BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 100/10.
THIS THE 29th DAY OF APRIL 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- Sri. Ladle Sab S/o. Mahaboob Ali, Age:
Major, Occ: Agriculture, R/o. Kowtal, Tq. Manvi, Dist: Raichur- 584 101.
//VERSUS//
OPPOSITE PARTY :- The Branch Manager, M/s. Sriram Transport
Finance Co. Ltd, Sugureshwar Complex Station Road, Raichur.
CLAIM :- For to quash demand cum legal notice dt. 04-
08-10, to direct the opposite to pay an amount of Rs. 25,000/- which is the difference of the sale market value of the vehicle, to direct it to return all signed post dated blank cheques and to pay compensation amount of Rs. 50,000/- with cost and other reliefs, as deems fit to the circumstances of this case.
Date of institution :- 20-11-10.
Notice served :- 14-01-11.
Date of disposal :- 29-04-11.
Complainant represented by Sri. T.M. Swamy, Advocate.
Opposite represented by Sri. A.S. Habib, Advoate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi, President:-
This is a complaint filed by the complainant Ladle Sab against Opposite M/s. Shriram Transport Finance Company Ltd., U/sec. 12 of Consumer Protection Act for to quash demand cum legal notice dt. 04-08-10, to direct the opposite to pay an amount of Rs. 25,000/- which is the difference of the sale market value of the vehicle, to direct it to return all signed post dated blank cheques and to pay compensation amount of Rs. 50,000/- with cost and other reliefs, as deems fit to the circumstances of this case.
2. The brief facts of the complainant case are that, he purchased Tractor bearing No. KA-36/T-7867 with financial assistance of opposite under hypothecation agreement on 25-04-08 by availing loan of Rs. 1,25,000/- which was to be repaid within 10-10-10, with interest as per the agreement. He repaid Rs. 58,000/- on March-2009. Subsequently, he became defaulter in payment of further installments due to failure of crop. On 02-05-09 opposite finance company ltd., seized the said tractor without following procedure of law as laid down by the Hon’ble Supreme Court, while taking it to its godown, the said tractor met with an accident. He requested personally as well as in writing, the opposite finance to take entire amount and to handover the tractor in good condition, as it was, at the time of seizer. In spite of his readiness to pay outstanding amount with interest, opposite shown its negligence, it created documents by forging his signature and produced the said documents before the RTO, Raichur. Hence opposite found guilty under deficiency in its service, as such, he filed this complaint for the reliefs as noted in it.
3. Opposite Finance Company Ltd., appeared in this case, filed its written version by denying all the allegations made by the complainant in Para wise and thereafter it contended that, as per the terms and conditions of the hypothecation agreement. Notices issued to complainant to pay the balance loan amount, but he not responded to the request of the opposite, therefore vehicle was seized and thereafter, it was sold in public auction with best market price of Rs. 1,25,000/- to one Basavaraj Raichur, the said amount was appropriated to the loan account of the complainant, and still complainant has to pay an amount of Rs. 20,311/-. Accordingly, it initiated arbitration proceedings for recovery of the same amount, it has not committed any deficiency in service and thereby, it prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, opposite finance company ltd., seized his Tractor bearing No. KA-36/T7867 on 02-05-09 without following procedure of law and without prior notices and thereafter, he requested the opposite to return the tractor by taking balance loan amount with interest but opposite not considered his request and sold it to meager value of Rs. 1,25,000/-, it created false documents by forging his signatures and produced before RTO, Raichur to get NOC and not returned blank cheques of him, in spite of several requests, it shown its negligence to consider his request and thereby opposite found guilty under deficiency in its service.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In Negative.
(2) In Negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he noted as PW-1. Documents Ex.P-1 to Ex.P-8 and Ex.P-8(1) are marked. On the other hand, affidavit-evidence of Field Executive of the opposite finance ltd., was filed, he was noted as RW-1. Documents Ex.R-1 to Ex.R-22 are marked.
7. In view of the pleadings of the parties, and the affidavit-evidence of them. We noticed some of the following undisputed points between the parties:
1. It is undisputed fact that, the complainant purchased his tractor bearing No. KA-36/T7867 with financial assistance of opposite finance ltd., by availing loan of Rs. 1,25,000/- on 25-04-08.
2. It is further undisputed fact that, the complainant purchased the said tractor under hypothecation agreement.
3. It is also undisputed fact that, the complainant became defaulter in payment of installments as per the terms and conditions of the hypothecation agreement.
4. Further, it is undisputed fact that, opposite finance seized the said tractor on 02-05-09 from the custody of complainant.
8. With these undisputed facts between the parties. Now let us appreciate the case of each parties, based on their pleadings, affidavit-evidences and documents, and various authorities relied by them.
9. The first contention of the complainant is that, opposite finance company ltd., seized his vehicle without following procedure as laid down by the Hon’ble Supreme Court. In support of this contention, he relied upon the following rulings.
1. III 2010 CPJ 384 (NC
Magma Fire Crop Ltd., V/s. Ashok Gupta
2. I 2006 CPJ 46 (NC)
Sriram Transport Finance Co. Ltd., V/s. Surekha Khanaji Khemnar.
3. SLP (Crl) 15/07 SC (Para 16 & 28)
ICICI Bank Ltd., V/s. Prakash Kaur.
4. SLP (Crl) 4935/06 SC (Para 5 & 14)
ICICI Bank Ltd., V/s. Devi Sharma.
10. On the other hand, the learned advocate for opposite contended that, complainant himself admitted that, he is the defaulter in payment of installments of loan. He also admitted that, he executed hypothecation agreement Ex.R-20 in respect of the said loan. As per the terms and conditions of the hypothecation agreement, when the complainant became defaulter then, finance company is at liberty to issue notice of seizer seize the vehicle. Here the vehicle was seized with due prior notice, inventory was prepared for which complainant has consented. In view of such fact, the principles of the rulings referred by the complainant are quite different to the facts of the present case on hand, as such, he requested us, to reject this contention of the complainant by relying on the following judgments.
1. Judgment of the Hon’ble High Court of Karnataka in CRP 3199/90.
2. The Manager St. Mary’s Hire Purchase (P) Ltd., V/s. N.A. Joshi.
3. II (2010) CPJ 45 (NC)
Parameshwari V/s. VST Service Station and others.
4. Judgment of the Hon’ble Karnataka State Commission in appeal No.
120/2010.
The Manager Sriram Transport Company V/s. Abhinandan.
5. Judgment of the Hon’ble State Commission of Karnataka in appeal
No. 1841/2005.
Abdul Razak V/s.
1. Sriram Investments
2. Raghavendra Manvi.
6. Appeal No. 2322/07
Sri. K.R. Manjunath V/s.
M/s. Sriram Investments Ltd, and others.
11. In pursuance of the submissions made on both sides, now we have taken note of document Ex.P-3, which is a letter written by the complainant to the opposite dt. 19-06-09, the complainant much placed on reliance on this letter that, he was ready and willing to pay balance installments of loan, but finance company not headed to his request and sold the said vehicle in public auction for meager value.
12. In the light of this submissions made by the learned advocate for complainant, we have gone through the letter Ex.P-3 on which complainant much placed his reliance. On going through this letter, we have not noticed any of the facts that, opposite seized the said vehicle by using muscle power or appointing gundas for such repossession from the custody of complainant. At the most, gist of Ex.P-3 goes to show that, he is ready to pay installments and due amount as on the date of it i.e, on 19-06-09. The complainant not pleaded any of the facts in his complaint, that the vehicle was seized by the opposite finance company by using muscle power or appointing gundas to reposes it. Admittedly, the vehicle was seized on 02-05-09 as per the records available. Now we have to see, the document Ex.P-5 which dt. 14-12-09, which is letter written by the complainant to RTO, Raichur after Ex.P-3, in Ex.P-5, the complainant himself, requested RTO by admitting the seizure and repossession of the vehicle by opposite for his inability to make full payment, of loan, and thereby he requested RTO to issue FRC in the name of opposite.
13. By looking into the entire facts as stated above, we are of the clear view that, the principles of the rulings referred by the complainant, are not at all other relevant for the purpose of this case. However, we have gone through the principles of the cases of each judgment in detail, and we are of the view that, procedures adopted in each case for seizure of the vehicle was using muscle power and in some cases by appointing gundas. In such events, the Hon’ble National Commission, as well as the Hon’ble Supreme Court, observed, as, hiring of recovery of loan or repossession of the vehicle hypothecated by using musclemen or appointing gundas is deprecated. The principles of the judgments referred by the learned advocate for opposite as noted above are clearly states that, seizure of the vehicle in accordance with the terms and conditions of the loan due to failure of the loanee (complainant) to pay the installments of loan does not amount to deficiency in service. Here Ex.P-3 is not coming to help of complainant, in view of his letter Ex.P-5, service or non service of the seizure of notices, which are three in numbers, have no much importance in this case. In view of documents Ex.P-3 & Ex.P.5. Opposite finance company got prepared valuation of the tractor by one Sri. Joshi Druvakumar, who is approved valuer, thereafter auction notice was issued in Sudhimoola Kannada Daily Newspaper dt. 20-01-10, which is popularly circulating paper in this area. Hence we are of the view that, seizure of the vehicle is in accordance with the terms and conditions of the hypothecation agreement Ex.R-20, accordingly we have rejected this contention of the complainant.
14. The second contention of him is that, opposite has committed forged signatures and created documents and gained unlawful monetary benefit by selling the vehicle. This fact was pleaded as well as evidenced in affidavit-evidence of PW-1, this fact was denied by the opposite No.1. On careful perusal of the pleadings of the complainant and documents Ex.P-5 which is Xerox copy of the letter said to have written by the complainant to RTO which is dt. 14-12-09. We cannot compare this signature of Ex.P-5 to the admitted signatures, we are not inclined to accept this contention of the complainant for the reasons that, Ex.P-5 is the Xerox copy, how the signatures appearing in Xerox copy can be compared with other admitted signatures of him. The complainant not summoned the alleged original letter Ex.P-5 from RTO, in support of this submission, more over when the complainant himself is pleading and filed affidavit-evidence with regard to forgery of his signature and creating of forged documents to get financial benefit by the finance company, then we have no jurisdiction to deal such kind of matters, because, we are dealing with the consumer disputes with summary procedures. In summary procedures we cannot decide such complicated questions of facts regarding forgery and forged documents. The complainant has to take this matter either before the criminal court or before the civil court to get appropriate reliefs in this regard, as such we are not accepting this contention of this complainant by following a ruling reported in I 2008 CPJ 121 (NC) Rajeshwar Prasad V/s. VCL Financial Service Ltd.,
15. Third contention of the complainant is that, opposite finance company intentionally sold the vehicle at the lowest price and appropriated it in his loan account. In the light of this submissions we have perused the document Ex.R-10 vehicle valuation report, Ex.R-11 sale notice published in the newspaper, Ex.R-16 notice, Ex.P-17 & Ex.P-18 acknowledgements which are clearly goes to show that, the vehicle was seized for best available price in the public auction in which other participants, participated as such, we have also not inclined to accept this contention of the opposite.
16. The learned advocate for complainant submitted that, complainant handed over of blank cheques, now those are in the custody of opposite. The learned for opposite denied it and submitted a ruling reported in 2008 CPJ (NC) 121 Sri Stanley V/s. Assistant General Manager, TATA Engineering & Locomotive Company Ltd., and Another, in his support as it is not maintainable. In the said ruling their lordships of the National Commission held as, consumer forum has no jurisdiction to deal such matters with regard to blank cheques said to be in custody of opposite, as such, we have also not accepting this contention of complainant.
17. The other facts submitted by the learned advocate for complainant before us to grant any other reliefs as prayed in his complaint. In the light of the principles of the rulings of the Hon’ble State Commission noted at Sl.No. 4 to 6, it is not proper a case to grant such reliefs. Hence we have not noticed any kind of deficiency in service on the part of this opposite.
18. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in his complaint, accordingly, we answered Point Nos. 1 & 2 in negative.
POINT NO.3:-
19. In view of our findings on Point Nos- 1 & 2, we proceed to pass the following order:
ORDER
This complaint filed by the complainant is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 29-04-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
