| Final Order / Judgement | Date of filing:29.04.2022 Date of Disposal:19.10.2023 BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 19th Day of OCTOBER 2023 PRESENT Mr. K B SANGANNANAVAR: JUDICIAL MEMBER Mrs.M.DIVYASHREE : LADY MEMBER APPEAL NO. 1013/2022 Reliance Commercial Finance Limited, Formerly Reliance Capital Limited, Office at 30th Cross Road, No.39, Tilak Nagar, Bannerghatta Road, By its Authorized Signatory, Ms.Deblina Mitra.…….. Appellant (By Mr.Raghav Parthasarathy, Adv.) -Versus- Harish R, Son of Raju, Aged about 35 years, Residing at 306/1, (By Mr.Umashankara S, Adv.) ORDER BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER: - This is an appeal filed by OP in CC/339/2017 on the file of District Consumer Disputes Redressal Forum, Mysuru aggrieved by the order dated 02.01.2020. (The parties to this appeal will be referred as to their rank assigned by the Forum below).
- The Commission examined grounds of appeal, impugned order, appeal papers and heard.
- A Consumer Complaint came to be filed before the Forum below on 22.11.2017 against OP Nos.1 and 2 with a prayer to direct them to pay Rs.5,00,000/- towards mental agony, deficiency of service on their part and to pay value of the vehicle worth Rs.14,00,000/- after deducting loan balance amount with interest at the rate of 12% p.a. and to award litigation costs.
- The complainant alleged against OPs, when he went to make payment of two EMIs at once, OP2 did not receive and asked him to wait till they receive information from OP1, however, all of sudden on 10.12.2015, OPs without issuing any notice or intimation have seized the lorry by sending 10 to 15 persons which according to him are goons. As he waited for information from OP Nos.1 and 2 to make payment and the Ops instead to permit him to pay EMIs, issued notice stating that cheque issued by him has been dishonored on 19.10.2017. In fact this cheque was a post dated cheque and it was inchoate cheque without mentioning the date 19.10.2017. The OPs have obtained similar such 10 black cheques as security for the loan amount. That was on 28.09.2017 OPs issued notice to him that they have auctioned his vehicle for Rs.7,08,000/- and after crediting with the sale price amount, he is still liable to pay Rs.5,42,837/-.
- According to complainant auction was held without issuing any notice to him. He had not received any intimation before selling the vehicle in question for Rs.7,08,000/-. He was paying EMIs regularly and yet the vehicle was seized and sold through online bidding and caused him huge loss. The act of Ops amounts to rendering deficiency of services and he is entitled for compensation for the loss sustained by him as stated at the very outset in the preamble.
- On the contrary, OP Nos.1 and 2 have contested the complaint case raised by complainant, contending that complainant had purchased the truck availing loan from them and he was irregular in paying EMIs, as such the vehicle was seized and was sold through online bidding and it was known to the complainant. The Ops have not rendered any deficiency in services as alleged by the complainant. In view of the rival contentions of the parties to the complaint. The Forum below held an enquiry, received affidavit evidence and documents on behalf of both parties and in appreciation of the materials on record proceeded to allow the complaint in part and directed OP Nos.1 and 2 shall jointly and severally liable to pay a sum of Rs.1,90,000/- to the complainant within 45 days from the date of order failing which the amount so awarded carries interest at the rate of 10% p.a. from the date of filing complaint till payment. It is this order being assailed in this appeal contending that impugned order is bad in law and is contrary to facts placed on record contending that complainant as on the date of complaint was still due Rs.5,42,827.32/- was not considered by the Forum below and forum below failed to record sound reasons to award compensation of Rs.1,90,000/- for rendering the alleged deficiency in service. Now we have to decide whether appellants have made out grounds to interfere in the impugned order passed by the Forum below?
- Learned counsel for complainant/respondent submits to confirm the findings recorded by the Forum below only on the grounds of delay, as there is delay of 818 days in filing this appeal. However, on the contrary, counsel for appellant/OPs submit that the Hon’ble Supreme Court of India in Suo Motu Writ Petition (C) No.3/2020 granted additional 90 days time from 01.03.2022 regardless of the remaining period of limitation, for the purpose of filing any application/appeal/proceedings on 10.01.2022 and submits that appellant company assumed the rights and liabilities of the erstwhile Reliance Capital limited through a scheme of arrangement approved by the Hon’ble High Court of Judicature at Bombay in Company Scheme Petition No.781 of 2016 approved the scheme of arrangement of erstwhile Reliance Capital Limited to Reliance Commercial Finance Limited, vide order dated December 09, 2016 and in such circumstances authorized representative of appellant company has sworn-in in his affidavit enclosed to IA filed U/s 5 of the Limitation Act in para-06 – appeal could not be filed in time due to the prevailing Covid restriction and the appellant company officials could not attend the office regularly which caused delay in procuring the necessary documents to prefer the appeal. The delay is no intentional and bonafide could be acceptable and the Commission is of the view that OPs/appellants had sufficient cause for not preferring the appeal within time stipulated as provided under Consumer Protection Act, 1986 or 2019. It is therefore this commission followed by the decision of the Hon’ble Apex Court and for the reasons sworn in the affidavit by the appellant we are incline to allow the IA filed U/s 5 of the Limitation Act, 1963 and as a result condoned the delay and proceed to record further finding on merits of the case.
- According to complainant, OPs sold the vehicle in auction, even prior issuance of notice or intimation to him. It is to be noted herein that post sale notice, OPs repossessed the vehicle from complainant on 11.12.2015 and the same has been sold to the highest bidder for an amount of Rs.7,08,000/- and it was online bidding which has to be said had notice. It is not in dispute that the vehicle was repossessed by Ops on 11.12.2015 and this complaint is filed on 22.11.2017. The Forum below recorded a finding followed by the decision in the case between HDFC Bank Ltd., v. Sharmiladas Gupta 2018 (III) CPR 152 wherein U/s 15, 17, 19 and 26 of Consumer Protection Act, 1986 held – “Gold sold by Bank without any prior notice. District Forum allowed the complaint in part directing the Bank to pay the amount of gold at present market price of gold to the complainant after deducting amount due to credit of Bank on the date of sale of deposited gold ornament without imposing any delayed interest etc., The same confirmed by Hon’ble State Commission, West Bengal in Appeal. Revision Petition dismissed by the Hon’ble National Commission confirming the findings of both the Fora.” which in our view has no application to the facts and circumstances of the case on hand in this appeal, since, enquiry disclosed about repossessing of vehicle on 11.12.2015 by Ops which is very much within the knowledge of the complainant, in other words he had notice of the repossessing of the vehicle, yet kept quiet for almost two plus years to raise consumer complaint. On the contrary, the OPs have shown that through online bidding sale of the vehicle in question was put for sale and it was sold to the highest bidder, suffice to hold that complainant had notice of the online auction conducted by Ops, yet was keeping mum till 22.11.2017 and these factual matrix were not properly perceived by the Forum below before passing the impugned order. It has come in the enquiry that the vehicle was purchased by him availing loan of Rs.11,99,952/- on 25.04.2015 and he was failed to pay EMIs as agreed under Hypothecation Agreement, is yet an another circumstances which would go against the case of the complainant. The findings recorded by the Forum below, that the OPs should have issued notice to the complainant stating that they are going to sell the vehicle in an auction for non-payment of EMIs and have no right to collect any amount towards balance payment as asked in post sale notice dated 28.09.2017 is again contrary to the materials on record, since parties to hypothecation agreement are bound by the terms and conditions. In our view the reasons assigned by the forum below could be said not proper or they are not sound reasons to record such a finding to allow the complaint case. The finding that OPs are liable to return EMIs paid by the complainant at Rs.1,30,000/- is again not substantiated, since no date is mentioned as to payment of such EMIs by complainant before post sale notice. The parties to the complaint agreed under Loan cum Hypothecation Agreement are binding on them and we cannot import or add or delete as the case may be. The EMIs agreed at the time of vehicle loan agreement arrived between parties was for 48 months. The date of commencement of monthly installments starts w.e.f; 01.06.2015 and the due date of payment of 1st monthly installment is due on 01.06.2016. The mode of repayment is through ECS, Karnataka Bank Limited which was not followed by complainant. The account statement for the period from 21.09.2000 to 21.09.2020 maintained by OP in respect of complainant’s account, discloses payment of EMIs and his default coupled with crediting of Rs.7,08,000/- on 21.07.2016, was the sale price of the vehicle and the said price according to Ops was the highest bidding amount through online sale/bidding of the vehicle repossessed by the Ops, which could not be said rendering deficiency of services on their part. As already stated above the complainant was keeping mum till 22.11.2017 and he has to be said failed to establish that the online bidding held by OPs was in violation of terms and conditions of Loan cum Hypothecation Agreement, which was admittedly agreed between parties.
- In the above such circumstances, awarding Rs.1,90,000/- as compensation for rendering deficiency in service on the part of Ops has to be held contrary to the facts and law. In other words the forum below committed grave error and the impugned order suffers from infirmities does call for an interference of this Commission. Hence we proceed to allow the appeal. Consequently set aside the impugned order dated 02.01.2022 passed in CC/339/2017 on the file of District Consumer Disputes Redressal Forum, Mysore and as a result dismissed the complaint with no order as to costs.
- The Amount in deposit is directed to be refund in favour of the appellant with proper identification by his advocate.
- Send a copy of this Order to the District Commission and parties to the appeal.
Lady Member Judicial Member *GGH* | |
