Karnataka

Bidar

CC/10/2015

Mohd. Masiuddin S/o Fayazuddin - Complainant(s)

Versus

shri. B.Vimal chand Dugger Financer - Opp.Party(s)

P M DESHPANDE

31 Jul 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                               C.C.No. 10/2015

 

                                                                                                  Date of filing : 06/03/2015

 

                                                                                              Date of disposal : 31/07/2017

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                       (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                               

COMPLAINANT/S:      Mohd. Masiuddin S/o Fayazuddin,

                                      Age : 43 years, Occ : Business and owner of

                                      Lorry Regn.No.MH-04, BU-3384, 

                                        R/o H.No.6-135, Jarpet, Block No.16,

                                        Tq. Humanabad, Dist. Bidar.

 

                               (By Sri.Deshpande P.M., Adv.)

 

                                             VERSUS

 

OPPONENT/S:       Shri B. Vimal Chand Duggar Financer, 

                                     Age : Major, Occ : Financier,

                                      3-6-968, 11^th Street, Himayatnagr,

                                      Hyderabad-500029.

 

                              (By Sri Mahesh S. Patil, Adv.)

 

 

                                               

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

            The complainant is before this Forum alleging deficiency of service in the part of the O.P. by filing a complaint U/s.12 of the C.P. Act., 1986.

 

1. The sum total of the case of the complainant is as hereunder:

            The complainant is unemployed youth and married person having children and entire responsibility of maintenance of his family is on the head of complainant. Hence to earn his livelihood, the complainant decided to do transport service.  Therefore, the complainant had purchased lorry brg.Regn.No.MH-04/BU-3384.  The said lorry was being used goods carriage and earning Rs.3,500/- to Rs.4,000/- per day.   The O.P. knowing fully well about the complainant, has financed Rs.2,00,000/- on the said lorry for 24 months from 21.01.2013 till 21.01.2015.  While sanctioning the loan, the O.P. has taken signature of the complainant on blank printed format of hire purchase agreement and promised that within one month the format of hire purchase agreement will be filled and send the same with repayment schedule.   But, as on today, the O.P. has not sent the copy of the agreement along with repayment schedule.   The complainant is very sincere and honest and without repayment schedule, has paid a sum of Rs.50,000/- in the loan account.  The complainant has telephoned the O.P. and requested to provide the copy of agreement and repayment schedule, but the O.P. always given false promises.   The O.P. has not issued any single notice, demand notice, information or recover notice in respect of loan till 6.6.2014.  But on 6.6.2014, the O.P. and his agent have forcibly seized the Lorry of complainant at Humanabad.  The agents of the O.P. have shown muscle power without giving any notice, information, seized the said vehicle.   The O.P. has not taken permission from the concerned police station at Humanabad about seizure of the vehicle of complainant.   Further the O.P. has not taken permission from A.R.T.O, Bhalki before seizure of the said lorry.   Due to seizure of the vehicle the complainant as per para-7 of the complaint, sustained loss of Rs.17,45,000/-.  The O.P. has given notice to the complainant on 23.6.2014, that was the first and last correspondence made by the O.P.  The allegations made in the notice are all false and baseless.  The complainant replied to the notice issued by the O.P. and also submitted a letter to the A.R.T.O., Bhalki, but the O.P. has not released the lorry and not made any efforts to pay compensation to complainant.  The O.P. has not issued any notice to the complainant in respect of sale of lorry of complainant.  The said notice is mandatory, which is not issued by the O.P., which amounts to deficiency in service.   The O.P. has not adopted the mandatory procedure for sale of seized vehicle.  Neither O.P. has published in the local paper nor issued public notice in respect of sale of vehicle of complainant.    The lorry was seized prior to completion of loan agreement i.e., on 6.6.2014.   The complainant issued legal notice on 22.1.2015, informing about the deficiency of service rendered by the O.P. and demanded to pay compensation towards loss sustained by the complainant, but the O.P. has not paid the compensation to the complainant.  The O.P. replied to the said notice on 9.2.2015, which clearly reveals that deliberately O.P. has suppressed real facts of the case and made false allegation against the complainant which are not true.   After the seizure of the vehicle of complainant, he become unemployed person and the family of the complainant was deprived of their daily bread due to deficient and negligent act of O.P.   The complainant has requested the O.P. to permit him to sale the seized lorry to the interested buyers, but O.P. has not granted the permission to the complainant. However it was sold without prior notice to the complainant.  The O.P. failed to give detailed account particulars of sold vehicle of complainant, even the O.P. has not informed the sale value of the vehicle, which amounts to deficiency of service.   The O.P. has not made any efforts to inform the complainant to whom the vehicle has been sold by the O.P.   The cause of action arose to file the complaint on 6.6.2014, when the lorry of complainant had seized by the O.P.  Hence, the complaint for compensation etc.

2. The Opponent entering into defence on receipt of Court notice, the O.P. has filed its version contending that, the O.P. advanced the loan of Rs.2,00,000/- to lorry bearing Regn.No.MH BU 3384, duration of instalment of 24 months from 21.10.2013 to 21.01.2013.    The complainant after reading the Hire Purchase Agreement and related documents only has put his signature.   The law required and presumes that whenever the signature is made, it amounts to known the contents of the documents.   This plea is taken only to misguide the Forum and get sympathy.   The complainant is wilful defaulter in making payment of instalment.  It is further contended that on the date of agreement itself, the O.P. has supplied the Xerox copy of hire purchase agreement and related documents.   The complainant has made payment of Rs.50,000/-.   The O.P. has been constantly demanding the arrears of loan instalment and the complainant is giving false assurance for repayment.   The O.P. is interested to get instalment and he has been trying to recover the same by giving each and every details.   It is absolutely false that, the complainant is the owner of the lorry.  The very hire purchase agreement shows that the O.P. is the owner and he has got absolute right to seize the lorry.   The O.P. having exhausted all his efforts to recover the loan instalment amount, finally has seized the lorry as per the terms of the agreement.    The O.P. is not bound to give any information to the police, because it is a civil matter and the O.P. is exercising his power as per the agreement.  There is no necessity to give information to the police or permission from R.T.O., hence, there is no negligence or deficiency of service in seizing the lorry.  The complainant is not unemployed, he is running two lorries and he has got sufficient income and the cost of the lorry shown is imaginary one.   The lorry is not worth Rs.8,00,000/-, for that no valuation certificate is produced before this Forum, hence the loss etc., is denied by O.P.   The O.P. has rightly issued notice and has complied with the terms and conditions of the hire purchase agreement and seized the lorry and has issued seizure notice to the complainant.  There is no illegality in seizing the lorry.    The legal notice issued to the complainant is illegal, which is rightly replied by the O.P.   The complainant has not approached the O.P to release the lorry and the complainant has not made any efforts to make any payment of instalment. There is no cause of action, the lorry is seized as per the terms and conditions of the agreement. This Hon’ble Forum has no jurisdiction to entertain the complaint.  As per the hire purchase agreement Point NO.31(a), in case of any dispute or litigation between the parties shall submit to the jurisdictional court in the city of Hyderabad only and in no other court.  As per the agreement, the loan transaction has taken place in Hyderabad, payment is made at Hyderabad and Hire purchase agreement was executed at Hyderabad as such, Forum has no jurisdiction.   The complainant is not self-employed.  He has got one more lorry brg.No.KA-39/0971 for which he has filed a separate complaint.  The entire transaction is a commercial transaction as such the Consumer Forum has no jurisdiction.  The complainant has to pay an outstanding loan instalment amount, which is due for that purpose the lorry is seized.  The complainant with an ill-intention of not to pay the outstanding loan amount has filed this false complaint.   The O.P. contended that, the jurisdiction may be treated as preliminary issue and the case may be disposed off on the preliminary issue.  Hence, O.P. prays to dismiss the complaint.

 

3. The complainant has filed documents, detailed at the end of this order, so also the complainant has filed evidence affidavit justifying his side.  On the other hand, the O.P has filed documents, detailed at the end of this order.  The O.P. has not filed evidence affidavit justifying his side.  Both the complainant and O.P. filed their written arguments respectively.

 

4.         Considering contention of the complainant, the following points arise for our consideration:-

 

1. Does this forum has jurisdiction to try this case?
2. Whether the complainant has proved that there is deficiency in service on the part of the O.P.?
3. What order?

 

5.         Our answers to the points stated above are as follows:-

 

1. In the negative.
2. Doesn’t survive for consideration.
3. As per final orders owing to the following:-

          

 

:: REASONS ::

 

6.                     It is born out of records that, the complainant is pursuing two complaints simultaneously against the same opponent.  CC.No.10/2015 is related to the seizure of Lorry bearing No.MH-04/BU-3384, for which the complainant had availed finance to the tune of Rs.2,00,000/- and claims to have paid a sum of Rs.50,000/- to the lender.  CC.No.11/2015 is connected to the seizure of Lorry bearing No.KA-39/0971 for which finance was obtained to the tune of Rs.2,25,000/- and the initial payment claimed by the complainant was Rs.75,000/-.  The last day of repayment was scheduled on 06.08.2015.

 

7.         It is further claimed that, both the Lorries were seized at Humnabad, Dist: Bidar on 06.06.2014, without any notice, without any information to the jurisdictional Police or the Transport authorities, which is termed illegal by the complainant.  Per contra, the opponent claims that, both the Lorries were seized on the face of non-payment of due instalment and the action being of Civil nature, the opponent was not obliged to inform the Police or Transport authorities and has acted in consonance of the terms of agreement executed earlier and hence o fault can be fastened unto him, being all along at the right side of the law.

 

8.  Point No.1:-   In initio, a serious objection was raised by the opponent regarding the lack of territorial jurisdiction of this forum, on the grounds that, the negotiation took place, loan got sanctioned, agreements got executed repayment schedules got fixed at Hyderabad, with a further stipulation which was at point No.31 (a) of the agreement that Courts at Hyderabad only would have the jurisdiction to try any dispute between the parties.  The opponent being vociferous to treat the territorial objections a preliminary issue and filing on I.A. on 20.06.2015, to that aspect, this Court ruled on 22.09.2015 that, the vehicle concerned having been seized at Humnabad, Bidar District, has the territorial jurisdiction to try the complaint u/s 11 of the C.P. Act 1986, and that settled the matter for good, Point No.1 answered accordingly. 

 

9.  Point No.2:-        In the meantime, resorting to the prescriptions of A.D.R.M. this court prevailed upon the parties, persuaded them to take recourse of negotiated settlement.  A number of alternative suggestions were discussed and deliberated like-(a) restructuring of the loan agreement after payments of E.M.I. dues, left unpaid (b) waiving of interest and payment of the principal amount etc.  towards which the complainant was adamantly indifferent, which is outrageous perse.

 

10.       A non settlement having been reported, now we thrive to dispose off the case in the proper perspective and the first and foremost question looms large, as to whether we are competent to entertain the cases foisted by the complainant.

 

11.       Analysing, the records and pleadings of the parties, we conclude that, the complainant had acquired two Lorries obtaining finance from the opponent.  Essentially, it cannot be construed that, the position of the complainant was in confirmity with the explanation clause of section 2(1)(d) of the C.P.Act,1986.  His endeavours all along had been of a commercial enter-prise to run a fleet of Lorries.  He is not a Consumer by any stretch of imagination and hence we rule the point No.2 accordingly.

 

12.       However, we don’t mean that, the complainant has no actionable claim in his favour,  In the instant case, it is the claim of the complainant that, the vehicle was seized from him without any prior notice, or even an intimation to the jurisdictional Police or Transport authorities on 06.06.2014 at Humnabad by the opponent and his agent.  The Hon’ble Supreme Court in a case reported in 2001 (1) S.C.C. 481-ICICI Bank v/s Prakash Kour has been pleased to hold as follows:-

“Practice of hiring recovery agents who are musclemen is deprecated and needs to be discouraged”.

 

 

13.       Taking a cue, the Hon’ble National Commission in the case reported in 2014(4) CPR 724(NC)- M/s  Sundaram Finance Limited v/s Shri. Atul Kumar has held that,

            “Musclemen cannot be allowed to interfere with peace of society and vehicle cannot be possessed without intervention Court”.

 

14.       Both the judgements are strong pointers that, the opponent has defiled the process of law, thereby an actionable claim has accrued to the complainant.  This court not having jurisdiction to try cases of commercial nature, the complainant if so advised may approach a Court of competent jurisdiction.

 

: ORDER ::

 

   

1. Consequentially, the complaint stands dismissed there would be no order as to costs or otherwise.

 

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 31^st day of July-2017)

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                          

 

 

Documents produced by the complainant

1. Ex.P.1- R.C. Book (original)
2. Ex.P.2- Goods Carriage permit (Original)
3. Ex.P.3- Renewal of permit (original).
4. Ex.P.4- Copy of money receipt.
5. Ex.P.5- Insurance certificate (Original).
6. Ex.P.6- Road Tax receipt (original).
7. Ex.P.7- copy of voter I.D. Card.
8. Ex.P.8- Copy of AADHAR Card.
9. Ex.P.9- Copy of legal notice to the complainant date: 23.06.2014.
10. Ex.P.10- Copy of the reply notice date: Nil.
11. Ex.P.11- Copy of legal notice of complainant date:22.01.2015.
12. Ex.P.12- Copy of reply date:09.02.2015.
13. Ex.P.13- Representation to R.T.O. Bhalki date: Nil.
14. Ex.P.14- Booklet describing repayment schedule.
15. Ex.P.15- Certificate of fitness (Original) date:09.01.2014.

 

 Document produced by the Opponent.

1. Ex.R.1- Hypothecation agreement.
2. Ex.R.2- Seizure authorisation.

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                   President.