Tamil Nadu

North Chennai

CC/86/2016

Mr.Dayanand - Complainant(s)

Versus

HDFC Bank Limited - Opp.Party(s)

O.S.Karthikeyan & Sheela

08 May 2018

ORDER

 

                                                            Complaint presented on:  06.05.2016

                                                                Order pronounced on:  08.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY THE 08^th   DAY OF MAY 2018

 

C.C.NO.86/2016

 

 

Mr.Dayanand,

135/5, Reddy Compound,

Behind Presidency Church School,

L.B.Sastri Nagar,

Bangalore – 560 017.

                                                                                    ….. Complainant

 

..Vs..

M/s. HDFC Bank Limited,

Represented by its Manager,

No.110, Nelson Manickam Road,

Nungambakkam,

Chennai – 600 029

 

 

Date of complaint                                 : 03.06.2016

Counsel for Complainant                      : M/s.O.S.Karthikeyan & Sheela

Counsel for Opposite Party                      : Mr.T.K.M.Sai Krishnan,

                                                                    Mrs.N.Premalatha        

 

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

This complaint is filed by the complainant to direct the opposite party to withdraw the notices dated 25.01.2016 & 11.02.2016 and to issue  “No due Certificate” and also to direct him to pay compensation for deficiency in service and mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased a Maruti Ritz Car bearing registration No.TN 66 E2271 by availing loan from the opposite party. The complainant agreed to re-pay the loan in 60 monthly installments at the rate of Rs.10,180/- per month. The complainant was paying EMIs by cheque and cash at Chennai. During January 2014 the complainant was transferred to Cochin and lost his job. Hence he had not paid EMIs with effect from 2014.

2. The complainant procured a job at Bangalore. On 08.12.2015 the complainant went to opposite party’s branch at Golden Tower, Old Airport Road, Bangalore and requested to activate his loan account enabling him to pay the EMIs. The opposite party’s staff informed him that either to settle the entire outstanding of Rs.2,94,310/- or surrender his car. The opposite party threatened to seize the car. In order to avoid the seizure of car, the complainant surrendered his car and the opposite party issued him a surrender certificate and assuring to sell through auction with prior notice to him. However, no notice was issued to him.

3. The opposite party furnished a statement of account as on 08.12.2015 requiring the complainant that he is due a sum of Rs.2,94,309.75/-. The opposite party issued a demand notice dated 25.01.2016 reflects an alleged sum of Rs.2,43,714.90/- is due and whereas legal notice issued dated 11.02.2016 reflected a due sum  of Rs.3,30,073/- by way of arbitral award. The alleged differential amount claimed by the opposite party as above exposes the act deficiency in service, negligence and unfair trade practice on the part of the opposite party. No notice served to the complainant in respect of arbitration. The above acts caused mental agony to the complainant. Hence the complainant after issuing notice to the opposite party, the complainant filed this complaint to direct the opposite party to withdraw the notices dated 25.01.2016 & 11.02.2016 and to issue a “No due Certificate” and also to direct him to pay compensation for deficiency in service and mental agony with cost of the complaint.            

4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

The opposite party denies the averments made in the complaint except those that are specifically admitted in the version. Consequent to the arbitral award dated 29.11.2014, the opposite party issued notice dated 11.02.2016 clearly mentioned that after adjusting the amount, the balance would be payable by the borrower. The complainant ought to have filed an application under section 34 of the Arbitration and Conciliation act 1996 for setting aside the award, which is the only recourse, is available to him. Hence on this score this Forum has no jurisdiction to entertain this complaint.

5. The complainant had agreed to repay the loan amount in 60 installments from 05.11.2011 to 05.10.2016 with an EMI amount of Rs.10,184/-. The complainant agreed the terms and condition of the loan agreement dated 24.10.2011. The complainant has filed the complaint with misleading facts that the total due and payable amount as per the statement of accounts. The complainant is still having the liability to pay to the opposite party by way of EMI.

6. The opposite party would state that a letter dated 16.12.2015 was communicated to the complainant and was informed that the said vehicle will be put to action, if Rs.4,45,398.85/- is not paid in full on or before 31.12.2015. The vehicle was sold to the highest bidder for a sum of Rs.1,91,500/- on 25.01.2016. On the same day the complainant was communicated that after adjusting the sale proceeds and expenses, the complainant is due to pay a sum of Rs.2,43,714.90/- to them.    Hence, the allegation of the complainant that the opposite party without issuing notice to him auctioned the vehicle is not acceptable.

7. The complainant with malafide intention to achieve wrong full gain and to cause harm to the bank filed this complaint. This opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

8. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

9. POINT NO :1 

The admitted facts are that the complainant purchased a Maruti Ritz Car bearing registration No.TN 66 E2271 by availing loan from the opposite party and the complainant agreed to re-pay the loan in 60 monthly installments at the rate of Rs.10,180/- per month and Ex.A1 is the disbursement advice cum delivery loan order and  the complainant was paying EMI by way of cheque and cash at Chennai and Ex.A3 receipts are the proof for the same and during January 2014 the complainant was transferred to Cochin and lost his job and he had not paid EMIs with effect from  January 2014 and thereafter the complainant gave Ex.A4 surrender letter dated 16.12.2015 to the opposite party with vehicle and at that time the opposite party issued Ex.A5 letter dated 16.12.2015 that the complainant is due to clear a sum of Rs.4,45,398.85/- on or before 31.12.2015 and failing to pay the same, bank will proceed with auctioning the vehicle and the  opposite party also sold the vehicle in the auction.

10. The complainant alleged deficiencies against the opposite party is that he had shown different amount in the statement of account, demand notice and legal notice which are not sustainable and without giving due notice to the complainant,  the opposite party sold the vehicle in the auction and even after that the complainant sent Ex.A7 mail to the opposite party requiring him to furnish about the date of auction notice given, reserved price of the car and the value of the car sold and however the same was not furnished and hence the opposite party has committed deficiency in service.

11. Admittedly, the complainant surrendered his vehicle to the opposite party through Ex.A4 letter dated 16.12.2015. On the same day, the opposite party issued Ex.A5 letter to the complainant about the due amount payable by him and if he fails to pay without further notice the car will be auctioned. Further, it is the admitted case of the complainant that he has stopped the payment of EMI from January 2014 onwards and thereafter he had not paid any EMI towards loan borrowed by him. According to the complainant he had enquired after nearly two years about his default in EMI, he requested the opposite party to re-activate the loan account for further EMI payment. The complainant has defaulted in payment of EMIs for two years proves that the complainant is a defaulter.

12. The opposite party categorically stated in Ex.A5 letter that if the complainant failed to settle the balance loan amount of Rs.4,45,398.85/-  on or before 31.12.2015, without  any further notice he will sell the vehicle in auction. The complainant had not paid any amount by 31.12.2015. Therefore, the opposite party has no other way to proceed in auction of the vehicle and after sale and after adjusting the sale proceeds demanded the balance due from the complainant. Such auction of the opposite party in selling the vehicle in no way construed as deficiency on the part of the opposite party.

13. The complainant relied on an order of the National Commission reported in III (2007) CPJ 161(NC) (Citicorp Maruti Finance Ltd. Vs. S.Vijayalaxmi) that no notice was given before sale and the vehicle was sold without following certain procedure and therefore the opposite party has committed deficiency in service. The complainant himself marked Ex.A5 letter in which the opposite party clearly stated that if the due amount was not paid within the stipulated date, the bank will proceed with auctioning the vehicle. In such circumstances to auction the surrendered vehicle no further notice is necessary. Further, the complainant himself is a defaulter and he has no right to question the opposite party in selling the vehicle and the procedure has not been followed by the opposite party. Therefore, in such circumstances the order of the National Commission referred is not applicable to this case. From the forgoing discussions, we hold that the complainant has not proved that the opposite party has committed deficiency in service and accordingly this point is answered.

 

 

 

14. POINT NO:2

Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 08^th  day of May 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 28.10.2011                   Delivery Order

Ex.A2 dated 09.11.2013                   Receipts issued at Chennai

                & 06.12.2013

 

Ex.A3 dated 21.10.2011                   Statement of Accounts

                & 08.12.2015

 

Ex.A4 dated 16.12.2015                   Surrender Certificate

Ex.A5 dated 16.12.2015                   Demand Notice

Ex.A6 dated 25.01.2016                   Demand Notice

Ex.A7 dated 30.01.2016                   Reply E-mail

Ex.A8 dated 11.02.2016                   Legal Notice

Ex.A9 dated 19.02.2016                   Reply Notice

Ex.A10 dated 22.02.2016                 Proof of delivery

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

Ex.B1 dated 29.11.2014                   Arbitral award

 

Ex.B2 dated 20.10.2011                   Loan Application

 

Ex.B3 dated 24.10.2011                   Loan Agreement

 

Ex.B4 dated NIL                     Declaration executed by the complainant

 

Ex.B5 dated 17.12.2015                   Request letter

 

Ex.B6 dated 03.08.2016                   E-auction report of car Trade

 

Ex.B7 dated 25.01.2016                   Receipt No.68565277

 

Ex.B8 dated 14.02.2016                   Authorization letter

 

Ex.B9 dated 25.01.2016                   Deed of Indemnity

 

 

 

MEMBER – I                                                               PRESIDENT