Shailendra S ... CORAM : SIDDHESHWAR S. THOMBRE, J. DATE : 08.04.2026 PER COURT : 1. Heard the learned counsel for the respective parties. 2. The present petition takes an exception to the order dated 09.12.2015 passed by the National Consumer Dispute Redressal Commission, Delhi in Revision Petition No. 1380/2015, whereby the revision filed by the respondent nos.2 and 3 came to be allowed thereby directing the respondent nos.2 and 3 to refund the flat amount of Rs. 50,000/- to the petitioner. 3. The learned counsel for the petitioner, Ms. Dubey h/f Mr. Munde submits that the petitioner filed consumer redressal grievance before the forum by contending that the respondent bank forcibly took possession of the vehicle and did not follow the legal procedure while taking possession. As the petitioner had purchased vehicle car Alto LXI BS-IV 2026:BHC-AUG:18466 Dilwale 2 3-WP-7642-16.odt having Registration No. MH20 BN 5813 by taking finance from the respondent nos. 2 and 3. 4. The learned counsel for the petitioner submits that the petitioner had borrowed loan of amount of Rs. 2,30,000/- and the petitioner has to pay an amount of Rs. 6,270/- towards monthly instalments payment. The petitioner gave 36 blank cheques to the respondent nos. 2 and 3. The petitioner paid monthly instalment from 15.09.2010 to 15.12.2011 and there was no single default. It is the contention of the petitioner that the respondent nos. 2 and 3 had not deposited the cheques from December 2011, therefore, the petitioner made payment by cash on 01.02.2012 an amount of Rs. 6,200/-, on 02.03.2012 an amount of Rs. 6,300/-, on 09.04.2012 an amount of Rs. 6,300/- and on 30.06.2012 an amount of Rs. 11,800/-, therefore, he submits that till the month of June 2012, the petitioner paid the amount of instalments. He further submits that the petitioner could not pay the instalment for the month of July 2012 and therefore, on 01.08.2012 the respondent nos. 2 and 3 through their agent forcibly took possession of vehicle when the petitioner was driving it, though the petitioner had informed the respondent no. 2 that he was ready to pay the instalment and the remaining amount, but the respondent nos. 2 and 3 sold out the said vehicle without intimation to the petitioner. Therefore, the petitioner filed complaint before the District Consumer Dispute Redressal Forum, Aurangabad. The District Consumer Forum allowed the complaint of the petitioner thereby directing the Dilwale 3 3-WP-7642-16.odt respondent nos. 2 and 3 to pay the entire loan amount deposited by the petitioner with 6% interest from 01.08.2012 within 30 days from the date of receipt of the order. The said order was assailed before the State Consumer Dispute Redressal Commission which came to be dismissed. Being aggrieved by the same the respondents herein filed revision before the National Consumer Dispute Redressal Commission. The National Commission vide its order dated 09.12.2015 modified the order and directed the company to pay an amount of Rs. 50,000/- only. The said order was passed without hearing to the petitioner. 5. The learned counsel for the petitioner further submits that the learned District Consumer Forum and the State Consumer Forum have rightly considered the matter but the learned National Commission disposed of the matter without giving hearing to the petitioner. She further submits that the National Commission has not recorded any finding as to why it came to the conclusion that the petitioner is entitled to receive only Rs. 50,000/- though in fact the petitioner has proved that up to June 2012, the petitioner has paid instalments. These facts were already considered by the District Consumer Forum and appreciated by State Consumer Commission but the National Commission modified the order without recording proper reasons and therefore, she submits that the petition needs to be allowed, thereby setting aside the order passed by National Commission. 6. Per contra, learned counsel for the respondents, Mr. Gangakhedkar, Dilwale 4 3-WP-7642-16.odt supports the order passed by the National Commission Redressal and in support of his contention, he relied upon the law laid down by the Hon’ble Apex Court in the matter of Magma Fincorp Limited v. Rajesh Kumar Tiwari,1 the paragraph No. 92 of which reads as under: “92. In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the financier was not agreeable to accept the offer, the financier was within its rights under the hire-purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the financier/lender. The complainant had not tendered payment.” By contending that the petitioner herein has not led the evidence before the District Consumer Forum that he has incurred any loss and therefore, he submits that the learned National Commission has already rightly considered the matter. 7. Having heard the learned counsel for the respective parties and after going through the order passed by the National Commission, I find that the National Commission, while modifying the order, has considered only the fact that the petitioner has used the vehicle almost for 2 years without having paid the entire price of the vehicle therefore, on this ground National Commission directed the respondent to pay Rs. 50,000/-. The learned District Consumer Redressal Forum has recorded the finding and considering the issue involved, I find that it is necessary to refer the extract from the order passed by the District Consumer 1 2020 (10) SCC 399 Dilwale 5 3-WP-7642-16.odt Forum, which is as follows: “Complainant's grievance is that the respondent bank forcibly took possession of the vehicle and did not follow the legal procedure while taking possession. It is not disputed that the respondent took the possession of vehicle while the complainant was travelling to Pune. The vehicle was financed by the respondent under Hypothecation. Under Hypothecation, the ownership and possession of hypothecated property remains with the borrower i.e with complainant in present case.Respondent only have a flating charge on the vehicle. In order to convert this floating charge into fixec, it is necessary to obtain its possession. Since the ownership of vehicle is with the complainant, its possession must be taken with express consent of complainant or under the order of the Court.There is nothing on record to show that the respondent took the possession of vehicle in question with the express consent of the complainant. On the contrary the circumstances show that its possession was taken without consent of complainant-owner. In case of Hire-purchase type of loan, financer can take possession of vehicle because ownership of such vehicle remains with the financer. Present case is of Hypothecation and not of Hire Purchase. Respondent cannot take possession of vehicle as the ownership of vehicle is not with respondent but with the complainant. Respondent can take possession of vehicle only with express consent of complainant or under order of court in case of assets financed under Hypothecation charge. No doubt the complainant in the present case is a defaulter of the respondent. Therefore respondent has a right to recover the due money. Application of force cannot be justified even after presuming that the complainant is defaulter and respondent has right to recover the loan. Because such application of force by private parties will give rise to a problem of law and order. Respondent's action of informing police coes not legalize the illegal act of respondent of taking possession of vehicle in illegal manner. Because action of taking possession without order of court cr without express consent of owner is illegal. The respondent has taken law in his hands for taking possession of vehicle. Therefore the respondent is definitely deficient in taking possession of car and causing mental agony to the complainant. Admittedly, respondent has sold the vehicle after taking its possession. It is necessary to find out as to how can the respondent sell an asset whose ownership is not with them. An instrument by which a vehicle is sold is known as TTO form. Generally, the financer (respondent in present case) obtains signatures of owner-borrower (complainant) ion blank TTO forms at the time of sanctioning the loan. Subsequently it is used in order to sell the vehicle. Though this is a general practice followed by most of the financers, it is illegal. Obtaining signature of consumer on blank form is not permitted under any law. In the present case, respondent did not prove that complainant gave his signature on TTO forms for selling the vehicle after respondent took the possession. This enables us to draw a logical conclusion that the respondent has obtained the signatures, of the complainant-owner prior to respondents taking of its possession consequently he could sell the vehicle. During the course of argument, it was revealed that respondent they had obtained signatures of complainant initially while the loan was sanctioned for selling the vehicle. Blank TO forms are not inchoate negotiable instruments. Therefore selling the vehicle Dilwale 6 3-WP-7642-16.odt by using pre signed Blank TTO forms, obtained in advance does not give better title to the purchaser since the signature of real owner is obtained without his concurrence. Anyhow, our findings are relevant only to the extent of drawing a conclusion that respondent followed unfair trade practice in selling the vehicle as the vehicle is sold without concurrence of real owner. We have also made scrutiny of statement of transactions. The client statement, as submitted by the respondent, is very difficult to interpret even to an expert. Respondent company was advised on three occasions to prepare an account statement as per procedure followed by Banks. Accountant of the company was called to explain various entries. This was necessary to understand the actual amount payable by the complainant on the date of seizure, on the date of pre sale notice and on the date of sale of vehicle. It was also needed to find out exact amount, of default by the complainant. Respondent submitted the repayment schedule. But it does not reveal the true statement of account. Respondent failed to show by way of account statement as to how the complainant was required to pay Rs. 1,93,607/- on 07/08/2012. Client statement produced by the respondent indicates a closing credit of Rs. 141031/- where as it says that the vehicle was sold for Rs. 125000/- and booked a loss of Rs. 66693/-. This is not supported by the account statement. Respondent failed to explain about accounting of amount of Rs. 6200/- deposited by the complainant on 01/02/2012 and Rs. 6300/- of 02.03.2012. This all leads us to draw an inference that the respondent is concealing true facts. Account is not maintained properly ana correctly. This Forum therefore comes to a conclusion that there is no transparency in the dealing of respondent. It is the right of consumer 1o be heard and informed. Respondent failed to impart true information of amount outstanding, matching with account statement. Consumer needs to the protested against unfair practices and deficiency in services. Respondent has already sclaff the vehicle. Therefore it is not possible to pass an order directing the complainant to pay the balance installments and repossess the vehicle.” The above findings of the District Consumer Order are confirmed by the State Commission. As regards the law laid down by the Hon’ble Apex Court in the matter of Magma Fincorp Limited (supra) is concerned, in that case, there was continuous default on the part of the consumer, but herein in this case only one instalment was not paid for the month of July 2012 and therefore, considering the facts involved in the present petition, with due respect, the said judgment is not applicable to the present case. As regards the facts which are involved in the petition are Dilwale 7 3-WP-7642-16.odt concerned, admittedly the respondents have taken possession only on the ground that there was default in payment of one instalment. Consequently, the possession was taken from the petitioner and the same was sold even without intimation to the petitioner and therefore, it reveals that there was high-handedness at the hands of respondent nos. 2 and 3. Therefore, I find that the order passed by the District Consumer Forum is a well-reasoned order but the learned National Consumer Commission has modified the order without recording any reasons. Therefore I am inclined to allow the writ petition by setting aside the order passed by the National Commission. 8. In view thereof, the writ petition is allowed. The order dated 09.12.2015 passed by the National Consumer Dispute Redressal Commission, Delhi in Revision Petition No. 1380/2015 is quashed and set aside. The order dated 03.08.2013 passed by District Consumer Dispute Redressal Forum, Aurangabad in Complaint Case No.325/2012 is confirmed. [ SIDDHESHWAR S. THOMBRE ] JUDGE