Date of Filing:15.01.2009<br /> Date of Order:13.11.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 13TH DAY OF NOVEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 146 OF 2009<br /> <br /> G. Mohan Rao,<br /> S/o Late Gangaram,<br /> R/at No. 13/17, <br /> Kandaswamy Modaliyar Road,<br /> Richard’s Town, <br /> Bangalore-560 005. Complainant<br /> <br /> V/S<br /> <br /> HDFC Bank Limited,<br /> Rep. its Branch Manager,<br /> Maruthi Manson,<br /> C.M.H. Road, Indiranagar,<br /> Bangalore-56003. Opposite Party<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant stating that he has availed loan from the opposite party for purchasing Victor Edge Motor Cycle bearing registration No. KA-03 EU-613 and agreed to repayment the said loan amount in 24 equal installments at the rate of Rs. 1,876/- per month starting from the month of December-2005. The complainant has issued 24 post dated cheques for prompt repayment in favour of the opposite party. The complainant promptly paid the installments till July-2007 and the said installment amount had paid to the authorised representatives of the opposite party every month by cash before the installments became due. The authorised representatives of the opposite party have issued receipts for having received the installments amount from the complainant. Whenever the complainant had paid the installment loan amount by cash, the authorised representatives have handed over the cheques of the installments. Before becoming the installment due for the month of August-2007 the authorised representatives of the opposite party have seized the vehicle in the absence of the complainant and without intimating the complainant has been sold the vehicle. There are no dues till the month of August-2007 towards loan amount to be paid by the complainant. In order to gulp the installments amount, the opposite party has sold the vehicle and swallows the sale price of the vehicle and violated the terms of the contract entered into between the complainant and opposite party. After seizure of the vehicle the opposite party had presented the cheques, issued by the complainant at the time of entering into agreement, to the Bank and encashed the same from the Syndicate Bank in spite of seizing of the installments, thereby the opposite party has collected 19 installments amount towards loan amount. The complainant informed to the opposite party that there is only five installments amount to be paid to the opposite party and he is ready to pay the remaining installments amount subject to returning the vehicle in the same condition as it was at the time of seizing, but the opposite party failed to return the vehicle. The complainant has issued legal notice on 20/12/2007 through by RPAD. In spite of service of legal notice and furnishing the loan account number, the opposite party neither replied the legal notice nor has taken any action in complying the terms of the legal notice. Therefore, the complainant prayed to direct the opposite party to return the vehicle bearing No. KA-03 EU-613 with the same condition as it was at the time of seizing and compensation of Rs. 50,000/- and costs.<br /> 2. After admitting the complaint notice was issued to the opposite party. Notice was served on the opposite party. Opposite party appeared before this Forum and filed defence version stating that, the complaint filed by the complainant is misconceived, false and frivolous in as much as the complainant has filed to set out any grounds for grant of any relief of whatsoever nature and on this count alone the said complaint deserves to be dismissed. It is false to state that the complainant had paid all the installments till July-2007. It is pertinent to note that second installments onwards, the complainant had bounced his ECS clearance and hence became a cause for charging cheque bounce charges and delayed payment charges. It is submitted that as on the date of repossession the complainant was due a sum of Rs.15,213/- to the opposite party and the complainant has failed to pay the amount even after he was intimated to repay the amount. It is false to state that the opposite party had deducted 19 installments even after sale of the said vehicle. It is submitted that, as per the agreement the opposite party has repossessed the vehicle. Hence, the complaint is not maintainable. <br /> 3. Affidavit evidence of both the parties filed. Arguments are heard. <br /> 4. In the light of the arguments advanced before us following points arise for consideration:<br /> 1. Whether the complaint has proved deficiency in service on the part of the opposite party?<br /> <br /> 2. Whether the complainant is entitled for return of the vehicle as prayed by him?<br /> <br /> REASONS<br /> 5. By reading the entire complaint averments, the complainant nowhere stated in his complaint that how much loan he has availed from the opposite party bank. In the absence of his pleading it is very difficult to find out the loan sanctioned to him. The complainant has not produced loan sanction letter to show the terms and conditions of the loan. The complainant has submitted that he has promptly paid loan installment from the month of December-2005 till the month of July-2007 at the rate of Rs.1,876/- per month. But the complainant has not produced receipts for all these months to show that he had promptly paid the installments up to July-2007. He has produced some receipts but the said receipts are not from December-2005 to July-2007. The complainant has submitted that he was due of five installments and he is ready to pay the said installments to the Bank. As per the case of the complainant, his motor cycle was seized by the opposite party bank in the month of August-2007. The complainant has not taken any steps till December-2007 for about 4 months even though the vehicle was seized by the opposite party bank. On 20th December-2007 he had sent legal notice to the opposite party bank. In the legal notice, it has been said that vehicle has been sold by the opposite party bank. But in the complaint, nowhere he has stated that vehicle has been sold by the opposite party bank. On the other hand, the complainant prayed in the prayer column that opposite party bank be directed to return the vehicle with same condition. This is again a contradictory statement. In the legal notice he has clearly stated that bank after seizure of the vehicle has sold the same. When this is the position, how can the complainant seek prayer for return of the vehicle which has already been sold the opposite party. Admittedly, the vehicle was seized in the month of August-2007 the complainant has filed his complaint in the month of January-2009. Though he had issued legal notice to opposite party in the month of December-2007 and again he has not taken any steps for about one year and he has made inordinate delay in approaching this Forum. The complainant has clearly admitted that he was due of five installments. So, under these circumstances, the opposite party bank had seized the vehicle under the terms and conditions of the loan agreement. If at all the complainant had any grievance he has to take the account statement and ask the bank as to what is the due amount payable by him and for what amount the vehicle was sold. If any amount payable by the bank after adjusting the proceeds of the sale towards the loan account the bank has to pay the said amount to the complainant. When the complainant has not produced loan agreement or any terms and conditions of the loan and he has not produced receipts or bank statement to show that he was regular in paying the monthly installments. The complainant has not produced any record to establish that he was regular and prompt in paying the monthly installment right from December-2005 till the month of July-2007. So, under these circumstances, the complainant has failed to prove deficiency in service on the part of the opposite party. The loan sanctioned to the complainant is subject to terms and conditions of the loan agreement. It is a matter of contract between the parties. If there was any violation of conditions of loan agreement, the proper remedy available to the complainant is to approach the Civil Court for getting proper relief. The complainant has got another remedy to approach banking ombudsman constituted by the RBI regulations. The banking ombudsman will look into the matter and a proper order or directions will be issued to the bank on the facts of the case. Therefore, the complainant will be at liberty to approach the banking ombudsman for getting proper relief. With this observation, the present complaint is not maintainable. However, the opposite party bank shall give account statement to the complainant up to date so that he will be coming to know the correct position in respect of his loan account. With this observation, I proceed to pass the following:- <br /> ORDER<br /> 6. The complaint is dismissed. <br /> <br /> 7. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> <br /> 8. Pronounced in the Open Forum on this 13TH DAY OF NOVEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />