Date of Filing: 24-10-2017
Date of Order:13 -8-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Tuesday, the 13th day of August, 2019
C.C.No.427 /2017
Between
S.S.Rama Koti
S/o.Srinivasa Charyulu,
Age: 62 years, Occ:Rtd Panchayat Secretary,
R/o.H.No.11-14-23, Haripuri Colony,
Road No.1, Saroor Nagar Mandal,
Ranga Reddy District. ……Complainant
And
The Branch Manager,
Kotak Mahindra Prime Limited,
CIN U67200 MH 1996 PLC 09770,
6-3-1109/1, 2nd floor, Navabharat Chambers,
Raj Bhavan Road, Somajiguda,
Hyderabad -082 ….Opposite Party
Counsel for the complainant : M/s. CH.Vidya Sagar
Counsel for the opposite Party : Mr.P.Ramachandran
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act 1986 for a direction to the opposite party to continue to honour the agreement dated 306-2015 in respect of complainant’s vehicle bearing No. TS 08EK 7971 without breach of terms and conditions to furnish the copy of the said agreement and statement of account and to award a sum of Rs.30,000/- as compensation for causing mental agony to the complainant and a further sum of Rs.1,000/- towards costs of the complaint.
- The complaint averments in brief are that the complainant is a retired employee and to meet his old age commitments he purchased Maruthi Wagon R vehicle for a total sum of Rs.5,25,029/- . Out of the total cost he paid a sum of Rs.94,230/- directly to the showroom as down payment and the balance amount of Rs.4,04,342/- was by way of a loan availed from the opposite party. For the availment of the said loan he executed an agreement with the opposite party on 30-6-2015 and as per the said terms the loan amount of Rs.4,04,342/- was to be repaid by way of Equally Monthly Installments at Rs.8,790/- per month for a period of 60 months. Accordingly he paid loan installments regularly without any default from 30-6-2015 to November 2016 amounting to Rs.1,31,850/-.
In the month of December, 2016 the complainant fell sick with Jaundice and could not pay the installments from December, 2016 to October 2017 and total defaulted amount comes to Rs.87,900/- . He recovered from the sickness in September 2017
On 7-10-2017 the complainant parked the vehicle, purchased with loan amount availed from the opposite party, in front of his house the people deputed by the opposite party took away it without any prior information to him. When the complainant made efforts the opposite party did not give any information. But he learnt that the vehicle was seized as he did not pay installments for ten months . Hence immediately arranged the due amount and offered to pay to the opposite party. But the said offer was rejected and he was insisted to pay the entire amount due with interest and other incidental charges. The request of the complainant with folded hands not to insist for payment of amount and to release the vehicle was not considered by the opposite party. The opposite party is trying to sell the vehicle by conducting an auction if the complainant failed to pay the entire loan amount with interest. The opposite party alleged to have put the vehicle for an auction and sell it by for low price and then proceed against for the balance amount. If the same is permitted the complainant will be put to irreparable loss and damage.
While the matter stood thus a pre-sale notice dated 04-10-2017 was posted to him on 5-10-2017 and he received it on 7-10-2017. In the said notice opposite party informed that if he fails to pay the amount demanded within three days from the date of service of it the opposite party will dispose the vehicle for clearance of the loan. Soon after receipt of the said notice the complainant approached the opposite party and made a request to release the vehicle by receiving the defaulted installments but he was refused. This attitude of the opposite party amounts to unfair trade practice and deficiency of service. Hence the present complaint.
- Opposite party while admitting the sanction of the loan to the complainant for the purchase of the vehicle committing default in payment of the installments by the complainant filed written version denying the rest of the allegations. The stand of the opposite party is that the complainant at the time of availing the loan sanctioned signed necessary documents and agreed to abide to all terms and conditions of the agreement and pay stipulated installments for 60 months. He also agreed that if he commits default the opposite party is entitled to seize the vehicle. After availment of loan complainant did not pay installments intimae and on some occasions cheque issued towards installments were bounced and he became a chronic defaulter in payment of installments. Hence a notice was issued recalling the loan on 20th June 2017 and for the said notice there was no response from the complainant.
Having seen no response the opposite party invoked arbitration clause in the loan agreement and caused a notice on 28-3-2017 to the complainant but to the said notice also there was no response from him. Then the opposite party approached the arbitrator who having initiated arbitration proceedings issued notice to the complainant for his appearance. But the complainant refused to receive the notice issued by the arbitrator. The opposite party filed a petition under Section 17 of arbitration and Council Act before arbitrator who passed the Interim order for seizure of the vehicle. On 30-4-2017 the complainant having leant about the said interim orders of the arbitrator tried to conceal the vehicle but the opposite party got it seized from the possession of the complainant and at the time of seizure on 23-09-2017 the complainant did not oppose and later he come up with present complaint by suppressing the true facts.
The complainant is aware of the arbitration proceedings but failed to appear for the best known to him. The learned arbitrator passed on order by following due procedure of law. Thereafter the opposite party issued a pre-sale notice to the complainant and even after receipt of it the complainant failed to pay the amount.
At no point of time the complainant approached the opposite party offering to pay outstanding installments. Hence the allegation that opposite party refused to receive the defaulted installments and he could not pay the installments on account of ill health are all false. The complainant having suffered award by the arbitrator the available remedy is to file a suit to set aside the award. This Forum has no jurisdiction to entertain the complaint as arbitrator already passed an award in the subject matter. Hence the complainant is not entitled for any relief in the present complaint and same is liable to be dismissed.
In the enquiry the complainant got filed his evidence affidavit reiterating the material facts of the complaint and to support the same got exhibited three (3) documents. Similarly for the Opposite Party evidence affidavit of its authorized signatory is got filed and the substance of the same is in line with the stand taken in the written version. Two (2) documents are exhibited for the opposite party. Both sides have filed written arguments and filed a memo to consider the same as oral arguments.
On a consideration of material placed on record the following points have emerged for consideration .
- Whether the complainant is entitled for the reliefs prayed in the complaint?
- To what relief?
Point No.1: The fact relating to availment of loan of Rs.4,04,342/- by the complainant from opposite party execution of loan agreement and other related documents and to repay the availed loan by way of 60 monthly equated installments of Rs.8,790/- has been admitted by the opposite party. But the claim of the complainant that he paid the EMIs from the date of loan agreement of November 2016 regularly without any default has been categorically denied by the opposite party by pleading that on some occasions the cheques issued by the complainant were dis-honoured the complainant became a chronic defaulter in payment of loan installments. In spite of this specific plea complainant has not chosen to file either the statement of account or challen vouchers evidencing the payment of installments regularly from 30-6-2015 to November 2016. Even according to the complainant himself he fell sick in the month of December 2016 hence could not pay EMIs for ten (10) consecutive months. But at the same time he has not filed medical record to support his version that he was bed ridden with Jaundice in the month of December 2016. The documents that are exhibited by the complainant are a letter from the opposite party informing him about the sanction of loan, RC of the vehicle bought by availing the loan from the opposite party and pre-sale notice caused by the opposite party. These documents are not in dispute. The opposite party main defense is when the complainant did not respond to the loan recall notice it has invoked the arbitration clause in the loan agreement and caused a notice to that effect on the complainant but the complainant did not respond for it. After initiation of arbitration proceedings the arbitrator also issued a notice to the complainant but he refused to receive it. As a result of it arbitrator proceeded further in the matter and passed on award and before that an Interim order was passed enabling the opposite party to seize the hypothecated vehicle and after passing of the award the complainant having notice of it came up with present complaint before this Forum. The opposite party filed copy of the award passed by the arbitrator on 17-10-2017, copy of acknowledgment (evidencing the service of the notice on the complaint) for the notice sent to the complainant by the arbitrator. This acknowledgment shows an endorsement from the postal department as unclaimed and it amounts to refusal on the part of the opposite party. Refusal amounts to knowledge of the content in the notice hence the complainant cannot plea now that he has no notice of arbitration proceedings. An award of the arbitrator Ex.B1 also shows the complainant refused to receive the notice issued to him.
As already said the award under Ex.B1 passed by the arbitrator on 17-10-2017 whereas the present complaint is filed on 24-10-2017 i.e, seven (7) days after passing of award. Since an award has been passed by arbitrator for the subject matter of the complaint this Forum cannot sit an appellate authority to consider validity or invalidity of the arbitration award. The legal remedy available to the complainant is to approach a Civil Court by way of either a suit or an O.P to set aside the award on the available grounds but not to file a consumer complaint before this Forum.
Even assuming for an award without accepting that complainant can maintain the present complaint even then also the complainant has no case at all because even according to him he committed default of ten (10) months and thereby violated the terms and conditions in the loan agreement. Hence left with no alternative the opposite party invoked the arbitration proceedings and obtained Interim orders for seizure of the vehicle for sale by an auction for recovery of the outstanding amounts due. The complainant having alleged the deficiency of service did not substantiate as to what is a deficiency of service by opposite party. It is not the case that after sanction of the loan and obtaining of necessary documents the opposite party did not disburse the loan so as to say that non disbursal of the sanctioned loan amounts to deficiency of service. So either on facts or on law the complainant has no case to succeed in this complaint. Accordingly point is answered.
Point No.2: In the result, the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 13th day of August , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1-finance approval letter dt.4-8-2015
Ex.A2- Vehicle registration certificate
Ex.A3-pre-sale notice dt.04-10-2017
Exs. filed on behalf of the Opposite party
Ex.B1 -copy of the award dated 17-1-2017
Ex.B2- copy of the returned postal cover
MEMBER PRESIDENT
