-::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.58/2018.
Date of filing: 06.09.2018.
Date of disposal: 26.07.2019.
P R E S E N T:-
(1) Shri. Ashok Hanamath Malaghan B.Com. LL.B.( Spl.)
President. ( I/C )
(2) Shri. Shankrappa (Halipurgi)
B.A.LL.B. (Spl.)
Member.
COMPLAINANT/S Sher Ali, S/o Mohammed
Rasheed Moula Age about 38 yrs.
Occ: Private Employee
R/o H.No.2-466 Bagh Nam 141
Nawadgeri Bidar.
( By Smt. Padma. M. Adv.)
VERSUS
OPPONENT/S: The Branch Manager
Shree Ram Transport Finance Ltd.
II Floor Biradar Complex
Above Axis Bank Tripuranth road
Basavakalyan 585327.
( By Sri. S. Wilson Adv.)
:: J UD G M E N T ::
By Shri. Ashok Hanamant Malaghan President.
This is a complaint filed by the above said complainant U/s.12 of the C.P.Act 1986 against the O.P for giving direction to the O.P. to issue NOC certificate to the complainant and to pay compensation to the complainant of Rs.1,00,000/- towards mental agony suffered by the complainant.
2. Brief facts of the case of the complaint are:
The complainant states that he had purchased a lorry bearing no. KA-39/6399 under the hire purchase agreement on 04.03.2008 thereafter he had repaid the entire amount as per the agreement in the year 2012. Further the complainant had taken another loan for sum of Rs. 2,00,000/- in the month of April-2012 from the respondent the NOC certificate of both the loans filed with the complaint. The complainant on 31.07.2013 has taken a loan of Rs.8,00,000/- under the HPA, the loan was to be repaid at the monthly instalment of Rs. 26,000/- in 48 instalments and the last instalment was to be paid on 05.02.2017. The complainant has paid total of Rs. 8,12,309/- and the last instalment paid by the complainant on 01.08.2016. Thereafter due to serious illness of the brother of the complainant the lorry could not be plied and due to hospital expenses the remaining instalments were not paid.
3. Further complainant states that the respondent has issued a notice on 05.12.2016 and thereafter seized the vehicle bearing no. 39/6399 without issuing any notice and acknowledgment. At the time of seizing the vehicle the value of the vehicle was Rs. 5,00,000/-. Thereafter the respondent has sold the vehicle is an auction. So the complainant was under impression that, the entire loan amount is fully satisfied by adjusting sale amount of vehicle. Because, he has paid Rs.8,000,000/- But surprisingly the respondent has issued notice to the complainant stating that the vehicle bg.no.39/6399 has seized and taken possession but on enquiry by the complainant the respondent told that the said notice is given only to complete the procedure and need not worry about the same. Again after lapse of six months one more notice was issued it called before sale notice. Therefore the petitioner has kept quite thinking that the procedure is now followed by O.P. under the impression that he has already paid the excess amount to him. Before sale notice total due amount was Rs.12,12,925/- and the O.P. has received total Rs.8,00,000/- in the month of December-2016 the total value/cost of the lorry was Rs.5,00,000/- at the time of its seizer. Hence, by taking into consideration of these aspect the amount paid by the complainant was excess. It is further argued that, due to seizer of lorry the petitioner has lost his source of income and also lost the money paid in excess. Therefore such act of the respondent is unfair trade practice and amounts deficiency of service and thereby the respondent has cheated the petitioner which has caused mental tension etc. Hence the complainant is entitled to get Rs. 1,00,000/- and also entitled for refund of excess amount paid to the respondent. So he prayed to allow the complaint by granting the reliefs claimed in the complaint.
4. After service of notice the O.P. has appeared through his counsel and has filed the written version contending that:
The complaint filed by the complainant is not maintainable against the O.P. since the same is misconceived and filed with the sole intention of harassing the O.P. and to escape from the liability to repay the loan amount. It is true that, the complainant has availed a loan on 31.07.2013 but the loan amount was wrongly stated as Rs.8,00,000/- instead of actual 8,02,584/-. Hence, same has to be repaid in 48 instalments. The amount of instalments wrongly stated by the complainant as Rs.26,000/-but, infact the instalments are as under.
- 1 Rs. 28,108/-
- 41 Rs. 26,000/-
- 5 Rs.13,000/-
- 1 Rs.4,179
and the date of last instalment was 05.08.2017. It is true that, the complainant has paid totally Rs. 8,12,309/- till 01.08.2016 but on account of serious illness of the brother of the complainant he was unable to plied the vehicle due to his medical expenses etc. are all cfalse. The allegations made in para 4 of the complaint are all false but it is true that the O.P. has sent a notice on 05.12.2016 but he denied that the vehicle was seized without notice to the complainant. In fact the O.P. contacted telephonically and issued several notices to the complainant and guarantor before and after seizer of the vehicle and also before and after sale of the vehicle by noticing him to pay the outstanding loan dues. But the complainant did not respond for the same and has not repay the loan amount. Therefore the assumption of the complainant are of his own and this opponent was not obliged to react or to reply to those assumptions. The contents of para 5 6 7 and 8 of the complaint are denied by this O.P.
5. The true facts of the case are, the O.P. is financial institution and the complainant has borrowed the loan from this Opponent for purpose of purchasing subject vehicle by executing necessary documents in favour of the O.P. including loan cum hypothecation agreement. As per the agreement the loan amount is Rs. 8,02,584/- and interest amount at the rate of 11.23568% per annum payable in 48 instalments. Total repayable is (Agreement Value) Rs.11,63,287. Therefore the complainant is a borrower of O.P. Hence the borrower cannot be turned as consumer within the meaning of Sec.2 (1) d of C.P.Act. The complainant has borrowed the loan from the O.P. to purchase a commercial vehicle and the complainant is a commercial user of the vehicle as the loan was granted to him was commercial loan. Hence for such commercial transaction the present complaint is not maintainable against the O.P. The complainant has executed necessary documents before the the O.P. but, the complainant is not prompt and regular in repayment of monthly loan instalments and he did not honour his commitment and become a defaulter in payment of instalments dues. Under the circumstances the O.P. has issued notice to the complainant and the guarantor but even then dues are not paid. In view of the hypothecation cum clause of the loan, the complainant has agreed and undertaken to get resolved his disputes claims differences of opinion in respect of vehicle loan transaction if any through a process of arbitration But approaching this Honble Forum instead of approaching the arbitrator is illegal. Hence present complaint is not maintainable before this Forum. Considering above all aspects there is no deficiency of service on the part of the O.P.in any manner but the complainant has filed this false complaint without there being any cause of action. Hence, the complaint is deserves to be dismissed with the compensatory cost of Rs.25,000/-.
6. Considering the above said facts and circumstances of the case the following points are arose for our consideration.
- Does the complainant proves that, there is a deficiency of service on the part of the Opponent in seizing the vehicle of the complainant ?
- Whether the complainant is entitled any reliefs claimed ?
- What orders?
7. Our answers to the above points are as follows:-
- In the Negative.
- Not answered.
- As per the final order .
8. Point No.1
Considering the pleadings of both the parties it is not in dispute that, the complainant has availed loan from the O.P. for purchase of subject vehicle. But, it is disputed that quantum of the loan granted to the complainant by O.P and the procedures followed by O.P. in seizing and selling of subject vehicle
9. The learned counsel for the complainant has argued that, in spite of payment of all the dues amount the O.P. has seized the above vehicle without issuing notice to the complainant. At the time of seizer of the vehicle, it was worth Rs.5,00,000/- and the amount of loan already being paid by the complainant was more than Rs.8,00,000/-. So the complainant was under the impression that, considering the value of the said vehicle the loan instalments paid by the complainant are in excess towards the loan amount. Hence the complainant is entitled for refund of the said amount paid in excess along with No Dues certificate from the O.P.
The learned counsel for the complainant further argued that, the instalments was fixed at the rate of Rs.26,000/-for 48 instalments and in all the complainant has paid 8,12,309/- and the last instalment paid on 01.08.2016. But the complainant was unable to pay further instalments on account of serious illness of his brother and to meet out the medical expenses. In the mean time O.P has seized the vehicle without any prior notice and acknowledgement. Thereafter the complainant has approached and asked the O.P. as to why you are issuing notice after one year from the seizer of the vehicle. But, in reply the O.P. has answered that, for to complete the proper procedure the notice was issued so, you need not worry about the said notice. But again surprising after the lapse of six months one more notice has been issued called as before sale notice. So, the complainant was kept quite under the impression that, the procedure has followed by the O.P. since, the complainant has paid the excess amount, which may be refunded by O.P. after completion of alleged procedure. Hence the complainant is entitled for refund of the excess amount paid by him.
10. The contention of the O.P. is that the complainant has not paid the instalments regularly hence there is a due in his loan account. So in view of the said fact and in order to recover the said dues amount the O.P. has seized the subject vehicle of the complainant by issuing prior notice him for such seizer and accordingly possession of the vehicle was taken. Even thereafter the complaiant has not come forward for payment of dues. Under the circumstances the vehicle was auctioned to the highest bidder by following all legal formalities. The O.P. has issued pre sale notice and also another notice after auction of the vehicle to the complainant. Hence there is no deficiency of service in any manner by the O.P. But, the complainant in order to grab the money has filed this false complaint which is not maintainable and the question of making excess payment by the complainant does not arise as there is a due in the loan account of complainant till this day. Therefore the O.P. is acted as per Loan Cum Hypothecation agreement and also as per the terms and conditions of the loan. Any dispute between the parties are subjected to arbitration clause but, the present complaint without exhausting the arbitration clause is not maintainable. So, on this account also the claim of the complainant is not maintainable and as such the complainant is not a Consumer within the meaning of act, as the O.P. has granted a commercial loan to the complainant for purchase of above said commercial vehicle. Hence, the present complaint deserves to be dismissed.
11. Considering the above said fact the loan granted to the complainant for purchase of above said vehicle is not in dispute. But only the disputed fact is that the O.P. has not intimated the complainant before seizure of the vehicle which was worth Rs.5,00,000/- at the time of its seizure. It is further claim of the complainant that, after adjusting the value of the vehicle of Rs.5,00,000/- into the loan account the amount paid by him was in excess hence same is to be refunded to him with N.O.C.
12. In order to prove the same the complainant has produced 15 payment bills issued by the O.P. to show that he was paying the instalments regularly. After totalling the above said bills the amount comes to Rs. 6,04,600-00 and the value of the vehicle was Rs.5,00,000/- at the time of its seizure. Hence, considering the same there is no due in the loan account of the complainant. So, it is contended that, the complainant is entitled the excess amount with N.O.C. from the O.P. But opposite party has claimed that the value of the vehicle was made by the complainant on guess works but not on real value of the said vehicle at the time of the seizure and even after adjusting the amount of sale proceedings of the said vehicle there is a due in the loan account of the complainant. In this regard, we have perused the copy of statement of account produced by the complainant which clearly shows that as on 16.09.2016 there is a balance of Rs.4,27,103.56 in the said loan account. But the complainant was failed to convince as to how he was paid the entire loan amount as contended by him by documentary proofs and as to why he has not challenged the said statement of account in the concerned court of law is not explained properly. So, mere oral submission that he has paid entire loan amount is not sufficient proof to come to conclusion that, the complainant has paid the entire loan amount. Even by considering the 15 payment vouchers produced by the complainant, still there is arrears in the loan account of the complainant. It is further observed that it is admitted fact that, the O.P. has issued before sale notice to the complainant and also the notice before seizure of the vehicle by considering the documents produced by the complainant himself i.e. Annexure.P.8 & 9. By these documents it is proved that, the complainant was fully aware of the seizure of the vehicle and also sale of the said vehicle under auction. Therefore in our view the complainant’s allegation that the vehicle was seized and sold without his knowledge is not holds good. It is further noticed by us that the complainant has not produced any valuation certification of vehicle as on the date of its seizure. But he was contended that the vehicle was worth Rs.5,00,000/-so same is also not substantially proved by producing cogent proofs. Therefore in the absence of the same, the contention of self averment regarding the value of the vehicle is also not acceptable one.
13. In this regard the learned counsel for the complainant has relied upon the citations as per the memo dated 04.07.2019. After careful consideration of the said Judgment the Honble National Commission was held in the said case that repossession of the vehicle was taken by the O.P. forcibly and in this regard the criminal case also registered against the person who took the vehicle forcibly without informing the concerned owner. Under the circumstances we relied upon the above said Judgment of the Honble National Commission passed in Revision Peition No.737 of 2005 between Citicorp. Maruti Finance Ltd. Versus Vijayalaxmi dated 27th July-2017 wherein the Honble National Commission was held that, the repossession of vehicle by the Bank was unjust without following the procedure. But in the present as per the documents produced by the complainant such as Before seizure notice dated 21.06.2018 and also Notice Before Seizure dated 04.10.2017 confirms that the complainant was fully aware of the seizure of the vehicle for non payment of dues and it is also evident that before selling the said vehicle the O.P. has issued notice to the complainant. Therefore in our view there is no irregularity or any illegal act committed by the O.P. as contended by the complainant. Hence the law laid down in the above said Judgment is not aptly applicable to the case in hand. Hence with due respect to the their lordship the principals laid down in the said Judgment are considered while answering the point no.1. Therefore looking to any angle the complainant has not proved his allegations made against the O.P. by cogent proofs including point no.1. So same is answered by us in the Negative.
14. Point No.2.
For the reasons stated and discussions made above we have answered point no.1 in the Negative. Hence in our view the claim of the complainant against the O.P. is not maintainable. So the point no.2 is not answered in any manner. Resultantly the complaint is liable to be dismissed. Thus we proceed to pass the following order:
::ORDER::
The complaint filed by the complainant U/Sec. 12 of C.P.Act. against O.P. is dismissed with no order as to costs.
Intimate the parties accordingly.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 26th day of July 2019).
Sri. Shankrappa H. Sri. Ashok Hanamanth Malaghan
Member. President.
Documents produced by the complainant
- Annexure.1- Copy of Registration Certificate
- Annexure.2– Copy of Fitness Certificate
- Annexure.3- 15 loan receipts
- Annexure.4– copy of list of instalment amount.
- Annexure.5- Copy of statement of accounts.
- Annexure.6-Copy of Closure Letter.
- Annexure.7- Copy of Legal notice Dt.05.12.2016.
- Annexure.8- Copy of Before Sale notice.
- Annexure.9- Copy of Notice (Before Seizure).
Document produced by the Opponent. NIL
Witness examined.
Complainant.
- P.W.1 Sher Ali,S/o Mohammed Rasheed Moula (Complainant )
Opponent.
- R.W.1. Steven Christamukti, S/o A Christamukti. (O.P. )
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Sri. Shankrappa H. Sri. Ashok Hanamanth Malaghan
Member. President.
