BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
DATED THIS THE 22nd DAY OF OCTOBER 2011
CONSUMER COMPLAINT NO.223/2010
PRESENT:
Sri T. Rajashekharaiah, B.A. L.L.B.,
PRESIDENT
Sri. T. Nagaraja,
MEMBER
Smt. K.G. Shantala,
MEMBER
COMPLAINANT - | | Sri K.V. Ravindra, S/o Venkatappa, Aged about 40 years, Residing at Kaiwara Village and Hobli, Chintamani Taluk, Chikkaballapur District. |
V/S
OPPOSITE PARTY - | | The Manager, Srirama Investment Ltd., M.B. Road, Near K.S.R.T.C. Bus Stand, Kolar City, Kolar. |
ORDER
1. This Complaint was filed under the provisions of the Consumer Protection Act, 1986. The Complainant contends that on 05.01.2005 he had taken loan of Rs.6 lakhs from the Opposite Party for purchase of one EICHER TEMPO bearing registration No.KA-07-4607 and he has executed agreement-cum-hypothecation deed dt.05.01.2005. He had paid Rs.5,86,760/- as on 01.08.2007 and at that time, he was not in arrears. Inspite of it, the Opposite Party seized the vehicle on 01.08.2007 without writing any mahazar and the vehicle was kept in the custody of the Opposite Party. At the time of seizure, the vehicle was loaded with tomato boxes valued Rs.14,000/-, 430 wooden boxes worth Rs.30,100/-. The Complainant filed Original Suit No.416/2007 before the Prl. Civil Judge, (Jr. Division), Kolar and sought for relief of Mandatory Injunction to deliver the said tempo. In that Suit by Order dt.01.12.2007 it was ordered that the matter should be referred for arbitration as per the terms of the agreement. Inspite of that Order, the Opposite Party has not referred the dispute for arbitration and he kept quiet until 08.09.2010. Later, the Opposite Party orally directed the Complainant to repay the entire loan amount and then take back the vehicle. It is alleged that the condition of the vehicle has deteriorated and it is not fit for running. Due to seizure of the vehicle, he has suffered loss of Rs.5 lakhs and after the seizure of the vehicle also, he has suffered Rs.10 lakhs as the vehicle is kept idle. Hence, he has filed this Complaint for a direction to the Opposite Party to pay Rs.15 lakhs with interest at 18% p.a.
2. The Opposite Party has filed Version and has admitted about entering into loan-cum-hypothecation deed dt.05.01.2005 and giving loan of Rs.6 lakhs. It is contended that the relationship between the Complainant and the Opposite Party is that of a borrower and the financier and because of it, the Complainant cannot be said to be a Consumer under the Act. The loan was taken for commercial purpose of purchasing the vehicle and because of it, the Complaint is not maintainable. There is Arbitration Clause under the agreement and if there is any dispute, the party should approach the Arbitrator. But the Complainant has slept over the matter for more than 3 years after the Order was passed in OS.No.416/2007 to approach the Arbitrator. It is contended that the Complaint is barred by limitation as the vehicle was seized on 01.08.2007 and the Order in the OS was passed on 01.12.2007 to refer for arbitration. It is contended that the total amount payable by the Complainant under the said loan agreement will be Rs.7,09,277/-. In addition to it, the Complainant has also availed a personal loan of Rs.86,000/- on 26.03.2007. The Complainant did not honour his commitment and has not paid the monthly instalments regularly and he has become a defaulter. Hence, having no other option, the Opposite Party re-possessed the vehicle according to Clause-6(B) of the Loan-cum-Hypothecation Agreement. Even after notice was issued on 25.02.2009, the Complainant has not paid the balance amount. Hence, after publishing in the Notice Board about the intention to sell the property, the Opposite Party has sold the same for Rs.3,45,000/-. The rights and duties between the parties is governed by the Agreement and because of it, the dispute does not constitute as the deficiency in service. Hence, it is prayed to dismiss the Complaint.
3. In the circumstances, the following points do arise for our consideration and decision and they are:
(i) Whether the Complaint is barred by limitation?
(ii) Whether the Complainant has established the alleged deficiency in service by the Opposite Party?
(iii) If so, to what relief the Complainant is entitled?
4. Our Findings to these points are as hereunder:
i) Affirmative
ii) Negative
iii) As per final order.
R E A S O N S
5. POINT NO.1:- The seizure of the vehicle is on 01.08.2007 and that is the date of cause of action to the Complainant. If he is challenging the validity of that seizure, the Complaint should have been filed within two years from that date. But the Complaint is filed on 27.10.2010 and it is beyond the period of two years. The Order to refer the dispute for arbitration is said to have been passed in the Original Suit on 01.12.2007. Hence, even if that date is taken as the date of cause of action, still the Complaint is filed more than two years later from that date. In our opinion, the cause of action is not a continuing cause of action. Hence, we hold that the Complaint is barred by limitation.
6. POINT NO.2:- The Complainant alleges that the vehicle was seized without writing mahazar. The Complainant does not challenge the validity of that seizure on any other ground. It is also contended by the Complainant that he has paid the instalment and he was not in arrears. On the other hand, it is the contention of the Opposite Party that he was not regular in repayment of the amount and because of it, there was arrears and for that reason, the vehicle has been seized by exercising the powers vested in the agreement. The Clause-6 reads as follows;
CLAUSE – 6
In the event of the Borrower committing any act of default, as aforesaid, then, notwithstanding anything to the contrary herein contained, CFIL shall be entitled as its absolute discretion, to interalia:
(B) REPOSSESSION OF ASSET: To take possession of the hypothecated assets from wheresoever it may be.
The above provision in the agreement goes to show that the Opposite Party was entitled to seize the vehicle if the Complainant was a defaulter. Hence, the seizure of the vehicle is in terms of the agreement and because of it, it cannot be said to be deficiency in service. Hence, this point is held against the Complainant.
7. POINT NO.3:- In view of the finding on Point Nos.1 and 2, the Complaint is liable to be dismissed. Hence, we proceed to pass the following;
ORDER
The Complaint is dismissed. No costs.
This Order is pronounced on this the 22nd day of October 2011.
MEMBER MEMBER PRESIDENT
