Haryana

Ambala

CC/341/2021

Mohammad Rizwan - Complainant(s)

Versus

Kotak Mahindra Bank Ltd - Opp.Party(s)

Pawan kumar Goel

02 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	341 of 2021
Date of Institution	:	08.11.2021
Date of decision	:	02.05.2024

 

Mohammad Rizwan s/o Mohammad Ikram, aged 35 years, r/o House no.4320/3, Kaziwara, Ambala City, 134003.

……. Complainant

                                                Versus

1. Kotak Mahindra Bank Ltd. SCO, 153-154-155, Basement Sector 9-C, Madhya Marg, Chandigarh, 160009 through its Auth. Official/Manager.
2. Kotak Mahindra Bank Ltd., Gr Floor and Basement Shop No.3 And 4, Plot No. 2994 B 5, Aggarsain Chowk, Ambala City Haryana 134003 through its Branch Manager.
3. Kotak Mahindra Bank Ltd. Branch office at Haryana Motor Market, Ambala City through its Branch Manager.

….….  Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:-     Shri Pawan Kumar Goel, Advocate, counsel for the complainant.

                             Shri Puneet Sirpaul, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To return the vehicle in question after accepting the due installments of loan amount
2. To pay Rs.2,00,000/-, as compensation for causing financial loss,  mental agony and physical harassment, to the complainant.
3. To pay Rs.30000/- as litigation expenses.
4. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that  the complainant had availed a loan facility from OP under Apac No.CV- 3614186 dated 22.02.2018 for financing the vehicle bearing Registration no. HR- 58A-5797 Tata LPS 4018 TC (Model year 2012) from OP no.3. The vehicle was purchased in February, 2018 and installments were started w.e.f. March, 2018. The vehicle was purchased by the complainant to earn his livelihood. The complainant had been paying regular installments of Rs.34,220/- per month directly through his bank account-SBI account no. 31948142278 to the OPs. The complainant never committed default in paying regular installments which was regularly paid till the beginning of the Lockdown due to Covid-19 outbreak in 2020.  Unfortunately during the period of the Lockdown all the transport activities were restricted by the order the Government which stopped the complainant to go outside and as such he was unable to earn his livelihood. On account of this reason, the complainant was unable to pay the installments from March, 2020 to August, 2020 to the OPs. In November, 2020, Rs.29,000/- were paid in cash by the complainant. In January, 2021, another cash amount of Rs.1,12,000/- (3 instalments) were paid by complainant to the OPs. In February, Rs.60,000/- were paid by complainant in cash. On 20.02.2021, Rs.1,12000/- were paid by complainant to the OPs in their office. After making default in some of the monthly installment due to some financial compulsions and instead of giving some relaxations to the complainant IN CORONA epidemic, the OPs consistently started building pressure over the complainant to make his default payment as well as consistently ignored the request of the complainant to give him some time to make the said default payments. In the month of January, 2021, the OPs started demanding full payment of loan from the complainant failing which officials of OPs threatened to take the possession of vehicle. On 22nd day of February, 2021, the OPs forcibly snatched the vehicle in question from the complainant despite the requests of complainant that he wanted to make regular installments. The complainant had made several rounds to the office of OPs and requested to release the vehicle in question and even agreed to pay the regular installment of his loan but to no avail. Thus, without any order of any Court, the forcible possession of vehicle from the complainant by the OPs amounts to deficiency in service. Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version and raised preliminary objections to the effect that the present complaint deserves to be dismissed on the ground that totally false and frivolous allegations have been leveled against the OPs; the complainant is not a consumer as the vehicle financed is a Commercial Vehicle; the proceedings of arbitration are pending before the Arbitrator and the Arbitrator Sh. P.S Dhanoa, Retired Add. District and Session Judge and the complainant have been sending notices several times and as such, the complaint is liable to be dismissed on this score alone; the present complaint is not maintainable for want of joinder and mis joinder of the necessary parties; the present complaint is time barred; as per clause set out in the terms and conditions of the hypothecation Loan Agreement dated 22-Feb-2018, this Commission did not have the territorial jurisdiction to entertain the present complaint; the relationship between the complainant and the OPs is pursuant to the contract entered into between the parties hereto; the complainant in the entire complaint has no where contented or averred that the OPs have in any manner breached or violated any of the previous provisions and conditions of the contract; as per clause of the agreement entered into between the parties hereto, all disputes, differences, claims and questions whatsoever arising out of this agreement shall be referred to the sole arbitrator; the present complaint is baseless and fragrant abuse of process of law to harass and to evade legal liability;  the complainant has not approached this Commission with clean hands and has suppressed the material facts about the pending proceeding before the Arbitrator etc. On merits, it has been stated that the complainant had availed loan from the company and signed the agreement after understanding all the terms and conditions of the agreement. An amount was lent to the complainant to be repaid in monthly installments but he did not turn out to be a good borrower. There is regular and prolonged delay in the payment of monthly installments. The official of the complainant requested several times to deposit the installments but no avail. The relationship of the complainant and the OPs are governed by Hypothecation agreement and therefore the complainant cannot be termed as Consumer under the Consumer Protection Act, rather, he is a Loanee under the said loan agreement with the OPs and all the terms and conditions of the loan agreement are binding upon him including the Arbitration clause no. 11.16. The same view was taken in Sree jayadev Medical Centre VS Sri Sairam Hospital Equipments (Pvt. Ltd.) 1, 1999, CPJ, 576. The OPs took the possession of the vehicle as per law and as per the agreed loan agreement executed by the parties as per clause No. 5.3 which says that "in order to enforce its security, the bank or its agent, or representative or any other person authorized by the bank, shall be entitled to enter upon any premises where any Security may be or believed to be and take possession of the same, without being liable to the borrower, the Co-borrower or/and the Guarantor or any court or other proceedings by the Borrower, the co-borrower and the Guarantor or otherwise." The complainant has already been declared as NPA on 20- Oct-2020. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A, alongwith documents as Annexure C-1 to C-6 and closed the evidence on behalf of complainant. However, it is pertinent to mention here that the OPs failed to lead any evidence despite availing various opportunities, therefore, evidence of the OPs have been closed by the order of this Commission on 27.10.2023.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by taking the possession of the vehicle in question forcibly and at the same time not accepting the due installments in respect of the loan in question, the OPs have committed deficiency in providing service.
7.           On the other hand, learned counsel for OPs submitted that because the complainant failed to make payment of installments of loan amount and even after issuance of notice to him, he failed to pay the remaining loan amount including the penalty imposed thereon, possession of the vehicle in question was taken legally, as per terms and conditions of the loan agreement.
8.           Since, neither the fact qua purchase of the vehicle in question by the complainant, which was got financed for an amount of Rs.12,07,400/- from the OPs, is in dispute, as such, the only moot question which falls for consideration in this case is as to whether, the complainant is entitled to get any relief or not.

It may be stated here that it is the own case of the complainant that after making payment of some installments, he defaulted the same starting from March 2020 till November 2020 due to COVID-19. From the perusal of recall notice dated 04.02.2021, Annexure C-3, it is evident that the complainant was asked to make remaining loan amount of Rs.7,03,205/-, within 7 days from the receipt of this notice, failing which necessary legal action shall be taken in the matter. However, there is nothing on record that after receipt of the said notice, the complainant cleared his loan account. It may be stated here that it is settled law that an agreement of hire-purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter and in case the vehicle is seized by the Financier, no criminal action can be taken against the financier, as the Financier is only repossessing the goods owned by the Financier. Thus, when it is the own case of the complainant that he failed to make payment of installments to the OPs qua the loan amount in question, after March 2020 and also there is not even an iota of evidence that thereafter he cleared the loan account qua the vehicle in question, he cannot seek any relief from this Commission. Our these findings are in line with the ratio of law laid down by Hon’ble Supreme Court in Anup Sarmah v. Bhola Nath Sharma and Others 3 (2013) 1 SCC 400  wherein it was held that in an agreement of hire-purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the Financier, no criminal action can be taken against the Financier, as the Financier is only repossessing the goods owned by the Financier.’ In K. A. Mathai alias Babu & Anr. v. Kora Bibbikutty & Anr. (1996) 7 SCC 212, Hon’ble Supreme Court held that where the Financier’s Hire Purchase Agreement contained a clause of resumption, upon failure to make payment of installments, it could not be said that the Financier had committed the offence of theft by taking possession of the vehicle covered by the Hire Purchase Agreement.

9.           For the reasons recorded above, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.

Announced:- 02.05.2024.

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President