Karnataka

Chitradurga

CC/140/2018

K. Kenchappa S/o Naarshappa - Complainant(s)

Versus

The Branch Manager, M.S. Cholamandalam Investment - Opp.Party(s)

P.S. Sathyanarayana Rao

21 Feb 2019

ORDER

COMPLAINT FILED ON:19/07/2018

DISPOSED      ON:21/02/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO:140/2018

 

DATED: 21^st FEBRUARY 2019

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	K. Kenchappa S/o Naarshappa, Aged about 46 years, Agriculturist, Kalkere Village, Ballalsamudra Post, Hosadurga Taluk, Owner of Tafe-Ferguson Tractor Bearing No. Regn. KA-16-T.B. 5029.   (Rep by Sri.P.S. Sathyanarayana Rao, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Branch Manager, M.S. Cholamandalam Investment and Finance Company, Opp: Neelakanteshwara Temple, 2nd Floor, B.D. Road, Chitradurga.577501.   2. The Authorized Signatory, MS Cholamandalam Investment and Finance Company Jayadeva Circle, Sampige Road, Davanagere.     (Rep by Sri.Y.H. Yogendranath, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OP No.1 to reduce the rate of interest @ 9% p.a to settle the full and final settlement as per the promise, to pay Rs.50,000/- towards mental agony and torture and costs and to grant such other reliefs.

2.      The brief facts of the case of the above complainant are that, on 30.09.2016 he has purchased TAFE Fergusion Tractor bearing Registration No.KA-16 TB-5029 by investing Rs.6.85 lakhs by borrowing hand loans from his friends and relatives and also obtained Bank loan of Rs.5,30,000/- from OP No.1 vide loan Agreement No.XTRAIHC00001793361 by hypothecating the above said vehicle with OP No.1. The complainant has paid regular installment amount to OPs for 4 regular installments from 30.04.2017 till today in total Rs.3,14,000/- including down payment of Rs.1,20,000/- through Chitradurga Branch.  Further it is submitted that, due to failure of rain and some family inconvenience, complainant became defaulter in payment of regular installment for only six months i.e., due of Rs.66,265/- and accordingly the complainant has sought some to clear the entire loan amount.  The OP No.1 agreed to provide some time to repay the balance amount with regular installment amount.  But very recently, on 02.06.2018 OP No.1 with the support their followers and agents forcibly taken away the possession of the vehicle The complainant approached the OP No.1 and sought for explanation, but the OPs refused to talk with the complainant and demanded excessive loan.  The period of installment is up to 15.12.2017.  Moreover, that on 28.09.2020 the OPs have informed in the notice that, the complainant has to repay Rs.1,06,619/- within 7 days from the date of receipt of notice, how it is possible to pay the entire amount to the poor person.  The OPs are supposed to neglect the claim and denied the lawful demands of the complainant, who is running the Tractor for their own agricultural purpose and the OPs have denied the lawful claim of complainant with a malafide intention to deprive him of his legitimate rights, which amounts to unfair trade practice and deficiency in service and willful negligence towards complainant, which caused financial loss and mental agony.  Now the complainant is facing very hard days to maintain his family without the income.  The cause of action for this complaint arose on in the month of June 2018, when the notice has been issued by the OP No.1 and for that, the complainant has also replied to reduce the rate of interest @ 9% p.a, which is within the jurisdiction of this Forum and prayed for allow the complaint.

3.      On service of notice, OPs appeared through Sri. Y.H. Yogendranath, Advocate and filed version denying all the allegations made in the complaint.  It is submitted that, the complainant is not maintainable in view of the fact that, there is one clause “Arbitration” and one “jurisdiction” in the agreement and complainant has specifically agreed to the sole Arbitrator for adjudication through Arbitration and also agreed in the jurisdiction clause that courts at Chennai shall have exclusive jurisdiction for litigation arising out of the agreement, therefore, the complaint filed by the complainant is wholly misconceived and not maintainable either in law or on facts.  It is further submitted that, the complainant cannot invoke the provisions of the C.P Act.  The Section 2(d) of the C.P Act, 1986 mention the term Consumer means any person who – buys goods for consideration – but does not include a person who obtains such goods for re-sale or for any commercial purpose.  It is submitted that, the complainant cannot invoke the provisions of the C.P Act.  It is further submitted that, the averments made in para 3 that, the complainant has purchased the TAFE Fergusion Tractor vehicle bearing Registration No.KA-16 TB-5029 by availing loan of Rs.5,30,000/- from OP No.1 under loan agreement No.XTRAIHC00001793361 is true, but rest of the averments are denied.  The averments made in para 4 are not fully correct.  It is true that, the complainant has availed the loan by hypothecating the vehicle is true, but he has not paid the installments regularly and he is a chronic defaulter.  The complainant has stated in the same para that, he has paid Rs.3,14,000/- towards regular installment including down payment of Rs.1,20,000/-,  and the due is only for Rs.66,265/- is denied as false.  It is further submitted that, the complainant never came before the OPs to pay the interest overdue and never paid the loan amount even till today.  It is further submitted that, the allegations made in para 5 of the complaint are denied as false.  It is further submitted that, any of the company employee has no power to give assurance that to reduce the rate of interest and the employee has to follow the rules and regulations of the company which is incorporated by them.  It is false to state that, the complainant came before the OPs to settle loan amount at one time and hence, there is no deficiency of service and unfair trade practice and the complainant is put to strict proof of the same.  The averments made in para 7 that, only for 6 months break up in the payment of one installment amount, the period of installment is up to 15.12.2017.  Moreover, the OPs have issued notice to the complainant on 28.09.2018 to repay the outstanding balance amount of Rs.1,06,619/- including finance charges within 7 days may be true, because it is the duty of the complainant to repay the loan amount otherwise, the company will issue notice to the complainant.  It is further submitted that, in para 6 of the complaint that, he is ready to make one time settlement and in para 7 he says that, it is impossible to pay the entire amount to the poor person, it clearly shows the character and conduct of the complainant and the complainant is put to strict proof of the same.  There is no cause of action to file this complaint and the complainant has grossly abused the process of law and has filed vexatious complaint only with a malafide intention as the complainant, from the date of taking loan from the OP company, he was not paying the installment in time as agreed in the loan agreement and hence, there is no deficiency of service on the part of OPs and prayed for dismissal of the complaint.

4.      Complainant himself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-6 were got marked and closed his side. On behalf of OPs, one Sri.K. Thippeswamy, the GPA Holder of OPs has examined as DW-1 by filing the affidavit evidence and Ex.B-1 to B-6 documents have been got marked and closed their side.   

 

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that this Forum has got jurisdiction to entertain this complaint?

(2) Whether the complainant proves that the OPs have committed deficiency of service in seizing the vehicle and entitled for the reliefs as prayed for in the above complaint?

              (3) What order?

         7.       Our findings on the above points are as follows:-

                    Point No.1:- Partly in Affirmative. 

Point No.2:- Partly in Affirmative. 

                    Point No.3:- As per final order.

REASONS

8.      Point Nos.1 & 2:- There is no dispute between the complainant and OPs that, complainant has purchased TAFE Fergusion Tractor  bearing Registration No.KA-16 TB-5029 by borrowing loan from OP NO.1 for Rs.5,30,000/-, the total price of the Tractor was Rs.6,85,000/-.  Out of the above said loan, the complainant has paid the down payment of Rs.1,20,000/- to the OP and further agreed to pay the installments once in six months.  Accordingly, the complainant has paid two installments of Rs.99,454/- and Rs.97,340/- respectively in all a sum of Rs.3,14,000/- to the OP No.1 including down payment.  According to the complainant, he is due for Rs.2,16,000/- only.  But the OP has seized the vehicle and at the time of seizing the vehicle, the OP never prepared any mahazar at the spot and taken away the vehicle of the complainant.  After that the complainant has filed a separate application stating that the OP has taken the vehicle without following the procedure as contemplated under law.  According to the application dated 23.10.2018 filed by the complainant it is stated that after seizing the vehicle, the OP has removed some parts from the vehicle i.e., 1) rotovator worth Rs.1,50,000/-, 2) battery has been changed with old one worth Rs.15,000/-, 3) tape recorder cost of Rs.1,500/- and 4) diesel tank cap worth Rs.150/- in total, the OP has caused loss to the complainant for Rs.2,00,000/-.  At the time of arguments by the complainant, it is submitted that, no doubt the complainant has to pay the amount of Rs.2,16,000/- along with interest to the OP.  Now the complainant is ready to pay the amount to the OP by reducing the cost of Rs.2,00,000/- towards removal of parts of the vehicle as stated above.  But the OPs have addressed the arguments and they have taken a main contention that, the Forum has no jurisdiction to entertain this complaint.  As per the agreement made between the parties that, the jurisdiction Court is only a sole arbitrator at Chennai and if any objections raised by the complainant, he has to file a complaint before the Sole Arbitrator, not before this Forum.  The OP has taken a contention that, this Forum has no jurisdiction and this complaint is not maintainable.  The complainant has to approach the Sole Arbitrator and further the OP has agreed that the complainant has obtained a loan for Rs.5,30,000/- from OP for the purpose of purchasing the TAFE Fergusion Tractor and also they have admitted that the complainant has paid an amount of Rs.1,20,000/- as down payment at the time of purchasing the same and also paid installment of amount of Rs.3,14,000/- i.e., two installments of Rs.99,454/- and Rs.97,340/- respectively to the OP.  According to the arguments addressed by the OPs, this Forum has no jurisdiction to entertain this complainant.

 9.     We have gone through the entire pleadings of both sides and the documents filed by both parties.  No doubt as per the agreement, the jurisdiction is before the Sole Arbitrator.  Here the complainant has filed this complaint stating that the OP has failed to fallow the procedure before seizing the vehicle.  As per the documents produced by the OP, it shows that before seizing the vehicle, the OP has to issue notice to the complainant and after seizing the vehicle, the OP has to prepare the mahazar at the spot by mentioning that what are the parts are available in the vehicle and after seizing the vehicle, the OP has to issue notice to the complainant giving 15 days time to come and take the vehicle by paying the installment amount.  But in this case, the OP never come forward to fallow the procedure, it is the deficiency of service committed by the OPs.  When there is a deficiency of service, the consumer has got jurisdiction to decide the matter.  In this case also, the OP has violated the procedure before seizing of the vehicle.  After seizing of the vehicle, the OP has to publish the date of auction in the news paper or intimate the complainant by RPAD.  But in this case, the OP never taken any such type of procedure after seizing the vehicle that is the deficiency committed by the OP.  Now the complainant is ready to pay the amount of Rs.2,00,000/- to the OP after deducting loss incurred towards removal of the parts from the vehicle by the OP.  Hence, the Forum comes to the conclusion that, the arguments addressed by the complainant is sustainable.  Primafacie it shows that the OP has committed deficiency of service and the agreement produced by the OP is in English language, the complainant has no knowledge of agreement.  The OP has obtained the signature from the complainant in all the pages of the agreement without giving any explanation to the complainant.  The complainant has purchased the above said vehicle for his agricultural purpose and not for commercial purpose.  The OP has taken a contention in his version that the complainant has purchased the above said vehicle for commercial purpose, but in this regard the OP has failed to prove the same.  The complainant has proved that, he has purchased the vehicle for his agricultural purpose by giving RTCC and other land documents to the OP No.1.  The OP has collected the documents of agricultural land from the complainant before disbursing the loan.  Such being the case, the question of commercial purpose does not arise and whatever the contention taken by the OPs in the version is not sustainable under law.  The complainant is an agriculturist and he is a poor man, the Consumer Forum has to decide the matter on Principals of Natural Justice and beneficiary legislation and the C.P Act is a beneficiary legislation.  In this case also, the complainant is a beneficiary under the C.P Act.  No doubt in all the angle, we find that, there is a deficiency of service on the part of OPs.  Accordingly, this Point No.1 and 2 are held as partly affirmative to the complainant.          

            10.     Point No.3:- As discussed on the above points and for the reasons stated therein we pass the following:-

 

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that the OPs are hereby directed to collect the amount of Rs.2,00,000/- from the complainant, out of which Rs.1,00,000/- is to be collected within 30 days and the remaining amount of Rs.1,00,000/- is to be collected after two months and to hand over all the documents collected from the complainant at the time of sanctioning the loan and also directed to give hypothecation cancellation letter to the RTO, Chitradurga.  If OPs refused to receive the same, the complainant is directed to deposit the above said amount before this Forum as ordered. 

(This order is made with the consent of Member after the correction of the draft on 21/02/2019 and it is pronounced in the open Court after our signatures)         

 

                                     

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri.K. Thippeswamy, the GPA Holder of OPs by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Final call letter
02	Ex-A-2 to 4:-	Payment receipts
03	Ex-A-5:-	Legal notice dated 15.06.2018
04	Ex.A-6:-	2 Postal receipts and acknowledgements

Documents marked on behalf of OPs:

01	Ex-B-1:-	Loan statement
02	Ex-B-2:-	Pre-seizure intimation
03	Ex-B-3:-	Final call letter
04	Ex.B-4:-	Inventory of the vehicle
05	Ex.B-5:-	Authorization letter to seize the vehicle
06	Ex.B-6:-	Notice given to complainant and guarantor

 

 

 

MEMBER                                                   PRESIDENT

Rhr**