Kerala

Idukki

CC/100/2019

Tiju mon Sasi - Complainant(s)

Versus

Indusind Bank L T D - Opp.Party(s)

25 Jan 2022

ORDER

DATE OF FILING :17/05/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 25^th day of January 2022

Present :

SRI.C.SURESHKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

SRI.AMPADY K.S. MEMBER

CC NO.100/2019

Between

Complainant : Tijumon Sasi,

Pongamparayil House,

Vazhithala P.O., Manakkad,

Purapuzha, Thodupuzha.

(Adv.Shiji Joseph)

And

Opposite Party : 1 . Indusind Bank Ltd.,

Ramabhavan, Edappalli Toll Junction,

Edappalli, Ernakulam.

Represented by its Branch Manager.

2 . Indusind Bank Ltd., By pass Road,

Thoduuzha P.O., Thodupuzha – 685 584. ,

Represented by its Branch Manager.

 

O R D E R

 

SRI.AMPADY K.S., MEMBER

 

Allegations of the complainant are as follows.

 

1 . The complainant is a Hittachi operator and is living with the income from the job. The complainant has no other source of income for his livehood.

 

2 . The complainant vide loan no. ESD00017E purchased a TATA HITACHI EX110 EXCAVATOR with a loan of Rs.44,50,000/- from the first opposite party. The loan was arranged through the second opposite party. The period of loan was 48 months and the monthly instalment was Rs.1,15,000/- (Rupees One Lakhs Fifteen Thousand only).

 

 

(Cont.......2)

-2-

 

3 . The complainant remitted the EMI of loan for till 31/12/2016. Due to financial difficulties the complainant could not re-pay the instalments in time. By December 2016, the complainant and the guarantor of the loan Sri.Gopalan had some difference of opinion with the complainant and the second opposite party, with whom the loan amount was remitting refused to accept, the part payments. Before that the second opposite party allowed the complainant to remit part payments of the loan instalments. The opposite parties under the instigation of Sri.Gopalan initiated action for seizing the equipment. On 23/02/2017, the opposite parties re-possessed the equipment as per the order of CJM, Thodupuzha.

 

4 . After possessing the equipment, the opposite parties kept the equipment for about 1 year without selling the same. The insurance premium for the period the equipment kept in the year and also the yard rent were charged exorbitantly against the complainant. The opposite parties without any notice, sold the vehicle at a meagre price.

 

5 . After selling the equipment, the opposite parties have issued notice to the complainant on 04/02/2019 demanding Rs.19,06,231/-. The complainant not liable to pay the amount as demanded by the opposite parties.

 

6 . The demand of any amount after selling the equipment without notice to the complainant is deficiency in service on the part of the opposite party. Hence the complainant is not liable to pay any amount as demanded by the opposite parties.

 

7 . Hence it is humbly prayed that this Hon'ble Commission may be pleased to pass an order declaring the complainant is not liable to pay Rs.19,06,231/- or any other amount to the opposite parties.

 

8 . The cause of action for this complaint arouse on 04/02/2019 on that day the demand notice was received and continuously thereafter at Manakkadu Kara in Thodupuzha Village within the jurisdiction of this Hon'ble Court.

 

So he prayed for the following reliefs.

 

(Cont.......3)

 

 

-3-

 

1 . Declare that the complainant is not liable to pay any amount as demanded by the opposite party.

 

2 . The opposite party may be asked to pay Rs.1 Lakh as compensation for the deficiency in service.

 

3 . The opposite party may be asked to pay Rs.10,000/- as cost of the complaint.

 

4 . Such other reliefs that deemed just and equitable also may be granted.

 

Opposite parties filed written version in the following lines.

 

That at the outset, it is respectfully submitted that the present complaint is not maintainable either in law or on facts. It is submitted that present complaint is not maintainable since the Hon'ble Commission lacks jurisdiction to hear this complaint. The 'loan cum hypothecation guarantee agreement' dated 14/08/2015, duly, validly and legally executed between the complainant and opposite party bank, consists of an Arbitration Clause. In the complaint a relief is claimed against the respondent. A relief presupposes a cause of action. Therefore issue if any touching the loan transaction can be decided by the Forum prescribed under the agreement, which is arbitration. If, the Forum of arbitration is prescribed (in other words, if an arbitration clause is in existence) no judicial authority can excise power in relation to the matters which will come within the ambit of the concept of dispute as explained in the arbitration agreement.

 

Moreover the loan account of the complainant is classified as an NPA (Non-performing Asset) and opposite party bank had initiated SARFAESI proceedings against this loan account. The complainant with an intention to escape from the SARFAESI proceedings, filed present complainant with false allegations.

 

(Cont.......4)

-4-

The complainant has miserably failed to produce any cause of action that warrants the indulgence of this Hon'bel Commission. The complainant has not approached this Hon'ble Commission with clean hands and therefore the complaint is liable to be dismissed. The complaint is not maintainable as there is no deficiency of service as alleged in the complaint. Rather the complaint is filed with the sole aim of appropriating the money of the opposite party. The complaint does not fall within the ambit and scope of the Consumer Protection Act and does not qualify the ingredients of a complaint as envisaged in section 2(c) of the Consumer Protection Act and prima -facie no deficiency in service can be made out and therefore the complaint is liable to be dismissed. That the second opposite party bank is a bank registered under the Companies Act, 1956 and governed by Banking Regulations Act of 1949 and is carrying on the business of banking regulated by the Reserve Bank of India and other relevant Acts.

 

It is submitted that complainant herein had entered in to a loan agreement bearing account No.ESD00017E dated 14/08/2015 with opposite party bank. The said loan agreement was executed for availing a vehicle loan purchasing a TATA HITACHI EX110 EXCAVATOR and availed a finance for an amount of Rs.44,50,000/-. The complainant agreed to repay the same with interest charges of Rs.1069780/- totaling Rs.5519780/- in total 48 monthly instalments.

 

It is submitted that complainant is liable to pay monthly instalment amounting Rs.114,995/- every month. The complainant was very irregular in the repayment of loan amount. It is submitted that from the very inception of the contract the complainant failed to remit monthly instalments regularly. Due to the non-payment of monthly instalments the account becomes NPA and opposite party bank initiated SARFAESI proceedings and accordingly opposite party bank issued a notice under Sec.13(2) of the SARFAESI Act. Though the notice was served on the parties they neither paid any amount nor filed any objection. Hence the opposite party filed an application under S.14 of the SARFAESI Act before the Hon'ble CJM Court at Thodupuzha viz.M.C.118/2017 and the Hon'ble Court vide order dated 25/1/2017 appointed an advocate commissioner for taking possession of the asset. The advocate commissioner executed the order by repossessing the asset on 16/02/2017. Copy of the order is produced herewith and may be marked as Ext.R1(a).

 

(Cont.......5)

 

-5-

 

That the contents of para-4 are wrong and are denied. The complainant on 15/03/2017 immediately after repossessing the vehicle approached the High Court by filing WP 8929/2017 challenging the SARFAESI proceedings initiated by the bank. Since the matter is pending under consideration this opposite party kept further proceeding in abeyance. The Hon'ble High Court vide judgement dated 17/08/2017 disposed the case allowing the complainant to clear the arrears by way of 10 instalments commencing from 31/08/2017. Copy of the judgement in WP 8929/2017 is produced herewith and may be marked as Ext.R1(b). But the complainant failed to comply with the directions of the aforesaid judgement. Hence this opposite party bank resumed with SARFAESI proceedings and after obtaining quotations from public sold the vehicle to the person who had quoted the highest price of Rs.23,50,000/-/ . The sale had been conducted after complying with all the procedure formalities contemplated under SARFAESI Act. Even after adjusting the sale proceeds there was still liability pending hence the bank referred the matter for arbitration.

 

The complainant has no cause of action against opposite party bank. There is no deficiency of service or unfair trade practice from the part of opposite party bank. Further the loan cum hypothecation guarantee agreement dated 14/08/2015, duly, validly and legally executed between the Respondent/Plaintiff and the Petitioner/Defendant, consists of an Arbitration Clause.

 

In the complaint, a relief is claimed against the respondent. A relief presupposes a cause of action. Therefore issue if any touching the petitioner/defendant can be decided by the Forum prescribed under the agreement, which is arbitration. If, the Forum of arbitration is prescribed (in other words, if an arbitration clause is in existence) no judicial authority can excise power in relation to the matters which will come within the ambit of the concept of dispute as explained in the arbitration agreement. Hence the bank had filed a claim petition before the Arbitration for recovery of the balance amount. The arbitrator after perusing the records passed Award on 01/06/2018 directing the complainant and the co borrower to pay the amount with interest.

 

 

(Cont.......6)

 

-6-

 

The complainant has no cause of action for the complaint. He is not entitled to any of the reliefs claimed in the complaint. The present complaint is filed after suppressing material facts and as such is disentitled to the relief prayed for.

 

They have also narrated the clauses of 23.1 to 23.4 of the above stated arbitration agreement (not produced) .

 

Hence the opposite parties have prayed for dismissal of complaint with costs.

 

Complainant filed copy of following documents.

 

1 . Statement of accounts in respect of alleged loan.

2 . Re-payment schedule of the loan.

3 . Notice issued by conciliator to the complainant and guarantor stating the dues as per the loan and other matters and also requesting to attend the conciliation proceeding.

 

When the case was called for evidence on 03/01/22, complainant and manager of opposite party was present in the morning and the matter was taken for evidence after roll call. While the case was taken up again for evidence, counsel or authorised representative of opposite parties was not present. Complainant filed chief affidavit and above documents were marked as Ext.P1 to P3 respectively. No cross examination was done for opposite parties. Hence the case was posted for hearing on 04/01/2022. On that day also, there was no representation for opposite parties. Counsel for complainant was heard. He produced copy of order of Hon'ble National Consumer Disputes Redressal Commission in Review Petition No.3021/2012 in Sulakshana Talan Vs Shriram Transport Finance Co.Ltd & Another reported in (2014) CJ 653 (NC).

 

 

 

(Cont.......7)

-7-

 

We have examined the contentions raised by both sides and documents produced by complainant. Even though opposite parties have stated in written version that they were producing documents mentioned therein, no such documents were produced. In these circumstances, we are inclined to dispose of the complaint on the basis of materials available on record.

 

In the light of rival pleadings of both sides, following points arise for consideration.

 

1. 1. 1. Whether complainant is liable to pay any further amount to the

         opposite parties?

         (3) Costs.

         1. (2) Whether the complainant is entitled to compensation as claimed for?

 

Point No.1

It is the main allegation of the complainant that opposite parties have sold the Hittachi Excavator without giving notice to him. Opposite parties have no case that proper notice was given to the complainant before conducting auction. Their contention is that they have sold the above excavator for Rs.23,50,000/- to the person who had quoted highest price. They have not produced the documents pertaining to the said sale and it is unknown for how much amount, it was sold. Mere raising of plea is not sufficient to establish their contentions. Opposite parties have not cared to produce any cogent evidence including loan agreement to establish their contentions. It is seen from Ext.P1 that complainant was remitting the instalments from September 2015 onwards though not regular in payments.

 

We have carefully gone through the order of Hon'ble National Commission cited above. The facts in that case are very similar to the case on hand. Loanee has every right to be informed about the auction of the above asset. Conduct of auction without issuing notice to complainant is clearly deficiency in service. Since the opposite parties have miserably failed to establish their contentions with the aid of documents, we are not inclined to accept their contentions in the written version filed. Considering the facts and circumstances of the case and the order

 

(Cont.......8)

-8-

of Hon'ble NCDRC, we are of the considered view that opposite parties action of selling the vehicle without prior notice to the complainant is deficiency in service. As per their version, they admitted the sale of excavator. In Ext.P1 , date of sale is 20/11/2017 ie, after a period of just 2 years and sold the item for lesser amount considering the purchase price and period of depreciation. Following the above order of Hon'ble NCDRC, we hold that complainant is not liable to pay any more amount to the opposite parties. Point No.1 is answered accordingly.

 

Point No.2 and 3 considered together

 

Considering the entire aspects of the case, we are not inclined to allow compensation and costs.

 

In the result, complaint is allowed as indicated above.

 

Pronounced by this Commission on this the 25^th day of January, 2022.

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SRI.C.SURESHKUMAR, PRESIDENT

Sd/-

SMT.ASAMOL P., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

(Cont.......9)

 

-9-

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Tijumon Sasi

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - Statement of accounts in respect of alleged loan.

Ext.P2 - Re-payment schedule of the loan.

Ext.P3 - Notice issued by conciliator to the complainant and guarantor stating the

dues as per the loan and other matters and also requesting to attend the

conciliation proceeding.

 

On the side of the Opposite Party :

Nil

 

Forwarded by Order

 

 

SENIOR SUPERINTENDENT