Karnataka

Bidar

CC/74/2016

Pandit S/o Vaijinath Dine - Complainant(s)

Versus

The branch Manager Indian Bank Bidar - Opp.Party(s)

P.M.Deshpande

03 Apr 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 74/2016

 

                                                                                                  Date of filing : 27/09/2016

 

                                                                                             Date of disposal : 03/04/2017

 

 

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:           Pandit, s/o Vaijinath Dine,

                                             Age: major, Occ: Private work,

                                             R/o village Kautha (B),

         Tq.Aurad,Dist.Bidar.

 

 

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

 

                                                      VERSUS

 

OPPONENT/S   :-               The Branch Manager,                     

                                            Indian Bank,Branch,

                                           Near Reliance Petrol Pump,

                                            Udgir road, Bidar-585401.

 

                                    

 

                                        (By Shri. K.Baburao Patil, Advocate )   

 

                                             

::   J U D G M E N T  : :

 

By Shri. Jagannath Prasad Udgata, President.

 

                   The complainant has approached this forum u/s. 12 of the C.P.Act, 1986 against the opponents.  The gist of the case is as under.  

 

2                 The complainant is native of village Kautha(B) of   Taluk, Aurad, Dist.Bidar.  The complainant for his livelihood and maintenance has purchased a Car bearing no. KA-38/6219, by obtaining hypothecation  loan from the O.P. Bank.  The complainant was paying regular EMI  and due to certain financial difficulties and  sometimes no earning, he could not pay for 2-3 instalments.   On 04/11/2015 the henchman of the O.P. Bank, had seized the vehicle at Bidar unlawfully and without notice.  The complainant has lodged a complaint with the police station Gandhi Gunj, Bidar on dt.29/11/2015.   The complainant had requested to the O.P. Bank to return the vehicle with   good condition after receiving the EMI dues.  But, the complainant had heard that the major portion of the vehicle was burnt.  The complainant has sustained loss to the tune of Rs.3,00,000/- which is to be compensated by the O.P.Bank.   Hence, the complainant has approached this Forum for compensation.

 

3.         After receipt of the Court’s notice, the  O.P. has appeared before this Forum, and filed written version.  The O.P. stating that the complaint is misconceived both in law and on facts, and it is not maintainable since there is no deficiency of service as claimed by the complainant from the O.P. Bank and there is no specific allegations against he O.P. Bank regarding the alleged deficiency of service which is mandatory for filing the complaint.  Admittedly for the failure of payment of EMI, the O.P. Bank has seized the vehicle through seizing Agency, hence, the seizing Agency who seized the car and in whose custody the seized Car was burn, ought to be made party to the complaint.  In reply to the para 1 and 2 of the complaint, the O.P. does not dispute that complainant availed loan of Rs.1,59,882/- on 31/03/2011 for purchase of Car and purchased Indica Car bearing Regn.no.KA.38/6219 financed by  the Bank.  The loan was sanctioned on recommendation of Karnataka Tourism Department and before disbursing the loan, the Bank had explained the terms and conditions and rules of the Bank and on accepting the same the complainant had hypothecated the car and executed documents.

 

4.               The contents of para 3 & 4 of the complaint are false hence denied.  It is false that after availing the loan, he paid the instalments and could not pay 2-3 instalments, as a result the henchmen of O.P. Bank seized the car on 04/11/2015 un enticingly and that the complainant lodged complaint with the police on 29/11/2015.  It is surprising to note that admittedly the car of the complainant was seized on 04/11/2015, yet the complainant has not explained as to why he kept quiet till 29/11/2015 and lodged complaint with the police on 29/11/2015.  In fact, when the car of the complainant was seized by seizing agency, at that time, the complainant was very much present and he abused the seizing persons using filthy language and threatened them that they would bring back the seized car in the same condition, and he quarrelled with seizing agency people.  On the night of 29/11/2015 one Farooq Hussain, s/o Sharafat Hussain, who was the seizing Agent, came to know from  his neighbour that two cars i.e. the car of complainant and another car of one Sharnappa kept in the premises were burnt.  Then he woke up and dowsed the fire.  The said Farooq Hussain immediately reported the incident to the Police Gandhi Gunj, who registered the case in crime no.234/2015 under section 435 r/w. 149 IPC, against the present complainant and others.  The O.P. Bank has reason to believe that the complainant with an ulterior motive to make wrongful gain set fire to his car and another car of Sharnappa since the complainant has given threat to seizing Agent at the time of seizure of car.  Thus, as per police complaint, the complainant is accused no.1 and the said case is under investigation of the Police.  When this is the present position, the compliant has no locus-standi to file this complaint, since as per initial information he is main accused in setting fire to the seized cars.    As loss or compensation is concerned, except his own interested version, he has not produced any other document to prove the extent of loss or damage and the value of the car on the date of alleged seizure and burning.  In the absence of such cogent and convincing evidence, the complainant is not entitled to claim any damages based on imaginations. 

 

5.                   Apart from this, admittedly the matter is already ceased by the police, and the police are investigating the case to find out as to how and who burnt the car of the complainant in the custody of seizing agency.  Thus when the investigation is still pending, the claim of the complainant becomes premature and it is not the appropriate stage to decide the complaint, unless the investigation is completed by the police and charge-sheet is filed.  Hence the complaint filed by the complainant may be dismissed with costs.

 

 

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

 

1. Is the case bad by non-joinder of the seizing agency as a party?
2. Does the complainant prove that, there has been a deficiency of service on the part of the opponents?
3. Does the considerationof the case should wait completion of police investigation as claimed by the O.P?
4. What order?

 

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

 

1. In the negative.   
2. In the affirmative.
3. In the negative.
4.  As per the final order, owing to the following:

                                                                                                  

                                

 :: REASONS ::

 

8.  Point No.1.      The stand point of the O.P. Bank in the present case, we observe is most bizarre.  The Bank’s expectations is that, the complainant should have impleaded the seizing agency as a necessary party in the proceedings.  Has the Bank ever notified the complainant that, so and so agency has been deputed to seize the vehicle?  The answer is no.  Has the Bank ever had any control on  the seized items and it’s up keep?  The answer is no.  At one point of time, vide Ex.P.2, dt. 20/05/2016, the O.P. Bank had issued notice to the complainant to clear the pending dues of Rs.1,62,405/- without mentioning any cut off date to take shelter of SARFAESI Act, or other legal measures for recovery of pending dues.  We infer, this notice primafacie was most legal, rational and civilised on the surface of it.  Then what caused the Bank to engage musclemen to seize the vehicle on 04/11/2015 ( Ex.P.1- effecting seizure) whose address or where about is no where mentioned in the seizure memo issued to the complainant?  The agency is a Frankenstein monster created by the Bank, not disclosed to the civilized world and it should bear vicariously the liability committed by it’s agent.  The complainant is not expected to go in a roving enquiry to ascertain the identity of the seizing agency and non inclusion of it in the proceeding would not be a sufficient ground for such a peculiar defence.  After all, the O.P. Bank has never disputed the fact of seizure and hence we answer the point in the negative. 

9.  Point No.2:-   On this point, the complainant is truthful to state that, due to extraneous circumstances, few E.M.Is were pending to be cleared.  The O.P. Bank sends a notice demanding to clear the dues to the tune of Rs.1,62,405/- vide Ex. P.2 and he was ever ready to clear the dues.  He approaches the O.P. Bank to  clear the pending dues and learnt that, his seized vehicle has been destroyed due to fire accident and lodges a complaint with the jurisdictional police vide Ex.P.5, dt.29/11/2015.  Why could not the O.P. Bank or it’s seizing agency informed the R.C. owner of the vehicle just after it’s destruction after the seizure?  The O.P. Bank is trying to implant a  theory that, the vehicle was kept in the premises of the seizing agency along with another.  Both were put to fire and the seizing agency had filed complaint with the jurisdictional police station for which case U/s. 435 I.P.C. and others has been registered bythe police, implicating the complainant on doubt.  The police is seized of the matter and investigation is going on etc.  But, the settled principle of law is “suspicion however grave cannot take the place of proof”.  That apart, the O.P. Bank to substantiate it’s stand has never submitted any copy of the F.I.R. registered against the complainant or the present state of investigation by the police.  The stark reality remains, the Bank oblivious of it’s earlier notice Ex.P.2 availed the liberty to hire services of musclemen illegally, seized the vehicle abruptly, towed it to a place of it’s choice and stored the same in it’s own custody.  It voluntarily assumed the upkeep of the object but failed to prevent destruction by fire accident.  Logic and common sense would deduce that, the entire blame lies on the OP. Bank.

 

10. (a)        The Hon’ble Supreme Court of India in it’s far fetching Judgment reported in 2001 (1) S.C.C. page-481 ( ICICI Bank Ltd. V/s Prakash Kaur) has been pleased to hold as follows:-

 

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

 

(b)           The ratio was also followed in another case of the Apex Court in 2012 (1) S.C.C. I ( City Corp Maruthi Fi. Ltd. V/s Vijayalaxmi)

 

(c)           The Hon’ble National Commission, it it’s Judgment rendered in 2014 (4) C.P.R. 724 ( NC)—M/s Sundaram Fi. Ltd. V/s Sh.Atul Kumar following the foot steps ofthe Apex Court has been pleased to hold-

 

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

 

 11.          The ratios stated supra clinches  the whole issue and binds us to follow the Hon’ble Supreme Court as mandated in Article 141 of the Constitution of India.

 

12.       The Bank in the instant case acting in perverted manner in derogation of law took possession of the  vehicle in question but failed to preserve it.  What more deficiency of service can be attributed to it?  Hence we answer the point accordingly.

 

13. Point No.3:-     This point raised by the Bank is again a quizzical proposition.  It is self serving and designed to escape from the legal liability.  Had the O.P. Bank been sincere in it’s approach, it could have approached the Hon’ble High Court in a writ of MANDAMUS under Articles 226 and 227 of the constitution or U/s. 482 Cr.P.C. seeking an expeditious investigation.  But it has sat lame duck.  The bonafide Consumer cannot be expected to wait up to infinity for redressal of his grievances, which would be an antithesis to the C.P.Act, 1986.  Hence, we answer the point accordingly.

 

14. Point No.4:-   The fact remains, the complainant was a borrower of the Bank and had defaulted in the agreed E.M.I. payment.  As per Ex.P.2, remaining undisputed by the complainant, he owes a sum of Rs.1,62,405/- of the public fund.  He would be duty bound to reimburse the same to the Bank, subject to the outcome of the further equitable orders passed underneath. Thence, weighing the pros and cons of the case, we proceed to pass the following:-

 

:: ORDER ::

 

   

The complaint is allowed in part.

1.  The  complainant would be required to deposit a sum of Rs.1,62,405/- in the coffers of this Forum with intimation to the O.P. Bank, within a time limit of eight weeks form the date of this order, to be payable to the O.P. Bank, subject to fulfilment of the rest of the order.

 

2. The O.P. Bank subject to intimation of the deposit as aforesaid, would thrive within a period of four weeks of such intimation, to provide a brand new INDICA CAR, registered and duly insured as a TAXI to the complainant.  Complainant would co-operate to facilitate registration.
3. The vehicle aforesaid would not be tagged with hypothecation.
4. The O.P. Bank would be further liable to pay a compensation amount of Rs.20,000/- towards in conveniences and mental agony undergone by the complainant, together with a further sum of Rs.5,000/- towards litigation expenses.
5. Outer limit of twelve weeks is granted to fully implement this order.
6. Acting U/s 14 (1) (f) of the C.P. Act, 1986, we direct the O.P. Bank to refrain from quixotic action of illegal seizures in future.

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 3rd  day of  April-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

 

Documents produced by the complainant

1. Ex.P.1- General information of Asset. ( Seizure Memo)  
2. Ex.P.2- Notice of the O.P. Bank.
3. Ex.P.3-  R.C. Book of the vehicle.
4. Ex.P.4- Permit of the vehicle
5. Ex.P.5-Complaint to the police, dt. 29/11/2015 ( copy)
6. Ex.P.6-Photo of the burnt vehicle under reference.   

 

 Document produced by the Opponent

 

• Nil -

 

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.

 

 

mv.