Karnataka

Chitradurga

CC/84/2015

Sri. Ramanna S/o. Kariya Bhovi, - Complainant(s)

Versus

The Branch Manager, Sriram Transport Finance Co.Ltd., - Opp.Party(s)

Shri.K.R.Rangaswamy

16 May 2016

ORDER

COMPLAINT FILED ON : 06/10/2015

     DISPOSED ON: 16/05/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

CC. NO. 84/2015 DATED:  16th May 2016

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

                        SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

COMPLAINANT/S	Ramanna S/o Kariya Bhovi, Agriculturist,R/o Cholamadu, Bhuthanahatti, Uduvallihatti Hiriyur Taluk, Chitradurga.   (Rep by Sri. K.R. Rangaswamy, Advocate)
OPPOSITE PARTY	The Branch Manager, Sriram Transport Finance Co. Ltd., Jyothi Complex, Ground Floor, Near Ranganatha Theater (TAT), OPP: APMC, Bangalore Road, Challakere, Chitradurga.   (Rep by Sri. Ananthakumar S. Habib, Advocate)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OP for a direction to handover possession of the Mahindra Tractor bearing Registration No.KA-40/T-6580 or to pay Rs.2,00,000/- with interest at the rate of 24% p.a and such other reliefs as this Forum deems fit to grant.

2.     The brief facts of the case of the complainant are that, complainant has purchased second hand Mahindra Tractor bearing Registration No.KA-40/T-6580 from one Eranna for a sum of Rs.3,50,000/- and  borrowing a loan of Rs.2,30,000/- from the OP in the month of September 2012 by hypothecating the same in favour of OP.  After obtaining the loan complainant has repaid the loan installment amount regularly to the OP up to the end of June 2014 and the remaining outstanding balance was Rs.50,000/-.  It is further submitted that, as he fell ill, he was unable to pay the balance loan amount.  Officials of the OP visited the house of complainant and demanded to pay the balance amount, for which the complainant requested to provide time to pay the same but, the OP not considered his request and took the said Tractor without prior intimation to the complainant.  It is further submitted that, complainant approached several times and requested to handover the Tractor but, the OP has not responded and postponing the matter on one or the other pretext.  Now the complainant is ready and willing to pay the balance loan amount.  It is further submitted that, on 04.09.2015 complainant got issued legal notice to the OP calling upon to handover the possession of the tractor.  OP failed to reply to the said notice but, informed through Mobile stating that, the same was sold, which is against to the law which caused deficiency in service and caused financial loss and mental agony to the complainant and prayed for allow the complaint.

 

        3.     On service of notice, OP appeared through Advocate Sri. Ananthkumar. S. Habib and filed version stating that, OP is a banking financial institution engaged in the commercial vehicle finance business.  It is further submitted that, complainant borrowed a loan from the OP to purchase 2006 model Mahindra Tractor bearing Registration No.KA-40/T-6580 under the guarantor ship of one Mr. H. Govindappa by executing joint loan cum hypothecation agreement dated 18.07.2012.  Complainant purchased the said Tractor and used the same for commercial purpose and the complainant is not a consumer u/Sec.2(1)(d) of the C.P. Act and therefore, complaint is not maintainable.  Complainant has purchased another Tractor bearing Registration No.KA-16/T-7059 with financial assistance o OP and the same is running on hire basis.  It is further submitted that, OP seized the said Tractor in accordance with the terms and conditions of the agreement on account of default by the borrower/complainant which does not constitute deficiency of service and unfair trade practice.  The allegations made in para 3 and 4 are denied as false.  It is further submitted that, OP has sold the said Tractor to recover the loan dues in favour of one Mr. Thimmegowda and therefore, the relief sought for by the complainant with regard to release of Tractor does not arise.  The complainant himself admitted at para 3 of his complaint that, due to his ill health, he was unable to pay the loan installment.  As per clause 7 of the agreement, OP has got every right to sell the vehicle to recover the financial dues.  The OP has issued pre-sale notice dated 06.10.2014 for which, complainant has turned with deaf ears.  Complainant has not paid the dues according to his own commitment letter dated 14.07.2014.  Having no option, OP has sold the same in an open auction on 23.12.2014 in favour of one Mr. Thimmegowda for Rs.1,45,000/- and he got transferred in his name and the sale amount was credited to the loan account of the complainant and the remaining dues payable by the complainant was Rs.1,24,857/- as on 07.12.2015.  The transaction between the complainant and OP is that of debtor and creditor.  Complainant has not availed any service from the OP but, borrowed loan which has to repay in accordance with the repayment schedule of the agreement. Therefore, there is no deficiency of service on the part of OP and prayed for dismissal of the complaint.

4. Complainants himself examined as PW-1 by filing affidavit evidence and Ex.A-1 to Ex.A-4 documents are marked. 

        5. OP has examined one Sri. Hanumanthappa, the Authorized Signatory of OP4 as DW-1 by filing affidavit evidence and Ex.B-1 to B-5 are marked. 

 

        6.     Written Arguments filed and oral arguments heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

Point No.1:- Whether the complainant proves that, he purchased a Tractor bearing Registration No.KA-40/T-6580 by borrowing a loan from the OP and OP has committed deficiency of service in seizing and sold the vehicle and thereby complainant has sustained financial loss and mental agony and entitled for the relief as prayed in the complaint?

 

Point No.2:- What order?

 

        8. Our findings on the above points are as follows:

 

        Point No.1:- Negative.

        Point No.2:- As per the final order.

 

                                        ::REASONS::

9. Point No. 1:- It is not in dispute that, complainant has purchased second hand Mahindra Tractor bearing Registration No.KA-40/T-6580 from one Eranna for a sum of Rs.3,50,000/- and  borrowing a loan of Rs.2,30,000/- from the OP in the month of September 2012 by hypothecating the same in favour of OP.  After obtaining the loan complainant has repaid the loan installment amount regularly to the OP up to the end of June 2014 but, he was unable to pay the balance loan amount.  Thereafter, OP visited the house of complainant and took the said Tractor.  Complainant approached several times and requested to handover the Tractor but, the OP has not responded.  Now the complainant is ready and willing to pay the balance loan amount.  On 04.09.2015 complainant got issued legal notice to the OP calling upon to handover the possession of the tractor.  OP failed to reply to the said notice but, informed through Mobile stating that, the same was sold which caused financial loss and mental agony to the complainant and prayed for allow the complaint.

 

10.  In support of his contentions,  complainant has relied on his affidavit evidence in which they have reiterated the contents of complaint.  Complainant has also relied on documents like copy of letter dated 02.09.2014 by the OP to the complainant informing seizure of the vehicle marked as Ex.A-1, copy of legal notice dated 04.09.2015 issued to the OP marked as Ex.A-2, copy of Postal Acknowledgement marked as Ex.A-3, copy of legal notice dated 12.10.2013 by the OP calling upon to repay the dues marked as Ex.A-4  they are not in dispute.

         

11.  On the other hand, it is admitted by the OP that, complainant borrowed a loan from the OP to purchase 2006 model Mahindra Tractor bearing Registration No.KA-40/T-6580 under the guarantor ship of one Mr. H. Govindappa by executing joint loan cum hypothecation agreement dated 18.07.2012 and used the same for commercial purpose and therefore, complainant is not a consumer u/Sec.2(1)(d) of the C.P. Act.  OP seized the said Tractor in accordance with the terms and conditions of the agreement on account of default by the borrower/complainant. OP has sold the said Tractor to recover the loan dues in favour of one Mr. Thimmegowda and therefore, the relief sought for by the complainant with regard to release of Tractor does not arise.  The complainant himself admitted at para 3 of his complaint that, due to his ill health, he was unable to pay the loan installment.  As per clause 7 of the agreement, OP has got every right to sell the vehicle to recover the financial dues.  The OP has issued pre-sale notice dated 06.10.2014 for which, complainant has turned with deaf ears.  Complainant has not paid the dues according to his own commitment letter dated 14.07.2014.  Having no option, OP has sold the same in an open auction on 23.12.2014 in favour of one Mr. Thimmegowda for Rs.1,45,000/- and he got transferred in his name and the sale amount was credited to the loan account of the complainant and the remaining dues payable by the complainant was Rs.1,24,857/- as on 07.12.2015.  The transaction between the complainant and OP is that of debtor and creditor.  Complainant has not availed any service from the OP but, borrowed loan which has to repay in accordance with the repayment schedule of the agreement. Therefore, there is no deficiency of service on the part of OP.

        12.   In support of its contentions,  OP has relied on its affidavit evidence in which it has reiterated the contents of version.  OP has also relied on documents like copy of loan cum hypothecation agreement marked as Ex.B-1, copy of letter dated 14.07.2014 by the complainant requesting the OP grant time to pay the loan installment marked as Ex.B-2, copy of pre-sale notice dated 06.10.2014 with postal receipts marked as Ex.B-3, copy of statement of loan account marked as Ex.B-4, copy of Power of Attorney marked as Ex.B-5.

13.   On hearing the rival contentions of both the sides and on careful perusal of the entire records, it clearly goes to show that, complainant obtained a loan of Rs.2,30,000/- for purchasing the second hand Tractor bearing Registration No.KA-40/T-6580 and repaid the loan installment up to September 2012 but, failed to repay the remaining balance loan amount. OP seized and sold the said Tractor after issuing pre-seizure and pre-sale intimation letters to the complainant.  OP sold the said Tractor in a public auction and credited the bid amount to the loan account of the complainant.  Even after crediting the same, the complainant has to pay Rs.1,24,857/- as an outstanding loan amount.  As per clause 7 of the agreement, OP has got every right to sell the vehicle to recover the financial dues.  The OP has followed all the procedure as contemplated under law and seized and sold the vehicle in a public auction and there is no deficiency of service on the part of OP.  Hence, the complainant has failed to prove his case and hence, the complaint is liable to be dismissed.  Accordingly, this Point No.1 is held as negative to the complainant.

14.  Point No.2:- For the foregoing reasons, we pass the following:

ORDER

The complaint filed by the complainant u/Sec. 12 of the C.P. Act, 1986 is hereby dismissed.  No order as to costs.

        (This order is made with the consent of Members after the correction of the draft on 16/05/2016 and it is pronounced in the open Court after our signatures.)         

 

MEMBER                                                         PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1.

Witness examined on behalf of complainant:

                                                -Nil-

On behalf of OP Hanumanthappa, the Authorized Signatory of OP by filing affidavit evidence.

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of complainant:

01	Ex-A-1:-	Copy of letter dated 02.09.2014 by the OP to the complainant informing seizure of the vehicle
02	Ex-A-2:-	Copy of legal notice dated 04.09.2015 issued to the OP
03	Ex-A-3:	Copy of Postal Acknowledgement
04	Ex-A-4:	Copy of legal notice dated 12.10.2013 by the OP calling upon to repay the dues

 

Documents marked on behalf of OP:

01	Ex-B-1:-	Copy of loan cum hypothecation agreement
02	Ex-B-2:-	Copy of letter dated 14.07.2014 by the complainant
03	Ex-B-3:	Copy of pre-sale notice dated 06.10.2014 with postal receipts
04	Ex-B-4:	Copy of statement of loan account
05	Ex-B-5:	Copy of Power of Attorney

 

 

MEMBER                                                         PRESIDENT

Rhr.