Telangana

Mahbubnagar

CC/11/53

K. Vishwanath Reddy S/o K. Ram Reddy - Complainant(s)

Versus

M/s Shriram City Union Finance Limited, Represented by its Manager - Opp.Party(s)

Sri M. Chennaiah Goud

06 Jul 2011

ORDER

  BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Wednesday, the 6^th day of July, 2011 

                                                  Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

                                                                      Sri A. Veerupakshi, B.A., LL.B., Member        

      Smt.D.Nirmala, B.Com., LL.B.,Member

C.C.NO. 53  Of   2011

Between:-

K. Vishwanath Reddy S/o K. Ram Reddy, aged 29 years, Occ: Sub Contractor, R/o H.No.1-2, Gudibanda village, Addakal Mandal, Mahabubnagar District.   

                                                               … Complainant

 

And

M/s Shriram City Union Finance Limited, Represented by its Manager, R/o D.No.1-5-35, 1^st Floor, New Town, Mahabubnagar.  

                                                        … Opposite Party

 This C.C. coming on before us for final hearing on 1-7-2011 in the presence of Sri M. Chennaiah Goud, Advocate, Mahabubnagar for the complainant and Sri K. Chandramouli, Advocate, Mahabubnagar for the opposite party and the matter having stood over for consideration till this day, this Forum made the following:   

                                                                                                       O R D E R

  (Smt.D.Nirmala, Member)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to stop the auction of the vehicle and hand over the TVS Star City after receiving due installments i.e., February and March, 2011 installment or return vehicle costs with interest from seizure of vehicle and to pay Rs.20,000/- towards financial loss for seizing of the vehicle, Rs.20,000/- towards compensation for adopting unfair trade practice and deficiency of service and also to pay Rs.10,000/- towards costs of the complaint.  

2. The averments of the complaint in brief are that:- The complainant is the owner of the vehicle TVS Star City. He, for his daily use, purchased the vehicle for a sum of Rs.47,500/- by making down payment of Rs.18,500/- and obtaining finance of Rs.30,000/- from the opposite party. While obtaining loan of Rs.30,000/- the complainant in the month of November,2010 entered into an agreement with the opposite party vide  AG No.CTWMHBNR 0002305 agreeing to repay the same in 23 monthly installments @ Rs.1,781/- per month commencing from the month of January,2011and at the same time 23 cheques in favour of the opposite party. Later the complainant regularly paid the installment for the month of January, 2011 and was having due only for the month of February, 2011, but in the mean time when the complainant on 5-3-2011 came to Mahabubnagar along with his wife for medical checkup, the agents of the opposite party stopped the vehicle at New Town, Mahabubnagar and forcibly taken away the vehicle. Then the complainant when approached the opposite party and requested to release his vehicle on receiving the due installment amount for the months of February and March, 2011, the opposite party demanded for the payment of the entire future installments informing him that in case of non payment of the entire amount, the vehicle will be auctioned shortly. In fact the opposite party having received advanced cheques with him and instead of presenting the same to the bank, forcibly taken away the vehicle that too without any notice to him.  Such acts on the part of the opposite party amounts to unfair trade practice and deficiency of service. Thus the present complaint is filed for the aforesaid relief.

3. The opposite party in turn filed counter contending that there is no truth in the case of the complainant, that in fact the complainant himself committed default in making payment of the installments amount, that he had not even paid amount for the 1^st installment in time and later on completely failed to pay the amount for the installments due for the months of February and March, 2011, and contravened the terms and conditions of the agreement executed by him, and that the complainant himself loosing his hopes in arranging the payment finally handed over the vehicle voluntarily along with consent letter for seizure saying that he cannot arrange the payment.  It is further stated that even 1^st monthly installment was not arranged by the complainant inspite of dishonor of cheque and in that regard when repeated demands were made by the opposite party the complainant paid cash of monthly installments of Rs.1,781/- on 30-1-2011 though as per the agreement he has to pay the installment on or before 7^th of every month and similarly the cheque for the 2^nd monthly installment was also dishonored and when the same was informed to him through intimation the complainant not paid monthly installment and therefore he is a chronic defaulter.  It is also further stated that as per clause 10(ii) when once the complainant became defaulter in paying monthly installment the question of continuation of arrangement does not arise and he has to pay the total future installments and can take back the vehicle failing which the opposite party will be at liberty to auction the seized vehicle as per agreement and therefore there is no unfair trade practice or deficiency of service on the part of the opposite party and thus the complaint is liable to be dismissed with costs.       

4. Thereupon the complainant in support of his claim filed his affidavit evidence and got marked the consent seizure letter as Ex.A-1 and the counterfoil of the bank to show that under which he has paid a sum of Rs.2,000/- to the opposite party on 31-1-2011 as Ex.A-2.  On the other hand, the opposite party in support of his contentions filed his affidavit evidence and got marked the loan cum hypothecation agreement executed by the complainant as Ex.B-1 and the loan application of the complainant as Ex.B-2.   

5.  The points for determination now are: 

1.  Whether is there any deficiency of service and unfair trade practice on the part of the opposite party as alleged?
2.  Whether the complainant is entitled for the relief sought for by him? 

    (iii)  To what effect? 

6.  As per the undisputed documents Exs.B-1 and B-2 it is an admitted fact that the complainant on presenting loan application as under Ex.B-2 obtained loan of Rs.33,000/- from the opposite party and accordingly entered into an agreement as under Ex.B-1 agreeing to repay the same in 23 installments @ Rs.1,781/- on or before 7^th of every month commencing from the month of January, 2011.    

7. Point Nos.1 and 2:- It is the case of the complainant that at the time of entering into the agreement Ex.B-1 he had issued 23 cheques in favour of the opposite party and later as per the terms of the agreement he regularly paid the monthly installment for the month of January, 2011.  In this regard, the contention of the opposite party is that when the cheque for the 1^st installment was dishonored and when the same was brought to the notice of the complainant demanding for payment, the complainant at last paid the said installment amount only on 31-1-2011 as can be seen from Ex.A-2 bank counterfoil and later on committed default in payment of the amount for the 2^nd and 3^rd installments though he is aware of the dishonor of the cheque for the 2^nd installment and therefore the complainant is a chronic defaulter. The said fact is not disputed by the complainant at anywhere either in the complaint or in his affidavit evidence.  Further, the complainant having relied upon Ex.A-2 counterfoil did not assign any reason for such delay in making payment though as per the agreement executed by him he is liable to pay the same on or before 7^th of January, 2011. Therefore, it can clearly be said that there is no truth in the case of the complainant that he regularly paid the installment for the month of January, 2011.  In other words, it can clearly be said that the complainant is not regular in payment of the amount even from the 1^st installment onwards. The complainant himself at one stage clearly admits that he was having due for the month of February, 2011 by 5-3-2011 the date on which the opposite party repossessed the vehicle.  The complainant similarly not assigned any reason for non payment of the installment amount for the month of February, 2011 till 5-3-2011.  Therefore, it appears from the said admission and as rightly contended by the learned counsel for the opposite party, it can clearly be said that the complainant is a chronic defaulter in making payment of installments amount and contravened the terms and conditions of the agreement Ex.B-1 executed by him.  

8.  It is the further case of the complainant that on 5-3-2011 when he came to Mahabubnagar along with his wife for medical check up, the agents of the opposite party came and stopped his vehicle and forcibly taken away the same without giving any notice and ready to auction the vehicle and such acts on the part of the opposite party amounts to unfair trade practice and deficiency of service.  In support of his contentions the learned counsel for the complainant relied upon a decision reported in IV (2009) CPJ 130 (ICICI Bank and Another Vs. J. Hari Krishna).  But that was the case where the complainant therein even after paying most of the amount towards discharge of his liability the opposite party forcibly repossessed the vehicle even without informing him and later on demanded higher amount than the amount actually to be paid by the complainant for release of the vehicle and illegally sold away the vehicle and further no evidence filed by the opposite party evidencing that notice issued to complainant prior to seizure of vehicle or before its sale, and under said circumstances it was held that act of seizure of vehicle and selling away the same is illegal.   But the said decision is not applicable to the facts and circumstances in the case on hand for the reason that it is the contention of the opposite party that the complainant himself voluntarily surrendered the vehicle along with consent seizure letter as under Ex.A-1 by saying that he cannot arrange the payment.  It is the contention of the complainant that Ex.A-1 did not contain his signature. Suppose if the said consent letter Ex.A-1 is produced by the opposite party and it does not contain the signature of the complainant then an adverse inference can be drawn against the opposite party with regard to the genuiness of the document.  But this is the case where such consent seizure letter Ex.A-1 containing the signature of the opposite party was produced by the complainant himself. So, simply because Ex.A-1 does not contain the signature of the complainant it cannot be contended by the complainant that Ex.A-1 cannot be looked into.  That apart, the complainant had also not assigned any reason as to how he came into possession of the said document.  Therefore, the contention raised by the complainant that the opposite party forcibly repossessed the vehicle without issuing any notice is not tenable.  So, it is made clear from the record that the complainant not only failed to pay the 1^st installment in time but also committed default in payment of the 2^nd installment for the month of February, 2011 till 5-3-2011 the date on which the vehicle was repossessed by the opposite party.  It is an admitted fact that as per clause 10(ii) of the agreement Ex.B-1 when once the complainant became a defaulter in paying monthly installments the question of continuation of arrangement does not arise and he has to pay the total future installments for taking back his vehicle failing which the company will be at liberty to auction the seized vehicle.  Therefore, in view of the consent seizure letter Ex.A-1 containing the undisputed signature of the opposite party produced by the complainant himself itself shows that there is no truth in the case of the complainant that the opposite party without issuing notice to him forcibly repossessed the vehicle.  The complainant, even without making payment of the 1^st installment in time and committing default in payment of installments for the months of February and March, 2011 and himself giving consent for seizure of the vehicle as under Ex.A-1, cannot allege such deficiency and unfair trade practice on the part of the opposite party.  If really the complainant is interested in his vehicle he has to comply clause 10(ii) of the agreement Ex.B-1 for taking delivery of the vehicle from the possession of the opposite party.  Hence, for the reasons stated above, we hold that there are no merits in the complaint and as such the complainant is not entitled for the relief sought for by him and thus the complaint is liable to be dismissed. Both the points are answered accordingly in favour of the opposite party and against the complainant.            

9. Point No.3:- In the result, the complaint is dismissed.  No order as to the costs.  

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 6^th day of July, 2011.    

 

                                                            I agree                                I agree                                                   

 

MEMBER                                MEMBER                           PRESIDENT                     

                                                                                                  Appendix of evidence

      List of Witness examined

On behalf of Complainant:                             On behalf of Opposite Party:   

- Nil -                                                                   - Nil -           

List of documents marked:-

On behalf of Complainant:-    

Ex.A-1: Original Seizure Letter, dt.5.3.2011.

Ex.A-2: Original Bank Pay-in-Slip, dt.31.1.2011.

On behalf of OP.:                  

Ex.B-1: Original Loan cum Hypothecation Agreement, dt.30.11.2010.

Ex.B-2: Original Loan Application, dt.30.11.2010.  

                                                                  

                                                                                                PRESIDENT                                                                                                                                                                                              

Copy to:-

1. Sri M. Chennaiah Goud, Advocate, Mahabubnagar for the complainant.

2. Sri K. Chandramouli, Advocate, Nagarkurnool for the opposite party.