Date of Filing : 28.06.2011
Date of Order : 03.04.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 3rd APRIL 2012
PRESENT
Sri. H.V. RAMACHANDRA RAO, B.Sc., BL, ……. PRESIDENT
Sri. T.NAGARAJA, B.Sc., LLB. …….. MEMBER
Smt. K.G.SHANTALA, B.A., LLB. …….. MEMBER
CC No. 157 / 2011
Chandrappa,
S/o. Late Chikka Venkata Bhovi,
Aged about 37 years,
R/o. Ramarayanakote Village,
Kannasandra Post, Mulbagal Taluk,
Kolar District.
(By Sri. R. Raghupathi Gowda, Adv.) ……. Complainant
V/s.
1. M/s. L&T Finance Ltd.,
No. 802, Swastik Chambers,
8th Floor, CST Road, Chembur,
Mumbai – 400 071.
2. Sri. Mahesh,
L&T Finance Ltd.,
No. 2, 3rd Floor, Prestige Complex,
Church Street,
Bangalore – 560 001.
3. Sri. Kothandarama.C.R.
L&T Finance Ltd., Branch Office,
Near Tower, Bangalore Road,
Kolar.
(By Sri. Sama Rangappa, Adv. For Ops 1 & 2) …… Opposite Parties
ORDER
By Sri. H.V. RAMACHANDRA RAO, PRESIDENT
The brief antecedents that lead to the filing of the Complainant made u/s. 12 of the C.P. Act seeking direction to the OP to return Tractor bearing Registration No. KA-07/6487 and to pay Rs.1,49,000/- are necessary:
To 1st OP, 2nd OP is the Branch and 3rd OP is sub Branch. OP has sanctioned loan of Rs.2,85,482/- to the Complainant for purchase of Tractor on 12.01.2007. Accordingly, he has purchased New Holland-3230 Tractor bearing Registration No. KA-07/6487. Complainant had to pay quarterly installments. Between 10.08.2007 & 02.08.2008, Complainant had paid Rs.1,49,000/-. On 15.11.2008, OP2 seized the Tractor at the Complainant’s village. Complainant requested for return of vehicle, but it has not been done. OP has neither paid back the amount paid by the Complainant nor returned the vehicle. Income from the Tractor is only the source of income. In case OP returns the vehicle, Complainant is ready to pay the balance installments to the Ops and in case it is not returned, Ops had to repay the amount collected from the Complainant.
2. In brief version of the OP are:
Complainant had entered into a Loan-cum-Hypothecation agreement on 12.01.2007 with respect to vehicle in question. As such, he is not a consumer. As per the terms of agreement, it is Mumbai Court alone has jurisdiction. There is an arbitration clause in the agreement according to which OP has raised dispute between Arbitrator who has also passed an award in this case. Hence, this Forum has no jurisdiction to entertain the Complaint. Complainant approached the Ops for financial assistance which was granted and Tractor and Trailer was purchaser to which Complainant had paid margin money of Rs.1,25,256/- and remaining amount of Rs.4,05,000/- was paid by the OP. There is a guarantor also. Complainant was liable to pay Rs.4,05,000/- in half yearly installments of Rs.73,913/-, in all Rs.5,91,304/-. Complainant was irregular in paying the installments. Hence, demand notice was sent on the Complainant on 01.11.2008, even then Complainant has not paid the money. Complainant voluntarily surrendered the vehicle to the OP. Hence, post-repossession-cum-sale notice was issued to the Complainant on 24.11.2008 calling upon to pay Rs.4,27,459/- or else the vehicle will be sold as is where is basis. Even after service of notice, Complainant has not paid the money. Hence, the vehicle was sold in a public auction on 14.07.2009 for Rs.1,80,000/- to minimize the loss suffered and still Rs.2,47,459/- is due. Hence arbitration proceedings was instituted who passed an award. Hence Complaint be dismissed.
3. To substantial their respective cases, parties have filed their respective affidavits and Complainant has filed written arguments. Arguments were heard.
4. The points that arise for our consideration are:
(A) Whether there is deficiency in service ?
(B) What order ?
5. Our findings are:
(A) Negative
(B) As per detailed order for the following reasons
REASONS
6. Reading the pleadings in conjunction with the affidavits, documents and written arguments on record, it is an admitted fact that the Complainant had obtained financial assistance of Rs.4,05,000/- from the OP agreeing to repay the same with certain interest and the amount has to be paid in half yearly installments of Rs.73,933/-, in all, amounting to Rs.5,91,304/- in 8 half yearly installments. It is also an admitted fact that the Complainant has not paid the installments and a notice was issued to the Complainant on 01.11.2008 demanding the money. Complainant did not honour the claim. It is also an admitted fact that on 15.11.2008 Ops seized the Tractor as per the Loan-cum-Hypothecation agreement. According to the Complainant, OP seized the vehicle at his village and OP says Complainant has surrendered the vehicle to them. Anyway, in the presence of the Complainant it has been seized and notice was given on 01.11.2008
7. Complainant says that he had paid certain installments to the Ops and the OP has not refunded that amount nor returned the vehicle. Ops have clearly stated that the Complainant was due of Rs,4,27,459/- as on 24.11.2008 towards loan amount. Accordingly they have issued notice as Complainant did not pay they sold it in a public auction on 14.07.2009 for Rs.1,80,000/- and hence Complainant was due for Rs.2,47,459/-. Such statement of OP is unchallenged. The statement of OP is fully established by its affidavit and documents. That means OP has lend money and the Complainant has utilized the money, purchased the vehicle, used it, did not repay the installments as and when loan became due, hence as per the agreement interest accumulated and the Complainant was liable to answer.
8. Further in this regard, OP raised dispute before the Arbitration as per the terms of the Arbitration and Arbitrator in Arbitration proceedings vide No. LOS/RPD/ARB/66/11 has passed an Order in this regard directing the Complainant himself to pay certain amount to the Ops, that award has become final. That the Arbitration clause without Arbitration proceedings is different matter, but competence in the matter Arbitrator has passed an order. The question of this Forum holding deficiency in service or unfair trade practice does not arise. When the Complainant himself was due and he has violated the terms of the contract and there was deficiency in him, how can he ask the OP to pay any amount to him or return the vehicle? Hence, we hold the point accordingly ad pass the following order:
ORDER
1. Complaint is dismissed.
2. Send copy of the Order to the parties concerned free of cost.
3. Return extra sets to the parties concerned under Regulation 20(3) of Consumer Protection Regulations 2005.
(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 3rd day of April 2012)
T. NAGARAJA K.G.SHANTALA H.V.RAMACHANDRA RAO
Member Member President
SSS
