JUDGEMENT<br /> By Sri. Pampapathi President:-<br /> <br /> This is a complaint filed by complainant Gurusiddayya Swamy against the Opposite Finance Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to hand over his lorry bearing No. KA-36/3120, to direct it to pay an amount of Rs. 5,00,000/- towards damages and an amount of Rs. 50,000/- towards mental agony with cost and loss of Rs. 2,000/- per month for illegal seizure etc., <br /> <br /> 2. The brief facts of the complainant’s case are that, he purchased lorry-bearing No. KA-36/3120 by availing loan amount of Rs. 4,00,000/- from Opposite Finance Company Ltd., by agreeing to pay the loan amount and interest in (36) monthly installments. He paid totally Rs. 3,07,300/- the period of loan is upto 25-12-10. Opposite all of a sudden started issuing notices and it seized the said lorry by illegal means and took possession of it. He contacted the opposite for several times to release the vehicle and requested in writing but opposite shown its negligence in releasing the vehicle and thereby it found guilty under deficiency in its service as such he filed this complaint for the reliefs as noted in it.<br /> <br /> 3. Opposite Finance appeared in this case through its Advocate, filed its written version by admitting the fact that, complainant borrowed loan amount of Rs. 4,00,000/- repayable in (36) monthly installments and its due period is upto 25-12-10. The complainant executed loan cum hypothecation agreement in favour of opposite finance on 21-12-07. He also availed personal loan of Rs. 80,000/- by executing an agreement repayable in monthly installments of Rs. 5,537/-. Complaint filed by the complainant is not maintainable as complainant is defaulter in payment of installments of the loan amount, accordingly it rightly issued legal notices and thereby it seized the vehicle. The complaint is not maintainable as the loan obtained by the complainant is for commercial purposes. He has not paid Rs. 3,07,300/- as pleaded but he paid only Rs. 2,86,500/-. One civil suit was filed by him bearing No. 29/10 before the Additional Senior Civil Judge Court, Raichur in which T.I. was not granted in his favour, there was a clause for arbitration proceedings, in view of the facts and circumstances the complaint before this Forum is not maintainable and prayed for to dismiss the complaint among other grounds.<br /> <br /> 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:<br /> <br /> 1. Whether the complainant proves that, he purchased lorry bearing No. KA-36/3120 by availing loan amount of Rs. 4,00,000/- from opposite finance repayable in (36) monthly installments and he paid Rs. 3,07,300/- out of the total amount borrowed by him and still he is in due to be paid by installments upto 25-12-10, opposite finance unnecessarily started issuing notices and seized the lorry and took it to its possession, thereafter he rally and in writing requested the opposite to release the vehicle but opposite shown its negligence in releasing the lorry and thereby it found guilty under deficiency in its services.?<br /> <br /> 2. Whether complainant is entitled for the reliefs as prayed in his complaint.?<br /> <br /> 3. What order?<br /> <br /> 5. Our findings on the above points are as under:-<br /> <br /> (1) In the Negative <br /> <br /> (2) In the Negative.<br /> <br /> (3) In-view of the findings on Point Nos. 1 & 2, we proceed <br /> to pass the final order for the following :<br /> <br /> <br /> <br /> REASONS<br /> <br /> POINT NO.1 :-<br /> <br /> 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-32 are marked. On the other hand affidavit-evidence of Branch Manager of opposite was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-11 are marked. Written arguments are filed.<br /> 7. Some of the following facts are undisputed facts in between the parties are:- <br /> 1. The complainant purchased lorry bearing No. KA-36/3120 by availing loan amount of Rs. 4,00,000/- from opposite finance repayable it in (36) monthly installments and its due period is upto 25-12-07.<br /> <br /> 2. The complainant executed loan cum hypothecation agreement in favour of opposite finance on 21-12-07 towards the said loan.<br /> <br /> 8. In the light of these undisputed facts, now let us examine the evidence and documents of the complainant as well as opposite finance ltd., to see as to whether the notices issued by the opposite regarding the seizure of the vehicle and subsequently the seizure of the said vehicle on 24-03-10 is legal or whether it is illegal.<br /> <br /> 9. As per the submissions made by the learned advocate for complainant the seizure itself is illegal as the due period for the repayment of loan is upto 25-12-10. The complainant paid some of the installments but he is defaulter in making some installments and he will pay the entire due amount within 25-12-10. Under the said circumstances the seizure of the vehicle on 24-03-10 prior to due period dated 25-12-10 is illegal. The learned advocate for opposite submitted before us in reference to the terms and conditions of loan cum hypothecation agreement at Ex.R-10 executed by complainant while taking this loan.<br /> <br /> 10. In pursuance of the submissions made on both sides, it is not in dispute that the loan cum hypothecation agreement Ex.R-10 executed by the complainant in favour of opposite finance. Article 6.1 of the terms and conditions of Ex.R-10 deals with one or more events of default. It also deals with lender’s rights to take physical possession of the vehicle in case of default.<br /> <br /> 11. In the light of the Article 6 of the terms and conditions of the loan cum hypothecation agreement Ex.R-10, we have to appreciate the case of complainant to see as to whether the seizure of his lorry bearing NO. KA-36/3120 by the opposite was illegal prior to due period dt. 25-12-10.<br /> <br /> 12. Admittedly Ex.P-7 & Ex.P-8 are the notices issued dt. 16-04-10 & 24-02-10 and Reply notice at Ex.P-9, Final notice regarding the seizure Ex.P-10 clearly discloses that, opposite finance ltd., issued notices of demand to pay balance amount if not paid in time then it will seize the vehicle. Under the said circumstances, we are of the view that, the contention of the learned advocate for complainant that the seizure of the vehicle without order of the court is not proper to the circumstances of this case. There was no allegations by the complaisant against opposite that, the said vehicle was seized under threat, as such the ruling referred by the learned advocate for complainant Amitavva Das V/s. Dinesh Sharma, Manager City Bank reported in 1997 2 CPJ 128 (WBSC) is not helpful for him. On the other hand the learned advocate for opposite filed written arguments in this case by explaining of the circumstances under which finance took steps to seize the vehicle as stated above. He relied on the rulings reported in (1) CPR 1993 (1) 392, (2) 1995 (3) CPR 93, (3) 1995 (3) CPR 293, (4) CPR 2010 (2) 140 (NC) And (5) CPJ 2010 (1) at Page 168 (NC).<br /> <br /> 13. We have gone through the principles of the rulings referred above and also the principles of the Hon’ble Karnataka State Commission in Appeal No. 1847/2005 dt. 19-10-06, in Appeal No. 2013/2006 dt. 13-09-06, in Appeal No. 2322/2007 dt. 13-12-07 and Appeal No. 2242/2009 dt. 19-03-10, we are very much clear that, opposite finance acted and seized the vehicle of the complainant in strict compliance of the Article 6 of Ex.R-10 it need not wait up to completion of loan period. In view of the facts and circumstances we cannot accept the contention of the learned advocate for complainant that, opposite has committed deficiency in its service by illegal seizure of his vehicle.<br /> <br /> 14. As regards to the contention of the opposite finance ltd., as the complainant is not a consumer under the meaning and definition of section 2(1)(d) of the C.P. Act. In this regard relied on the rulings reported in 1993 2 CPJ 1053 (TNSC) S. Pushpadevi Jamad V/s. New India Assurance Company Ltd., and another we have also referred the ruling reported in 2009 CTJ 522 (CP) NCDRC National Seeds Corporation Ltd., V/s. V. Krishnareddy & others. We have perused the facts pleaded by the complainant in the light of the principles of the rulings referred by the complainant and we are of the view that, the complainant is a consumer as defined U/sec. 2(1)(d) of C.P. Act. We have not dealt with other documents produced on both sides, as almost all the facts pleaded are undisputed facts by the opposite except as evidenced by RW.1 and facts noted in his written version. Accordingly we are of the view that, the complainant not established the facts of deficiency in service on the part of opposite finance and thereby we answered Point No-1 in Negative.<br /> <br /> 15. In view of our finding on Point No- 1, the complainant is not entitled for any one of the relief’s as prayed in his complaint.<br /> <br /> POINT NO.3:-<br /> <br /> 16. In view of our findings on Point No- 1 & 2, we proceed to pass the following order:<br /> <br /> ORDER<br /> <br /> This complaint filed by the complainant against opposite is dismissed. <br /> Intimate the parties accordingly. <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 04-11-10)<br /> <br /> Sri. Pampapathi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj, Member,<br /> District Forum-Raichur.<br /> <br /> Sd/- <br /> Smt.Pratibha Rani Hiremath, <br /> Member. <br /> District Forum-Raichur.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />