ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service and for refund of Rs.12,51,954/- being the cost of the car which OP seized from his possession and sold it in auction without giving him an  opportunity to pay the amount in arrears, along with interest at 18% p.a from Dec 2020 and also Rs.2,50,000/- as damages for causing mental harassment and mental agony, monetary loss and Rs.30,000/- litigations expenses and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant purchased Maruti Vitatara Breeza from Pratham motors limited and the same was registered in his name bearing No. KA 51 ML 9991, for which he obtained loan from Kotak Mahindra Bank to the extent of Rs.7,04,173/- On 16.02.2018   and paid Rs.21,000/- as booking charges and Rs.5,00,000/- as down payment amount. He had paid Rs.4,60,800/- being 24 installments to Kotak Mahindra Bank.  He also paid Rs.77,500/- towards accessories, extra fittings and totally the vehicle costed him Rs.12,93,445/-.  Afterwards one of the employees of OP-3 approached him and requested to take the loan from IDFC Bank i.e. OP-3. IDFC bank sanctioned Rs.10,31,944/- and paid Rs.5,32,230/- on 29.02.2020 and Rs.50,000/- and Rs.21,949/- paid to him by one Vasista Hari Enterprises 05.03.2020 and 06.03.2020. The total amount received by the complainant is Rs.6,04,179/- and the IDFC bank paid Rs.4,27,765/- to the Kotak Bank.  After the transfer of the loan from Kotak Bank to OP-3 bank, he paid only one instalment of the amount due.  He could not pay the remaining installment due to pandemic COVID-19 crises. He lost the job and he had to face tough time and not able to earn daily bread to his family members and hence not to able pay the installments.  On 22.12.2020 OP issued a presale notice demanding him to pay sum of Rs.12,31,275/- failing which would take the vehicle to its possession and to recover the same.

3.     It is contended that on 18.12.2020 the representatives of OP by name Mr Naveen Kumar visited his house and demanded to pay the amount outstanding for which he pleaded 3 to 4 days time to repay the entire amount. Inspite of it, OP rejected his request and took the vehicle at 2 o clock on 18.12.2020 near Hosakerehalli Bridge of the outer ring road and took away the vehicle forcibly. Though he requested over phone to provide him 2 to 3 days to clear the entire loan amount, the same was not considered.  Without prior notice OPs have seized the vehicle and afterwards sent a notice on 19.12.2020 which was received by him on 22.12.2020.  He received another notice on 01.01.2021 which was dated 05.12.2020 showing that the outstanding amount payable by the complainant is Rs.11,41,805/-. The cause of action arose on 22.12.2020 and on 11.01.2021 when he received the notice from the OPs and the act of OP is high handedness.  Hence the complaint.

4.     Upon the service of notice, OP-3 appeared before the commission and filed the version. Whereas, OP-1, 2, 4 and 5 though served with notice remained absent and hence placed exparte.

5.     In the version filed by OP-3, it is contended that, the complaint is not maintainable either in law or on facts and complainant has suppressed the true facts and OP never pressurized the complainant to get the loan transferred from the Kotak Mahindra Bank to its bank.  The loan amount obtained by the complainant is Rs.11,24,081/- and not Rs.10,31,944/-.  Complainant himself has admitted that he had paid   only one installment after availing loan and that he is a chronic defaulter. Complainant has been willfully and misleadingly stated that the presale notice is dated 18.12.2020 whereas it is dated:22.12.2020.  They have never used any kind of pressure or force or coercion while taking over the vehicle to their custody and it is as per the terms and conditions of the loan agreement. Complainant himself voluntarily handed over the possession of the vehicle.  If at all as per the averments of the complainant that the vehicle was seized forcibly, then complainant could have given a complaint to the concerned police to take back possession of the vehicle.  On receipt of the notice complainant remind silent and did not taken any action which clearly shows that OP have followed the procedure. Further OP have extended full support to the complainant and even rendered timely and prompt financial help in providing the loan and releasing the loan . They have never caused any mental torture or agony of any kind.  There is no cause of action of the complainant and there is no deficiency in service eon their and prayed the commission to dismiss the complaint.

6.     In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1 & 2: IN THE NEGATIVE

                            For the following.

REASONS

POINT No.1 & 2:-

8.     On perusing the complaint, the version, documents, evidence filed by the respective parties, it becomes clear that, the complainant obtained loan  from OP-3 by getting the loan transferred to it obtained from Kotak Mahindra Bank. It is also not in dispute and admitted by the complainant himself that after obtaining loan of Rs.12,93,445/ he has paid only one installments. Whereas the entire amount remained unpaid. It is also admitted that the complainant has executd hypothecation agreement in favour of OP-3 and OP-3 for its due amount has a charge on the said vehicle. 

9.     It is admitted fact that the OP No.3 and his men took possession of the vehicle from the custody of the complainant and the complainant has sought three to four days time to clear entire balance of the loan amount, for which OP did not agree and insisted the complainant to pay the amount due, which the complainant did not pay. The document produced by OP is clear that it has issued presale notice dated 18.12.2020 which has been served on the complainant on 22.12.2020 wherein the OP has informed and demanded the complainant that a sum ofRs.12,31,275.51 is due and requested to clear the same within 7 days failing which OP shall deem it that the complainant has consent for disposing the said vehicle to clear the liability and further informed that the procedure sale proceeds shall be applied towards the whole outstanding of the loan account and still for the remaining balance the complainant is liable to pay the same.

10.   OP has also produced a bid letter format , wherein, the said vehicle was auctioned and GN Ajay Kumar has purchased the same for Rs.6,75,000/- . Further the same has been handed over to the said purchaser.  Agreement with him is also produced in respect of the said sale in the auction . On 28.01.2021 post sale notice has been issued to the complainant intimating him that after the sale of the vehicle, still a sum of Rs.5,84,840.44 is due and laible to be paid. This is served to complainant on 02.02.2021.

11.   In view of the hypothecating the vehicle to the OP for the loan borrowed by the complainant, it is the duty of the complainant to pay the loan amount as and when it became due.  In this case, complainant has in unequivocal terms admitted having not paid the loan amount. Whereas he has paid only one installments only. When such being the case , the act of the OP in seizing the vehicle by giving clear notice before sale of the vehicle to come and pay the amount which the complainant did not pay which led the OP to sell the same cannot be considered as unfair trade and deficiency in service. The complainant was having sufficient opportunity to pay the amount and get the vehicle released from the date of presale notice till the sale of the said vehicle. In view of this this commission cannot find fault with the OP as deficiency in service, since it has acted to recover the amount due to it. Hence we answer POINT NO.1 AND 2 IN THE NEGATIVE.  pass the following:

ORDER

1. The complaint is hereby dismissed. No order as to cost.

2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 27^th day of JANUARY 2022)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Temporary registration certificate.

Ex P2: Copy of the letter dt:13.02.2018 statement of Account.

Ex. P3: Copy of the Sale Receipts fromPratham Motors.

Ex P4: Copy of the Delivery challan Pratham Motors.

Ex P5: Copy of the Certificate of Registration.

Ex P6. Copy of the Driving License.

Ex P7: Coy of the Aadhar card

Ex P8: Copy of Sudharshan GP OP.5 address

Ex P9: Copy of Pre-Sale Notice

Ex P10: Copy of the notice of Motwani Advocate

Ex P11: Copy of the sale Notice

Ex P12: Copy of the Down Payment Receipts

Ex P13: Coy of the Vehicle Reg. No reservation receipt.

Ex P14: Copy of the Insurance Certificate

Ex P15: Copy of the vehicle service receipt fromPratham Motors.

Ex P16: Copy of IDFC Bank Account statement.

Ex P17: CD.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Suresha R, Chief Manager of  OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorisation letter.

Ex R2: Copy of the Resolution passed by the directors of the bank.

Ex R3: Copy of the Account Statement.

MEMBER                        PRESIDENT

RAK*