Complaint filed on: 31-01-2023

                                                      Disposed on: 11-10-2023

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 11^th DAY OF OCTOBER 2023

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LL.B., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LL.B.(Spl)., LADY MEMBER

Consumer Complaint No. 11/2023 

Sri. H.G.Shashidhar S/o H.P.Gangadharaiah,

Aged about 61 years, R/at Echanuru Village,

Kasaba Hobli, Tiptur Taluk,

Tumakuru District.

(By Sri.T.K.Surednra Singh, Advocate)

V/s

1.       HDFC Bank, 2^nd Floor, Bangalore Road,

          Near Someshwara Circle, In front of Stadium,

          Tumakuru.

2.       #22, Kotak Mahindra Bank Limited,

          2^nd Floor, RARD Department, MG Road,

          Near Trinity Metro Station, Bangalore-560 001.

 (OP No.1 – Absent)

(OP No.2 – By Smt.Meenakumari, Advocate)

:O R D E R:

BY SMT.NIVEDITA RAVISH –  LADY MEMBER

            This complaint is filed by the complainant under section 35 of Consumer Protection Act, 2019 against the opposite parties with a prayer, to direct the Opposite parties to return the complainant’s car with compensation of Rs.80,000-00 for the loss occurred to the complainant. 

2.        The Opposite Party No.1 is the HDFC Bank, Tumakuru (hereinafter called as OP No.1).  The Opposite Party No.2 is #22, Kotak Mahendra Bank Ltd., M.G.Road, Bengaluru (hereinafter called as OP No.2)

3.        The case of the complainant is that, the complainant is an agriculturists and he has having Kwid car vide registration No.KA:21:P:1402.  For some emergency purpose, the complainant went to OP No.1 for avail loan on 01.06.2017 and the OP No.1 sanctioned the loan for Rs.2,54,598-00, in which Rs.2,47,085-00 have been paid to the complainant.  The complainant has paid Rs.8,579-00 for every month for 36 installments.  Though the complainant has paid all 36 installments, the OP No.1 has told that the complainant should ask the loan clearance certificate from the OP No.2.  Further, the OP No.2 has taken away the complainant’s car bearing registration No.KA21:P:1402 from brother of the complainant.  Hence, this complaint.  

4.        After receipt of notice from this Commission, the OP No.1 has remained absent and OP No.2 has appeared before this Commission with their counsel and filed version.

5.        The OP No.2 has admitted that the complainant was availed the loan from the OP No.1 to purchase the subject vehicle in the year 2017 and executed the loan agreement and other documents in favour of OP No.1, however, the subject vehicle is hypothecated in favour of OP No.1 towards the security loan amount.  Further, the OP No.2 has denied all other allegations made by the complainant as false and submitted that due to the default of the complainant to repay the EMI, the said amount come to be NPA, subsequently the OP No.1 has sold the subject loan account to the OP No.2, by virtue of deed of assignment, accordingly the OP No.1 had intimated the same to the complainant.  Further, the OP No.2 has submitted that the OP No.2 is having right over the loan account and OP No.2 is entitled to recover the outstanding loan in respect of subject loan account from complainant.  Though the OP No.2 has demanded the repayment of loan amount, the complainant did not respond and not repay the loan amount in favour of OP No.2.  In view of the default, the OP No.2 was repossessed the subject vehicle as per the terms of loan agreement with due process of law.  Hence, OP No.2 has prayed for dismissal of the complaint with exemplary cost. 

6.        Complainant filed his affidavit evidence with five documents which are marked as Ex.C1 to Ex.C5 and one Shri.Deepak.B authorised signatory of OP No.2 has filed his affidavit evidence with four documents, which are marked as Ex.R1 to Ex.R4.  The counsel for the complainant has filed details of payment of EMIs in the time of arguments.

7.        We have heard the arguments of counsel for the complainant and counsel for the OP No.2 and peruse the written arguments filed by the OP No.2, the point that would arise for determination are as follows/hereunder,

1. Whether complainant proves the deficiency of service on the part of OPs?

2. Is complainant entitled to the relief sought for?
8.         Our findings on the aforesaid points are as under:

Point No.1:  In the Negative

Point No.2:As per the final order

                        for the following;

:REASONS:

Point Nos.(1) & (2):-

9.        Counsel for the complainant has argued that, the complainant has availed the loan of Rs.2,47,085-00 from the OP No.1 to purchase the car bearing No.KA21:P:1402 and OP No.1 has sanctioned the loan amount on 25.07.2017.  The same point of argument of complainant counsel is admitted by the OP No.2.  Ex.R1/copy of the car loan agreement produced by the OP No.2 has establishing that, the loan agreement is agreed between OP No.1 and the complainant on 24.07.2017.  Further, the counsel for the complainant has argued that, the complainant has paid Rs.8,579-00 every month for 36 installment.  To prove the same, the complainant has produced the copy of the details of payment of EMIs.  But on perusing the copy of details of payment of EMIs, it is noticed that the installment number 3, 4, 11, 12, 13, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27 and 28 were bounced. The copy of the details of payment of EMIs produced by the complainant only reflecting up-to 28 installments.  The same document has not reflecting that the complainant has paid 36 installments.  Further, counsel for the complainant has argued that though the paid installments were bounced the complainant has paid those amounts by cash and produced the Ex.C4/copies of receipts for paid amount.  Ex.C4 has reveals that complainant has paid Rs.9,000-00 on 19.12.2017, Rs.8,200-00 on 06.02.2018, Rs.25,740-00 on 04.09.2018, Rs.8,600-00 on 31.12.2018, Rs.7,200-00 on 30.03.2019 Rs.17,158-00 on 08.05.2019, Rs.8,620-00 on 21.02.2019, Rs.8,580-00 on 19.09.2019 and Rs.8,600-00 on 15.07.2019.  By comparing the Ex.C4 with copy of details of payment of EMIs, these all amounts were entered in details of payments of EMIs.  The complainant has produced the cash paid receipt upto September 2019, which is up-to due for 25^th installment.  The copy of details of payment of EMIs has reflecting balance of loan amount as Rs.60,869-00.  The complainant has not produced any document to show that, he has paid balance amount of Rs.60,869-00 as stood on 28^th installment and the complainant has also failed to produce any document to show that he has paid up-to 36^th installment amount.         

10.      The counsel for the OP No.2 has argued that the complainant has availed the loan to purchase the subject vehicle and executed the loan agreement and other documents in favour of OP No.1.  Ex.R1/copy of car loan agreement produced by the OP No.2 is establishing the same.  Further, the counsel for the OP No.2 has argued that the subject vehicle is hypothecated in favour of OP No.1 towards the security of loan amount.   Point No.1.25 of Ex.R1 is explaining about “Vehicle/s or hypothecated vehicle/s” and Point No.5 of Ex.R1 is explaining about the security for loan amount. The  same Ex.R1 was signed and agreed by the complainant.  Further, the counsel for the OP No.2 has argued that, due to the default of complainant to repay the EMI, the said account to be NPA, subsequently the OP No.1 was sold the subject loan account to the OP No.2 by virtue of deed of assignment.  Ex.R2/copy of deed of assignment reveals that, this deed was executed between OP No.1 and 2.  On 13^th December 2019, Ex.R3/copy of letter written by the OP No.1 dated:17.12.2019 is proves that OP No.1 has intimated to the complainant about complainant’s credit facility, used car refinance loan – 48385875, has been assigned to/in favour Kotak Mahindra Bank Limited (OP No.2) with effect from 13^th December 2019.  Further, counsel for the OP No.2 has argued that, OP No.2 has demanded the repayment of loan amount, but the complainant did not responded and not repay the loan amount in favour of OP No.2. Ex.R5/copy of letter issued by the OP No.2 dated: 4^th March, 2020 establishes that, the OP No.2 has asked to complainant to repay the loan amount.  The complainant has not objected the Ex.R5 and the complainant has not produced any documents to show that he has wrote the answer to the Ex.R5.  Further, counsel for the OP No.2 has argued that OP No.2 is having right over subject hypothecated vehicle in terms of loan agreement, accordingly, the OP No.2 was exercised its right and repossessed the vehicle.  Point No..1.25 of the Ex.R1 describes as:

“Vehicle/s” or “Hypothecated Vehicle/s “ shall mean the new or used four wheeler motor vehicle acquired/to be acquired by the Borrower(s) in respect of which the loan is granted/to be granted by the Bank hereunder including the accessories thereto as described in the schedule hereunder written”.

The point No.5 of Ex.R1 describes about security and point No.5.1 of Ex.R1 explains as below:

“in consideration of the Bank having granted or agreed to grant to the Borrower(s) the First loan and having agreed to grant as its sole and absolute discretion, the additional loan subject to the terms and conditions mentioned herein and in the collateral documents, the borrower(s) hereby hypothecates to and changes in favour of the Bank by way of first and exclusive charge the Vehicle for the due payment and repayment of the First Loan and the Additional Loan and the respective Dues and hereby agrees to obtain an endorsement to that effect on the Registration Certificate from the concerned Registering Authority.  Provided that if the vehicle (to be acquired) has not been delivered to and/or registered (wherever applicable) in the name of the Borrower(s) at the time of signing of this Agreement, the particulars of the Vehicle shall be informed in writing by the Borrower(s) within two calendar days of such delivery and / or registration, whereupon such writing shall form part of this Agreement and the Schedule hereto; in case of the Vehicle being a used vehicle and subject to a prior charge/hypothecation/lien/any other encumbrance, the Borrowers(s) shall forthwith obtain and submit to the Bank an irrevocable no-objection certificate from the holder of such prior charge/hypothecation/any other encumbrance for the creation of hypothecation and charge by the Borrower(s) in favour of the Bank over the Vehicle(s).  The Bank shall b entitled to withhold disbursement of the whole or part of the Loan until the submission of the above referred no-objection certificate to the Bank by the Borrower(s), further without prejudice to any other rights available to the Bank hereunder or under law, the Bank may call upon the Borrower(s) to submit/procure such additional documents in original and/ or assurance(s) as the Bank may require and the Borrower(s) hereby unconditionally and irrevocably agrees and undertakes to submit/procure such additional documents in original and/or assurance(s) to the Bank.

Point No.24, 24.1, 24.2 are reads as follows:

24. Securitization/assignment

24.1: The Bank may in its discretion be absolutely entitled and have full power and authority to sell, securities, assign or transfer in any manner, in whole or in part and in such manner and on such terms as the Bank may decide, including reserving a right to the Bank to retain its power hereunder to proceed against the Borrower(s) on behalf of the purchaser, assignee or transferee, any or all outstanding and dues of the Borrower(s) and Guarantor(s) to any third party of the Bank’s choice without reference to or without written intimation by the Bank or to the Bank, any such action and any such sale, securitization assignment or transfer shall bind the Borrower(s) to accept such third party as creditor exclusively or as a joint creditor with the Bank or as creditor exclusively with the right to the Bank to continue to exercise all power hereunder on behalf of such third party and to pay over such outstanding and dues to such third party and / or to the Bank as the Bank may direct.

24.2 : “ The Borrower(s) expressly agrees, recognizes and accepts that the Bank shall be absolutely entitled and shall have full power and authority to securities in whole or in part, and/or whether with or without the underlying security any of the First Loan, Additional Loan along with all the amounts outstanding thereon, in such manner and on such terms as the Bank may decide, irrespective of whether the Bank gives the Borrower(s) and / or the Guarantor(s) any notice regarding the same.        

11.      The Ex.R1/copy of the agreement agreed/executed between OP No.1 and the complainant.  The complainant should bound by the terms and conditions of the agreement, when the complainant has signed the agreement.  As per the copy of details of payment of EMIs, there is balance of Rs.60,869-00 as on December 2019regarding car loan.  As per point No.1.25 of Ex.R1, the complainant’s car bearing No.KA:21:P1402 was hypothecated to OP No.1.  As per point No.24, 24.1, 24.2 of the Ex.R1, the OP No.1 has sold the subject(vehicle) loan to the OP No.2.  Ex.R2/copy of the Assignment establishes the same.  The OP No.1 has wrote a letter i.e. Ex.R3 with intimation to the complainant about assignment.  Further, the OP No.2 has wrote a letter (Ex.R5) to the complainant about payable amount of loan.  The complainant has failed to furnish the documents to show that he has paid balance outstanding amount of loan.  Hence, we do not found any deficiency in service on the part of OP No.1 and 2.  Hence, the complaint is liable to be dismissed.  Accordingly, we proceed to pass the following:-  

:ORDER:

The complaint filed by the complainant is dismissed without cost.

Furnish copy of this order to both parties at free of cost.