This C.C. is coming on before us for hearing; in the presence of Sri. Ch. Srinivasa Rao, Advocate for complainant; and of Sri. G. Harender Reddy, Advocate for Opposite parties No.1; Sri. N. Naveen Chaitanya, Advocate for Opposite party No.2; Government Pleader for Opposite No.3; upon perusing the material papers on record; upon hearing and having stood over for consideration, this Forum passed the following:-

O R D E R

(Per Smt.V.Vijaya Rekha, Member)

This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. 

2.       The brief facts as mentioned in the complaint are that the complainant is the owner of lorry bearing No.AP-20-X-5895, purchased a brand new vehicle in October 2007 by availing loan of Rs.11,43,000/- from the opposite party No.2.  The payment of monthly installment @ Rs.32,551/- started from 05-12-2007 to 04-01-2011 for 46 equal monthly installments.  The complainant had given bank cheques at the time of advancement of loan, thereafter, paid monthly installments regularly, though, the opposite parties debited some amounts without any information towards overdue charges for delay in payment of installments.  The complainant also submitted that without obtaining consent or prior intimation, the opposite party No.2 assigned loan agreement in favour of opposite party No.1 and informed the complainant, all the amounts payable to opposite party No.1 according to it’s directions, alleged that it is against the rules and regulations of contract between complainant and the opposite party No.2.  And also submitted that the opposite party No.2 only informed to pay the installments to opposite party No.1 from 1^st September 2009 onwards, so, the complainant was under impression that the persons of opposite party No.1 would come and create a new agreement and would inform the mode of payment but till December 2009 neither the persons of opposite party No.1 approached the complainant to receive monthly installments nor directed the mode of payment, due to which, the payments were stopped there and caused heavy burden on the complainant.  Therefore, the complainant himself approached the opposite party No.1 to avoid heavy burden in payments, so that, paid an amount of Rs.1,00,000/- towards part payment in the month of December 2009 and also made requests to give time for payment of remaining due amounts within short period.  Further he also submitted that despite payment of installments till May 2010, some musclemen of opposite party No.1 impounded the lorry at Ashwapuram on 11-06-2010 without giving any prior notice to the complainant.  Upon which, the complainant approached the opposite party No.1 at Vijayawada on 13-06-2010 and agreed to pay an amount of Rs.1,00,000/- on or before 16-06-2010, the opposite party No.1 stated that they will inform the  same to their higher officials for their decision and after receiving the information, they will convey the same to the complainant but the complainant did not receive any information from the opposite party No.1, due to which, he again approached the opposite party No.1 on 05-07-2010, at that time, the opposite party No.1 demanded to pay entire future installments, thereafter, issued notice by demanding to pay entire amount within 7 days.  Immediately, the complainant rushed to the opposite party no.1 and requested time for obtaining finance from Shriram Finance and also requested the opposite party No.1 to return the vehicle documents, those were taken away by the persons of opposite party No.1 at the time of seizure but they did not return even photocopies of documents to submit the same before the financier for obtaining finance facility.  The complainant also alleged that the opposite party No.1 sold the lorry in auction on 27-07-2010 for Rs.6,72,000/- instead of actual value of Rs.10,00,000/- by colluding with the purchaser.  Meanwhile, the opposite party No.3 issued notice by directing to surrender the original documents of registration of lorry, due to the acts of opposite parties, the complainant lost his lively hood and sustained huge loss and as such filed the present complaint by alleging the deficiency of service on the part of opposite parties 1 to 3 and prayed to direct the opposite party No.1 to release the lorry bearing No.AP-20-X-5895 with its tools and accessories or to direct the opposite parties 1 & 2 to pay Rs.10,00,000/- towards cost of the lorry and to direct the opposite parties 1 & 2 to pay Rs.50,000/- towards costs of tarpaulin, tools, and also prayed to direct them to pay Rs.50,000/- per month from 11-06-2010 till realization towards loss of earnings on the lorry and also pay Rs.2,00,000/- towards compensation for causing mental agony and to direct the opposite party no.3 to transfer the said lorry in favour of any third party and costs.  

3.       In support of his case, the complainant filed affidavit and Exhibits A1 to A4.

4.       After service of notice, the opposite party No.1 filed counter and admitted the fact that the complainant is the registered owner of lorry bearing No.AP-20-X-5895, purchased the vehicle by obtaining loan of Rs.11,43,000/- from the opposite party No.2.  The loan amount was disbursed by opposite party No.2 on 28-08-2007 and payment of installment was started from 05-12-2007 at Rs.32,551/- P.M. till 05-01-2011 and denied all the other averments of complaint.  The opposite party No.1 further submitted that the complainant and the opposite party No.2 were entered into loan cum hypothecation agreement, accordingly, the vehicle was hypothecated to opposite party No.2.  As per loan / hypothecation agreement, the opposite party No.2 shall be at liberty to make assignment of loan at any point of time.  According to para No.8 of said agreement “ICICI bank may, in its sole discretion, required the borrower/s to adopt or switch to any alternate mode of payment and the borrower/s shall comply with such request, without demur or delay…”.  The opposite party No.1 also submitted that the opposite party No.2 assigned the loan agreement in favour of it through assignment agreement dated 23-06-2009, as per said assignment deed, the opposite party No.1 has got the right to collect the due amounts and the same was intimated to the complainant by opposite party No.2 through a letter dated 15-09-2009 and informed about the transfer of portfolio by specifically mentioning that all the obligations, duties, covenants, undertakings and agreement under loan shall continue for the benefit of Magma Fin. Corp. Ltd,.  In the month of October 2009, it’s staff approached the complainant and requested to pay outstanding due amounts under loan account, after regular follow-ups, the complainant paid Rs.1,00,000/- in the month of December 2009 from there onwards, the complainant did not pay overdue EMI’s, as a result, arose huge outstanding in the account of complainant.  Therefore, re-possessed the vehicle on 11-06-2010 as per terms of loan cum hypothecation agreement.  The opposite party No.1 denied the other allegations of complainant regarding the requests for payment of overdue amounts and relaxation of time given by the opposite party No.1 and also submitted that it did not give any time for payment of EMI’s till end of July 2010 Upon regular follow-ups of persons of opposite party No.1 the complainant had paid some part of installments, thereafter, defaulted about 8 installments at Rs.2,60,408/- as there was no other way, repossessed the vehicle on 11-06-2010 by issuing pre and post  intimation to the police, concerned, then the complainant approached the opposite party No.1 and requested 10 days time for payment of total due amount under loan agreement, after lapse of that period, the opposite party No.1 had conducted vehicle valuation with Government approved valuer, who had given the value at Rs.5,00,000/-.  Thereafter, the opposite party No.1 had issued pre-sale notice dt.05-07-2010 to the complainant and guarantor by requesting to pay total outstanding amounts within 7 days but the complainant neither regularized nor paid the due amounts.  After waiting up to 25-07-2010 conducted auction on 25-07-2010.  Mr. Venkata Swamy, quoted highest price out of 3 quotations at Rs.6,72,000/-.  The opposite parties were provided services according to the terms of loan/hypothecation agreement, entered with opposite party No.2.  Therefore, prayed to dismiss the complaint with costs.  

5.       In its written version, the opposite party No.2 also submitted the same averments as mentioned in the counter of opposite party No.1 regarding the availment of loan and other averments with regard to repayment of dues, further it is also submitted that according to the terms and conditions of loan agreement, the opposite party No.2 had first exclusive and paramount charge over the property till repayment of loan amount and it would have the right, authority and power to issue notices and demand the dues and may at any time, assign, securities, novate or transfer all or any of its rights, benefits and obligations under facility agreement and other transaction documents.  The opposite party No.2 also submitted that due to consistent defaults in making payment of EMIs, it made several requests and reminders, inspite of that, the complainant neither regularize the payments nor responded.   Therefore, the account was turned into NPA (Non Performing Assets) and as such assigned the loan agreement to opposite party No.1 along with all the security interests and under lying securities in its favour and addressed an intimation letter dt.30-09-2009 to the complainant by requesting to co-ordinate with the persons of opposite party No.1 and denied all the other averments of complaint by praying to dismiss the complaint with costs.

6.       The opposite party No.3 filed counter by contending that it has no way concerned to the said agreement, therefore, dismissed the complaint as it is not maintainable against the opposite party No.3.

7.       In support of his case the complainant had filed written arguments in addition to the averments as mentioned in the complaint by submitting that the musclemen of opposite party No.1 seized the lorry on 11-06-2010 without giving prior notice and even without adopting due course of law and also submitted that he rushed to the office of the opposite party No.1 at Vijayawada on 13-06-2010 and requested to release the vehicle by agreeing to pay an amount of Rs.1,00,000/- within 3 days and again he approached the opposite party No.1 on 05-07-2010 but the opposite party No.1 demanded for entire payment i.e. future installments.  And also averred that despite making many requests, the opposite party No.1 issued pre-sale notice on 05-07-2010 by giving 7 days time for payment of entire due amounts but the same was served to the complainant on 11-07-2010.  Later, the complainant made many written representations.  However, the opposite party No.1 issued reply notice through their counsel on 05-09-2010 by mentioning the auction and sale process at Rs.6,72,000/-.  The complainant also submitted that the notice before seizure is mandatory, but the opposite party No.1 sent telegrams only to the police regarding pre and post intimation. In support of his case referred case laws of higher Forums including the judgment of Hon’ble Apex Court in Manager ICICI Bank Ltd., Vs. Prakash Kaur & Ors.  (Crl. Appeal No.267/2007), in ICICI Bank Ltd., Vs. Sou. Renu Jitendra Bhandvalkar (FA.No.1460/2007), SCDRC Maharashtra and also filed the judgments of Hon’ble National Commission in Ved Prakash Vs. Manager Magma Sharchi Finance Ltd., & Ors (1^st appeal No.263/2008 decided on 13-11-2009) and in M/s. Magma Fin Corp. Ltd., Vs. Shri Ashok Kumar Gupta (NCDRC RP.No.2158/2009). 

8.       The opposite parties No.1 to 3 filed written arguments by reiterating the same averments as mentioned in their counters.   In support of its averments, the opposite party No.1 placed the judgment of Hon’ble Apex Court in the Managing Director, Orix Auto Finance (India) Ltd. Vs. Shri Jagmander Singh & Anr. decided on 10-02-2006 in Civil Appeal No.1070/2006  and also filed the reliance in judgment of SCDRC, Orissa in HDFC Bank Ltd., Vs. Gandharba Samal (FA.No.190/2008) decided on 30-08-2010, it is also filed the bunch of judgments delivered by the Hon’ble High Court of Calcutta.

In view of above submissions, now the point that arose for consideration is,

Whether the complainant is entitled to the relief as prayed for?

Point:-        

          It is the case of the complainant that he had obtained loan of Rs.11,43,000/- from the opposite party No.2 for purchasing of a lorry.  This loan was to be repaid in 46 installments.  It is also the case of the complainant that the opposite party No.2 assigned the loan agreement in favour of opposite party No.1 without any prior intimation and thereafter, some musclemen of opposite party No.1 seized the vehicle on 11-06-2010 without issuance of any notice and sold the vehicle without following due course of law.  On the other hand the opposite parties No.1&2 admitted that they have entered into loan cum Hypothecation agreement and also averred that the complainant had agreed the repayments and interests thereon and other terms and conditions of loan.  However, the complainant delayed the EMI’s and used to pay irregular payments.  After following terms and conditions of loan cum hypothecation agreement, the opposite party No.2 assigned the agreement to the opposite party No.1 and after regular defaults in payment of EMI’s, repossessed the vehicle after giving pre and post intimation to the police, concerned.  It seems that there is no dispute between the parties as regards the borrowing of loan and repayment of EMI’s, the only dispute is regarding the seizure of lorry, whether it was in due course of law or not? As per specific admission by the complainant, there is default in payment of installments and it is also the admission of the complainant there was default when the vehicle was seized.  Therefore, it is proved by the admission of the complainant that there was default for repayment of installments under loan cum hypothecation agreement.  As per section 58 of Indian Evidence Act, fact admitted, need not be proved and as such default on the part of complainant is proved.  Now the question remains for consideration is, whether the opposite party No.1 has forcibly repossessed the vehicle or not? But the complainant has not filed any complaint against forcible seizure nor filed any proof in support of forcible repossession, it seems that absolutely there is no evidence on the part of complainant as regards forcible repossession.  In this regard we have relied upon the judgment of Hon’ble Apex court in M.D., Orix Auto Finance (India) Ltd., Vs. S.H. Jagmandar Singh & Anr. II 2007 CPJ 45 SC, wherein, it has held that the financier can repossess the vehicle if the agreement permits the financier to take possession of the financing vehicle.  There is nothing to show that the vehicle was repossessed forcibly.  Mere fact that possession was taken by the respondents cannot be the ground to contend that the hirer is prejudiced.  And also relied upon another Judgment, delivered in Anoop Sharma Vs. Bholaraj Sharma & Ors. (2013 1 Supreme Court cases 400), wherein, it was also clearly stated that “in case the vehicle is seized by the financier no criminal action can be taken against him as he is repossessing goods owned by him”.  Accordingly, those reliance were placed by the complainant on record are not considerable as the facts are different to the present case on hand.

          As far as the dispute regarding the sale of repossessed lorry is concerned, a pre-sale notice was issued by the opposite party No.1 and the same was served on the complainant, though, he did not respond to stop the auction and sale proceedings even he had not paid any amounts since the date of seizure till receiving of notice i.e. from 11-06-2009 till 30-07-2010 and no evidence on record regarding any payment during the said period.  When the complainant failed to pay any amounts, we cannot attribute the deficiency of service on the part of opposite parties.  In this regard we relied upon the judgment of Hon’ble National Commission in Magma Fin Corp. Ltd., Vs. Subhankar Singh I 2013 CPJ 27 NC. 

          In the light of aforesaid decisions and in view of above circumstances we cannot consider the matter in favour of complainant,  therefore, the point is answered accordingly against the complainant.   

9.       In the result, the complaint is dismissed.  No costs.

           Typed to dictation, corrected and pronounced by us in the open forum, on this the 23^rd day of November, 2015.

                                                  FAC President               Member      

                                           District Consumer Forum, Khammam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant                                                       For Opposite party  

       None                                                                             None

DOCUMENTS MARKED:-

For Complainant                                                       For Opposite party

FAC President               Member

 District Consumer Forum, Khammam