Karnataka

Chitradurga

CC/64/2018

S.Sidappa S/o Siddappa - Complainant(s)

Versus

The Branch Manager,M.S.Cholamandalam Investement and Finance Company - Opp.Party(s)

Sri.P.S.Sathyanaryanarao

21 Feb 2019

ORDER

COMPLAINT FILED ON:06/06/2018

DISPOSED      ON:21/02/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

 

CC.NO:64/2018

 

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	S.Sidappa S/o Siddappa, aged about 47 years, #137/A, Janukonda,Chitradurga. Owner of Trax Cruiser Vehicle Bearing, Reg No.KA-16B-4770.   (Rep by Sri.P.S. Sathyanarayana Rao, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Branch Manager, M.S.Cholamandalam Investment and Finance Company, OPP to Neelakanteshawara Temple, B.D Road, Chitradurga.   2. The Branch Manager, M.S.Cholamandalam Investment and Finance Company, AVK College road,Near Unity Health Center,Allahabadh Bank Upstais,PJ Extension, Davangere-577001. 3. The Authorized Signatory, MS Cholamandalam Investment and Finance Company, Jayadeva Circle, Sampigae road, Davangere.   (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 repay Rs.3,91,460/- towards installment amount, OP No.1 and 2 to pay Rs.50,000/- towards loss of business and Rs.20,000/- towards mental agony and to grant such other reliefs.

2.      The brief facts of the case of the above complainant are that, on 03.12.2011 he has purchased Trax Cruiser bearing Registration No.KA-16 CB-4770 by investing Rs.6.25 lakhs by borrowing hand loans from his friends and relatives and also obtained Bank loan of Rs.5,00,000/- from OP No.1 vide loan Agreement No.XVFPODAVE00000661420 by hypothecating the above said vehicle with OP No.1. The complainant has paid regular installment amount to OP No.1 for three regular installments from January 2012 to August 2014 in all a sum of Rs.3,91,460/- to OP No.1 through Chitradurga Branch.  Further it is submitted that, due to stoppage of business and some family inconvenience, complainant became defaulter in payment of regular installment for only six months i.e., due of Rs.1,08,540/- 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 27.07.2015 OP No.1 with the support of the support of their followers and agents forcibly taken away the possession of the vehicle without drawing any mahazar and obtained signature of the complainant without giving any intimation or notice to the complainant.  The complainant approached the OPs and sought for explanation, but the OPs refused to talk with the complainant and demanded excessive loan.  Thereafter, the complainant requested the OPs to give proper loan statement of account, but the OPs have not given proper details of the loan and it came to know that, the OPs have sold the above said vehicle in favour of other person for a meager amount without any right, title or interest whatsoever though the OPs are well aware that the vehicle worth more than Rs.6.50 lakhs, it is highly illegal.  It is very opt to mention that, recovery process should be effect in accordance with due process of law and not with use of force, the act done by the OPs are in violation of RBI guidelines, therefore, the OPs are liable to compensate the complainant.  The OPs have sold the vehicle for very meager amount with their whims and fancies and they are not suppose to sell the vehicle without following any procedural aspects.  The period of installment is up to 15.12.2017.  Moreover, that on 19.05.2018the OPs have informed in the notice that, the complainant has to repay Rs.54,204/- within 15 days from the date of receipt of notice, how it is possible to pay the entire amount to the poor person.  OP No.2 has sold the vehicle behind the back of complainant, for very meager amount, without informing the complainant, which is not maintainable in law 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.  It is further submitted that, during August 2016 the complainant approached the OP No.1 to release the vehicle by receiving balance full amount of Rs.1,00,000/-, but the OPs have told that, the vehicle has been sold to other person.  The complainant is running the taxi for his livelihood and his family is solely depending upon the income derived from the said vehicle.  The OPs have not informed about post-seizure and the OPs have not paid the balance amount.  The cause of action for this complaint arose on 19.05.2017 when the OPs informed the complainant that, the matter has been referred to the Arbitration for collection of Rs.54,204/-, 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 2 that, the complainant has purchased the Trax Cruiser vehicle bearing Registration No.KA-16 CB-4770 by availing loan of Rs.5,00,000/- from OP No.1 under loan agreement No.XVFPODAVE00000661420 is true, but rest of the averments are denied.  The averments made in para 3 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.3,91,460/- towards regular installment and only Rs.1,08,540/-, the same is denied as false.  Because, he has calculated only the loan amount of Rs.5,00,000/-, who has to pay the interest? 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 OPs have issued letter to the complainant to pay the overdue installment along with additional finance charges of Rs.3,30,824/-, but the complainant never came to the office of OPs to negotiate and settle the matter, thereafter, the OPs have issued pre-seizure intimation on 19.11.2014 and sold the vehicle on 28.11.2014 for Rs.2,90,000/- and the complainant has to pay Rs.40,824/-.  The OPs have issued notice to the complainant on 19.05.2018 to repay the outstanding balance amount of Rs.54,204/-, for that the complainant has given evasive reply on 29.05.2018.  The complainant did not bother to yield to the request of the OPs and he forfeited all his rights and became liable to pay the entire outstanding amount.  It is submitted that, the vehicle in question hypothecated always remained with the OPs and it has every right to repossess and to sell under the contract.  The OPs have given sufficient time to the complainant to discharge his liability but, he did not come forward to pay the outstanding due.  The allegations made in para 5 to 7 are false and denied and the complainant has created false stories to file this complaint and there is no cause of action to file this complaint 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-3 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 no 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, the complainant has purchased Trax Cruiser bearing Registration No.KA-16 CB-4770 by investing Rs.6.25 lakhs by availing loan of Rs.5,00,000/- from OP No.1 vide loan Agreement No.XVFPODAVE00000661420 by hypothecating the above said vehicle with OP No.1.  After that, the complainant has paid a sum of Rs.3,91,460/- to OP No.1 through Chitradurga Branch.  Due to stoppage of business and some family inconvenience, complainant failed to pay the remaining amount to the OP.  It is argued by the complainant that, on 27.07.2015, OP No.1 with the support of their followers and agents forcibly taken away the possession of the vehicle without drawing any mahazar and obtained signature of the complainant without giving any intimation or notice to the complainant.  The complainant has filed this complaint alleging that, the OP has not fallowed the procedure before seizing the vehicle and after seizing the vehicle, they have not followed the procedure as contemplated under law.  As per the law, before seizing the vehicle, the OP No.1 has to issue pre-seizure notice to the complainant and to give 15 days time to pay the loan dues.  In this case, the OP has not followed the procedure as per the documents produced by both the parties.  The OP has forcibly seized the vehicle of the complainant and after seizing the vehicle, the OP has not followed the procedure.  Because, after seizing the vehicle, the OP has to issue 15 days notice to the complainant to take back the vehicle by paying the loan dues.  But in this case also, the OPs have not followed the procedure and they have not issued any notice to the complainant.  But the Advocate for the OPs argued that, the OPs have not violated any procedure and they have not committed deficiency of service.  But as per the documents and pleadings, it clearly goes to show that the OPs have violated the procedure as contemplated under law before seizing the vehicle.  Further the OPs have argued that, they have not committed any deficiency of service and the advocate for complainant argued that the OPs have committed deficiency of service while issuing notice to the complainant.  Further the OP has sold the vehicle for a meager amount to somebody, the same amounts to deficiency of service and the OPs never issued any notice to the complainant for fixing the date of auction.  Therefore, the arguments addressed by the OPs is not correct, because they have failed to produce the documents to show that they have fallowed the procedure as contemplated under law while seizing the vehicle and selling the same.  The model of the vehicle is of 2011 and sold the same in the year 2014.  Generally the value of the said vehicle in the year was of Rs.4,50,000/-, but the OPs have sold the same for Rs.2,90,000/- on 28.11.2014 and also issued notice to the complainant to pay a sum of Rs.40,824/- towards balance amount is not correct.  

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.  But as per the documents and pleadings, it clearly goes to show that the OPs have violated the procedure as contemplated under law before seizing the vehicle.  Further the OPs have argued that, they have not committed any deficiency of service and the advocate for complainant argued that the OPs have committed deficiency of service while issuing notice to the complainant.  Further the OP has sold the vehicle for a meager amount to somebody, the same amounts to deficiency of service and the OPs never issued any notice to the complainant for fixing the date of auction.  Therefore, the arguments addressed by the OPs is not correct, because they have failed to produce the documents to show that they have fallowed the procedure as contemplated under law while seizing the vehicle and selling the same.  The model of the vehicle is of 2011 and sold the same in the year 2014.  Generally the value of the said vehicle in the year was of Rs.4,50,000/-, but the OPs have sold the same for Rs.2,90,000/- on 28.11.2014 and also issued notice to the complainant to pay a sum of Rs.40,824/- towards balance amount is not correct.   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.  Hence, the Forum comes to the conclusion that, the arguments addressed by the complainant is sustainable, prima-facie it shows that the OPs have committed deficiency of service.  The complainant has purchased the above said vehicle for his livelihood.  Such being the case whatever the contention taken by the OPs in the version is not sustainable under law.  The complainant 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.  Accordingly, this Point No.1 and 2 are held as partly affirmative to the complainant.          

            10.     Point No.3:- As discussed on the above point 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 pay a sum of Rs.2,00,000/- towards selling the vehicle for meager amount to the complainant along with interest @ 9% p.a from the date of selling the vehicle i.e., 28.11.2014 till realization.

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

 

 (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:-	Legal notice dated 19.05.2018
02	Ex-A-2:-	Reply notice dated 25.05.2018
03	Ex-A-3:-	4 paid receipts from January 2012 to 2014

 

Documents marked on behalf of OPs:

-Nil-

 

 

MEMBER                                                   PRESIDENT

Rhr**