BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.84/2015

DATED ON THIS THE 10^th March 2017

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint filed for a direction to opposite party to pay Rs.3,60,000/- as damages due to loss of earning suffered by the complainant, for compensation of Rs.1,00,000/- and litigation expenses. 
2.     The brief facts alleged in the complaint are that the complainant availed loan from opposite party for purchase of vehicle bearing No.KA-45/4262.  The complainant has paid almost75% of the loan amount and as on May 2014 he was due a sum of Rs.1,20,000/- only and he is making efforts to clear the said loan.  The opposite party made an attempt to seize the vehicle.  Then the complainant requested the opposite party to postpone the possession as he is ready to pay the amount.  Even then without hearing the complainant, vehicle was seized, due to seizure of the vehicle, the complainant has suffered loss of earning to the extent of Rs.30,000/- per month.  On 10.06.2014 and 11.06.2014, the opposite party sent notice and called the complainant to settle the matter.  To the surprise of the complainant, vehicle was not released.  On the other hand, the complainant came to know the ;opposite party illegally sold the said vehicle to one Asif, Nayandanahlli, Bangalore.  The seizure of the vehicle by opposite party amounts to deficiency in service.  Thereby, complainant sought for the reliefs. 
3.      Opposite party appeared and filed the following version:- The complainant has suppressed the material facts.  Thereby, the complaint is not maintainable.  False allegations are made with malafide intention to secure unlawful gain and escaping from the liability on the payment of outstanding dues.  The complainant is not  a consumer as defined under section 2(1)(d) of the C.P.Act as the said loan was availed for commercial purpose.  Then there is question of law and facts, Forum cannot adjudicate the matter under C.P.Act and the remedy open to the complainant is to approach the Civil Court.  The complainant has reached the terms and conditions and stipulated under the loan agreement.  Thereby, the opposite party was constrained to exercise to right under the agreement to demand for payment of outstanding dues.  On three occasions notice was issued to the complainant.  In spite of it, loan was not cleared.  Thereby, opposite party has initiated arbitration proceedings under section 17 of the said Act.  The arbitrator passed award on 19.04.2014 permitting to opposite party to take possession of the vehicle.  Accordingly, possession of the vehicle was taken on 16.06.2014.  The opposite party is at liberty to sell the vehicle for recovery of the dues.  Accordingly, vehicle was sold and amount was recovered.  Thereby, opposite party has sought for dismissal of this complaint. 
4.      On the above pleadings of both parties, this matter is said down for orders.  During evidence on behalf of complainant, complainant has filed affidavit evidence.  Further evidence closed.  On behalf of opposite party, also one Panduranga Kini, Branch Collection Manager has filed his affidavit evidence.  Further evidence closed.  The complainant has not submitted either written arguments nor oral submissions.  On the other hand, advocate for opposite party only submitted the oral arguments.  Then this matter is set down for orders.
5.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant has establishes that there is deficiency in service on the part of opposite party in seizing the vehicle though he is not defaulter, thereby he is entitled for the reliefs sought
3.  What order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- Does not arise for consideration.

Point No.3 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The complainant is not disputing the availment of loan from the opposite party and terms of agreement. Himself one Ningarajamma and Betanayaka have entered into agreement with the opposite party.  As per terms of the agreement, if there is any dispute between the parties, the parties are at liberty to approach the arbitrator for necessary reliefs.  As per condition of opposite party, the complainant is a chronic defaulter, in spite of issuance of notice, he has not repaid the balance amount.  Thereby, as per the terms of agreement, the opposite party initiated the arbitrator proceedings and the arbitrator as passed award on 19.04.2014.  Under the said award, the opposite party is at liberty to execute the award for recovery of Rs.3,45,225.82 with interest.  The opposite party is also at liberty to take possession of the vehicle for recovery of the dues.  The possession was taken and vehicle was sold.  Thereby, in view of the order passed against the complainant, herein the present complaint is not maintainable since the parties got  the reliefs under the Arbitration Act.  Thereby, present complaint is not maintainable. Accordingly, Point No.1 is answered in the negative.
8.    Point No.3:- In view of the findings recorded on point No.1, this point does not survive for consideration.
9. Point No.3:- In view of the findings recorded on point Nos.1, the complaint is to be  dismissed as not maintainable. Hence, we pass the following order:-

:: O R D E R ::

1. The compliant is dismissed as not maintainable.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 10^th March 2017)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER