Complaint filed on: 02-07-2011
Disposed on: 20-03-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1215/2011
DATED THIS THE 20TH MARCH 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
K.S.Srinivas
Son of
Aged about years,
No.162, Kattanur village,
NR Katramados Temple,
Bangalore-62
V/s
Opposite party: -
The Manager,
HDFC Bank Ltd,
Golden tower, Airport Road,
Kodihalli,
Bangalore -17
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP under section 12 of the Consumer Protection Act, praying to pass an order, directing the OP to give back the vehicle bearing registration no.KA-05-EV-1188 by collecting outstanding dues towards the loan amount, and to pay compensation of Rs.25,000=00 towards financial loss, injury, mental tensions to the complainant.
2. The brief facts of the complaint can be stated as under.
The complainant is the registered owner of the two wheelers Honda Passion plus vehicle bearing Reg. No.KA-05-EV-1188. The said vehicle was hypothecated to the OP for loan availed by the complainant on his vehicle as per loan account no.90274278. The OP recovered possession of the aforesaid vehicle due to the default by the complainant in so far as the payments of the monthly installments are concerned. After possession of the vehicle, the OP sent a notice calling upon the complainant to pay outstanding dues of Rs.16,478=00 to obtain release of the vehicle with a condition that the same must be cleared in full on or before 2-1-2011, failing which the OP would proceed with auction of the vehicle. On 30-12-2010, the complainant sent his brother by name V.Venkatesh authorizing him to recover the possession of the vehicle from the OP by paying amount of Rs.16,478=00. Accordingly, V.Venkatesh approached the OP on 30-12-2010 with an authorization letter and the same was submitted to the OP and sought for release of the vehicle and to an utter shock, it is stated by the OP that the recovered vehicle has been sold in auction towards the clearance of outstanding loan amount. The said sale of the vehicle in auction is in contrary and violation of the contents of the notice dated 27-12-2010, the OP was not in possession of the recovered vehicle. Since, the auction of the vehicle is premature; no consent has been obtained from the complainant for the sale of the same and till date the OP has not issued a closure letter to the complainant. The vehicle was sold by OP deliberately for a lower price. The OP is quite negligent in providing satisfactory service to the complainant and by this act, the complainant has suffered great loss and inconvenience, and there is deficiency of service on the part of the OP. The complainant issued a notice dated 4-2-2011 calling upon the OP to give back the vehicle by collecting the outstanding dues and the OP sent an untenable reply. Hence, the present complaint is filed against the OP. So, order be passed, directing the OP to give back the vehicle of the complainant by collecting outstanding dues towards loan amount and to pay compensation of Rs.25,000=00 towards financial loss, injury and mental tensions etc.
3. After service of the notice, the OP has appeared through his counsel and filed his objection, contending inter-alia as under:
The complaint is false, vexatious and the same is liable to be dismissed in limine. The complainant is misusing and abusing the process and he himself being a party to the contract and having committed breach of the terms of contract. It is true that the complainant availed loan to purchase Honda Passion Plus vehicle bearing Reg. no.Ka-05-EV-1188 and the same has been hypothecated in favour of the OP. The OP has recovered the possession of the aforesaid vehicle due to the default by the complainant. After repossession of the vehicle, OP sent a notice calling upon the complainant to pay outstanding dues of Rs.16,478/- and release the vehicle and the same has been cleared in full on or before 2-1-2011 failing which the OP would proceed with auctioning the said vehicle. It is false that the complainant sent his brother by name V.Venkatesh authorizing him to recover the possession of the vehicle by paying of Rs.16,478=00 and accordingly, the said V.Venkatesh approached the OP on 30-12-2010 with an authorization letter and the same was submitted to the OP and sought for release of the vehicle, and to his utter shock, it was stated by the OP that the vehicle has been sold in auction. The complainant is put to strict proof of the same. It is also false that the auction of the vehicle is premature and no consent obtained from the complainant. It is true that the complainant had issued notice dated 4-2-2011 and the OP suitably replied to that legal notice. The complainant approached the then Centurion Bank that to needs of financial assistance to purchase the vehicle and worthy of discharging his part of liability. Considering the request of the complainant the then Centurion Bank sanctioned a sum of Rs.36,000=00 to the complainant and the complainant agreed to pay the same in 24 monthly installments of Rs.1788=00. Accordingly, a loan agreement was entered into between the parties, the complainant has committed defaulted in paying the monthly installments as agreed upon, and several cheques issued towards discharge of the liability were bounced. In fact, the complainant admitted that committed default. Even after several requests and reminders, the complainant failed to comply the terms and conditions of the agreement and failed to discharge due amount. Thus the complainant forfeited only its right and became liable to pay the entire out standing due. The vehicle in question hypothecated always remained with the OP and it has every right to sell under the contract. The amount invested is public money, since, interest and liability was mounting up day by day, as per the terms and conditions of the agreement the OP has exercised its right to repossess the vehicle. Accordingly, the vehicle has been repossessed on 23-12-2010 peacefully and inventory has been conducted on the vehicle, the OP has also issued a presale notice dated 27-12-2010. It is false to say that after receipt of the presale notice the complainant on 30-12-2010 sent his brother alongwith amount of Rs.16,478=00 as demanded under the notice but surprisingly, the OP has prematurely sold the vehicle. The entire allegation of the complaint as stated above is false, baseless and concocted. It could be seen from the so called letter dated 30-12-2010 produced by the complainant before this forum, no seal and signature of the OP is found, it is not the case of the complainant that the OP denied to accept the alleged letter. It is the case of the complainant, he submitted the letter dated 30-12-2010 to the OP, when such being the case, he could have taken the endorsement or acknowledgement for having submitted the alleged letter to the OP. At no point of time, the OP bank on 30-12-2010 has received the letter along with due amount, the complainant is a guilty of suppression of material facts, the case of the complainant is based on false hood and to cause wrongful loss to the OP bank. Hence, the contention of the complainant cannot be accepted. Since the complainant has not shown any interest to pay the outstanding due amount to claim the vehicle, the vehicle was sold on 2-1-2011 for the highest price of Rs.21,750=00. Out of the said sale price of Rs.21,750=00 total outstanding due amount of Rs.16,478=00 was adjusted and after adjusting the same a surplus balance was Rs.5,072=00 payable to the complainant. On 3-1-2011 the OP has issued a notice intimating the complainant about the sale of the vehicle and also about adjusting the sale proceeds and in all amount of Rs.5072=00 is due and payable to the complainant and requested the complainant to collect the same. The complainant himself default committed and the vehicle has been repossessed. The complainant cannot approach this forum claiming relief as prayed in the complaint, no deficiency in service by the OP, there is no cause of action to file the complaint. The vehicle was sold with prior intimation too the complainant to the prospective purchaser. So question of returning the vehicle does not arise at all, there is no bonafide at all for claim of Rs.25,000=00 as compensation. In view of aforesaid contentions, there is no deficiency of service rendered by the OP. So the complaint filed by the complainant needs to be dismissed as not maintainable in the eye of law. So the complaint of the complainant be dismissed with cost.
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP quite negligent in providing satisfactory service to him and by this act, he has suffered great inconvenience, and there is deficiency of service on the part of the OP?
2. If the point no.1 is answered in favour of the complainant, whether the complainant is entitled to relief as prayed in the complaint?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In the Negative
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced five documents with list dated 2-7-2011. On the other hand, one Kiran Kumar Hegde, who being the Power of Attorney holder of the OP has filed his affidavit by way of evidence and produced eight documents.
7. We have heard the arguments of both sides. We have gone through the averments of the complaint, objection of the OP, and oral and documentary evidence of both parties scrupulously.
8. One K.S.Srinvias who being the complainant has stated in his affidavit that, he is the registered owner of two wheelers Motor Cycle Honda Passion plus vehicle bearing Reg. No.KA-05-EV-1188, and it was hypothecated with the OP for the loan account no.90274278. The OP recovered the possession of the above vehicle due to the default of payment of the monthly installments. After the possession is recovered the OP sent a notice to him calling upon to pay the outstanding dues of Rs.16,478=00 to obtain release of the vehicle with a condition that the same must be cleared in full on or before 2-1-2011, failing which, the OP would proceed with auction of the vehicle. On 30-12-2010, he has sent his brother by name V.Venkatesh with an authorized letter to recover the vehicle from the OP by paying the amount of Rs.16,478=00 and accordingly, V.Venkatesh has approached the OP on 30-12-2010 and the same was submitted to the OP and sought for release of the vehicle, and at that time, to an utter shock it was stated by the OP that the recovered vehicle has been sold in auction towards the clearance of the outstanding loan amount. The said sale of the vehicle by way of auction is in contrary and violation of contention of the notice dated 27-12-2010, and as on 30-12-2010 the OP was not in the possession of the vehicle. The sale pre-matured and no consent has been obtained by him for the sale of the same and the OP has not issued a closure letter to him which act goes to show that the OP has deceived him. The vehicle was sold by the OP deliberately for a lower price rather than the actual sale price of the vehicle. The OP is quite negligent in providing satisfactory service to him and by this act he has suffered great loss and inconvenience and there is deficiency of service on the part of the OP, and he has issued a legal notice dated 4-2-2011, and the OP sent an untenable reply. So the complaint be allowed and grant relief as prayed for.
9. By reading the complaint and evidence of the complainant as mentioned supra, it is no doubt true that, the complainant has tendered his evidence by way of affidavit in accordance with the averment of the complaint. Let us have a look at the relevant documents of the complainant. The document no.1 of the complainant list dated 2-7-2011 is the original letter dated 27-12-2010 issued by the OP to the complainant to pay the balance amount of Rs.16,748=00 within 2-1-2011 to take possession of the vehicle, failing which, the bank will proceed with auction of the vehicle and appropriate the same to the balance amount of loan and if any excess amount is remained as a balance, it will be paid to the complainant. The next document is the copy of authorization letter given by the complainant, in favour of his brother V.Venkatesh to take possession of the vehicle and date of said letter was on 30-12-2010, but in the said letter i.e. authorization letter, it is not stated about the payment of balance amount of Rs.16,748=00 by the complainant through his brother on the said date, and then taking possession of the vehicle by his brother. The said letter is silent about the paymet of outstanding dues of Rs.16,748=00 by the complainant. The said letter is only authorization letter given by the complainant in favour of his brother to take possession of the vehicle, and not for payment of the balance amount. The complainant has stated in both in the complaint and in the evidence that, he has sent his brother V.Venkatesh on 30-12-2010 alongwith the amount of Rs.16,748=00, and accordingly, his brother has submitted to the OP and sought for release of the vehicle. But it is required to be noted from authorization letter produced by the complainant that no signature or seal of the OP was found on the said letter for having submitted the same to the OP on 30-12-2010. In the absence of taking signature and seal of the OP on the authorization letter dated 30-12-2010, it is inequitable and unjust to place total credence on the authorization letter sent by the complainant through his brother dated 30-12-2010. No plausible explanation was given by the complainant for not taking signature and seal of the OP on the letter dated 30-12-2010. The said authorization letter dated 30-12-2010 produced by the complainant is shrouded with suspicion, so it is in admissible in evidence. The next documents of the complainant are the copies of legal notices issued by the complainant, and reply given by the OP.
10. The OP has produced the copy loan application form given by the complainant, and the said application was signed by both the complainant and the OP. As per the terms and conditions of hypothecation agreement produced by the OP, it is made unambiguously clear that, the complainant has availed a loan of Rs.36,000=00 from the OP and hypothecated his two wheeler in the name of the OP, and he agreed to pay the said amount with interest in 27 monthly installments at Rs.1,788=00 per month. But the complainant has failed to pay installments regularly, and he became a defaulter in paying the installments to the OP. The fact of the committing default in payment of installment is admitted by the complainant both in the complaint and in the evidence. Further, as per the terms and conditions, hypothecation deed, the OP was permitted to take possession of the vehicle and make sale of vehicle in public auction and appropriate the sale proceeds to the balance amount of loan. Accordingly, the OP has sent a letter to the complainant dated 27-12-2010 to pay outstanding dues of Rs.16,748=00 on or before 2-1-2011 and take possession of the vehicle, failing which, the vehicle will be sold in auction and adjust to the balance amount. In this regard, the OP has produced the copy of notice dated 27-12-2010 issued to the complainant. The next document is the copy of letter dated 3-1-2011 given by the buyer of the vehicle, and according to that letter, it is seen that the vehicle was sold to one Mr.Tazim for Rs.21,750=00, and buyer has taken possession of the vehicle, of the said vehicle. The next document is copy of letter given by the OP in favour of M/s. Sam’s Security and Yard Contractors, Bangalore to release two wheelers to Mr.Tazim. The next document of the OP is letter copy given by the OP to the complainant, stating that, after adjusting the sale proceeds, an amount of Rs.5,072=00 is remained, which is payable to the complainant and for that the complainant was requested to contact the concerned manager. On making comparative study of oral and documents evidence of both parties, it is vivid and clear that, the complainant after availing the loan from the OP for Rs.36,000=00 has failed to pay the installments and he became a defaulter in paying the monthly installment, and accordingly, the OP as per the terms and conditions of the hypothecation deed has taken possession of the vehicle and issued a notice to the complainant to pay the balance amount within 2-1-2011, failing which, the vehicle will be auctioned in public auction and utilize the amount to the outstanding dues of the loan amount.
11. It is the specific case of the complainant that, he sent his brother to the OP on 30-12-2010 alongwith authorization letter, and the balance amount, and his brother handed over the letter to the OP. But, to an utter shock, the OP informed that, the vehicle was already sold in public auction. In order to show before the forum that authority letter given by him to his brother was handed over to the OP bank on 30-12-2010. No iota of documentary evidence is produced by the complainant having signature and seal of the OP on the said letter particularly. In the absence of producing any clear and tangible evidence on the point of presentation of an authority letter by brother of the complainant on 30-12-2010. Solitary testimony of the complainant, in this regard, is totally unbelievable. On the other hand, the OP has demonstrated with oral and documentary evidence that, the OP has acted as per the terms and conditions of hypothecation deed, and taken possession of the vehicle and sold the same in public auction by issuing notice to the complainant and adjusted the same to the outstanding loan amount and informed the complainant by writing a letter. The OP has acted in terms and conditions of the hypothecation deed and there is no negligence or deficiency of service on the part of the OP. The material evidence of the OP placed before the forum is most believable trust worthy, and acted upon than the oral and documentary evidence of the complainant. The complainant who comes to forum seeking relief has miserable failed to prove this point satisfactorily, and accordingly, we answer this point in a negative.
12. In view of the negative findings on point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 20th day of March 2012.
MEMBER MEMBER PRESIDENT
