BEFORE THE CIRCUIT BENCH A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT VISAKHAPATNAM
F.A.No. 988 OF 2012 AGAINST C.C.NO.33 OF 2012 DISTRICT CONSUMER FORUM SRIKAKULAM
Between
1. The Branch Head, ICICI Bank Ltd.,
Form Equipment Division, Siripuram Fort
CBM Compound, 103-A, 1st Floor,
Visakhapatnam
2. The Branch Manager, ICICI Bank Limited
Near RTC Complex, Vizianagaram
3. ICICI Bank Limited, rep. by its
Managing Director, Regd.Office at Land Mark
Race Course Circle, Vadodara-007
Appellants/opposite parties no.1, 2 and 4
A N D
1. Mr.Jenni Narasimhulu S/o late Sri Lachanna
aged about 62, Jeedipeta Village, Tekkali Mandal
Srikakulam District-201 Respondent/complainant
2. The Branch Manager,
ICICI Bank Limited
Near New Bridge Road
Srikakulam-001
(Proforma party)
Respondent/opposite party no.3
Counsel for the Appellant M/s S.Nagesh Reddy
Counsel for the Respondent M/s A.Ramarao (R1)
QUORUM: SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
&
SRI S.BHUJANGA RAO, HON’BLE MEMBER
TUESDAY THE SIXTH DAY OF AUGUST
TWO THOUSAND THIRTEEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The opposite party is the appellant. The appeal is challenge to the order of the District Forum which directed the appellant to return sale deeds and pass books to the respondent and to pay an amount of `10,000/- towards compensation as also refund a sum of `18,600/- with interest thereon and costs of `3,500/-.
2. The respondent availed loan a sum of `2,50,000/- from the appellant-bank for purchase of Tractor on executing hypothecation agreement whereunder it was agreed that the respondent would repay the loan amount with interest @16.02% over a period of 12 months and on default committed by the respondent, the appellant-bank repossessed the tractor in the month of October 2010 and after issuing notice to the respondent sold the vehicle and after adjusting the sale proceeds to the loan account of the respondent claimed outstanding loan amount to the tune of `18,600/- from the respondent.
3. The respondent had submitted that at the time of availing the loan, he mortgaged pattadar pass book and title deeds and other pattas issued by Government in his favour and due to his illness he could not pay 3 installments whereon the appellant seized the vehicle and without issuing notice to him sold the vehicle in auction as also credited the sale proceeds to the loan account. It is contended that the respondent informed the appellant-bank his readiness to pay balance loan amount if any, and he requested the appellant to release the documents which the appellant-bank failed to release and on getting issued notice dated 25.02.2011 to the appellant, the respondent was informed that the documents would be returned to him and that the appellant-bank orally informed the respondent that it would return the documents and refund the amount of Rs.18,600/- lying to the credit of his loan account.
4. The appellant resisted the claim on the premise that the loan amount was released to the respondent on hypothecation of the Tractor to the appellant-bank and that in case of advancement of loan for movable property, there is no necessity for the appellant to take original documents from the respondent. It is contended that the respondent had not created mortgage of any immovable property. The respondent had not created equitable mortgage by deposit of title deeds. After adjusting the sale proceeds of the vehicle, still some amount was found due from the respondent .
5. The respondent filed his affidavit and the documents,ExA1 to A9. On behalf of the appellant-bank, its Branch Manager filed his affidavit and did not choose to file any documents.
6. The District Forum allowed the complaint on the premise that the appellant failed to place on record the entire material pertaining to the loan account of the respondent and as the huge amount was advanced as loan the appellant might have received the title deeds as security for repayment of loan.
7. Aggrieved by the order of the District Forum, the first opposite party has filed appeal contending that the District Forum believed whatever is stated by the respondent without there being any evidence and that the District Forum failed to furnish particulars of property said to have been mortgaged and that in case of loan for purchase of vehicle the vehicle under purchase is offered as security to the Bank and no immovable property is required to be mortgaged.
8. The counsel for the respondent no.1 and the appellants have filed their respective written arguments.
9. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
10. The respondent purchasing Tractor bearing registration number AP 30U 1507 on finance under Hire Purchase Agreement with the appellant-finance company is not disputed. The payment of the amount made by the respondent towards loan installments is also not disputed. The appellant repossessed the vehicle on the premise that the respondent failed to pay the entire loan amount and as such it repossessed the vehicle.
11. The terms and conditions of the loan agreement are relied upon by the learned counsel for the appellants in support of his contention that the appellant is entitled to repossess the vehicle on default committed by the respondent in making payment of the loan installments. The Statement of Account and receipts would show the payment particulars of the installments and payment of the amount as also the dishonor of cheque particulars.
12. The appellant had not followed the due procedure in selling the vehicle and its act is not justifiable. The vehicle was purchased on 31.08.2004. The appellants seized the vehicle and sold it in the month of October 2010. The District Forum, in the absence of the appellants coming out with figure of the sale proceeds of the vehicle, directed the appellant-bank to pay a sum of `18,600/- to the respondent. The appellant does not come out with clear picture as to the exact amount due from the respondent
13. The appellant has claimed the amount of `18,600/- towards hypothecation charges and incidental charges on the basis of terms of Hypothecation Agreement. The obligation to prove the amount due from the respondent lies upon the appellant and the appellant failed to establish it by producing the Hypothecation Agreement. It may be true that the appellant is the owner of the vehicle till the last pie is paid and it can repossess the vehicle from the possession of the respondent. Repossession of the vehicle becomes illegal in the circumstances where the finance company failed to show due amount from the respondent.
14. The appellant has not mentioned the rate of interest in the written version and it failed to produce hypothecation agreement .The fact remains that the appellant has not issued notice before putting the vehicle for auction. The appellant deprived the respondent an opportunity to participate in auction. It is also pertinent to note that the respondent got issued notice expressing his readiness to pay the amount due.
15. The District Forum has rightly held that the contentions of the appellant-bank without furnishing particulars of the installments due by itself is sufficient to hold deficiency in service on the part of the appellants. However, this Commission would observe that the respondent failed to prove that he mortgaged any property or documents and to the extent relief for return of the documents, pattadar pass book and title deeds is liable to be set aside.
16. In the aforementioned circumstances and taking into consideration of the plea of the appellant in the backdrop of the findings recorded by the District Forum, we are of the view that it would serve the interest of justice if the order of the District Forum is modified setting aside the relief of retuning the documents.
17. In the result, the appeal is allowed modifying the order of the District Forum. Relief of retuning the documents, sale deeds and pass books is set aside and confirming the rest of the order. No costs.
MEMBER
MEMBER
Dt.06.08.2013
కె.ఎం.కె*
