Karnataka

Chitradurga

CC/13/2018

Sri. S. Hanumathappa - Complainant(s)

Versus

M/s Cholamandalam Investment and Finance Company Limited, - Opp.Party(s)

CM Veeranna

20 Oct 2018

ORDER

COMPLAINT FILED ON:31.01.2018

DISPOSED  ON:20.10.2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO:13/2018

 

DATED:  20^th OCTOBER 2018

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                             B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT	Sri. S. Hanumathappa @ S. Hanumantha Reddy, S/o Ayyappa, Aged about 60 years, No. 232, Tegginamaradahalli Railway gate, Molkalmuru Taluk, Chitradurga District.   (Rep by Sri.C.M. Veeranna, Advocate)
V/S
…..OPPOSITE PARTIES	1. M/s Cholamandalam Investment and Finance Company Limited, Represented by its authorized signatory, Dare House, No.2 NSC Bose road, Parrys,  Chennai-600 001.   2. The Branch Manager, Cholamandalam Investment and Finance Company Limited, Square Hubli.   3. The Branch Manager, Cholamandalam, Investment and Finance Company Limited, above Karur Vysya Bank, Santepete, Chitradurga.     (Rep by Sri.Y.H. Yogendranath, Advocate)

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.5,00,000/- along with interest @ 12% p.a from 21.04.2014, Rs.10,00,000/- towards punitive damages and to grant such other reliefs.

2.     The brief facts of the case of the above complainant is that, he has barrowed an amount of Rs.10,53,270/- from OPs and invested his amount of Rs.4,71,030/- to purchase the vehicle TATA LPT 110942 HD EX BS II on 23.02.2013 for his livelihood and self employment and he has entered into an agreement bearing No.XVFDAY 00000911770 on 23.03.2043 with the OPs for purchasing the said vehicle at Chitradurga.  OP No.2 has collected 4 blank cheques bearing No.616426, 616425, 616428 and 616429 from the complainant on 23.03.2013.  According to the agreement, the complainant has to repay the installments from 01.04.2013 to 01.03.2018.  The complainant has paid some installments to OP No.2.  The OP No.2 without giving any notice seized the vehicle and after seizing the same, OP No.2 has sold the same on 21.04.2014 for Rs.6,20,000/-.  After that, the OP No.2 has presented the cheque bearing No.616426 for Rs.7,58,717/- drawn on PKGB, B.G. Kere, Molakalmuru taluk on 07.01.2017.  The said cheque presented before the ICICI Bank, P.B. Road Branch, Davanagere was dishonored.  The OP No.2 has filed a Criminal case u/Sec.138 of N.I Act before the II Addl., JMFC, Davanagere and the same is numbered as 1060/2017.  After seizing the vehicle, the complainant has filed a complaint before this Forum in C.C. No.2/2014 against the OPs on 15.07.2014, the same has been disposed.  In this case, the complainant has raised his objection that, the OPs have seized the vehicle without following procedure and sold the vehicle without following any procedure and after selling the same, they have not followed the procedure as contemplated under law.  This Forum has disposed the case and directed the OPs to pay a sum of Rs.11,65,000/-.  Against that order, the OPs have preferred an appeal before the Hon’ble State Commission.  Now the case is pending before the Hon’ble State Commission.  In the meanwhile, these OPs have mis used the blank cheques obtained from the complainant and presented the same before the concerned Bank and filed the case before the concerned Court, this is a deficiency of service committed by the OPs and therefore, the complainant is entitled for punitive damages from the OPs.  All the transactions have been held in Chitradurga Town and hence, this Forum has got jurisdiction to entertain this complaint and prayed for allowing the complaint.

3.     After service of notice to the OPs, one Sri.Y.H. Yogendranath, Advocate appeared on behalf of OPs and filed version.

According to the OPs, this Forum has no jurisdiction to entertain this complaint.  Section 2(d) of the C.P. Act is not attracted to this case.  The definition of Section 2(d) is different from the contents of this case and further the case of the complainant is not maintainable either in law or on facts and the same is liable to be dismissed in limine and this case comes before the Arbitrator.  The Arbitration authority is at Chennai.  The complainant is at liberty to file the case before the Arbitrator at Chennai only and not before this Forum.  Further it is stated that, the OPs have not committed any deficiency of service and they have not made any negligence to follow the procedure as contemplated under law.  The OPs have issued notice to the borrower and also to guarantor before seizing the vehicle and further stated that, they have lodged a complaint before the concerned Police before seizing the vehicle.  After seizing the vehicle, they have issued notice to the complainant to come and take back the seized vehicle within 15 days from the date of seizing the vehicle.  But the complainant or his guarantor neglected to come before the OPs.  Finally, the OPs have sold the said vehicle in a public auction.  As per the auction, the vehicle was sold for a sum of Rs.6,20,000/- and the same has been adjusted to the loan account of the complainant and also issued demand notice for paying the remaining balance amount.  Accordingly, the OPs have stated that, they have not committed any deficiency of service and not violated any procedure as contemplated under law at the time of seizing the vehicle and sold the same and prayed for dismissal of the complaint.

4.     Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 and A-2 got marked.  OPs have examined one Sri.Thippeswamy.K, the Legal co-ordinator as DW-1 and no documents have been got marked and closed their side.

5.     Arguments heard.

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

(1)  Whether the complainant proves that the OPs have committed deficiency of service by using the blank cheques when the case is pending before the Hon’ble State Commission 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:- Partly in Affirmative.

                Point No.2:- As per final order.

REASONS

8.     It is not in dispute that, the complainant has obtained loan from OPs for purchase of vehicle TATA LPT 110942 HD EX BS II on 23.02.2013 for Rs.10,53,270/- and invested an amount of Rs.4,71,030/-.  After obtaining the loan from the OPs, the complainant has purchased the above said vehicle and further he agreed to repay the same within 60 installments, the first installment commenced on 01.04.2013.  Accordingly, the complainant has paid some installments.  Due to some financial crisis, he has not paid the installments regularly.  The OPs have seized the vehicle without following the procedure as contemplated under law.  By that time, the complainant has filed the complaint before this Forum, the same was registered in C.C.No.2/2014.  After holding the proper enquiry, this Forum has passed an order against the OPs directing them to pay Rs.11,65,600/-.  Against that order, the OPs have preferred an appeal before the Hon’ble State Commission.  But the OPs have stated in their version that, the complaint filed by the complainant is not maintainable, this Forum has no jurisdiction to entertain this complaint and further the OPs have stated in their version that, the OPs have not violated any procedure as contemplated under law.  They have issued notice to the complainant before seizing the vehicle and also lodged a complaint before the concerned Police before seizing the vehicle.  After seizing the vehicle, the OPs have issued notice to the complainant and also to guarantor to come and take back the seized vehicle within 15 days.  By that time also, the complainant was not present.  Finally, the OPs have sold the vehicle in a public auction and adjusted the auction amount to the loan account of the complainant and issued demand notice for payment of remaining amount.  The arguments advanced by the complainant that, the OPs have not issued any notice and also demand notice and not lodge a complaint before any concerned Police.  After seizing the vehicle, they have not issued any notice to him.  After selling the vehicle, the OPs have not issued any notice to him.  At the time of obtaining the loan, the OPs have collected blank cheques from the complainant.  Whatever the orders passed by this Forum against the OPs, they have preferred an appeal before the Hon’ble State Commission and the same is pending.  When the case is pending before the Hon’ble State Commission, what rights the OPs have got to file a case before the concerned Court u/Sec.138 of N.I Act.  The OPs have argued that, they have not committed any deficiency of service and issued notice to the complainant and guarantor before seizing the vehicle and after seizing the vehicle, they have issued notice to the complainant to come and take back the vehicle by paying the loan amount to the OPs.  By that time also, the complainant fails to take back the vehicle.  Hence, the OPs have not committed any deficiency in service.     

      

9.     We have gone through the entire documents filed by the complainant and the affidavit filed by the OPs.   No doubt that there is no dispute between the parties that, the complainant has availed loan from the OPs for purchase of the above said vehicle.  After purchasing the same, due to financial difficulties, the complainant has not paid the installments regularly.  The OPs have seized the vehicle and sold the same for a meager amount and adjusted the same to the loan account of the complainant.  Here the case is on hand that, the OPs have stated in their version and affidavit that, they have followed the procedure as contemplated under law before seizing the vehicle and they have also lodged a complaint before the concerned Police.  After seizing the vehicle, they have issued notice to the complainant to come and take back the seized vehicle.  We have perused the entire documents filed by the complainant.  The OPs have never produced any piece of paper before this Forum, they have simply stated in their version and affidavit and they have not produced any documents in support of their case.  Hence, the facts stated in the affidavit is not believable at this stage.  Moreover, when the case is pending before the Hon’ble State Commission for the same facts, how it is possible to mis-use the cheques collected from the complainant and moreover the OPs have filed a false affidavit before this Forum as well as II Addl., JMFC, Davanagere.  Therefore, there is a deficiency in service on the part of OPs and hence the complainant is entitled for punitive damages against the OPs.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.

10. 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 CP Act 1986 is partly allowed.

It is further ordered that the OPs are hereby directed to pay a sum of Rs.5,00,000/- to the complainant towards punitive damages along with interest at the rate of 9% p.a from 21.04.2014 till realization.

It is further ordered that, the OPs are hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of this proceedings to the complainant. 

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

            (This order is made with the consent of Member after the correction of the draft on 20/10/2018 and it is pronounced in the open Court after our signatures)         

           

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined onbehalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri. Thippeswamy.K, Legal Co-ordinator by way of affidavit evidence.

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Certified copy of the order sheet in PCR No.149/2017
02	Ex-A-2:-	Certified copy of the complaint filed in C.C.No.1060/2017

 

Documents marked on behalf of OPs:

-Nil-

 

MEMBER                                                   PRESIDENT

Rhr**