BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah, B.Com B.L., President
And
Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Monday the 11th day of April, 2011
CC.No 112/2009
BETWEEN:
Syed Meer Hussain,
S/o.Syed Meer Esuf,
R/o. H.No.28-66,
Islampeta,
Atmakur,
Kurnool District-518 422. …..Complainant
-Vs-
1) I.C.I.C.I. Bank Limited,
Represented by its Branch Manager,
Kurnool Branch, U-Con Plaza,
40-384/1, Shop No.16, 17 & 18,
Park Road, Kurnool.
2) I.C.I.C.I. Bank Limited,
Represented by its Branch Manager
ICICI Bank Tower Level-V,
East Wing, 1-11-256, Street No.1,
D.No.1-11-256,
Begumpet,
Hyderabad - 500 016.
3) I.C.I.C.I. Bank Ltd.,
Regd. Office, Rep. by its Director,
Landmark, Race Course Circle and Vadodara,
4th Floor, Bandra-Kurla Complex,
Mumbai - 400 061. …Opposite PartieS
This complaint is coming on this day for orders in the presence of Sri K.Lokeswara Reddy, Advocate for complainant and Sri P.Madhusudhana Reddy, Advocate for opposite parties 1 to 3 upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President)
CC. No. 112/2009
1. This complaint is filed under section 12 of C. P. Act, 1986 praying:-
(a) To direct the opposite parties to release (possession) the vehicle bearing Registration No.AP21 W 4317 to the complainant in a good condition and to pay Rs.2,000/- per day till the vehicle is handed over to the complainant;
(b) To direct the opposite parties to pay RS. 25,000/- towards compensation for damaging the reputation of the complainant and Rs.25,000/- towards mental agony and hardship;
- To award interest at the rate of 18% per annum;
- To grant costs of this complaint;
And
(e) To pass such other relief or reliefs as the Hon’ble Forum may deems fit and proper under the circumstance of the case.
2. The case of the complainant in brief is as under:- The complainant is the owner of the lorry bearing No.AP21 W 4317. The complainant obtained a loan of Rs.10,64,000/- from opposite party No.2 and entered a hypothecation agreement dated 03-07-2005. The amount is repayable in 46 monthly installments of Rs.26,984/- each. As per the terms and conditions of the agreement the complainant paid two installments. On 31-08-2006 at 3 A.M. opposite party No.1 took away the lorry and informed the same through a telegram on 01-09-2006. On that day the lorry was loaded with M.R.F Tyre powder bags. Opposite party No.1 kept the vehicle in open place and the goods in the vehicle were damaged due to rain and snow fall. Due to the damage of goods and late delivery of goods the commission agent by name Kanaka Durga Road Lines collected Rs.40,000/- from the complainant. The complainant on 25-09-2006 issued notice to opposite party No.1 for the illegal seizure of lorry. On 10-11-2006 opposite party No.1 issued post sale notice to the complainant. Immediately the complainant sent reply notice through his Advocate. On 17-09-2008 the complainant made a representation to the R.T.O., Nandyal with a request not to transfer the lorry with out prior intimation. Due to illegal seizure of vehicle the complainant sustained huge loss. The complainant used to earn Rs.2,000/- per day by giving the lorry on hire. The complainant also suffered mentally. Hence the complaint.
3. Opposite party No.2 filed written version and the same is adopted by opposite party No.1 and 3. It is mentioned in the written version of opposite party No.2 that the complaint is not maintainable. The bank sanctioned an amount of Rs.10,64,000/- to the complainant for the purchase of lorry bearing No.AP21 W 4317 under hypothecation agreement dated 03-11-2005. The said loan was to be repaid in 46 monthly installments at Rs.26,984/- each commencing from 01-01-2006. The complainant committed default in paying installments from 01-03-2006. The complainant failed to pay the installments inspite of legal notices. As the complainant committed default in payment of the monthly installments the bank repossessed the vehicle on 31-08-2006 as per the default clause of agreement. After taking possession of the vehicle the bank sent pre sale notice to the complainant on 01-09-2006. The complainant did not turn up for payment of the arrears. The complainant is a defaulter in payment of installments from the beginning. So the bank had taken steps and sold the vehicle through online auction on 31-10-2006 for Rs.8,48,000/-. The complainant was issued post sale notice dated 10-11-2006. The complainant gave false complaint before Pamulapadu Police Station. The bank took steps legally for seizure of the vehicle. The complainant filed the present complaint after lapse of limitation. The complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A10 are marked and the sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B12 are marked and the sworn affidavit of opposite party No.1 is filed.
5. Both sides filed written arguments.
6. The points that arise for consideration are:
- Whether the complaint is barred by time?
- Whether there is deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs as prayed for?
(iv) To what relief?
7. Point No.1:- It is the case of the opposite parties that the complaint is barred by time. It is mentioned in the complaint that the cause of action for the complaint arose on 31-08-2006 the date on which the vehicle of the complainant was seized and also on 17-09-2008 when the complainant made a representation to the R.T.O., Nandyal with a request not to transfer the vehicle in favour of the purchaser. As seen from the complaint it is very clear that it was filed on 15-06-2009. As per Section 24 (a) of the Consumer Protection Act 1986 the period of limitation for filing the complaint is two years from the date on which the cause of action has arisen. According to the complainant the cause of action for filing the complaint arose on 31-08-2006 when the vehicle was seized by the opposite parties. It is submitted by the learned counsel appearing for the complainant that a notice was given to the R.T.O., Nandyal on 17-09-2008 with a request not to transfer the vehicle and that the complaint is filed with in two years from 17-09-2008. The complainant filed Ex.A5 copy of the representation dated 17-09-2008 given to R.T.O., Nandyal. On the back of Ex.A5 the Registration Authority, Nandyal made an endorsement that the vehicle bearing No.AP21 W 4317 which stands in the name of ICICI Bank Limited, Hyderabad was removed to the R.A.I., Vijayawada on 18-11-2006 by way of clearance certificate. Admittedly the R.T.O., Nandyal is not a party in this case. No relief is claimed against the R.T.A., Nandyal. According to opposite parties the seized vehicle of the complainant was sold in open auction on 13-10-2006 and the complainant was issued post sale notice dated 10-11-2006. Admittedly the complainant received the post sale notice Ex.A3 dated 10-11-2006. In Ex.A3 post sale notice it is mentioned that the vehicle of the complainant was disposed off and proceeds have been credited in the account of the complainant. The complainant has not chosen to file the complaint within two years from the date of the post sale notice dated 10-12-2006. Mere issuing of representation to R.T.O., Nandyal requesting him no to registrar the vehicle in the name of the purchaser does not extend the period of limitation. The present complaint is filed on 15-06-2009 beyond two years from the date of the sale of the vehicle in open auction by the opposite parties. Admittedly no petition was filed by the complainant to condone the delay in filing the complaint. As the complaint is filed beyond two years from the date of cause of action it can be said that it is barred by time.
8. Point 2 & 3 :- Admittedly the opposite party bank granted loan of Rs.10,64,000/- to the complainant for the purchase of lorry bearing NoAP21 W 4317. The said loan was repayable in 46 equally monthly installments at Rs.26,984/- each commencing from 01-01-2006. The complainant entered into agreement of hypothecation with the bank on 03-11-2005. It is the case of the opposite party that the complainant committed default in payment of monthly installments and the vehicle was repossessed on 31-08-2006 as per the terms and conditions of the hypothecation agreement. The bank filed Ex.B1 copy of the statement of the account. As seen from the Ex.B1 it is very clear that the complainant paid Rs.27,000/- on 16-02-2006 and Rs.28,000/- on 29-03-2006. The complainant also filed Ex.A4 receipt showing the payment of the above said amounts to the bank. It is not the case of the complainant that he also made payments subsequent to 28-03-2006. According to the bank, the complainant failed to pay the installment inspite of Ex.B2 and B3 demanded notices. As seen from the Ex.B2 and B3 it is very clear that the bank gave notices to the complainant demanding him to regularize the account by paying the arrears. Admittedly as per the hypothecation agreement executed by the complainant, the bank has got right to repossess the vehicle in case of default committed by the barrower in payment of installments. There is ample evidence on record to show that the complainant committed default in payment of monthly installments to the bank.
9. It is the case of the complainant that his vehicle was illegally seized by the bank on 31-08-2006. It is not the case of the bank that the vehicle of the complainant was not seized on 31-08-2006. According to the bank the vehicle was taken possession on 31-08-2006 as the complainant committed default in payment of installments. It is not open to the bank take possession of the vehicle by hiring recovery agents and musclemen. In a decision reported in AIR 2007 Supreme Court 1349 it was held that the recovery of bank loans or seizure of vehicles could be done only through legal means. The banks cannot employ goondas to take possession by force. In the present case it is not the case of the complainant that the bank employed goondas to take possession of the vehicle. It is not at all mentioned in the complaint that the bank used force while taking possession of the vehicle. The complainant in his affidavit evidence also not stated that the bank took possession of the vehicle by using force. According to the complainant that his vehicle was illegally seized by the bank. Admittedly the complainant committed default in payment of monthly installments to the bank. As per the terms and conditions of the hypothecation agreement the bank has got right to seize the vehicle in case of default committed by the borrower. Prior to the seizure of the vehicle the bank gave notices ExB2 and B3 to the complainant to pay the arrears. As the complainant did not pay the installments regularly the bank seized the vehicle of the complainant. Except the affidavit evidence of the complainant there is no supporting evidence on record to show that the vehicle of the complainant was illegally seized by the bank. Simply because the bank seized the vehicle of the complainant, it cannot be said that the said seizure of the vehicle is illegal. There is evidence on record to show that the complainant committed default in payment of installments. The bank has got right to take possession of the vehicle. Accordingly the bank took possession on 31-08-2006.
10. Admittedly after taking the possession of the vehicle the bank gave pre sale notice Ex.B4 to the complainant. The complainant in his complaint admitted that bank informed about the seizure of the vehicle through telegram on 01-09-2006. It is also the case of the opposite party that the vehicle was sold in open auction on 31-10-2006 and the complainant was issued post sale notice Ex.A3. The complainant admitted in his sworn affidavit that he received the post sale notice on 10-12-2006. The bank followed the procedure for seizure of the vehicle. The learned counsel appearing for the complainant relied on a decision reported in (2009) CJ 463 (A.P) in support of his contention. In the said case the financier seized the vehicle without prior notice and sold the same without intimating to the complainant. In the present case on hand the bank sold the vehicle after giving pre sale notice to the complainant. The complainant subsequent to the seizure of the vehicle did not choose to pay the outstanding amount to the bank. The complainant would have sent the outstanding amount to the bank through demand draft, had the bank refused to receive the same. The complainant failed to establish that his vehicle was illegally seized by the bank.
11. The bank took possession of the hypothecated vehicle as the complainant committed default in payment of the installments. Notices were given to the complainant to regularize the amount, before the vehicle was taken possession by the bank. Before the sale of the vehicle also the complainant was informed by the bank by giving notice. In spite of the same the complainant did not pay the arrears. The opposite parties proceeded as per the terms and conditions of the agreement to recovery the outstanding amount. No deficiency of service is found on the part of the opposite parties. The complainant is not entitled to the reliefs as prayed for.
12. In the result the complaint is dismissed. In the circumstances no cost.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the day 11thof April, 2011.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of R.C of the lorry bearing No.AP-21-W-4317.
Ex.A2. Photo copy of Insurance Policy No.2006/4848.
Ex.A3 Photo Copy of Post-sale notice dated 10-11-06.
Ex.A4 Photo Copy of 2 Payment receipts, dated 28-03-2006 & 13-02-2006.
Ex.A5 Photo Copy of Representation dated 17-09-2008 to the R.T.O, Nandyal.
Ex.A6 Photo Copy of Registered legal notice dated 25-09-2006.
Ex.A7 Photo Copy of Registered Reply legal notice
dated 22-11-2006.
Ex.A8 Photo Copy of Demand letter sent by the Kanaka Durga Road lines, dated 26-09-2006.
Ex.A9 Photo Copy of Damages paid by the Kanaka Durga Road lines, dated 20-12-2006.
Ex.A10 Photo Copy Telegram me send by opposite party No.1.
List of exhibits marked for the opposite parties:-
Ex.B1 Photo copy of statement of account body and chasis
Dated 01-08-2007.
Ex.B2 Photo copy of letter notice dated 07-08-2006.
Ex.B3 Photo copy of letter notice dated 06-08-2006.
Ex.B4 Photo copy of Pre Sale Notice dated 01-09-2006.
Ex.B5 Photo copy of inventory of items dated 31-08-2006.
Ex.B6 Photo copy of Intimation Letter to the consignor and consigness dated 31-08-2006.
Ex.B7 Photo copy of Letter to the consignor dated 31-08-2006.
Ex.B8 Photo copy of Letter to the consignee dated 31-08-2006.
Ex.B9 Photo copy of letter to the transporter dated 31-08-2006.
Ex.B10 Photo copy of letter to the borrower dated 31-08-2006.
Ex.B11 Photo copy of letter dated 31-08-2006 to the Station House Officer, Taluka, Police Station, Kurnool.
Ex.B12 Photo copy of Confirmation letter from the consignor
dated 16-09-2006.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
Copy was made ready on :
Copy was dispatched on :
