BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AT BELLARY

C.C.No. 124 of 2019 

   Present :-  

     (1)  Shri.A.H.Malaghan. B.com. LLB.(Spl),  …… President.

     (2)  Shri.H.Veera Shekar. B.A. LLb.(Spl),    ……. Member.

     (3)  Smt. Marla Shashikala. B.com. LLB.      .…… Member.

DATED THIS THE 27^th DAY OF NOVEMBER- 2021

// ORDER //

By Hon’ble President Shri.A.H.Malaghan.

   This is a complaint filed by the complainant against the opposite parties U/Sec-12 of the Consumer Protection Act 1986.

        2.    The facts of the case are that, the OP No.1 is the Head Office of the Shreerama Transport Finance Co., Ltd., and OP No.2 is the branch of the OP No.1 and the OP No.1 is granted Loan by Hypothecating the vehicles to the complainant through OP No.2.  The complainant has availed loan for purchasing TATA Sumo Victa CS bearing Reg.No.KA-34/M-8950, Model No.210 bearing vehicle agreement No. SNDR 0407180005 dt:20-08-2014 and TATA Indigo ECS bearing Reg.No.KA-35/B-2680 Model 2013 bearing vehicle agreement No.WCL No. SNDR 0602180005 dt:20-03-2016 and he has paid all installments form the date of purchase till 20-01-2017 without default in respect of the said two vehicles and he has settled the said loan amount, and mentioned in the statements of loan account maintained by the OPs and indicates that, the complainant has settled the loans to the OPs in respect of the said vehicles.   The complainant several times visited the OP No.2 office for the purpose of getting NOC and other relevant documents of the said vehicles.  But, the OPs not cared the complainant till today and not issued the NOC for the best reasons know to the OPs and OPs have postponing for one or the other reasons known to them.  The complainant has got issued a legal notice to the OPs on 16-08-2019 which was served to the OP No.2, but till this day the OP No.2 neither issued NOC nor executes the cancellation of hypothecation of agreement and the OP No.1 has issued a vague reply.  Therefore, the OPs have not given the NOC and cancellation of hypothecation of agreement in respect of above said two vehicles. All this shows that, there is a deficiency of service on the part of the OPs.  Hence, he filed the present complaint for the reliefs as prayed in it.   

              3.  After service of notice by this Commission, the opposite parties have appeared through their counsel and filed the written version which in brief is as follows;

           The complainant has borrowed a loan from OP No.2 to purchase the following vehicles. (1) TATA Sumo Victa No.KA-34/H8950 passenger vehicle. (2) TATA Indigo No.KA-35/B-2680. (3) TATA Tipper HGV No.KA-35/A-4221. (4) TATA Tipper HGV No.KA-35/C-2367.  He has borrowed a loan from the OP No.2 financial institution to purchase the above referred vehicles for the purpose of his “Transportation Business” and the loan availed by the complainant is a Commercial Vehicle Loan.  Therefore, the commercial user of the vehicles are not a Consumer within the meaning of Section 2(1) (d) of C.P. Act.  The complainant has suppressed the factum of availment of loan for the vehicles No.KA-35/A-4221 & KA-35/C-2367. Further on his Non-payment of loan dues, for recovery the OP No.2 has filed Arbitration Case No.258/2018 before the Arbitral Tribunal of Sri. V.A.Patil (Sr.Civil Judge (Retd), Arbitrator of Sindhanur against the complainant claiming Rs.3,21,250/- dues in respect of vehicle No.KA-35/C-2367.  The Arbitral Tribunal by its order dt:15-02-2020 towards security of amount claimed in the claim petition passed an order of attachment, attaching the vehicle No.KA-35/B-2680 till disposal of the Arbitral proceedings.  Further, the OP No.2 has filed Arbitration Case No.258/2019 before the Arbitral Tribunal of Sri. V.A.Patil, (Sr. Civil Judge (Retd) Arbirator of Sindhanur against the complainant to recover their dues of Rs.1,58,422/- in respect of vehicle No.KA-35/A-4221.  The Tribunal by its order dt:15-02-2020 towards security of amount claimed in the claim petition, passed an order of attachment, attaching the vehicle No.KA-35/M-8950 till disposal of the arbitral proceedings.  The complainant until and unless get raised the attachment over the vehicles from the Arbitral Tribunal, he is not entitle for the NOC/H.P. cancellation papers of the vehicles sought in the complaint.   The complainant never visited OP No.2 Office and requested to issue NOC/HP cancellation paper.  After filing of arbitration case, that too during pendency of arbitral proceedings, instead of appearing before tribunal, the complainant has filed a Consumer Complaint.  The OP No.2 financial institution has not under taken any service to the complainant/borrower, lending money is not a service but, it is business of OP No.2 Company.  The complainant has not availed any service from the OP No.2, but borrowed a certain sum, which he has to repay in accordance with the payment schedule of the agreement.  This is not a Consumer Dispute as the complainant is not a Consumer as defined U/S 2 (1) (d) of the C.P. Act., because, the deficiency in service referred in the complaint is not created in relation to any service to be referred by the creditor to the borrower in terms of the contract.  On these grounds, the OPs have prayed for dismissal of the complaint with exemplary costs.

          4.   To prove the case, the complainant filed her affidavit evidence, as P.W-1 and got marked 13 documents as Ex.P-1 to Ex.P-13.  The OP No.1 has filed affidavit evidence as RW-1 and got marked 18 documents as Ex.R-1 to Ex.R-18.

5.  The points that arise for our consideration are;

            6    The findings on the above points are as under. 

// R E A S O N S //

Point No.1:-

7.   The complainant claims that, he has purchased one TATA sum Victa bearing KA34/H-8950 and TATA indigo bearing No.KA35/B-2680 with finance of the OPs, accordingly as per the agreement all the installments dues in respect of the above said vehicle has been promptly paid to the OPs and then requested the Ops to issued NOC for change of Hypothecation in the vehicle registration certificate but the Ops have not furnished the NOC on the above vehicle hypothecation, despite several approach , even by issuing legal notice through his counsel, therefore, the complainant claims that, non issuance of NOC after payment of the all the installments dues amounts to deficiency in their service towards the complainant.  Hence, he submits that, his claim is maintainable against the Ops.

8.     On the other hand the Ops have contended that, the complainant is not consumer and the Ops are not service provider to the complainant in any manner hence, his claim is liable to be rejected.  The Ops have further contended that, the complainant has purchased the said vehicle with finance assistance of the Ops and running business by the said vehicles and used the said vehicles for commercial purpose hence, the claim before this Commission is not maintainable as the complainant has used the said vehicle for Commercial activity and getting profit out of the above said business.  It  is further submitted that, the Ops have granted commercial loan to the complainant.

9.   The Ops have granted financial assistance for the following vehicles of the complainant 1) TATA Sumo Victa bearing KA-34/M-8950, 2) TATA Indigo bearing No.KA-35/B-2680, 3) TATA Tipper HGV bearing No.KA-35/A-4221, 4) TATA Tipper HGV KA-35/C-2367, so the complainant has suppressed the above said facts purposely in order to gain illegally.  Therefore, the relation of the complainant and Ops are “borrower” and “creditor” hence, borrower is not consumer within the meaning Section 2 (1) (d) of the C.P.Act.  It is further submitted by the Ops that, the loan of the vehicles bearing No.KA-35/A-4221 and KA-35/C-2367 vehicles has not paid by the complainant hence, there is due in respect of said vehicles loan.   Hence, the OP NO.2 has filed Arbitration Cases No.258/2018 and 258/2019 for recovery of the Loan dues of the above said vehicles before the Arbitral Tribunal at Koppal. And has obtained order of attachment from the Arbitrator in respect of the above said vehicles i.e., KA-34/M-8950 and No.KA-35/B-2680, for non payment of dues. Hence, the NOC on the above said vehicles cannot be issued in favour of the complainant unless and until the above said Arbitrator order is set aside. Since there is a security on the said vehicles for non payment of loan dues in respect of another two vehicles namely i.e., TATA Tipper HGV bearing No.KA-35/A-4221, and  TATA Tipper HGV KA-35/C-2367.  Therefore, in view of the said facts, the action of the Ops does not constitute any deficiency in their service.  The Ops have further contended that, there is no cause of action to file this complaint and the transaction between the parties is that of “debtor and creditor”.  The OP No.2 is financial institution and does not under taken any service to the complainant/borrower.  Lending money is not a service but, it is business. So, the Ops have to pay the borrowed loan as per the loan cum hypothecation agreement between the parties. Hence, the claim of the complainant is liable to be set aside.

10.   By care full consideration of the above said submission of the both parties, we perused their respective documents produced in this case.  The complainant has produced 13 documents in support of his claim including the vehicle documents under Ex.P1 & Ex.P-2, loan statement accounts copies under Ex.P-3 & Ex.P-4, legal notice under Ex.P-5 & Ex.P-6 and reply notice under Ex.P-12 and DL is Ex.P-13.  By producing the above said documents is Ex.P-3 & Ex.P-4 bank statements of accounts, the complainant claims that, the loan of the above said two vehicles are fully paid so, he claim for NOC.  Hence, the duty cast on the Ops to issue NOC in respect of the above said vehicles. By considering the above said submission of complainant, the Ops have not denied the same regarding payment of loan dues in respect of above said subject vehicles, but Ops have claims that, there is an Arbitral Tribunal order attaching the above said vehicles for the Loan granted to the complainant in respect of another two vehicles namely TATA Tipper HGV bearing No.KA-35/A-4221, and TATA Tipper HGV KA-35/C-2367 for which still there is a loan dues are payable by complainant. Hence, the Ops are claims that, the NOC cannot be issued in favour of the complainant in respect of his two vehicles Sl.No.1 & 2 shown above unless and until he paid all the dues of another two vehicles namely bearing No. TATA Tipper HGV bearing No.KA-35/A-4221, and TATA Tipper HGV KA-35/C-2367, shown above as Sl.No.3 and 4.

11.   On perusal of the hypothecation of the above said vehicles, there is no agreement regarding security of the loan by way of hypothecation of above said two vehicles namely bearing NO. TATA Sumo Victa bearing KA-34/M-8950, and TATA Indigo bearing No.KA-35/B-2680,  Therefore, in our view, when the loan cum hypothecation agreement  is silent regarding charges on the above said  other vehicle of the complainant whose vehicles loan was fully paid then it is the duty of the OPs to issue NOC  for cancellation of hypothecation for the above said vehicle as claimed by the complainant, irrespective of any other order passed by Arbitrator as this Commission has Power as Per Section 100 of C.P.Act -2019 to issue direction to OP to issue NOC in favour of the above two vehicles of the complainant for which he is claiming NOC.   Further in our view OPs cannot create any charges on the other properties of complainant without his consent.  Hence, above action of OPs amounts to per se deficiency in service.  

12.   The another contention of the Ops are that, they are not service provider to the complainant in any manner but, such contention cannot be accepted because, it is the duty of the Ops to follow the legal norms irrespective of the nature of loan transaction whether it is Commercial loan or not and provide services to the customer of the bank in respect of legal matters.  However, as contended by Ops this Commission has no power to decide the proprietor or otherwise of loan account of the financial institutions but, the present issue as raised by the complainant are within the purview of the power of this Commission hence, the contention of the Ops that, the complainant is not a  Consumer is not holds good. 

13.   By perusing Arbitration petitions and also hypothecation agreement of each vehicles produced by Ops under Ex.R-1 to Ex.R-12 and Ex.R-14, Ex.R-15, Ex.R-16 respectively, there is no any other charges in the agreement in respect of other vehicle for granting loan to that particular vehicles.  Therefore, even the agreement does not create any right on the other property of non hypothecated vehicles other then the hypothecation loan granted to particular vehicles.  Under these circumstance we are opinion that, the Ops are ought to have issue NOC for discharge of hypothecation in respect of vehicles of which loan was fully paid.  But, in this case the Ops have not disputed the payment of loan dues in respect of vehicle bearing No. TATA Sumo Victa bearing KA-34/M-8950, and TATA Indigo bearing No.KA-35/B-2680, of which the complainant has seeking NOC certificate from Ops after re payment of loan dues.  So, we are view that, when the loan amount is fully paid it is duty of Ops to issue NOC in respect of the said vehicles, but, in this case in order to create charges for other vehicle loan the Ops have deliberately not issued the NOC to the complainant, which is nothing but deficiency in their services towards the complainant. Hence, in our view, the complainant proved the Point No.1 so, the same is answered Affirmatively.    

Point No.2:-    

14.    In view of our answer the point No.1 in the affirmative the claim of the complainant maintainable against the Ops.  The complainant has claimed in all Rs.7,53,300/- on various grounds but, in order to claim such higher amount he has not produced any documents.  But, considering to fact and circumstance of this case, it is necessary to issue direction to OP NO.1 & 2 to issue NOC in respect of  vehicles bearing NO. TATA Sumo Victa bearing KA-34/M-8950 and TATA Indigo bearing No.KA-35/B-2680, to get discharge their hypothecation in the RC book of the above said vehicles.   Accordingly, we issued to direction to OP NO.1 & 2, jointly and severally to issue NOC in respect of above said vehicles of the complainant. 

15.   In additions to above claim, the complainant is entitled to recover for Rs.10,000/- towards pain sufferings and other inconvenience caused and Rs.5,000/- towards cost of the litigation from Ops No.1 & 2 for which they are jointly and severally liable to pay the same to the complainant to meet the ends of justice.  So, we answered the Point No.2 as Partly in the Affirmative with following order.   

       // ORDER //

          The complainant filed by the complaint U/S 12 C.P.Act. is allowed partly against the Opponents with costs. 

           Consequently, the OP No1 & 2 are jointly and severally liable to issue NOC in respect of vehicles bearing Nos. TATA Sumo Victa bearing KA-34/M-8950, and TATA Indigo bearing No.KA-35/B-2680, for discharge of hypothecation in the respective R.C. Book of the said vehicles.

                In addition to above claim the OP No.1 & 2 are jointly and severally liable to pay Rs.15,000/- to the complainant within 45 days from the date of this order, failing which, the said amount shall carry interest at the rate of 8% p.a., from the date of complaint till realization of entire amount.

               The OPs are given 45 days to comply the above said orders from the date of this order.

             Inform the parties accordingly.

    Smt.Marla Shashikala                Sri.H. Veera Shekar                Sri. A.H. Malaghan

          Lady Member.                                    Member.                               President,

District Consumer Commission Ballari.      District Consumer Commission Ballari.      District Consumer Commission Ballari.