Karnataka

Chitradurga

CC/26/2017

Darshan S/o Nagrajappa - Complainant(s)

Versus

Manager,Magna Fincorp Co.Ltd., - Opp.Party(s)

K.Veerabhadrappa

14 Sep 2017

ORDER

COMPLAINT FILED ON:14.03.2017

DISPOSED      ON:20.09.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 26/2017

 

DATED:  20^th SEPTEMBER 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT

                                B.A., LL.B.,

                   SRI.N. THIPPESWAMY                 : MEMBER

                                  B.A., LL.B.,   

              

……COMPLAINANT	Darshan S/o Nagarajappa, Age: 36 Years, Dyamalamba Nilaya, Madakaripura, Presently Residing at: Bharathi Cement Corporation Ltd., Industrial Area, Chitradurga.   (Rep by Sri. K. Veerabhadrappa, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Manager, Magma Fin Corp Co., Ltd., J.C. Road, Bangalore.   2. The Manager, Magma Fin Corp Co., Ltd., Door No. 153/A Road, Dr. Parvatappa Building, Pouls Convent Road, Beside Unity Health Centre, P.J. Extension, Davanagere.   3. Basavaraj Talvar, Collector Agent, Code No.35071, Magma Fin Corp Co., Ltd., Near Onake Obavva Stadium, Chitradurga.   (Rep by Sri. K.B. Chandrappa, Advocate for OP No.1 and 2, OP No.3 ex-parte)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay Rs.4,13,000/- towards compensation and Rs.50,000/- towards mental and such other reliefs.

 

2.      The brief facts of the case of the above complainant are that, complainant is the owner of Lorry bearing Registration No.KA-16-8738 and he is leading his life out of the income from the said lorry.  Complainant has obtained a loan of Rs.6,90,000/- by executing an agreement by pledging the said vehicle.  As per the agreement entered into with the OPs, complainant is paying premium of Rs.21,910/-.  It is further submitted that, on 21.11.2016 the OPs have refused to take old Rs.500/- and Rs.1,000/- rupee notes when the complainant went for payment of Rs.1,61,120/-.  It is further submitted that, the OPs have seized the said vehicle even though the complainant has paid Rs.8,29,400/-  as on 20.11.2016 without any intimation.  After seizure of the vehicle, OPs have sent a notice demanding to pay Rs.2,98,967/- stating that the interest at the rate of 3% to be paid by the complainant which is not correct and the same is against to the law.  It is further submitted that, if the complainant fails to pay the above said amount, they will sold the said vehicle and if there is any shortage in the auction amount, they will take legal action to get the remaining amount.  It is further submitted that, at that time, complainant has surveyed the above said vehicle by the surveyor, who estimated for a sum of Rs.9,00,000/-.  After the notice complainant has paid the entire amount but, OPs failed to give agreement cancellation letter and again asked to pay Rs.20,000/-.  Complainant paid Rs.20,000/- on 27.12.2016 but, failed to give agreement cancellation letter.  OPs have given agreement cancellation letter on 24.01.2017 after the lapse of 28 days, which caused the complainant financial loss.  The cause of action arise for the complaint arose on 23.11.2016 when the OPs seized the vehicle.   It is further submitted that, the date of agreement entered into between the complainant and OPs was 31.05.2013 and the date of commencement of installment was on 19.05.2013 and the end of installment is on 19.05.2017.  The OPs have seized the vehicle on 23.11.2016.  The complainant has paid 42 installments out of 48 installments.  The complainant has obtained a loan of Rs.6,90,000/- and paid in all a sum of Rs.11,11,03,000/-, i.e, Rs.4,13,000/- in excess.  It is further submitted that, the OPs have seized the vehicle without giving any prior seizure notice, which is a deficiency of service on the part of OPs    and prayed for allowing the complaint. 

3.      On service of notice OP No.1 and 2 appeared through Sri. K.B. Chandrappa, Advocate and filed version.  Even though the notice issued by this Forum to OP No.3, it remained absent hence, placed ex-arte. 

OP No.1 and 2 filed version denying the entire averments made in the complaint and prayed for dismissal of the complaint.  The OPs have branches at Davanagere and there is no branch offices or staffs working at Chitradurga.   It is further submitted that, on 31.05.2013 complainant approached OP No.1 and 2 and obtained a loan for Rs.6,90,000/- by hypothecating the above said lorry.  The complainant has agreed to pay flat interest in 48 instalments at Rs.21,910/- per month.  The complainant is a chronic defaulter in repayment of loan installments and he was due of about 6-7 installments.  The complainant was due in a sum of Rs.3,50,000/- at the time when the lorry seized by the OPs including all charges.  It the request of the complainant Rs.2,00,000/- has been waived off by the OPs and returned the vehicle to him.  As per the agreement, if there is any disputes, the complaint should file before the Arbitration u/Sec.8 of the Act.  Therefore, this Forum has no jurisdiction to entertain this complaint and prayed for dismissal of the complaint. 

4.      Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-6 were got marked. On behalf of OPs one Sri. Narendrasingh. M.J, Legal Officer of OP No.1 and 2 examined as DW-1 by filing affidavit evidence, One Sri. S. Vasanth, Branch Manager of OP No.2 examined as DW-2 by filing affidavit evidence and no documents have been got marked.   

5.      Arguments of both sides heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OPs have committed deficiency of service in seizing the vehicle and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

          7.      Our findings on the above points are as follows:-

          Point No.1:- Negative.

          Point No.2:- As per final order.

REASONS

8.      It is not in dispute that, complainant is the owner of Lorry bearing Registration No.KA-16-8738 and obtained a loan of Rs.6,90,000/- by executing an agreement by pledging the said vehicle.  As per the agreement entered into with the OPs, complainant was paying premium of Rs.21,910/-.  On 21.11.2016 the OPs have refused to take old Rs.500/- and Rs.1,000/- rupee notes when the complainant went for payment of Rs.1,61,120/-.  After that, the OPs have seized the said vehicle even though the complainant has paid Rs.8,29,400/-  as on 20.11.2016 without any intimation and sent a notice demanding to pay Rs.2,98,967/- with  interest at the rate of 3% to be paid by the complainant. If the complainant fails to pay the above said amount, they will sold the said vehicle and if there is any shortage in the auction amount, they will take legal action to get the remaining amount.  After the notice complainant has paid the entire amount but, OPs failed to give agreement cancellation letter and again asked to pay Rs.20,000/-, the same has been paid by the complainant on 27.12.2016.  But, OPs failed to give agreement cancellation letter, the same has been given on 24.01.2017 after the lapse of 28 days. The agreement entered into between the complainant and OPs was 31.05.2013 and the commencement of installment was on 19.05.2013 up to 19.05.2017.  The OPs have seized the vehicle on 23.11.2016.  The complainant has paid 42 installments out of 48 installments.  The complainant has obtained a loan of Rs.6,90,000/- and paid in all a sum of Rs.11,11,03,000/-, i.e, Rs.4,13,000/- in excess.  The OPs have seized the vehicle without giving any prior seizure notice, which is a deficiency of service on the part of OPs.

 9.     In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and relied on the documents like true copy of the agreement marked as Ex.A-1, true copy of balance sheet marked as Ex.A-2, presale notice dated 28.11.2016 marked as Ex.A-3, policy marked as Ex.A-4, goods carriage permit marked as Ex.A-5 and certificate of registration marked as Ex.A-6.

10.    On the other hand, it is argued by the OP No.1 and 2 that, complainant approached OP No.1 and 2 on 31.05.2013 to obtain a loan for Rs.6,90,000/- by hypothecating the above said lorry.  The complainant has agreed to pay flat interest in 48 instalments at Rs.21,910/- per month, but, failed to pay the installments regularly and become a chronic defaulter. The complainant was due in a sum of Rs.3,50,000/- at the time when the lorry was seized by the OPs including all charges.  At the request of the complainant Rs.2,00,000/- has been waived off by the OPs and returned the vehicle to him.  As per the agreement, if there is any disputes, the complaint should file before the Arbitration u/Sec.8 of the Act.  Even though the complainant has not paid the entire amount, at the request of the complainant, OPs have taken lesser amount against the actual due and closed the transaction.  Therefore, the complainant is not come under the C.P Act, therefore the complainant has to approach Hon’ble Civil Court for his redressal.   

 11.   In support of their contention, OPa have affidavit of Sri. Narendrasingh. M.J, Legal Officer of OP No.1 and Sri. S. Vasanth, Branch Manager of OP No.2 examined as DW-1 and DW-2 and reiterated the contents of version.

12.   On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out that, complainant is the owner of Lorry bearing Registration No.KA-16-8738. He has obtained a loan of Rs.6,90,000/- by executing an agreement by pledging the said vehicle woth OPs.  As per the agreement, complainant has to pay premium of Rs.21,910/-.  It is the contention of the complainant that, the OPs have seized the said vehicle even though the complainant has paid Rs.8,29,400/-  as on 20.11.2016 without any intimation and sent a notice demanding to pay Rs.2,98,967/-. The complainant has paid the entire amount but, OPs have given agreement cancellation letter on 24.01.2017 after the lapse of 28 days, which caused the complainant financial loss.  The complainant has paid 42 installments out of 48 installments.  The complainant has obtained a loan of Rs.6,90,000/- and paid in all a sum of Rs.11,11,03,000/-, i.e, Rs.4,13,000/- in excess.   It is the contention of OPs that, complainant approached OP No.1 and 2 on 31.05.2013 for release of loan for a sum of Rs.6,90,000/- by hypothecating the above said lorry.  The complainant has agreed to pay flat interest in 48 instalments at Rs.21,910/- per month, but, failed to pay the installments regularly and become a chronic defaulter. The complainant was due in a sum of Rs.3,50,000/-.  Therefore, the OPs have issued notice demanding to pay the dues.  At the request of the complainant Rs.2,00,000/- has been waived off by the OPs and returned the vehicle to him.  When the complainant paid the amount due to the OPs by accepting the demand made by the OPs to release the lorry and the matter was settled in one time settlement, the question of repayment of excess amount does not arise.  Moreover, the complainant has agreed to pay the flat interest and signed the agreement entered into between himself and the OPs.  Such being the case, the complainant is not entitled to receive any relief.  Therefore, we come to the conclusion that, there is no deficiency of service on the part of OPs.  Accordingly, this Point No.1 is held as negative to the complainant.          

            13.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of C.P Act 1986 is hereby dismissed.  No order as to costs.

 

 (This order is made with the consent of Member after the correction of the draft on 20/09/2017 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

 

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OP No.1 and 2:

DW-1:  Sri. Narendrasingh. M.J, Legal Officer of OP No.1 by way of affidavit evidence.

DW-2:  Sri. S. Vasanth, Branch Manager of OP No.2 by way of affidavit evidence.

Documents marked on behalf of Complainant:

01	Ex.A-1:-	True copy of the agreement
02	Ex.A-2:-	True copy of balance sheet
03	Ex.A-3:-	Presale notice dated 28.11.2016
04	Ex.A-4:-	Policy
05	Ex.A-5:-	Goods carriage permit
06	Ex.A-6:-	Certificate of registration

 

Documents marked on behalf of OPs:

-Nil-

 

 

MEMBER                                                            PRESIDENT

Rhr**