Karnataka

Bidar

CC/34/2016

Moyoddin S/o Ismailsab - Complainant(s)

Versus

Sriram Transport Finance Co.Ltd. Bhalki. - Opp.Party(s)

Shridhar B Wadde

30 May 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 34/2016

 

                                                                                                  Date of filing : 03/06/2016

 

                                                                                             Date of disposal : 30/05/2017

 

 

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:            Moyoddin, S/o Ismailsab,

                                              Age: 60 years, Occ: Business,

                                              R/o Village Kamthana,Tq & Dist.Bidar.,

                                                          

      

                                          (By Shri. Deshpande P.M., Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-                The Branch Manager,

                                               Shriram Transport Finance Co.Ltd.

                                               1^st Floor, above Pragathi Krishna Gramin Bank

                                            Near Basaveshwar Chowk,

                                            Bhalki-585328,Dist.Bidar.

                                    

 

                                          ( By Shri. S.Wilson, Advocate )   

                                              

::   J UD G M E N T  : :

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This is a complaint filed by the above said complainant U/s.12 of the C.P.Act., 1986, against the O.P. The sum total of his allegations are as follows:-

 

2.          The complainant is resident of village Kamthana, Dist. Bidar.  The complainant claims that, one Dhanaraj  is a friend of the complainant.   The O.P. had sanctioned loan to  Dhanraj for purchasing the Ashok Ley -land Goods vehicle bearing no. KA.39-0576.  As the promise made by the Dhanraj to the complainant that, he would transfer the vehicle in favour of the complainant, the complainant has paid the loan instalments of the vehicle even when the vehicle was in the name of said Dhanraj but the statement of payments were being made by the complainant in the name of Dhanraj.  The vehicle was transferred in the name of complainant from Dhanraj with the endorsement of hypothecation of the O.P. dt. 25/01/2016 but, the said transfer is effected by the transport dept. on dt. 24/01/2016 and since the transfer of the vehicle in favour of the complainant, the complainant became the owner of the vehicle.  The complainant avers that even after transfer of the vehicle in his name the O.P has not handed over the vehicle to him. The O.P. has only promised to hand over the vehicle and the O.P. had kept it idle for the reason of non payment of EMIs by the previous owner.  Due to not handing over the vehicle the complainant, he was constrained  not to pay the further instalments.  The O.P had issued several notices claiming illegal recovery in an amount of Rs.91,929/- and to sell the vehicle in  auction.  Hence, the complainant  got issued legal notice to the O.P. dt. 25/04/2016 requesting to withdraw the notice dt.06/04/2016 and to hand over the possession of the vehicle to the complainant for running the same and to waive off the due amount claimed by the O.P. during the seizure period of the said vehicle and to re-schedule the balance loan amount for repayment enabling the complainant to earn the income from doing the transport business from the said vehicle but, the O.P. has not given any reply to the said legal notice.  Hence the complainant is before this Forum and prayed this Forum, to allow the complaint and the O.P. be directed to hand-over the vehicle no. KA-39-576 to the complainant and not to claim any due amount for the period for which the O.P. had kept the vehicle of the complainant idle by illegally seizing  and to re-schedule the loan amount after giving genuine calculation as per the financial rules.  

 

 

3.            After receipt of the Court’s notice the O.P has appeared before this Forum and filed the written versions stating that, the complaint filed by the complainant is false and wrong both in law and on facts, and the complaint is misconceived and filed with sole intention of harassing the O.P.  The contention of the complainant in para no.1 as to financing the said  vehicle in the name of Dhanraj is true but the O.P. is not aware of the alleged understanding between Dhanraj and the complainant and the payment of the instalments, hence denied.  The said Dhanraj in fact was defaulter, hence the said vehicle was seized from his possession to secure the loan amount advanced to him.   The contents of para no. 3, 5 and 6 of the complaint are false, wrong and figment of imagination hence denied by the O.P.

 

4.                The O.P. further claims that, the O.P.  had advanced a vehicle loan for the purchase of heavy goods vehicle of Ashok Leyland make, bearing Reg.No. KA 39-0576 to one Dhanraj, but in the due course as he turned out to be a chronic defaulter in repayment of the loan amount, the O.P. was constrained to seize the vehicle to secure the loan amount.  After seizing the vehicle this complainant along with said Dhanraj approached the O.P. and requested to transfer the loan in respect of the said vehicle in the name of complainant.  Acknowledging the request, the O.P. transferred the loan and rescheduled the same accordingly.  The loan was granted under the agreement dated 16/09/2015 and on the request of the complainant the form no. 35 and 34 were issued to the complainant.  The complainant was required to cause the transfer of vehicle in his name before the RTO and incorporate the hypothecation in favour of the O.P. in the R.C. book.  But, the negligent and careless complainant sat upon the form no.34 and 35 and failed to make the necessary transfers within reasonable time, which was resulting in loss to the O.P. in the form of unnecessary yard cost and damage to its asset i.e. the vehicle, due to keeping it idle.  Therefore, the O.P. telephonically requested the complainant several times, to make the necessary transfers, because without such transfer before the RTO, the vehicle could not have been released in the custody of the complainant.   The O.P. even conveyed to the complainant, that, if he is finding it difficult to make such transfers, the company could in fact liaison to complete the procedure, but the complainant made the necessary transfer on 25/01/2016 and now he is pressing upon the O.P. to release the vehicle to which the O.P. is rightfully asking the payment of due instalments in respect of repayment of loan amount.  The complainant instead of making such payments has approached this Forum on wrong and false premise.  The loan agreement amount after transfer and rescheduling is Rs. 2,26,000, interest amount @ 17.62021 % p.a. payable in 36 months is 1,19,465 i.e. the complainant is liable to repay total amount as Rs.3,45,465/-.

 

5.                  The complainant has executed a ‘loan cum hypothecation agreementor in favour of O.P. financial institution at Bidar branch on 16/09/2015, wherein one Mr. Bhimanna, s/o Shivappa stood as guarantee.  In view of availment of loan from O.P. financial institution, the complainant is a ‘Borrower’ of O.P.  Therefore, the BORROWER is not a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act.  Hence, complaint filed by the complainant against O.P. financial institutions  is not at all maintainable before the Forum and   the loan availed by the complainant is a commercial vehicle loan and the complainant is a commercial user of the vehicle.  Therefore, the complainant is not a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act. hence, the complaint is not maintainable before the Forum. 

 

6.                      The O.P. further avered that, as per Clause 15 of the loan cum hypothecation agreement, the; complainant has agreed and undertaken to get resolve all his disputes, claims or difference of opinions in respect of vehicle loan transaction if any through a process of Arbitration.  Therefore, in view of existence of Arbitration agreement, instead of approaching Arbitral Tribunal, the complainant has directly approached the Forum hence, the complaint not maintainable and the complaint may be dismissed with costs.

 

7.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Does the O.P. prove that had no nexus with the complainant?
2. Does this Forum has the jurisdiction to try this complaint?
3. Does the complainant prove that, there has been a deficiency of service in the part of the Opponent?
4. What order ?

 

 

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

 

               Point No.1. In the  Negative.

               Point No.2. In the  Affirmative.

    Point No.3. In the Affirmative in part.

    Point No.4.  As per the final order, owing to the following:

 

                                                    

                                                                                                             :: REASONS ::

9.  Point.No.1:          Vis-a-Vis the assertions of the complainant that, there was certain understanding among him, the original borrower Sri Dhanaraj and the O.P., the opponent has vociferously denied the same and feigns ignorance of any such arrangement.  The contentions of the opponent stands belied, basing on a document relied upon by the complainant and produced as ex P.20 in support of his case.  The said document is regarding receipt of dues by the O.P. on 29.06.2015 amounting to Rs.25,000/- and on 04.07.2015 amounting to Rs.10,300/-.  This document is duly signed rubber stamp of the O.P. company embossed on it and its genuinety is beyond doubt.  In the written argument and oral canvassing, the O.P. has maintained stoic silence about this document.  Had there not been a tri-party understanding.  The O.P. would not have executed such a document.

 

10.                   That apart, the complainant had produced money receipts executed by the opponent (albeit favouring Dhanraj) vide Ex P.9 to Ex.19, evidencing payments towards instalments starting from07.12.2012 to 09.02.2015, on different dates. Vide these 11(eleven) receipts, altogether a sum of Rs.2,29,370/- has been received by the opponent for and on behalf of Dhanraj, the original borrower as on 09.02.2015, though as per the schedule III of Ex.R3 (executed by Dhanraj) he was supposed to pay a sum of Rs.3,23,291/- as per prescribed E.M.I.S. Neither party is clear about the date of seizure of the vehicle and its mode.  The question remains unanswered by the feuding O.P.as to why the money receipts stated above could be with the present complainant to be later produced as evidence.  The selective amnesia of the O.P. hence points out at a single direction, that is, the O.P. was part of the subtle triparty arrangement and hence we answer this point in the negative.

 

11.  Point.No.2:       The opponent has raised a hue and cry in its defence firstly that, the relationship of him with the complainant was that of a lender and borrower and the complainant cannot agitate this case as a consumer.  Secondly, the O.P. canvasses that, the  loan agreement (Ex.R2) containing an  arbitration clause, this Forum lacks jurisdiction to consider this complaint.  Here in, we indulge to mention that, section 2(1)(0) of the C.P. Act, in the definition of service interalia containing the term finance, the hypothesis of the O.P. taking shelter of the terms lender and borrower has to be trashed out into to.

 

12.                   Secondly Section 3 of the  C.P.Act,1986, defining the application of the Act in addition and not in derogation of any other law for the time being in force, we found no substance in the opponents claim and hence we answer the point No.2 in the affirmative.

 

13. Point no.3:- As discussed supra, as on 09.02.2015, the original borrower Dhanaraj (executant of Ex.R.3) has remitted a sum of Rs. 2,29,370/- against the due amount of Rs.3,23,291/- as per the terms of the agreement.  Even otherwise, as per sch.III of Ex.R3 (executant Dhanaraj) as on 05.11.2015, towards the loan account totally a sum of Rs.3,63,780/- was due and short fall of Rs.1,34,410/- has occurred.  Now the question arises, if at all, the opponent was deserving an amount ofRs.1,34,410/- how a loan agreement of Principal amount of Rs.2,26,000/- (Ex.R.2) was thrusted upon the present complainant?  This action of the opponent stinks of unfair trade practice in the part of the opponent and indicates arm twisting of the present and past borrower taking  undue advantage.  Such skulduggery cannot be permitted to go scot free.

 

14.                Next, as would be evident from Ex.R.2, the balance of the loan was taken over by the present complainant and as per the averments of the O.P, form no. 34 & 35 was handed over to the complainant (date not specified-presumably on 16/09/2015-date of agreement) to effect change of ownership and fill  hypothecation terms by the Transport authorities.  The O.P. claims the complainant sat over the matter up to 25/01/2016, which is apparent from Ex.P.2.  No doubt, the complainant has resorted to certain complacency.  But why, O.P. did not hand over the possession of the vehicle to the counter part just after 25/01/2016?  Certainly therefore, both the parties are responsible for the seized vehicle to be kept idle and both should suffer from their respective act of negligence and lacklustre attitude.  Hence we hold that, there is a definite deficiency of service in the part of O.P. and holding this point accordingly, proceed to pass the following:- 

 

:: ORDER ::

   

  The complaint is allowed in part.

 

1.  The O.P. is hereby directed to restructure the loan favouring the complainant, basing on an amount of Rs. 1,34,410/- as discussed in point No.3, resurrect the idle vehicle fully operational and hand over the same to the complainant.
2. The E.M.I. should be fixed afresh, collectible after one month of handing over the vehicle.
3. No any other charges would be leviable on the borrower /complainant other than specified above.
4. There would be no order as to litigation  expenses, compensation or otherwise.

 

 

             e)  Four weeks time granted to comply this order.

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 30 ^th day of  May-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

Documents produced by the complainant

1. Ex.P.1- Copy of statement of account.
2. Ex.P.2-Copy of B-register extract issued by Transport Dept.
3. Ex.P.3-  Copy of before sale notice,dt.06/04/2016.
4. Ex.P.4- Copy of legal notice.
5. Ex.P.5- Postal receipt.
6. Ex.P.6-Acknoledgement card
7. Ex.P.7-Before sale notice issued by Shriram Transport Co.Ltd.
8. Ex.P.8- Notice of repayment by Shriram Transport Co.Ltd.
9. Ex.P.9 & 10  Original receipts
10. Ex.P.11- Original loan receipt
11. Ex.P.12- Original loan receipt, dt. 02/12/2013.
12. Ex.P.13- Original loan receipt, dt. 30/01/2014.
13. Ex.P.14-Original loan receipt, dt. 25/03/2014
14. Ex.P.15-Original loan receipt ,dt. 03/04/2014.
15. Ex.P.16-Original loan receipt, dt.27/06/2014.
16. Ex.P.17- Original loan receipt, dt.25/08/2014.
17. Ex.P.18- Original loan receipt, dt.23/09/2014.
18. Ex.P.19- Original loan receipt, dt. 09/02/2015.
19. Ex.P.20- Hand written receipt, dt. 29/06/2015.
20. Ex.P.21-Full and final settlement report.

 

 

 Documents produced by the Opponent/s

 

                -Nil-

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.

 

           

sb.