Kerala

StateCommission

A/15/15

K GHEEVARGHESE - Complainant(s)

Versus

HDFC BANK ,KENTON TOWERS - Opp.Party(s)

R SIVADASAN

30 Jun 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NO.15/15

JUDGMENT DATED : 30.06.2016

 

(Appeal filed against the order in CC.No.31/2012 on the file of CDRF, Kollam order dated : 15.11.2014)

PRESENT

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

SMT.A.RADHA                         : MEMBER

 

APPELLANT

K.Geevarghese,

Thundalil Puthen veedu,

Panavely Muri,

Panaveli.P.O

Vettikavala Village,

Kottarakkara Taluk,

Kollam

(By Adv.Sri.R.Sivadasan)

 

Vs

RESPONDENTS

1. HDFC Bank, KE NTON Towers,

Near Kalabhavan Theatre,

Vazhuthacadu.P.O

Thiruvananthapuram – 695 014

 

2. The Branch Manager,

HDFC Bank, Near Iron Bridge,

Vadakkumbhagom, Kollam

 

JUDGMENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

        Complainant in CC.No.31/2012 in the CDRF, Kollam is the appellant. He had availed loan of Rs.5,30,000/- from the second opposite party for purchasing the car bearing Reg.No.KL – 02 T 3852 The vehicle was hypothecated to the opposite party bank. The complainant paid the first instalment under the loan by cash. Repayment of second instalment onwards was from 07.10.2004. The complainant signed and handed over 59 cheque leaves to ensure repayment of the loan. It is alleged in the complaint that the cheques were presented and cashed by the second opposite party. So repayment of the loan was completed as agreed. But the second opposite party failed to issue no objection certificate despite legal notice. Hence the complainant filed original Suit No.579/2009 before the Munsiffs Court, Kottarakkara which was decreed on 25.02.2010 granting mandatory injunction whereby the second opp.party was directed to issue no objection certificate in relation to the vehicle KL 02 T 3852. There after the complainant personally requested the opp.parties to issue no objection certificate in relation to the hypothecated vehicle but they failed to do so. As a result, complainant was not able to sell the said vehicle and incurred a loss of Rs.2,50,000/-. The negligent and careless act of the opp.parties amount to unfair trade practice. Hence the complainant sought a direction to the opp.parties to issue no objection certificate in relation to the vehicle bearing Reg.No.KL 02 T 3852 and further pay compensation of Rs.2,50,000/- for the mental torture and harassment of the complainant.

        2.     In the joint version filed by the opp.parties they raised the following contentions. The complainant is not a consumer. The complaint is barred by resjudicata.  He approached the Munsiff’s Court, Kottarakkara and obtained the same relief by the decree in OS.No.579/2009. Without executing the decree of the Munsiff’s Court he approached the consumer forum for the same relief. He is not entitled to do so as the complaint is barred by resjudicata. The third opp.party is not a necessary party to the proceedings. There was no unfair trade practice or deficiency in service on the part of the opp.parties.

        3.     Before the consumer forum the complainant was examined as PW1. Exts.P1 to P6 were marked on his side. One witness was examined on the side of the opp.parties. Exts.D1 & D2 were marked on their side. The consumer forum held that there was overwhelming evidence regarding the deficiency in service and unfair trade practice on the part of the opp.parties. Accordingly, opp.parties were directed to pay Rs.10,000/- as compensation and Rs.2000/- as cost of the proceedings. Not satisfied with the quantum of compensation awarded the complainant has preferred this appeal.

        4.     It is an admitted fact that the complainant had availed loan of Rs.5,30,000/- for purchasing the car bearing Reg.No.02 T 3852. The vehicle was hypothecated to the opp.party bank. It is alleged in the complaint itself that alleging full repayment of the loan the complainant approached the Munsiff’s Court, Kottarakkara and filed OS.No.579/2009 in which he prayed for a mandatory injection to direct the opp.parties to issue no objection certificate in relation to the hypothecated vehicle. Even as per the allegations in the complaint the suit was decreed on 25.02.2010 whereby mandatory injection was granted as prayed for. It is obvious that the decree was not executed by the complainant but he approached the consumer forum with the further allegation that no objection certificate was not granted despite several requests after the passing on the decree of mandatory injection.

        5.     On the above admitted facts the pertinent aspects to be mentioned are firstly that once loan is availed it is the contractual obligation of the complainant to repay the loan. In repaying the loan no element of service is involved on the part of the bank and therefore there can be no deficiency in service or unfair trade practice. Failure to issue no objection certificate despite full payment may amount to deficiency in service but for the purpose full repayment should be proved. Obviously, the complainant approached the Munsiff’s Court, Kottarakkara because full repayment was a disputed issue. No doubt a decree was passed in his favour exparte. But an exparte decree is very much an executable valid decree. The complainant never executed that decree. At the time of filing the civil suit the complainant had an option either to approach the Munsiff’s Court or a consumer forum but quite rightly the complainant approached the Munsiff’s court because settlement of accounts was involved before issuing a no objection certificate. Once the complainant chose to approach the civil court his option to approach a consumer forum was lost. He cannot after pursuing the best available remedy approach the consumer forum for the very same relief and that would amount to abuse of process of court. Nor does passing of a decree in a civil court and failure to obey the same gives cause of action to approach a consumer forum for no deficiency in service is involved in not obeying the decree of a civil court It was for the complainant to execute the decree passed by the civil court and obtain the relief. So the consumer forum quite erroneously allowed the complaint even in part. But in the absence of appeal by the opp.parties we are not setting aside the order of the consumer forum, but clearly the appeal is devoid of merit and an abuse of process of court. The reality appears to be that the advocate for the complainant advised his party to approach the consumer forum with a view to multiply the number of cases to fleece his client. In fact, his conduct in not advising the party to execute the decree of the Munsiff’s Court may amount to deficiency in service and not the disclosed conduct of the opp.parties. Hence appeal is liable to be dismissed with cost.

        In the result, the appeal is dismissed with cost of Rs.10,000/- to the respondents.

K.CHANDRADAS NADAR : JUDICIAL MEMBER

 

 

A.RADHA                         : MEMBER

 

 

 

Be/

 

 

 

 

 

 

 

 

 

 

 

 

 

        KERALA STATE

CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NO.15/15

JUDGMENT DATED : 30.06.2016

 

 

                                    Be/