Date of Filing:25/02/2011

        Date of Order:27/04/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  27^th DAY OF APRIL 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.386 OF 2011

R. Nagendra Kumar,

S/o. Rajashekararaju,

Aged About 32 years,

R/at: Bellikere, Muthusandra Post,

Hoskote (Taluk), Bangalore Rural District,

Bangalore-84.                                                                      ….  Complainant.

V/s

ICICI Bank,

Rep. by its Manager,

Loans (Vehicle), No.1,

Commissariat Road,

Bangalore-560 001.                                                          …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to return KA-53-4231 vehicle to the complainant and for direction to the RTO, K.R.Puram, not to transfer the said vehicle in the name of the any other person and payment of Rs.2,00,000/- as compensation, are necessary:-

          The complainant has purchased KA-53-4231 Tata Star Bus obtaining financial assistance from the opposite party, putting his own investment also, and hypothecating the vehicle with the opposite party.  The complainant was paying installments regularly, but during the year 2010, because of recession, he was suffering loss and hence delayed in paying the installments.  The opposite party hastily and illegally while the complainant was doing his business, in front of his customers, the opposite party have seized the vehicle against the guidelines of the RBI without due process of law without giving an opportunity to the complainant to repay the outstanding amount, with the help of the anti-social elements, seized the vehicle.  Further the opposite party has sold the vehicle to some person and illegally trying to transfer the ownership of that party.  The complainant issued a notice to the RTO on 26.11.2010 and also to the opposite party on 27.11.2010.  The RTO Under section 37 of the M.V. Act issued notice to the complainant to deliver the RC to it.  The complainant has also given a complaint in the Ulsoor Police Station.  He has also brought to the notice of the opposite party about the lapse of the insurance.  The terms and conditions of the opposite party are unlawful.  Hence the complaint.

2.       In brief the version of the opposite party are:-

The complaint is bad in view of the decision given by the Hon’ble High Court Of Andhra Pradesh in AIR 1995 AP 134.  The complainant has not come to the forum with clean hands.  Hence he is not entitled to any relief as Under Section 73 of the Indian Contract Act.   Since R.T.O. of K.R. Puram is not a party in this proceeding the complaint has to be dismissed for non-joinder of necessary party.  The loan agreement between the parties was executed on 02.08.2007.  The complainant had taken a loan of Rs.9,68,000/- and agreed to repay the same in 36 EMI’s at the rate of Rs.33,320/- per month.  As admitted by the complainant, he defaulted in payment of the amount.  Accordingly the opposite party had issued a notice of recalling the loan on 16.11.2009 to the complainant.  Even after that the complainant refused to pay and defaulted in payment.  Hence right of repossession was exercised by the opposite party on 28.08.2010 as the complainant was due Rs.5,27,179/-.  The complainant was also issued with a telegram of repossession on 28.08.2010.  As the complainant did not turn-up to pay, the opposite party has issued a pre-sale notice to the complainant on 03.09.2010.  Even after that the complainant has not paid the amount.  Hence the opposite party has sold the vehicle to Sri. Mushariff K.A., S/o. Sri Abdul, residing at: No.49, Park Street, 1^st Block West, Jayanagar, Bangalore, for Rs.4,67,000/- and the said sale price was credited to the loan account of the complainant and still the complainant is due Rs.1,05,288/-.  The opposite party has also issued a post sale notice to the complainant on 14.12.2010 asking him to pay the balance.  To cover up that this case has been filed.  The complainant is not a consumer.  The complainant admits that the loan is for commercial purpose.  Hence he is not a consumer.  The complaint is also bad in view of (2010) 4 SCC 107.  All the allegations to the contrary are denied.

3.       Subsequently both the parties have filed their affidavits and the opposite party has filed the written arguments and the complainant was heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether the complaint is bad for non-joinder of necessary parties?
2. Whether the complainant is a Consumer?
3. Whether the opposite party has committed any deficiency in service/unfair trade practice?
4. What Order?

5.       Our findings are:-

Point (A) to (D)  :        As per the final Order

                                      for the following:- 

-:REASONS:-

Point A to D:-

6.       In this case reading the pleadings in conjunction with the evidence both oral and documentary on record, it is an admitted fact that the complainant had purchased KA-53-4231 a Tata Star Bus a carriage/contract vehicle by obtaining financial assistance of Rs.9,68,000/- from the opposite party agreeing to repay the same in 36 EMI’s at the rate of Rs.33,320/-, he was not regular in payment of the installments and he was due Rs.5,27,179/-.  Accordingly the opposite party has issued a loan re-call notice to the complainant on 16.11.2009 even then the complainant has not paid the amount.  Hence the opposite party has seized the vehicle, repossessed the vehicle on 28.08.2010.  In this regard the complainant at Para-4 of the complaint has stated thus:-

The complainant further submits that he was paying the monthly installments regularly to the opposite party by way of post dated cheques furnished by complainant at the time of availing the aforesaid loan and unfortunately due to recession his business suffered a loss during the early period of 2010 and payment to the opposite party was delayed and the opposite party made a hasty and illegal decision to seize the vehicle of the complainant when he was doing his business when the customers were inside the vehicle.

That means while the complainant was doing his business and the customers were inside the vehicle after telegram the vehicle was seized repossessed by the opposite party.

7.       Further the complainant himself has stated that the opposite party, while he was doing the business, in front of his customers seized the vehicle.  That means on 28.08.2010 after issuing the notice of loan recalling and repossession a telegram the opposite party has seized the vehicle that too while the complainant was doing the business.  The complainant never stated that he was earning his livelihood in this vehicle.  He himself has stated that he has taken the loan for commercial purpose and he further states while doing business with the customers in the vehicle in front of the customers the vehicle was seized.  As per the loan agreement the opposite party is entitled to reposes the vehicle and to sale the same.  The opposite party has exercised their right.  Hence it cannot be termed as deficiency in service.  Before repossessing the opposite party has issued loan re-calling notice and also a telegram that has not been denied by the complainant.

8.       Further it is an admitted fact that the complainant had given a power of attorney along with the loan hypothecation letter to the opposite party as stated by the opposite party and it has not denied by the complainant.  Hence the opposite party in pursuance of the power of attorney and loan agreement have sold the vehicle to one Sri Mushariff K.A., S/o. Sri Abdul, residing at: No.49, Park Street, 1^st Block West, Jayanagar, Bangalore, on 27.10.2010 for Rs.4,67,000/- and has issued a notice to the complainant on 14.12.2010.  Suppressing all these things the complainant has come up with this complaint.  When the opposite party has sold the vehicle how can it return the vehicle to the complainant.  As power of attorney holder of the complainant the opposite party, for the loan that is due, it has sold the vehicle.  Hence the purchaser is entitled to get the RC transferred in his name from the name of the complainant’s name.  The opposite party as power of attorney holder will execute necessary documents for which nobody can preventl. 

9.       In this case on 28.08.2010 the vehicle was repossessed, a telegram was issued and on 27.10.2010, the vehicle was sold.  The vehicle was repossessed on 28.08.2010 in front of the customers of the complainant in the vehicle itself by the opposite party.  As that were to be so what prevented the complainant from paying the entire loan back and take back his vehicle before it was sold.  This itself establishes the malafides of the complainant as rightly contended.  The complainant was knowing that the vehicle has been repossessed and it was repossessed by the opposite party in presence of his customer, hence what prevented the complainant for not paying the due there from in two months before sale?  There is no answer.  The complainant never made any correspondence with the opposite party from 28.08.2010 till 27.10.2010, nor cleared the dues.

10.     When the property has been sold in favour of a third person if the complainant wants return of the vehicle the person who has purchased the vehicle should have been a party to the proceeding.  Without his presence this Forum cannot pass any order.  Further the complainant wants a relief of direction to the R.T.O., K.R.Puram, not to transfer the vehicle in the name of third party.  As such the R.T.O., K.R.Puram should have been a party to the proceeding.  Without the said R.T.O. no order can be passed against the R.T.O.  Hence the complaint is bad for non-joinder and necessary parties.

11.     The complainant has purchased the vehicle for doing business as admitted by him and obtained financial assistance for the purpose of doing business.  Hence it is a commercial transaction.  Hence the Complainant is not a “Consumer”.

12.     Further the complainant has not repaid the loan in spite of giving several opportunities.  The complainant had invested certain amount of his own.  He had used the vehicle for certain period before it was repossessed.  Under these circumstances if we direct the opposite party to close the loan account and not to demand any further amount from the complainant we think that will meet the end of justice.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The opposite party is directed to close the loan account of the complainant with respect to the vehicle bearing No. KA-53-4231 as fully satisfied and nothing is due.
3. The opposite party is directed to issue N.O.C. to the complainant within 30 days from the date of this order.
4. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

5.  Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 27^th Day of April 2011)

MEMBER                                    MEMBER                               PRESIDENT