CC No.2067.2014

Filed on 09.12.2014

Disposed on 17.04.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 17^th DAY OF APRIL 2017

CONSUMER COMPLAINT NO.2067/2014                                                                                                                                                                                                                                                  

PRESENT:

    Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                          MEMBER

                                             V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 09.12.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay a sum of Rs.2,00,000/- along with interest at the rate of 18% p.a. towards damages, loss, to pay the compensation of Rs.1,50,000/- for causing mental agony, to pay a sum of Rs.1,00,000/- towards monetary loss and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that on 28.12.2010 the Complainant availed a loan of Rs.7,30,000/- from the Opposite Party with the condition that the EMI staring from January 2011 and ends on 05.12.2014.  On 05.01.2011 as an advance installment the Opposite Party had collected a sum of Rs.19,990/- towards first installment from the Complainant. It was agreed by the parties that the Complainant shall repay the loan in 48 monthly installments.  In addition to the loan amount of Rs.7,30,000/- sanctioned by the Opposite Party, the Complainant has paid a sum of Rs.2,01,709/- from her pocket to purchase a Car ‘Volks Wagen Vento ‘its Registration bearing No.KA-04-MH-9904.  The Complainant has purchased the car for the purpose of taking her children to the School. The Complainant was regular in repaying the loan amounts to the Opposite Party.  As on 07.01.2014 the loan amount of the Complainant was in force and never declared as Non-Performing Asset (NPA).  On 07.01.2014 in the morning time the Complainant was taking her children to the School by the Car.  When they were moving on the road, all of a sudden the Opposite Party’s representatives, agents, men, Gondas have attached on the car and forcibly stopped the moving vehicle and by abusing in filthy language, have taken the key of the Car and against the will of the Complainant, the Opposite Party has forcibly taken the possession of the car.  By the above said illegal, in civilized conduct of the Opposite Party, the Complainant and her children have suffered mental shock and it has spoiled the dignity, reputation of the Complainant on the public road.  The agents of the Opposite Party have used their physical force against the Complainant and took the possession of the Car without following minimum requirement of law.  On 13.01.2014 the Opposite Party has collected a sum of Rs.99,500/- from the Complainant.  The Opposite Party has also collected a sum of Rs.8,000/- and Rs.450/- and other incidental charges from the Complainant towards repossession charges.   As per the guidelines of the Reserve Bank of India and Rules relating to the financial transaction, it was necessary for the Opposite Party to issue prior notice to the borrower as to take possession or seizure of the Vehicle.  In the present case, no notice was issued as on 07.01.2014 before seizing the above said vehicle from the custody of the Complainant.  The conduct of the Opposite Party in taking the possession of the vehicle from the custody of the Complainant without giving prior notice is amounts to deficiency in service on the part of the Opposite Party. The Opposite Party ought to have issue a notice to the Complainant before seizing he vehicle from her custody.  Because of the illegal acts of the Opposite Party’s representatives, agents, the entire family members of the Complainants have suffered mental agony and defamation.  From the date of seizure of the vehicle i.e.,07.01.2014 to till the date of re-possession i.e.,13.01.2014 the Complainant has hired the service of rental car and incurred a sum of Rs.15,000/- in this regard.  The Opposite Party has adopted unfair trade practice.  The said act of the Opposite Party caused hardship, loss to the Complainant. The act of the Opposite Party is wholly unlawful.  It shows the illegal act and deliberate intention of the Opposite Party to put the Complainant in to loss.  The Opposite Party failed to perform its duty properly towards the Complainant and there is a deficiency in service on the part of the Opposite Party.  Hence this complaint.

3. In response to the notice, the Opposite Party put his appearance through his counsel and filed his version.  In the version pleaded that the complaint is false, frivolous, misconceived and baseless.  The Complainant has suppressed material facts and suggested falsehood.  The Complainant has suppressed the fact that she is a chronic defaulter and did not pay the periodical instalments in time. The Complainant has suppressed the fact even after several reminders the Complainant failed to regularly maintain her loan account. Even as o the date when the vehicle was taken into custody by the Opposite Party, i.e., on 07.01.2014, there was a balance outstanding of Rs.3,48,869/-.  The Complainant has suppressed the fact that the Opposite Party had issued a demand notice as early as 10.06.2013, calling upon her to pay the balance outstanding loan amount, the said notice was duly received by the Complainant and she has also replied to the same, vide letter dt.18.06.2013 and has undertaken to pay all balance outstanding by 30.06.2013.  Instead of complying by the same the Complainant has remained a defaulter and has come before this Hon’ble Forum with unclean hands alleging that the Opposite Party did not issued notice proper to taking custody of the vehicle.  The Complainant has also suppressed the fact that she had made a request vide letter dt.25.11.2013, for a top up loan and in the said letter she admitted that she could not maintain regular payments of Rs.19,900/- due to market slow and recession.  The complaint is not maintainable. As per Clause 26 of the Loan Agreement dt.28.12.2010, executed between the Opposite Party and the Complainant, it is agreed that all disputes and difference that arise between them would be settled by Arbitration under the Arbitration and Conciliation Act.  This Forum has no Jurisdiction to entertain these proceedings.  As per Clause 27 of the Loan Agreement dt.28.12.2010, executed between the Parties to these proceedings, it is agreed that the Courts in Chennai shall have Jurisdiction in respect of any dispute that arises between parties. The Complainant obtained the loan on 28.12.2010 commenced making payment of her Periodical Instalments from 05.01.2011, the Complainant has paid only seven installments on time. The Complainant has not made any payments in time thereafter.  Even as on date of this Version there is a balance outstanding of Rs.1,36,861/-.   Repeated reminders were given to the Complainant, all of which were ignored.  The Opposite Party made out issued Demand notice dt.10.06.2013, calling upon the Complainant to pay the balance outstanding loan amount.  The Complainant even has written letters to the Reserve Bank of India, to direct the Opposite Party restructure the Loan, the complaint dt.06.01.2014 and 09.01.2014 were forwarded by the Reserved Bank of India to the Opposite Party and the Opposite Party has duly replied to the same vide reply dt.10.02.2014, stating that such restructure is not permissible under the loan agreement.  Hence prays to dismiss the complaint.

4. After filing the version, the Complainant amended the complaint and incorporated with undue influence and coercion also without adopting the due process of law.   The Opposite Party has taken possession of the car bearing No.KA-04-MH-9904 in their custody under the guise of application of Sarfeasi Act.  In reality none of the provisions of the said Sarfeasi Act is applicable to the Opposite Party in seizing of Complainant’s car and they acted detrimental interest with an ulterior motive and thereby the said illegal acts of Opposite Party, both Complainant and her daughter Kuamri Shalini Khemka have suffered mentally due to seizure of the said car by the men of Opposite, when her physically and mentally challenged blind daughter was in the car lonely and made her to get down from the car in the street and possessed it without adopting the due process of law.  The Opposite Party has caused demand notice dt.10.06.2013 and demand notice dt.18.06.2013 to the Complainant is utterly false.  No demand notice was issued by the Opposite Party to the Complainant before seizing the car bearing as they too have ample knowledge that they have to cause mandatorily demand notice before seizing it.  In this regard the Complainant is relied upon demand notice dt.15.01.2014 was issued by the Opposite Party.  In totally, in seizing the car bearing No.KA-04-MH-9904 on the road by the men/representative/agents of the Opposite Party is highly condemnable and they are liable to be compensated to the Complainant.

5. After amending the complaint, the Opposite Party filed an additional version, in the additional version pleaded that the Opposite Party is a NBFC and they are aware that provisions of the Sarfeasi Act is not applicable to them and nowhere have they claimed to take possession of the vehicle under the said Act.  In fact the Opposite Party derives their authority to take possession of the vehicle from the very loan agreement executed by the parties.

6.      The Complainant, Smt.Usha Khemka has been filed her affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Sri.Niranjan B has been filed.  Heard the arguments of both parties.

, 

7.      The points that arise for consideration are:-

1. Whether this Forum has no Jurisdiction to entertain the complaint?
2. Whether this complaint is not maintainable as per Clause-26 of the Loan Agreement dt.28.12.2010?
3. Whether the Complainant has proves the alleged deficiency in service by the Opposite Party ?
4. If so, to what relief the Complainant is entitled?

8.     Our findings on the above points are:-

                POINT (1):- Negative

                POINT (2):- Affirmative

                   POINT (2):- Negative

                POINT (3):- As per the final Order

REASONS

9.   POINT NO.1:- The learned Counsel for the Opposite Party argued that this Forum has no Jurisdiction to entertain the complaint, as per Cluase-27 of the Loan Agreement dt.28.12.2010 executed between the Parties to these proceedings.  It is agreed by and between the parties that the Courts at Chennai alone shall have exclusive jurisdiction in respect of any dispute.  This complaint ought to have filed before Chennai, this Forum have no Jurisdiction to entertain this complaint in view of Clause-27 of the Loan Agreement.

10. The learned Counsel for the Complainant argued that this Forum has got Jurisdiction to entertain this complaint.  Since the cause of action in this complaint arises within the Jurisdiction of this Forum, the Complainant availed loan from Opposite Party No.2, who is carrying business in Bangalore and the loan agreement is executed in Bangalore, thereby this Forum has got Jurisdiction to entertain the complaint.  But there is no bar to entertain this complaint by this Forum. 

11. With this argument and on perusal of record, nodoubt the Loan Agreement dt.28.12.2010 executed between the parties, Clause-27 in respect to the Jurisdiction and as per this Clause any dispute arises between the parties, Chennai Courts have exclusive Jurisdiction to that itself is not proper to prove that this Forum have no Jurisdiction.  Section 11 of the Consumer Protection Act, 1986 refers to the Jurisdiction of the District Forum.  As looking into this Seciton-11, it is very clear that the District Forum shall have Jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs. 

     A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business and the cause of action, both are particularly arises so admittedly. 

     12. The 2^nd Opposite Party’s office in Bangalore and carrying business in Bangalore and alleged Loan Agreement dt.28.12.2010 executed between the parties in Bangalore is within the Jurisdiction of this Forum, thereby, this Forum has got Jurisdiction to entertain the complaint.  Therefore, it is not proper to accept the argument put forth by the learned Counsel for the Opposite Party that this Forum has got Jurisdiction to entertain the complaint.  Hence, this point is held in the Negative. 

13.  POINT NO.2:-The learned Counsel for the Opposite Party argued that the complaint is not maintainable as per Cluase-26 of the Loan Agreement dt.28.12.2010 executed between the parties, all disputes and difference that arise between them would be settled by Arbitration under the Arbitration and Conciliation Act.   Thereby, this complaint is not maintainable.  On the other hand, the learned Counsel for the Complainant argued that this complaint is not maintainable, in view of Seciton-3 of the Consumer Protection Act, 1986.  The Seciton-3 of the Consumer Protection Act is very clear the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law, thereby this complaint is maintainable.  With this argument, on perusal of record nodoubt as per Clause-26 of the Agreement entered between the parties to the proceedings there is clear Clause all disputes and difference and /or claim arising out of these presents or in any way touching or concerning the same or as to constructions, meaning or effect hereof or as to the right and liabilities of the parties hereunder shall be settled by arbitration to be held in accordance with the provision of the Arbitration and Conciliation Act, 1996 but mere insertion of Clause 26 in the Loan Agreement and agreeing that parties can settle the disputes through Arbitration and Conciliation Act that itself is not sufficient to hold that this complaint is not maintainable. As rightly argued by the learned Counsel for the Complainant, Seciton-3 of the Consumer Protection Act, 1986 is very clear that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law, thereby Section-3 is overriding effect of other laws.  Hence, this complaint is maintainable.  Hence, this point is held in Affirmative. 

14. POINT NO.3:- As looking into the averments of the complaint and also the version filed by the Opposite Party, it is not in dispute that the Complainant had availed the loan of Rs.7,30,000/- from the Opposite Party on 28.12.2010 and agreed to repay the said loan on 48 monthly installments commencing from 05.01.20111 to 05.02.2014.  The Complainant was taking her children to the School by car Registration bearing NO.KA-04-MH-9904 making all of a sudden the Opposite Party representatives agents forcibly stopped the vehicle by abuse in filthy language, taken the possession of the vehicle without issuing notice reminders.  In order to substantiate this, the Complainant in his sworn testimony, reiterated the same and produced Schedules.  As looking into this document, the Complainant agreed to repay the loan in 48 monthly installments of Rs.19,900/- commencing from 05.01.2011 to 05.02.2014. Except this document, the Complainant has not produced any other evidence to show that the Complainant is regularly payment of installments the Complainant has not produced any evidence and also except interested version of the Opposite Party without giving notice forcibly and illegally took the possession of the Car.

15.  On the other hand, the defence of the Opposite Party is that the Complainant is a chronic defaulter repayment of the installment.  In spite of receipt of the demand notice fails to pay installment.  For that reason, he took the repossession of the vehicle.  To substantiate this defence, Sri. Niranja B, Legal Manager of Opposite Party, in his sworn testimony, reiterated the same and produced Statement of Account.  As looking into this Statement of Account, it clearly shows that the Complainant is regularly paying 7 installments thereafter she become defaulter and in order to show that the Complainant is a defaulter in payment of installment amount produced the Reply notice issued by the Complainant.  By looking into this document, it clearly shows that the Opposite Party had issued demand notice on 10.06.2013 and demanded for repayment of the outstanding loan.   For that the Complainant issued Reply on 18.06.2013 stating that they will take outstanding dues before 30.06.2013.  As per the Reply given by the Complainant himself, the Complainant in Reply admitting that they were ready to repay the due amount within 13.06.2013.  In spite of that they fails to repay the due amount and also produced the letter addressed by the Complainant dt.19.11.2013 requesting the Opposite Party to restructure the loan.  This evidence clearly goes to show that the Complainant is irregular in repayment of the loan amount and the Complainant is a defaulter.  For that reason the Opposite Party after taking proper steps took repossession of the vehicle.  But the Complainant fails to prove that there is a deficiency of service on the part of the Opposite Party.  Furthermore the Complainant fails to prove that the Opposite Party took possession of the vehicle i.e., car bearing No.KA-04-MH-9904 illegally and forcibly, thereby the Complainant fails to prove that there is a deficiency of service on the part of the Opposite Party and also the Opposite Party are adopting unfair trade practice.  Hence, this point is held in the Negative.  

16. POINT NO.4:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed.  No costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of April 2017)

    MEMBER                                              PRESIDENT

                LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Smt.Usha Khemka, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of Loan Agreement dt.28.12.2010
2. Copy of the Loan Schedule-I
3. Copy of the Form Schedule-2
4. Copy of the Payment Receipt dt.13.01.2014
5. Copy of the Receipt dt.13.01.2014
6. Copy of the Letter dt.15.01.2014
7. Copy of the Postal Envelops cover dt.15.01.2014.
8. Copy of the Reply of Opposite Party dt.05.05.2014.
9. Narrative Summary Issued by the Hinduja Hospital dt.03.07.1992

10. Medical Research Foundation of Sankara Nethralaya dt.02.12.1992
11. PET CT Scan dt.06.08.2007 with X-ray
12. Medical prescription dt.26.11.1992 (2 in nos).

Witness examined on behalf of the Opposite Party:

1. Sri.Niranjan, Legal Manager of the Opposite Party.

List of documents filed by the Opposite Party:

1. Copy of Proposal Dt.28.12.2010
2. Copy of the Loan Agreement dt.28.12.2010
3. Copy of the Statement of Accounts of the Complainant
4. Replay Notice dt.18.06.2013
5. Letter written by the Complainant to the Opposite Party asking for restructure of loan are produced
6. Copy of the letter dt.06.01.2004 written by the Complainant to the Reserve Bank of India
7. Copy of the Letter dt.09.01.2004 written by the Complainant to the Reserve Bank of India
8. Reply of the Opposite Party dt.10.02.2014.

  MEMBER                                           PRESIDENT