Complaint Case No. CC/111/2008 |
| | 1. L. Sardar Ahmed, S/o. Nazeer Ahmed, | H.No.17/103,R.K.street, Kurnool-518001 | Kurnool | Andhra Pradesh |
| ...........Complainant(s) | |
Versus | 1. Shri Ram City Union Finance Limited, Divisional Office, Represented by its Divisional Manager | 2nd Floor, D.No. 40-384, Flot No.28 to 36, U-con Plaza, Park Road, Kurnool-518 001. | Kurnool | Andhra Pradesh |
| ............Opp.Party(s) |
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ORDER | Cond., - 1 - BEFORE THE DISTRICT FORUM:KURNOOL Present: Sri.K.V.H. Prasad, B.A., LL.B President And Smt. C.Preethi, M.A.LL.B., Lady Member Friday the 30th day of January , 2009. C.C.No. 111/08 Between: L. Sardar Ahmed, S/o. Nazeer Ahmed, H.No.17/103, R.K.street, Kurnool – 518 001. … Complainant Versus Shri Ram City Union Finance Limited, Divisional Office, Represented by its Divisional Manager, 2nd Floor, D.No. 40-384, Flot No.28 to 36, U-con Plaza, Park Road, Kurnool – 518 001. … Opposite party This complaint is coming on this day for orders in the presence of Sri. K. Ravi Kumar, Advocate, for the complainant, and Sri. S. Sivaramakrishna Prasad, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following. ORDER (As per Sri. K.V.H. Prasad, President ) C.C.No.111/08 1. This case of the complainant is filed U/s 2 (i) (g) and Sec. 12 of C.P.Act seeking direction on the opposite party to give repossession of the seized TATA Sumo Vehicle bearing No. AP 11 – G – 0369 to the complainant or in alternative to pay to the complainant Rs. 3 lakhs towards the cost of the Vehicle , pay Rs. 750/- per day till repossession towards loss of income , Rs.50,000/- as compensation for mental agony along with interest at 18% p.a and cost of the case alleging the deficiency of service and unfair trade practice of the opposite party in seizing the above said Vehicle on 29-01-2008 forcibly from complainant and not releasing the Vehicle inspite of payment of Rs.10,000/- on 31-01-2008 as demanded by the opposite Cond., - 2 - party and thereafter giving evasive and false replies as to default of installments to the notice of the complainant . On account of said illegal seizer the complainants livelihood @ Rs.750/- per day suffered besides to ensual of mental agony and cost of the vehicle . 2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite party caused its appearance through its counsel and contested the case denying any of its liability to the complainants claim seeking dismissal of complainants case alleging the seizer of the complainants vehicle was in the capacity of hypothecatee consequent to complainants defaultive conduct in payment of monthly installments under hypothecation agreement and holding sale of said vehicle after causing second pre sale notice and realizing Rs.1,15,000/- by said sale and complainant still holding a due of Rs.41,478/- on adjustment of the earlier installments and of the amount realized through sale and the case of the complainant is to avoid the said liability in suppression of real facts and as said sale was held in pursuance of the terms of hypothecation any liability of the opposite party even to pay Rs.3 lakhs to complainant as cost of the said vehicle and any damages at Rs.750/- per day and any compensation for alleged mental agony . 3. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A5 and his sworn affidavit of the complainant , the opposite party side has taken reliance on documentary record in Ex.B1 to B4 besides to his sworn affidavit. 4. Hence, the point for consideration is whether the complainant has made out any of the alleged deficiency and unfair trade practice of the opposite parties and there by the latter’s liability to the complainants claim. 5. As per the decision of Hon’ble National Consumer Disputes Redressal Commission , New Delhi in Ram Desh Lahara Vs Magma Leasing Limited reported in III ( 2006) CPJ 247 (NC) under hire purchase transaction the financier not renders service to the barrower within the meaning of the C.P.Act and so the complainant as a barrower under loan cum hypothecation agreement is not a consumer . Therefore whatever may be gravity or seriousness of the grievances of the complainant the case of the complainant cannot be adjudicated by the District Fora under the provision of C.P.Act especially when the Hon’ble Divisional Bench of A.P High Court in Cond., - 3 - State Bank of India Vs SB.Shah Ali (died) and others reported in AIR 1995 AP Pg.134 holds the power of hypothecatee to sell the hypothecated property without intervention of the Court in case of default in installments and as per the decision in M/s. Gullar Enterprises Private Limited Vs Punjab National Bank Limited reported in 1993 (2) CPR Pg.652 a conversion of hypothecated property by a bank abruptly and without notice may give raise to a civil dispute but not a consumer dispute as defined U/S 2 (1) (e) of C.P.Act 1986 . Hence the complainant grievances , prima facie , remaining out of the scope of the enquiry before this forum . 6. As the nature of the grievances of the complainant is not amounting to any consumer dispute entertainable under C.P.Act by District Fora and if at all there is any irregulatory and illegality in the Acts of seizure and sale of hypothica abruptly for default in payment of installment is a civil dispute addjudicatable by the civil Court alone the decision cited by the complainant side in its written arguments having any relevancy of their appreciation in this case. 7. Apart from the above there is any documentary record from the complainant side envisaging the total discharge of loan amount by the complainant for the vehicle under hypothecation as the bunch of seven receipts in Ex.A2 is envisaging the payment of few installments that too to an extent of Rs. 58,252/- only out of 30 monthly installments schedule @ Rs.7,188/- totaling to Rs. 2,15,640/- . While such is so with the complainant , it is contended by the opposite party that as an amount of Rs. 1,15,000/- could only be realized from sale of seized vehicle and after adjusting the said sale amount with the amount of Rs. 58,252/- received from complainant under paltry installment , still an amount of Rs.41,478/- is outstanding from the complainant towards the loan availed by the complainant from the opposite party for purchase of said vehicle under hypothecation agreement in Ex.B1 . In the absence of any cogent material evidence as to the total discharge of loan amount by the complainant to the opposite party , the documentary record in Ex.A1 and A3 to A5 are remaining of any worthwhile for appreciation in favour of the complainant . 8. consequently , the case of the complainant being devoid of merit and force and creating any liability of the opposite party to the complainants claim the case of the complainant is dismissed with cost. Cond., - 4 - Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 30th day of January , 2009. Sd/- Sd/- MEMBER PRESIDENT APPENDIX OF EVIDENCE Witnesses Examined For the complainant :Nil For the opposite parties :Nil List of exhibits marked for the complainant:- Ex.A1. Xerox copy of registration certificate. Ex.A2. A bunch of 7 receipts. Ex.A3. Office copy of legal notice dated 08-04-2008 along with Postal receipt. Ex.A4. Reply of OP dated 26-04-2008 to Ex.A3. Ex.A5. After sale notice dated 22-07-2008. List of exhibits marked for the opposite parties: Ex.B1. Loan cum hypothecation agreement. Ex.B2. Loan application. Ex.B3. History sub-ledger 26-08-2008. Ex.B4. Pre-sale notice dated 31-05-2008. Sd/- Sd/- MEMBER PRESIDENT // Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987// Copy to:- Complainant and Opposite parties Copy was made ready on : Copy was dispatched on : | |