FA.No.1221/2010 against C C.No.1076/2008

District Forum-I, Hyderabad

Between

HDFC Bank Limited,

Rep. by its Manager,

4^th floor, Lala Landmark,

5-4-94 to 97, Ranigunj

M.G.Road, Secunderabad-3.                                          ..Appellant/

                                                                                Opp.party

                And

Mr.V.Suresh Kumar Yadav,

S/oV.Narsimha Yadav, aged 28 years,

Occ:Private Employee, H.No.11-3-425,

New Ashoknagar, Parsigutta,

Near Pochamma temple,

Secunderabad.                                                    ..Respondent/

 Complainant

Counsel for the Appellant               :  Mr.J.Lokesh Reddy

Counsel for the Respondent            : Mr.Mohan Bujji

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

          AND

SMT.M.SHREESHA, HON’BLE MEMBER,

WEDNESDAY, THE SIXTEENTH DAY OF MAY,

TWO THOUSAND TWELVE

Oral Order (Per Smt.M.Shreesha, Hon’ble Member)

***

        Aggrieved by the order in C.C.No.1076/2008 on the file of District Forum-I, Hyderabad, opposite party preferred this appeal

The brief facts as set out in the complaint are that the complainant availed a vehicle loan vide loan A/c No.2334713 from the opposite party.  After approval of the same, the complainant paid advance amount as down payment and purchased a two wheeler.  The complainant submitted that the loan was sanctioned during Feb, 2006 and the balance amount has to be paid in monthly instalments @ Rs.1,477/- every month starting from March, 2006 for a period of 36 months.  The complainant submitted that he had an account with HDFC Bank and the monthly EMI’s were being deducted from his bank account every month from March, 2006 to April, 2007 without default.  The complainant submitted that in April, 2007 he changed his bank account from HDFC bank to ICICI bank and also changed the ECS from HDFC to ICICI bank and ICICI informed him that it would take one month time for converting ECS from HDFC to ICICI bank and later on the ECS would continue.  The said transfer of bank was informed to opposite party bank also which has accepted for the same. However, ICICI bank has not started the ECS from May, 2007 and the opposite party bank was duly sending the cheques to HDFC bank where the complainant was initially holding account due to which the cheques were dishonoured.  Therefore, the opposite party’s representatives were collecting the instalment amounts from the complainant from May, 2007 to November, 2008 and also collecting Rs.300/- towards collection charges for which no receipt was issued.  The complainant submitted that he paid 29 instalments out of 36 instalments and there was a balance of 7 instalments to be paid.  The complainant submitted that on 13-12-2008 night, he parked his vehicle in the parking place at his residence and on 14-12-2008 his vehicle was missing and the lock was found  broken.  The complainant submitted that he had put a sum of Rs.17,000/- in the cover which was also missing, therefore, the complainant lodged a police complaint with Musheerabad Police Station.  On enquiry, the complainant came to know that the opposite party seized the vehicle due to non payment of outstanding instalments and issued a letter dated 19-12-2008 showing an outstanding amount of Rs.24287.49 later altered to 29,288/-.  The complainant submitted that the last payment was collected by the agent of the opposite party on 30-11-2008 and informed that they would come for collecting the next payment on 20-12-2008, however, before the due date, they had seized the vehicle.  The complainant submitted that a perusal of the letter dated 19-12-2008 shows that they have charged late payment, penalty charges etc. to a tune of Rs.2,797/- and cheques bouncing charges of Rs.11,074/- though he paid 29 instalments in all along with collection charges of Rs.300/- for each payment to opposite party representatives.  Further Mr.Srinivas of opposite party office collected a sum of Rs.8000/- from the complainant but the same is not reflected in the complainant’s account and the opposite party has levied late payment, penalty charges, cheque bouncing charges and seized the vehicle.  The complainant submitted that he was ready to pay the balance instalments if late payment, penalty charges and cheque bouncing charges are deleted and nominal amount is charged in addition to the instalments as he owe minimum amount and approached the opposite party on 22-12-2008 for clearing the loan account by taking into consideration the payments made by him including Rs.8,000/- but the opposite party refused to consider his case and advised him to pay the full amount on or before 26-6-2008 else the seized vehicle would be auctioned.  The complainant met Mr.Venkatesh, representative of the opposite party on 23-12-2008 and requested for a copy of receipt towards payment of Rs.8,000/- but Mr.Venkatesh offered to reduce a sum of Rs.1500/- from the account and the complainant recorded the said conversation in a CD.  Hence the complaint for a direction to the opposite party to return the seized vehicle after collecting the balance due and also refund Rs.17,000/- taken away from the vehicle together with compensation of Rs.10,000/- and costs.

Opposite party filed written version contending that the transaction arose from hypothecated loan agreement and hence the Consumer Forum has no jurisdiction.  It submitted that the complainant was very irregular in repayment of loan and the vehicle was seized as per the rules of RBI and once the vehicle is seized, the defaulter should deposit the total due and outstanding amount.  The complainant has to pay Rs.29,282/- as on 16-12-2008 and failed to perform his part of obligation and submitted that there is no deficiency in service on its part.  It further submitted that there were 28 instances of cheque bounces and though notice was issued to the complainant, he failed to pay the due amount though he was given time until 21-12-2008 vide notice dated 16-12-2008.  Opposite party further denied the allegation that their representatives were collecting Rs.300/- along with instalment amount.  They also denied that there was Rs.17,000/- in a cover on the date of seizure of vehicle and that Mr.Srinivas collected Rs.8,000/- and informing the same to Mr.Venkatesh was also denied.  It submitted that the complainant failed to pay the due amount of Rs.29,282/- to the opposite party and therefore it auctioned the same for Rs.17,500/- which was the highest bid by giving prior intimation to the complainant and the complainant has to still pay an amount of Rs.11,782/- to the bank and submitted that there is no deficiency in service and prayed for dismissal of the complaint.

Based on the evidence  adduced i.e. Exs.A1 to A24 and B1 to B6 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite party to pay Rs.20,000/- towards illegal seizure and selling the vehicle together with Rs.10,000/- compensation and costs of Rs.2,000/-.

Aggrieved by the said order, the opposite party preferred this appeal.

Written arguments of respondent filed.

        It is an admitted fact that the complainant obtained a loan of Rs.40,800/- from the opposite party to purchase a two wheeler and the amount was to be repaid in 36 EMI’s at the rate of Rs.1477/- per month.  It is the complainant’s case that he paid 29 instalments out of 36 instalments and shifted his account from HDFC to ICICI bank which did not start the ECS facility till May, 2007 as promised and therefore the HDFC cheques were dishonoured and the instalments between May, 2007 and November, 2008 were collected by charging Rs.300/- extra for which no receipt was given.  Exs.A2 to A13 are the receipts of the various instalments paid to HDFC bank.  While so on 14-12-2008, he found his vehicle missing along with cash of Rs.17,000/- kept in it from the parking place of his residence, evidenced under Ex.A14 which is the copy of the complaint given to the police   with respect to the missing vehicle.  It is also the complainant’s case that he paid an amount of Rs.8,000/- to Mr.Srinivas, opposite party’s representative for which no receipt was given. 

The opposite party contended that the complainant was a defaulter and the opposite party bank as per the agreement has every right to seize the vehicle as there are 28 instances of cheque bounces and the complainant is due an amount of Rs.29,282/- which was mentioned in Ex.A15, dated 16-12-2008 which is the letter written by opposite party to the complainant and the amount had to be cleared by 23-12-2008.  Since the complainant did not do so, the vehicle was seized.  Ex.A17 is the statement of account for Rs.29,288/- which the complainant had to pay on or before 23-12-2008 failing which his vehicle would be sold.  In this letter, the next EMI presentation is stated to be 5-1-2009.  We observe from the record that the vehicle was seized from the complainant on 14-12-2008 whereas Ex.A15 is dated 16-12-2008 i.e. two days after the seizure. Even Exs.B2 and B3 are dated 15-12-2008 respectively which are also after the date of seizure.  The record does not show anywhere that there was a pre-seizure notice given to the complainant.   It is also pertinent to note that  as per the terms and conditions of the agreement, as admittedly the opposite party in their written arguments, contended that if the borrower fails to repay 2 consecutive EMI’s or part thereof, the bank has every authority to recall the entire loan amount and is also having further right to repossess the asset of the bank and put the same for public auction as per the norms of RBI.  In the instant case, the complainant paid Rs.1477/- vide Ex.A11 dated 29-11-2008 but did not pay any amount during December, 2008 which is the month during which the vehicle was seized. Exs.A12 and A13 are dated 10-11-2008 and 30-11-2008 for Rs.2954 and Rs.1477/- respectively, therefore the record does not show that the complainant defaulted for two consecutive months.  There was also no opportunity given to the complainant to settle the account prior to the possession of the vehicle as there was no notice issued to him.  It is not in dispute that the opposite party auctioned the vehicle for Rs.17,500/- and appropriated this to his loan account stating that he is still due Rs.11,782/-.  The learned counsel for the  appellant contended that the possession of the vehicle from the complainant without issuing notice is because the complainant has defaulted in payment of the amounts.  The complainant was due six E.M.I’s as on the date of taking possession and inspite of pre-sale notie on 16-12-2008, the complainant did not pay his dues and therefore the vehicle was sold for Rs.17,500/- on 31-12-2008 and therefore it does not amount to deficiency in service.  As against this the complainant contended that he has never received any demand notice and that he is ready to pay the balance amounts provided the penalty and cheque bounce charges were deleted but the bank refused to consider his case and asked him to pay the amount on or before 26-12-2008.  It is also the case of the complainant that he paid an amount of Rs.8,000/- to the representative of the opposite party but does not have a receipt of the same but instead filed a copy of the C.D. recording the conversation which the complainant relies on as evidence for his payment on 23-12-2008.  However, in the absence of any receipt,  this type of conversation cannot be taken as conclusive evidence.   Exfacie, it can be construed that the complainant was ready and willing to settle the amounts and was not due two consecutive instalments as stated by the opposite party in their own written arguments filed before District Forum, which reads as follows:

If the borrower fails to repay 2 consequent EMI’s or part thereof, the bank has every authority to recall the entire loan amount and further having right to repossess the asset of the bank and put the same for public auction as per the norms of RBI.

Therefore, the act of the opposite party in seizing the vehicle, without issuing notice and thereafter selling it inspite of the complainant’s willingness to pay the amounts deleting the cheque bouncing charges and penalty charges, and demanding Rs.29,282/- which is inclusive of  Rs.5,000/- seizure charges, amounts to deficiency in service. Equally there is contributory negligence on behalf of the complainant also in not paying the instalments on time.  Therefore we do not see it a fit case for awarding compensation.   The complainant has used the vehicle for two years and the District Forum has rightly awarded an amount of Rs.20,000/- towards the seizure and selling away the vehicle  to meet the ends of justice as the complainant has paid 29 instalments out of 36 instalments and the  opposite party seized the vehicle after the complainant defaulted  one instalment only contrary to the terms of the agreement as stated by the opposite party in their own written arguments.  It is also pertinent to note that the opposite party did not choose to file the agreement copy on which terms, they relied upon.

In the result this appeal is allowed in part and the order of the District Forum is modified with respect to setting aside the compensation awarded while confirming the rest of the order of the District Forum.  Time for compliance four weeks. 

Sd/-PRESIDENT.

                                                                Sd/-MEMBER.

JM                                                             16-5-2012