BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Monday the 22nd day of December,2008
C.C.No. 35/08
Between:
Kota Kaleemulla, S/o. K. Mustafa,Transport Business,
K.G.Road, Atmakur, Kurnool District.
… Complainant
Versus
- ICICI Bank Limited,Represented by its Branch Manager,
Kurnool Branch, U-con Plaza, Park Road, Kurnool.
2. ICICI Bank Limited, Represented by its Manager,
D.No.59-14-8, 1st Floor, Silpa Arcade, Opp. Mary Stella College,
Gayathri Nagar, Vijayawada.
3. ICICI Bank Limited,Regd. Office, Represented by its Director,
Landmark , Race Course Circle and Vadodara , Mumbai
… Opposite parties
This complaint is coming on this day for orders in the presence of Sri. M. Azmathulla, , Advocate, for the complainant, and Sri. P. Madhusudhan Reddy , Advocate, for the opposite parties and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No. 3 5/08
1. This case of the complainant is filed U/S 2 (1) (g) and Sec. 12 of C.P.Act seeking direction on the opposite parties to release the vehicle bearing No. AP 21 W 2815 to the complainant in good condition as it was at the time of it seizure or to pay to the complainant Rs. 11 lakhs as cost of the said vehicle , with 24% interest p.a from the date of seizure , Rs.50,000/- as compensation for mental agony hardship and cost of the case alleging the complainant availing loan of Rs. 9,47,000/- and Rs.75,000/- from opposite party No.2 through opposite party No.1 under loan cum hypothecation agreement in LVV JW – 00003363178 and LVV JW 00003363172 for purchase of lorry chassis and engine and building the lorry body and got lorry No. AP 21 W 2815 registering it with registering authority, Nandyal and said loan is payable in 58 and 22 equated monthly installments commencing from 1-4-2005 at Rs. 18,997/- and Rs.3,632 /- respectively and inspite of payment of said monthly installments the opposite parties 1 and 2 forcibly seized the said lorry in October, 2005 without any prior intimation or notice and caused a pre sale notice on 11-10-2005 for an incorrect outstanding amount as due and requiring its payment . On settlement of the due account by the complainant to the satisfaction of the opposite parties 1 and 2 they issued a final payment certificate ( no objection certificate ) in form 35 infavour of the complainant for termination of agreement of hypothecation promising to deliver the seized vehicle getting deleted the endorsement of loan cum hypothecation agreement in the registration certificate of the complainant . But neither said lorry nor documents pertains to it , which were in its custody of opposite party , were delivered to the complainant and on 29-2-2008 as he came to know as to the intention of the opposite parties to sell the said vehicle made the complainant to file this case.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties caused their appearance through their authorized person and its counsel and contested the case filling their written version denying any of their liability to the complainants case.
3. The written version of the opposite party No.2 , adopted by the opposite parties 1 and 3 besides questioning the justness and maintainability of the case and requiring the strict proof of complaint averments allege firstly the complaint as barred by limitation secondly the case of the complainant cannot be dealt under C.P. Act for want of consumer status to the complainant thirdly the case of the complainant is in suppression of real facts and want of proper cause of action fourthly the loan availed by the complainant under hypothecation agreement is a loan for purchase of lorry for using it for commercial purpose of transporting goods fifthly the seizure of said vehicle occasioned on account of default of further installments after to the payment of two initial installments , was in exercise of rights of the opposite parties 1 and 2 under the hypothecation agreement sixthly the sale of seized vehicle was on account of non compliance of stipulations of pre sale notice dated 11-10-2005 and on account of outstanding due amount of loan availed under said loan cum hypothecation agreement , seventhly on account of sale of said seized vehicle of complainant to the third party on 17-11-2005 , and its intimation to the complainant vide post sale notice dated 3-12-2005 , the complainant is not entitled to any reliefs sought eighthly the non entitleness of the complainant for any reliefs sought as on sale of seized vehicle on amount of Rs. 4 ,49,508 /- is still due from the complainant towards the loan availed under hypothecation agreements . Hence there being any deficiency on its part making out of its liability to the complainants claim seeks for the dismissal of complaint with cost.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 and A2 and the sworn affidavit of the complainant , the opposite party side has taken reliance on the sworn affidavit of the opposite party No.2 without marking any documents prior to submission of its written arguments in order to give a fair opportunity to the complainant side to comment on them in its written arguments, fields its written arguments , filled its written arguments enclosing the some documents of the opposite party, which cannot be considered in the light of the decision of the Hon’ble National Consumer Disputes Redressal Commission , New Delhi in Sanatan Financier and Real Estate Private Limited Vs Surendra Singh Ghally and others reported in 2006 ( 3) ALD (cons) Pg.1 (NC) .
5. Hence the point for consideration is whether the case of the complainant is maintainable for adjudication in the District Fora under C.P.Act .
6. Admittedly the privy of the complainant with the opposite parties is arising under loan cum hypothecation agreement and the alleged cause of action on the opposite parties on account of their efforts to sale the hypotheca on the pretext of defaults in payment of installments .
7. As per the decision of Hon’ble National Consumer Disputes Redressal Commission New Delhi in Ram Desh Lahara Vs Magma Leasing Limited reported in III (2006) CPJ 247 (NC) under higher purchase transaction the financier not renders service to the borrower within the meaning of the C.P.Act and so the complainant as a borrower under loan cum hypothecation agreement is not a consumer . Therefore what ever may be the gravity or seriousness of the grievances of the complainant , the case of the complainant cannot be adjudicated by the District Fora under the provisions of C.P.Act , especially when the Hon’ble Division Bench of A.P. High Court in State Bank of India Vs . S.B Shah Ali (died) and others reported in AIR 1995 AP Pg.134 holds the power of hypothecatee to sell the hypothecated property without intervention of the Court in case of default in payments and as per the decision in M/s. Gullar Enterprises Private Limited Vs. Punjab National Bank Limited reported in 1993 (2) CPR Pg.652 a conversion of hypothecated property by a Bank abruptly and without notice may give raise to a civil dispute but not a consumer dispute as defind under Sec. 2 (1) (e) of C.P.Act 1986 and as an unreported decision of SCDRC Punjab in Amargith Singh Chauhan Vs MD/ Manager ICICI Bank Limited has ruled that the repossessing of hypothecated vehicle without notice upon commission of default in payment of installments does not entitled the complainant to maintain a complaint before the authorities constituted under the C.P.Act , 1986 and as to the recovery of outstanding balance of loan amount from the complainant a suit in OS.No. 1310/07 was said to have been filed before Additional Senior Civil Judge, Vijayawada .
8. Further when the seizure of the hypothecated lorry of the complainant was said to have been taken place in October, 2005 and its sale by the opposite parties to third parties have said to have been made on 17-11-2005 and its intimation to the complainant vide post sale notice dated 3-12-2005 , this case of the complainant for repossession of seized lorry or its cost was preferred on 3-3-2008 which is beyond the statutory period of limitation of two years prescribed under Sec. 24 – A of C.P.Act . Therefore the case of the complainant , even if to be considered for a movement as a consumer dispute , is squarely borrowed by limitation for being entertained by the District Fora .
9 . When the opposite parties are contending that consequent sale of the hypothecated property for default of payment of installments still there is an outstanding balance of considerable amount for which suit in O.S.No. 1310/07 was said to have been filed before Additional Senior Civil Judge, Vijayawada , in the absence of any cogent material evidencing the alleged discharge of entire due loan amount by complainant to the opposite parties , the documentary record in Ex.A1 and A2 remains of any worthwhile for appreciation in favour of complainant .
10. As the nature of the grievances of the complainant is not amounting to any consumer dispute entertainable under C.P.Act by District Fora and if at all there is any irregulatory or illegality in the acts of seizure and sale of hypotheca abruptly for default in payment of installment is a civil dispute addjudicatable by the Civil Court alone and the case of the complainant being barred by the statutory limitation prescribed by Sec. 24 – A C.P.Act the decisions cited by the complainant side in its written arguments are having any relevancy of their appreciation in this case.
11. Consequently the case of the complainant , being not maintainable in this Fora for various reasons assigned above , is dismissed with cost.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 22nd day of December, 2008.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Xerox copy of letter dated 15-12-2005 of OP to registering
Authority .
Ex.A2. Xerox copy of form . 35.
List of exhibits marked for the opposite parties: Nil
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
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