Date of Filing: 26/07/2011
Date of Order: 30/09/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 30th DAY OF SEPTEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1377 OF 2011
Smt. Bharathi. B.C,
D/o. B.Chandrasekharaiah,
Aged About 40 years,
R/at: No.23/1, 4th Main Road,
11th Cross, Near Srinidhi Flour Mill,
Bapujinagar, BANGALORE-560 026.
(Rep. by Advocate Sri.B.C.Mallikarjuna) Complainant.
-V/s-
1. The Branch Manager,
M/s. HDFC Bank Limited,
Regd. Office at: HDFC Bank House,
Lower Parel (West), Mumbai-400 013.
2. The Branch Manager,
HDFC Bank Ltd., Golden Tower,
Old Airport Road, Kodihalli,
BANGALORE-17.
(Rep. by Advocate Sri.Mariappa.M.S) Opposite parties.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking directions to the opposite parties to not to impose or make a demand to pay Rs.71,179/- as claimed by the opposite parties, to furnish all the relevant documents pertaining to the loan transaction made in respect of the Goods Vehicle bearing No. KA-02-D-4450 with all the amounts made through the complainant on the Hypothecated – Loan account No. Agreement 91177205 made between the complainant as well as the opposite parties and to furnish the other particulars towards the sale made to the third persons, to pay back the excess amount collected by the complainant as well as sale proceeds made by the opposite parties in respect of the said Goods Vehicle No. KA-02-D-4450 which amounts to more than Rs.50,000/- and directed the opposite parties to make good the loss and to compensate the loss sustained by the complainant as on the date of illegal seizure and sold of the said vehicle till today and further to pay the actual cost occurred to the complainant, means profit and mental agony calculated at the rate of 18% per annum from the date of purchase till today, are necessary:-
The complainant is a married women living with her family members as a house wife. The complainant obtained quotation from M/s. Perfect Motors No.127, Lalbagh Road, Bangalore-27 on 01.12.2006 with respect to the purchase of Goods Vehicle Minidor C.B. Model of Force Motors bearing No. KA-02-D-4450 with the financial assistance from the opposite parties and paid the EMIs regularly. The opposite parties without authority under law and without prior information or intimation seized the vehicle and took possession of the same in the year 2009 and learnt that it has been sold to the third party on higher price and demanding the complainant to pay Rs.71,179/-. Hence the complainant had issued notice to the opposite parties to which an untenable reply has been given. Hence the complaint.
2. In brief the version of the opposite parties are:-
The complainant has approached and obtained a vehicle loan from M/s. Centurion Bank of Punjab Limited which later merged with the opposite party by order of the Reserve Bank dated: 20.05.2008 and the complainant has executed the loan agreement on 16.12.2006. The complainant was irregular in payment of EMIs hence a notice was issued to the complainant on 12.06.2009, as he did not pay the amount the opposite parties had auctioned the vehicle to the highest bidder who quoted the price at Rs.25,000/-. The opposite parties have also issued a post sale notice to the complainant on 04.08.2009. The complainant is still in arrears of Rs.73,973/-. The complainant has come to this forum after more than two years after the post sale notice. Hence the complaint be dismissed.
3. To substantiate their respective cases, the parties have submitted their respective affidavits and documents. The opposite party has filed the written arguments. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether there is deficiency in service?
- What order?
5. Our findings on the above points are:-
Point (A) & (B):As per the final order
For the following:-
REASONS
POINT (A) to (B):-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted that the complainant had executed a Loan-Cum-Hypothecation on 16.12.2006 in favour of M/s. Centurion Bank of Punjab Limited and obtained a vehicle loan of Rs.2,09,300/- from the said bank. It is also an admitted fact that the complainant had to pay Rs.5,980/- per month as EMI for 35 months commencing from 10.01.2007.
7. Further it is an admitted fact that the opposite party has repossessed the vehicle and sold it behind the back of the complainant for the alleged dues. That is being challenged by the complainant in this case. The opposite parties has not stated or sworn to or produced any documents to show what was the amount due? What is the amount due on which date? When the vehicle was repossessed? When a pre-sale notice was given to the complainant? On what date the complainant should have repaid the amount as demanded in the notice? When public auction took place? Who are all the persons who bid at the auction? What was the highest price that was offered? Whether that notice was also served on the complainant is not all stated.
8. The opposite party has produced the copy of the notice dated: 12.06.2009 stating that this is the pre-sale notice. The said notice has been denied by the complainant. There is no acknowledgment for having served this notice is produced by the opposite party. The said notice reads thus:-
Here the opposite party does not say when it has repossessed the vehicle or when it is going to auction the vehicle etc.,. This notice is as bald as it could be. This cannot be termed as a presale notice.
9. In any event the alleged pre-sale notice is dated: 15.06.2009. The opposite party has obtained the valuation report of the vehicle on 17.06.2009 from G. Venkatesh, V.K Integrated, Insurance surveyors/Loss Assessors/Valuator even before the pre-sale notice has been served. How can the opposite party obtained this valuation report stating that value is only Rs.40,000/-. The valuator has not even verified the documents. Then how can we say it is a correct valuation.
10. The opposite party has not stated when it has sold the vehicle and who are all the persons in the bid? or when the auction took place? the opposite party has produced the alleged bid of one Mr. Shaffiulla Khan dated: 25.07.2009 that’s all. The opposite party has not produced any other documents to show that they had accepted this bid of Mr. Shaffiulla Khan or any other person and executed documents and got the vehicle transferred to Mr. Shaffiulla Khan
11. However the opposite party has produced the alleged post-sale notice dated: 04.08.2009 which reads thus:-
Even here the opposite party does not say that they have sold the vehicle to a particular person on a particular day for a particular value. They simply say that the complainant is due the amount and asked the complainant to pay with interest at the rate of 24%. Nowhere in the agreement it is stated that the complainant is bound to pay interest at the rate of 24%. That means the opposite party has mislead the complainant throughout. The opposite party is a successor of the Centurion Bank of Punjab even then it has not conducted properly.
12. In a case between P. Nagendra Babu And City Group Finance Limited in Appeal No. 5263 of 2010 our Hon’ble Karnataka State Commission, Bangalore, on 07.07.2011 has ruled thus:-
The LC for the appellant submits that the respondents have already received an amount of Rs.5,36,580/- towards the vehicle loan and he was hardly due to an extent of less than one lakh of which the appellant was willing to pay the said amount and the contract period was still in life/in force as it was supposed to expire on 31.12.2009. Though there was default in paying the amounts to certain installments, the appellant did manage to pay the installment amounts to the respondents towards the loan. He further submitted that no notice was issued o the appellant before sale of the vehicle. The vehicle in question has been sold without notice or intimation to the appellant and without calling for the public auction. The sale of the vehicle has taken place behind the back of the appellant/complainant.
No doubt, as per the terms of the loan agreement, if the appellant commits default in payment of installment, the respondent/Ops are entitled to repossesses the vehicle and resell it. But as per the procedure or the law laid down by the Hon’ble Supreme court and the Hon’ble National Commission where it is stated that issuance of presale notice to the complainant is a mandatory/compulsory. The presale notice intimating the date of auction is to be issued by the respondent to the appellant. But on perusal of the order no where it is seen that presale notice with mentioning the date of auction was served to the complainant/appellant prior to the selling of the vehicle in a public auction. Admittedly, auction must be a public auction so that the appellant must be given an opportunity to participate in the bid auction and he gets an opportunity to get back his vehicle by paying the bid amount. Admittedly, in the instant case, the said vehicle in question was sold without intimating the date of auction to the complainant/appellant. There was a gross violation of the law or the procedure laid down by the Hon’ble Apex Court and the Hon’ble National Commission.
That means if the sale took place without intimating the date of auction to the complainant it is a gross violation of procedure and leads to deficiency in service and unfair trade practice. Hence under these circumstances the entire auction of the opposite party is vitiated it is unfair trade practice.
12. Hence under this circumstances if we direct the opposite party to resale the vehicle with a due notice to the complainant as per law giving date of sale, giving him time to pay the balance due giving details of the amount due and in case he does not pay then sell the property a fresh and appropriate the amount to the loan, we think that will meet the ends of justice. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is allowed in part.
2. The sale held by the opposite party with respect to the vehicle bearing No. KA-02-D-4450 is set aside and quashed.
3. The opposite party is directed to put the said vehicle for auction afresh giving appropriate notice to the complainant giving the date of auction and giving the details of amount due within 60 days from the date of this order. If the complainant pays the amount due within 60 days then the opposite party shall return the vehicle to the complainant. If the complainant fails to pay the amount the opposite party may sell the vehicle and appropriate the sale proceeds to the loan.
4. The opposite party is also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.
5. The parties are directed to comply the above said order as ordered at Serial Nos. 2 & 3 and submit the compliance report to this Forum with necessary documents within 75 days from the date of this order.
6. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
7. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 30th Day of September 2011)
MEMBER MEMBER PRESIDENT
