Complainant/s:             Venkanagouda R. Govindgoudar

                                            A-3, Shubam Apartment,  

                                               5^th A Cross, Panchaxari Nagar,  

                                               Gadag.

                                                (Party In-Person)   

V/s

ORDER

JUDGEMENT DELIVERED BY SMT.SAMIUNNISA .C.H. PRESIDENT:

This complaint is filed by the complainant against the OPs by invoking Sec 12(1) of the Consumer Protection Act 2019 to give true copies of the loan agreement, to hand over the Car bearing Registration No.KA-26 M 5757, Rs.1,00,000/- towards deficiency of service, harassment, hardship, mental agony, inconvenience, Rs.50,000/- for not following banking ethics and behaving unprofessionally and such other reliefs.   

                   The averments of the complaint in brief are:

         2.  The above complaint filed by the complainant stating that, he had insisted the OP Bank, Gadag for providing true copies of his loan agreements with used Car Loan 1) 30817310 and 2) 49092110 under Jumbo Loan 4346770002721440 with Credit Card No.4854991902486520.  It is further submitted that, the complainant written a letter to the Branch Head of HDFC Bank, Gadag for providing true copies of the above said loan accounts on 28.08.2018 along with another letter raising by his concerns about creating lien on another account that has nothing with the above said loans, but he did not get any reply to the same nor any action has been taken by the OP.  It is further submitted that, as he did not get any reply, complainant gave a written reminder to the OP No.2 on 01.10.2018, no action was taken on the reminder also. Thereafter, he visited the Branch Head, but he got only the answer that, they forwarded the copies to the concerned person, but nothing was happened.  It is further submitted that, as he has good relationship with the Bank, he stopped to ask the copies.  It is further submitted that, complainant called upon one Mr. Manjunath Neelgund to come and collect the due installments but, he came along with four more men, misbehaved with him and demanded to pay the entire loan amount which was more than Rs.6,00,000/- and took possession of his car with Reg.No.KA-26 M 5757.  On 30.05.2019, complainant gave a letter to OP regarding misbehavior of their recovery staff and complainant gave consent to sell his car bearing Reg.No.KA-26 M 5757 and to clear his loan.  It is further submitted that, complainant kept reminding the Branch Head about the car lying unattended for more than two weeks which was lying idle on the road side.  Thereafter, an Arbitrator was appointed to settle the account, which the complainant was accepted and promptly attended to the process.  Thereafter, on 11.10.2019, while the complainant was travelling between Hubli-Dharwad near Bharidevarkoppa, his car was stopped forcefully and one person who introduced himself as Prakash took his car and drove away without giving any seizing letter or anything to prove that, his car is under the custody of Bank, which is a deficiency of service and unprofessional ethics of the OPs.  Immediately, the complainant called the Branch Head and informed him about the unprofessional act of their recovery staff and e-mailed about the same asking to act immediately but it went in vain. The cause of action for this complaint arose in between 28.08.2018 to 11.10.2019.   Hence there is a deficiency in service and prayed to OP.

         3.   In pursuance of the notice issued by this Commission, the OP appeared through Advocate and filed written version. 

          The brief facts of the Written Version of OP

          4.       The OP contended that, the complaint is not maintainable either on facts or on law and the same is required to be dismissed in limine.  The complainant is not a consumer as per the provisions of C.P Act as the transaction between complainant and the OPs is a barrower and financier relations and hence, the complaint does not comes within the definition of consumer as per Sec.2(d) of the Act.  It is further submitted that, on approach of the complainant, the OPs sanctioned and disbursed financial assistance of Rs.7,05,493/- to him as Car and Cash (used car finance) Loan under the loan agreement No.30817310 on 11.12.2014 by pledging the vehicle namely Mahindra XUV 500 W6 PWD bearing Chassis No.MA1YL2HJUC6E86892, Engine No.HJC4E29287 and Reg.No.KA-26 M 5757 and the same is hypothecated to the OPs.  Complainant agreed to repay the loan amount by way of equal monthly installments of Rs.19,275/- each in 48 installments commencing from 07.01.2015 to 07.12.2018.  But, contrary to the agreed terms, the complainant became chronic defaulter in repayment of the agreed installments.  Despite several demands, reminders, requests and follow ups, complainant failed to pay the timely payment as and when it was required for payment.  During the subsistence of the tenure of loan account stated supra, complainant once again approached the OPs and availed TOP UP LOAN – CAR HN CASH – USED CAR FINANCE of Rs.7,06,128/- under the Loan Agreement No.49092110 on 30.06.2017 by pledging the vehicle namely Mahindra XUV 500 W6 PWD bearing Chassis No.MA1YL2HJUC6E86892, Engine No.HJC4E29287 and Reg.No.KA-26 M 5757 by hypothecating the vehicle.  Complainant agreed to repay the loan liability amount by way of equal monthly installments of Rs.17,699/- each in 54 installments commencing from 05.08.2017 to 05.01.2022.  But, contrary to the agreed terms, the complainant became chronic defaulter in repayment of the agreed installments.  Despite several demands, reminders, requests and follow ups, complainant failed to pay the timely payment as and when it was required for payment.  Therefore, there are two loan agreements in existence on the vehicle in question, those are 30817310 dated 11.12.2014 and 49092110 dated 30.06.2017.  Out of this primary loan agreement Number is 30817310 and the secondary loan agreement Number is 49092110.  The secondary loan agreement is existed on the primary loan agreement since the secondary loan agreement was as Top-Up-Loan on the primary loan agreement and hence, the terms of primary loan agreement is continued to be applicable on the secondary loan agreement and there will be no separate loan agreement for the secondary loan.  It is further submitted that, the representatives of OPs to maintain cordial relationship with complainant approached him on 28.05.2019 to demand and collect the overdue payment of Rs.1,74,053-44, but the complainant denied for payment intentionally saying that, he do not have money to pay.  Therefore, the representatives of the Bank asked the complainant to surrender the vehicle if unable to pay the overdue amount, but the representatives of the Bank have not seized the vehicle.  It is false to say that, the Bank had repossessed the vehicle and parked the same in a public road without care and caution.  In view of the defaults, the loan accounts were under the purview of NPA and on 27.06.2019 OPs issued a notice demanding amount within 7 days with default clause of referring the matter to the Sole Arbitrator as per the agreed terms of the loan agreement, but no payment was made by the complainant.  Therefore, a Sole Arbitrator namely Mr. Umesh Hanashimarad, Advocate of Hubli was appointed to decide the dispute and accordingly intimation was issued to the complainant on 10.07.2019.  In the light of the above, a claim petition No.392/2019 was filed before the Sole Arbitrator to recover an amount of Rs.6,11,137/- seeking an interim order of repossession of the vehicle bearing Reg.No.KA-26 M 5757.  Notice was issued by the Tribunal to the complainant to appear before the Tribunal.  In the meantime, Tribunal was pleased to pass an interim order as prayed under the interim application permitting the OPs to repossess the vehicle as per the order dated 08.08.2019.  The complainant appeared before the Tribunal on 05.09.2019 and filed his objections to the petition on 20.09.2019.  Thereafter, the OPs repossessed the vehicle as per the order dated 08.08.2019 of the Hon’ble Tribunal passed in C.P.No.392/2019.  It is further submitted that, before repossession of the vehicle, OPs had exhausted all the procedure established for the same.  As per the Tribunal order, the OPs issued Authorization letter dated 11.10.2019 to repossession agency in favour of ultimate solutions to repossess the vehicle bearing Reg.No.KA-26 M 5757 and as such, the said agency had repossessed the vehicle on 11.10.2019 by intimating the jurisdictional Police through Pre-repossession intimation to Police Station and post-repossession intimation dated 11.10.2019 and even to the complainant.  As such there is no deficiency of service or unfair trade practice on their part and prayed to dismiss the complaint with heavy costs.

         5.  The complainant filed his Chief affidavit along with 06 documents.  On the other hand, the Senior Legal Manager of OPs filed chief affidavit with 14 documents.

    COMPLAINANT FILED DOCUMENTS AS follows

          OP FILED DOCUMENTS AS follows

          6.   On pursuance of the materials, placed by the complainant and OPs, the following points arises for our consideration:-

1. Whether the complainant has proved the deficiency in service

and unfair trade practice on the part of the OPs as averred in the complaint and entitled to any relief?

2. What Order?

    7.       Our findings to the above points are:-

              Point No. 1: Negative

              Point No. 2:  As per the final Order

R E A S O N S

           8.  POINT NO.1 AND 2:  Both the points are inter-linked and identical. Hence we proceed both the points together.

           9.      The Complainant has filed this Complaint against the OPs claiming that, he had availed a loan from the OPs for purchasing a secondhand/used car with an agreement that, the car had been hypothecated to OP.  Complainant further contended that, in between these, OP approached the Arbitrator.  Complainant also went to the Arbitrator and submits that, he is ready to pay the amount and in the meantime, on 11.10.2019, while he was travelling between Hubli-Dharwad in his car was stopped forcibly and without giving any seizing letter and anything to prove that, they seized the car. 

          10.     On the other hand, OP took a contention that, they gave two loans i.e., one is primary loan and second is top-up-loan for the same year.  Several opportunities have been given to the complainant.  Unfortunately, complainant failed to pay the equal monthly installments of Rs.19,295/- for 48 installments commencing from 07.01.2015 to 07.12.2018.  Contrary to the agreed terms, complainant became chronic defaulter.  After several demands also, the complainant had not paid the amount.  Hence, they approached the Arbitrator and issued notice to the complainant and complainant appeared before the Arbitrator in the meantime, the Arbitrator passed an interim order as prayed by the OP for repossessing of the vehicle as per the order dated 18.02.2019.  These things are known to the complainant.

          11.  Ongoing through the pleadings of both the parties, the documents produced by both the parties, shows that, there is no dispute that, complainant had availed loan from the OPs.  Hence, the raising issue by the OP is that, complainant and OP had the relationship as of consumer and the service provider.

          12.  But the thing is to be observed here is that, the OPs already approached the Arbitrator and Arbitrator already granted an interim relief.  Such being the case, when one Tribunal had preceded the same, it cannot be invoked in any Tribunal or Commission for the relief.  Hence, we answer Point No.1 Negative.          

           13.  POINT NO. 3: In view of our findings on the above points, the complaint filed by the complainant is partially allowed. In the result, we pass the following: 

//O R D E R//

1. The above Complaint is dismissed.  No cost. 
2. However, the complainant is directed to approach the proper Appellate Authority for the relief.  

          3.  Send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court on this 2^nd day of August-2021)

          (Shri B.S.Keri)                               (Smt.C.H.Samiunnisa Abrar)

               MEMBER                                                 PRESIDENT