Haryana

Yamunanagar

CC/95/2013

Javed khan S/o Mohamad Hussain - Complainant(s)

Versus

Kotak Mahindra Bank Ltd. - Opp.Party(s)

Satish Sangwan

16 Aug 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                   Complaint No. 95 of 2013

                                                                   Date of institution: 07.02.2013

                                                                   Date of decision: 16-08-2017

 

Javed Khan aged about 30 years son of Sh. Mohamad Hussain, R/o Old Hamida Yamuna nagar, Tehsil Jagadhri, Distt. Yamuna Nagar.                                                                                                                                                           

                                                                                                       …Complainant.

                                           Versus

1. Kotak Mahindra Bank Ltd. SCO No. 153-154-155, Madhya Marg, Sector-9, Chandigarh through its Manager.
2. Kotak Mahindra Bank Ltd. through its Branch Manger Office Jagadhari Road, Yamuna Nagar.
3. Hardik Automobiles, authorized dealer Sonalika International Tractors Ltd. Buria Chowk, Buria Road, Jagadhri.                                                                                                                                                             

 

                                                                                                      ...Respondents

BEFORE:   SH. DHARAMPAL, PRESIDENT.

                   SH. S.C.SHARMA, MEMBER.

                   SMT VEENA RANI SHEOKAND, MEMBER

 

Present:        Sh. Satish Sangwan, Advocate, counsel for complainant.

                    Sh. S.L. Kashyap, Advocate, counsel for OP No. 1 and 2.

                    None for the OP No. 3.    

 

ORDER (DHARAMPAL, PRESIDENT)

 

1.                Complainant Javed Khan has filed the present complaint under section 12 of the Consumer Protection Act 1986 against respondents (herein after Respondents will be referred as Ops).  

2,                Brief facts of the present complaint, as alleged by the complainant, are that the agents of the bank for the purpose of making finances for tractors etc. contact the peoples in this regard and in this way the complainant also came in contact with the OP bank. The complainant purchased a Sonalika Tractor DI 35 Blue Color, bearing No. HR02-Y-4786 on 18-01-2011 from the OP No. 3 for earning his livelihood. The total sale price of the Tractor was amounting to Rs. 4,14,000/- and out of this amount of Rs. 1,14,000/- was paid by the complainant in cash and remaining amount of Rs. 3,00,000/- was financed by the OP bank, payable by the complainant in 35 instalments. The complainant has already paid a huge amount to the OPs, by paying more than 20 instalments. It is further submitted that on 18-01-2013, some official of the OP No. 1 and 2 illegally and forcible took away the vehicle in question from the possession of the complainant, without any sufficient cause and reason. The complainant requested the OP No. 1 and 2 to release his vehicle after taking the overdue amount, if any but the OPs have flatly refused to adhere to the just, genuine and legal request of the complainant. Further, the OP No. 1 and 2 are threatening the complainant that they will sell the vehicle in question for which they have got no right, title or interest of any kind whatsoever and if the OPs No. 1 and 2 succeed in their illegal mission, the complainant will suffer irreparable loss. In this way there is a gross negligency and deficiency in service on the part of the OPs and an unfair trade practice on their part. As such, it is prayed that the complaint may kindly be accepted and OPs No. 1 and 2 be directed to release the vehicle in question after taking overdue amount, if any, to pay Rs. 50,000/- as compensation on account of mental agony, harassment suffered by the complainant due to negligent and unfair act of the OPs and also to pay Rs. 11,000/- and litigation expenses.   

3.                Upon notice, OPs appeared and filed their separate written statements vide which OPs No. 1 and 2 have taken some preliminary objections such as: - complaint is not maintainable; complainant has no locus standi to file the present complaint. It is submitted that the complainant has obtained  the loan of Rs. 3,04,522/- vide agreement dated 29-01-2011 and the complainant purchased the international tractor Sonalika 35DI bearing Registration No. HR-02-Y-4786, which was hypothecated by the answering Ops vide loan agreement No. TFE-889311 and the complainant was agreed to pay the hypothecation amount in 35 equal instalemnts amount to Rs. 11,350/- per month commenced w.e.f. 15^th February 2011 and the complainant has to render his loan amount upto 15^th December-2013. The said hire purchase agreement was duly executed by the complainant with his own free will and volition and after understanding the contents into his vernacular language. The loan account bearing No. TFE 889311 was opened in the name of the complainant and the answering OPs are maintaining the account books in regular course of business and the said account books are perse admissible in law and evidence. Therefore, the complainant was bound to pay the loan amount in instalments regularly to the answering OPs. But the complainant has not deposited the instalments regularly as per schedule and inspite of several reminders, visits and repeated requests made by the answering OPs. Thus, he has failed to comply with the terms and conditions of the loan agreement. The answering OPs have filed the arbitration proceedings under the provisions of Arbitration and conciliation Act, 1996 before Arbitral Tribunal of Sh. Kamaljit Singh, Sole Arbitrator, Chamber No. 67, District courts, Jalandhar, which are still pending and the same is fixed for 06-04-2013  but the complainant is not appearing intentionally before the arbitrator and he is avoiding his service. Rather the answering OPs have apprehension that the complainant may dispose of the tractor in question and accordingly the order dated 24-12-2012 were obtained from the Arbitral Tribunal of Sh. Kamaljit Singh, Sole Arbitrator, vide which the answering OPs have been authorized to take the possession of the vehicle in question and to re-possess the same through receiver. Accordingly, the answering OPs have filed the application dated 24-01-2013 to the SHO, Sadar Yamuna Nagar and then the vehicle was taken in possession with the help of Police. It is further submitted that after seizer of the vehicle, the OPs have sent a notice/letter to the complainant vide which he was asked to deposit the amount of Rs. 1,94,132.95/-, failing which the tractor will be sold, but even then the complainant has failed to deposit the amount and he did not approach to the answering OPs and therefore, they have every right to sell the vehicle and recover the loan amount from the complainant. As such, prayed for dismissal of complaint with heavy and special costs.   

                   OP No. 3 vide his written statement, submitted that the OP No. 3 is the Authorized Dealer of Sonalika Tractor, in Yamuna Nagar. The complainant purchased the Sonalika Tractor from the OP No. 3 which was financed by the OP bank but whole of the sale price was paid to the OP No. 3 by the complainant, some out of his own pocket and the remaining by raising loan from the OP Bank. The said matter is not concerned with the OP No. 3 as agreement of loan and payment of instalments of the loan is related between the complainant and the Bank. As such, prayed for dismissal of complaint qua OP No. 3.

4.                In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as photocopy of list of instalments as Annexure C-1, photocopies of payment receipts (containing 13 pages), photocopy of Registration Certificate as Annexure C-3, photocopies of temporary receipt as Annexure C-4 and C-5 and closed the evidence on behalf of complainant.

5.                On the other hand, counsel for the OPs  No. 1 and 2 tendered into evidence documents i.e. photocopies of letter to SHO, P.S. Sadar, Yamuna Nagar as Annexure R-1 and R-2, photocopy of inventory of item as Annexure R-3, Photocopy of application for loan as Annexure R-4, photocopy of declaration as Annexure R-5, photocopy of loan-cum- guarantee agreement as Annexure R-6, Photocopy of agreement schedule as Annexure R-7, photocopy of statement of accounts as Annexure R-8, photocopy of Receiver Report as Annexure R-9, photocopy of application under Section 17 of Arbitration and Conciliation Act, 1996 as Annexure R-10, photocopy of Application under Section 17 of Arbitration and Conciliation Act, 1996 as Annexure R-11 and closed the evidence on behalf of OPs No. 1 and 2.

                   OP No. 3 has failed to appear before the Forum after filing the written statement as such the evidence of the OP No. 3 was closed by Court orders on 22-09-2016.  

6.                We have heard the learned counsel for both the parties and have gone through the pleadings as well as evidence placed on file minutely and carefully.

7.                Counsel for the complainant has argued that he purchased a Sonalika Tractor from the OP No. 3 for a total sale price is Rs. 4,14,000/- and out of this amount of Rs. 1,14,000/- was paid by the complainant in cash and remaining amount of Rs. 3,00,000/- was got financed from the OP bank, payable by the complainant in 35 instalments. He further argued that he has already paid a huge amount to the OPs, by paying more than 20 instalments but on 18-01-2013, some official of the OP No. 1 and 2 illegally and forcibly took away the vehicle in question from the possession of the complainant, without any sufficient cause and reason. On which he requested the OP No. 1 and 2 to release his vehicle after taking the overdue amount, if any but in vain.

8.                On the other hand counsel for the OP No. 1 and 2 has argued that the complainant has obtained the loan amounting to Rs. 3,04,522/- from the OP Bank as per agreement schedule as Annexure R-7 and the complainant has paid the instalments only amounting to Rs.2,21,100/- till 15 Feb. 2013, whereas he had to pay instalments amounting to Rs. 2,83,750/- till Feb. 2013. Thus, the complainant has not deposited the instalments regularly as per terms & conditions of the loan agreement. Thereafter, OPs have filed the arbitration proceedings under the provisions of Arbitration and conciliation Act, 1996 before Arbitral Tribunal of Sh. Kamaljit Singh, Sole Arbitrator, Chamber No. 67, District courts, Jalandhar but the complainant was not appearing intentionally before the arbitrator and he was avoiding his service. Accordingly vide order dated 24-12-2012 passed by the Arbitral Tribunal of Sh. Kamaljit Singh, Sole Arbitrator (Annexure R-10), OPs  No. 1 and 2 have been authorized to take the possession of the vehicle in question and to re-possess the same through receiver. Accordingly, the vehicle was taken in possession with the help of Police.

9.                From the perusal of the loan agreement, it reveals that the loan amount of Rs. 3,04,522/- was to be paid in 35 equal instalments as per agreement schedule Annexure R-7, whereas the complainant himself admitted that he had made only 20 instalments and thereafter, he stopped the payment. The complainant has paid only Rs. 2,21,100/- is evident from  Annexure R-8 and the remaining amount of Rs. 1,94,132.95/- was pending at the time of seizing/impounding the tractor in question.

                   From the above, it is clear that the complainant has himself violated the terms and conditions of the loan agreement and failed to make the payment of instalments as per terms and conditions of agreement, which is binding upon both the parties. 

10.              In view of the above said discussion, we are of the opinion that the OPs No. 1 and 2 have rightly seized/impounded the tractor in question as per terms and conditions of the loan agreement, as the complainant has failed to pay outstanding amount in lieu of his loan inspite of several requests and visits by OPs No. 1 and 2. Perusal of the documents placed on record, reveals that the order of Arbitral Tribunal of Sh. Kamaljit Singh, Sole Arbitrator was passed on 24-12-2012 and vide this order, OPs have taken the possession of the said tractor on 24-01-2013 with the help of police. It clearly shows that the complainant has also failed to pay the outstanding amount at the time of seizing of the vehicle as in the said order it is clearly mentioned that “The said receiver shall release the vehicle to the respondents, if the later makes payment of the disputed amount to the former at the time of seizer of the said vehicle or thereafter”.

                   The complainant has not come to this Forum with clean hands. He has suppressed the true and material facts that he has no knowledge of Arbitration proceedings.  

11.              It is further observed that the present complaint is just the counter blast to the order of Arbitral Tribunal as complainant has filed the present complaint on 07-02-2013 just after about 12 days of the order of Arbitral Tribunal of Sh. Kamaljit Singh, Sole Arbitrator passed on 24-12-2012 vide which, OPs No. 1 and 2 have taken the possession of the said tractor on 24-01-2013. He has not challenged the Arbitration Award/Order dated      24-12-2012 before any competent court of jurisdiction.

12.              In view of the above, we are of the considered view that the present complainant deserves to be dismissed. Accordingly, the complaint is, hereby, dismissed with no order as to costs. Copies of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

 

Announced: 16.08.2017.

                                                                   (DHARAMPAL)

                                                                   PRESIDENT

                                                                   DCDRF, YAMUNANAGAR

 

 

          (VEENA RANI SHEOKAND)         (S.C.SHARMA)

          MEMBER                                         MEMBER

Note: Each and every page of this order has been dully signed by me.

 

(DHARAMPAL)

                                                                        PRESIDENT

                                                                       DCDRF, YAMUNANAGAR