Complaint filed on: 15-03-2010<br /> Disposed on: 17-08-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.571/2010<br /> DATED THIS THE 17th AUGUST 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> <br /> SRI.GANGANARASAIAH., MEMBER<br /> <br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> Complainant: - <br /> Sri.Kumar Gaurav <br /> S/o. Rajendar Prasad Gupta, <br /> Aged about 3o years, <br /> Residing at No.327/A,<br /> 17th “B” Main, 3rd Sector, <br /> HSR Layout, Bangalore-02<br /> <br /> <br /> V/s<br /> Opposite party: - <br /> <br /> AXIS BANK LTD,<br /> Having its branch office, <br /> Situated at No.119, 80 ft Road,<br /> 7th block, Industrial Layout, <br /> Koramangala, Bangalore -95<br /> Represented by its Manager<br /> <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The brief facts of the complaint filed by the complainant against the OP are, that he had obtained a vehicle loan of Rs.4,28,000/- from the OP for purchase of a Maruthi Swift Car and purchased a car for Rs.5,11,311/-. OP had disbursed loan amount on 20-6-2008 repayable in 36 installments at Rs.14,038/- per installment. That he has paid 16 installments and told the OP that he will pay balance 4 installments during January 2010. On 12-1-2010 OP collection manager received two installments and issued receipts. On 13-1-2010 the muscle men of the OP in all 10 persons took away his car forcibly, despite showing receipt for having paid installments. On 12-1-2010 OP has seized the vehicle without notice, an inventory of items while seizing the vehicle was given to him and the manager of the OP had told him to go to their bank to take back the seized vehicle. When he approached him they told him to pre close the loan account. On 15-1-2010 he has paid total Rs.50,576/- and thus has paid 20 installments up to January 2010. But the OP postponed release of the vehicle without giving any reason. Then he sent E-mail on 20-1-2010 and 25-5-2010 to the OP. But the OP instead of releasing the vehicle issued a letter on 28-1-2010 pressing for payment of balance amount. Despite payment of installments upto January 2010 and issue of legal notice, OP has refused to release the vehicle, thereby stated though in all he has paid Rs.3,64,071/- the OP has refused to release the vehicle. Therefore has prayed for awarding damages of Rs.10,00,000/-. <br /> <br /> 2. OP has appeared through his advocate and filed version admitting the loan transaction as narrated by the complainant and the liability of complainant to repay the loan in 36 EMIs. But stated that the complainant when failed to maintain financial discipline on follow up. That on the assurance given by the complainant of maintaining financial discipline they had given personal loan of Rs.4,00,000/-. But stated the complainant when failed to pay EMI’s regularly by on 13-1-2010 gave a surrender letter to surrender his car. Even then as a precaution he had given intimation to the jurisdictional police regarding repossession of the vehicle. Then pre sale notice dated 15-1-2010 was also given to the complainant informing him to take back the vehicle by paying the outstanding amount. But when the complainant failed to avail that opportunity they sold the car in public auction for Rs.3,35,000/- and after appropriation of the amount towards loan the excess of Rs.80,755/- has been deposited to the account of the complainant as desired by him, through his E-mail dated 7-4-2010 and therefore denying all the allegations of the complainant has prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant despite taking four adjournments to file his affidavit evidence has not filed affidavit evidence. Whereas the legal manager of the OP has field his affidavit evidence reproducing what he has stated in his version. The complainant along with the complaint has produced copies of some E-mails, receipt for having paid few amounts to the Ops and copies of legal notice he got issued to the OP. OP has produced a copy of loan cum hypothecation agreement extract of loan account of the complainant, copy of legal notice given to the complainant, copy of vehicle surrender letter given by the complainant, copy of post repossession intimation given to the complainant, copy of pre sale notice, E-mail they had sent to the complainant and E-mail sent by the complainant to them. We have heard the learned counsel appearing for both parties and perused the records. The counsel for the OP has also field written arguments.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the OP has seized his car despite clearing the over due amount upto date and by not releasing it? <br /> 2. To what reliefs, the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> 1. Answer Point No.1: In the Negative <br /> 2. Answer Point No.2: To see the final order<br /> <br /> <br /> REASONS<br /> 6. Answer on Point No.1: As briefly narrated above the contention of both parties, there is no dispute regarding date of sanction of loan, quantum of loan sanctioned and condition of repayment. The complainant himself in the complaint has admitted that he had paid 16 installments and had not paid 4 installments in time. It is further admitted by him that he had told the OP men that he will pay those installments in January 2010 but stated on 12-1-2010 he paid only two installments and thereby further committed default in not paying two more installments. It is alleged that on 13-1-2010 OP gundas forcibly took the vehicle from him and thereafter despite his request, the OP did not release the vehicle and alleged that seizer was without notice. Whereas the OP not only through his version but also in his affidavit evidence has stated that they did not seize the vehicle forcibly and it is the complainant himself voluntarily surrendered the car through his surrender letter dated 13-1-2010. We find from this letter the complainant himself surrendered the car for the over due amount of Rs.42,114/- and he was not able to pay the balance amount. The complainant has not denied this letter of surrender and has not controverted the evidence of the OP as the complainant has not at all filed his affidavit evidence. The counsel for the complainant for the first time in reply to the arguments of counsel for the OP, opened his mouth to deny the surrender letter by contending as if the OP had taken the complainant’s signature to this surrender letter at the time of sanction of loan. In the absence of any pleading to this effect denial of the contention of the OP by way evidence, we fail to accept the arguments of counsel for the complainant. <br /> <br /> 7. As the complainant himself admitted to had defaulted in payment of due installments the OP has exercised his right of repossession under loan cum hypothecation agreement on the complainant surrendering it. On such surrender by the complainant even a police intimation was given to that effect. It is found that the OP on 5-5-2009 had even sent a notice to the complainant as a demand notice requesting the complainant to pay the outstanding EMIs. Even then the complainant failed to maintain regularity in paying EMIs. Thereafter the OP had also issued a post repossession intimation to the complainant and then pre sale notice on 18-1-2010. The complainant has not denied receipt of any of these notices and also not denied the contents of the pre sale notice. OP had given option to the complainant that if he wish to obtain release of the vehicle by paying outstanding and over due amount, he could do so failing which the seized vehicle would be sold through public auction. Even for this the complainant did not respond, then the OP stated had sold the car in public auction and sent an E-mail to the complainant on 5-4-2010 informing him that the car was sold for Rs.3,35,000/- after adjusting Rs.2,54,247/- to his loan account the excess amount of Rs.80,755/- would be transferred to his personal loan account. The complainant in response to his E-mail through E-mail dated 7-4-2010 requested the OP to transfer excess amount of Rs.80,755/- to his personal loan account towards adjustment requested the OP to send him closure letter of auto loan as well as reschedule personal loan account and send statement to him. The complainant has not denied receipt of E-mail of the OP and E-mail sent by him to the OP requesting to adjust the excess sale amount to his personal loan account and to issue vehicle loan closure statement. All these facts are proved by the OP through production of documents and affidavit evidence. The complainant found to have felt guilty to file his affidavit denying these facts, as such they are un-controverted and prove the allegations of the complainant are all false. The complainant knowing all these developments and having knowledge of all these by suppressing those facts has filed this complaint which is not only not bonafide but his misrepresenting one. The counsel for the complainant submitted two decisions reported in III (2007) CPJ 161 (NC) and III (2009) CPJ 40 (NC) but facts of the present case are not similar to the facts of these cases. Hence, the complaint in our view has to be dismissed with cost as a caution to the complainant to check him from the tendency of making false allegations and suppression of facts. With the result, we answer point no-1 in the negative and pass the following order:<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed with cost of Rs.3000/- payable to the OP. <br /> <br /> Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 17th August 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT <br /> <br /> <br />