Karnataka

Gadag

CC/118/2019

Irappa. M. Menasinkai - Complainant(s)

Versus

The Manager, HDFC Bank and Others - Opp.Party(s)

N.S.Jalwadagi

16 Feb 2021

ORDER

-::O R D E R::-

BY: SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT.

 

1.      The complainant has filed this complaint claiming direction to the OPs to register the vehicle bearing No.KA-26 TA-3512 in his name, to pay Rs.2,00,000/- towards mental agony, Rs.4,00,000/- towards loss income and such other relief.

 

 

 

-::Brief facts of the case are as under::-

 2.     The case of the complainant is that, he is a customer of OP No.1 and 2 as they are the owner and distributor of Power Track Tractor Company and remaining OPs are the authorized agents.  It is further submitted that, complainant purchased Power Track Tractor bearing No.KA-26/TRA-3512 from OP No.2.  The Total cost of the New Tractor was Rs.5,60,000/-.  Complainant sold his old Tractor to OP No.2 for a sum of Rs.1,90,000/-.  Including the down payment of Rs.1,15,000/-, the total amount paid was Rs.3,05,000/-.  Complainant taken a loan for the remaining sum of Rs.2,55,000/- with OP No.1 by way of half yearly installments of Rs.55,800/- each for 8 installments and complainant already paid 5 installments i.e., in all Rs.2,73,000/- and only 3 installments are to be paid by the complainant towards loan amount.  Such being the case, all of a sudden, on 22.07.2015, OP No.1 seized the vehicle without any intimation to the complainant.   Thereafter, the father of complainant got issued legal notice through Advocate.  For that, they told the complainant to take back the Tractor by paying remaining loan amount.  Thereafter, father of complainant went to OPs to pay the remaining amount, by that time OPs told that, the Tractor was sold to somebody.  It is further submitted that, during that time, the father of complainant fell ill and he was admitted to Hubli Cancer Hospital and he died on 03.06.2018.  After his death, complainant came to know that, by putting forgery signatures, the Tractor was sold to OP No.3.  Thereafter, complainant got issued legal notice to OPs, the same was not answered by the OPs.  After that, complainant enquired with OP No.1, OP No.1 told the complainant that, the vehicle will be transferred in the name of complainant, but it went in vain, the same is caused mental agony and financial loss to the complainant.   The cause of action arose for this complaint in the last week of March-2019 when OP No.1 gave an evasive answer and when the notice issued to the OPs.  Hence, the OPs are liable to register the vehicle bearing No.KA-26 TA-3512 in the name of complainant, to pay Rs.2,00,000/- towards mental agony, Rs.4,00,000/- towards loss income.

  3.    Registered the complaint and notice was ordered, as such OP No.1 present before the Forum and filed written version, OP No.3 and 4 remained absent.  The contents of written version of OP No.1 and 2 are as follows.

Written Version of the OP 1

1. The OP No.1 contended that, the complaint is not maintainable either on facts or on law and the same is required to be dismissed.  The complainant is not a consumer as per the provisions of C.P Act as the transaction between complainant and OP is a borrower and financier relations and hence, the complainant does not come within the definition of consumer as per Sec.2(d) of the C.P. Act and hence, the complaint is liable to be dismissed. 
2. It is further submitted that, the date of disputed repossession of the vehicle shown in the complaint was on 22.07.2015, however, the vehicle was repossessed on 21.02.2015 as per the records of OP No.1.  If the very possession of the vehicle is disputed by the complainant, then the cause of action must have arisen for the said dispute either on 21.02.2015 or on 22.07.2015 and the present complaint is filed on 07.08.2019 after a lapse of four years from the date of cause of action.  The limitation for the consumer complaint is of two years from the date of cause of action and therefore, the complaint is barred by limitation under the provisions of C.P. Act and accordingly, the complaint is liable to be rejected on the point of limitation. 
3. It is further submitted that, on approach of one Mr. Malakajappa @ Mallikarjunappa S/o Sobalappa Menasinakai and others, OP No.1 sanctioned financial assistance of Rs.3,08,948/- to him as a Tractor loan under the loan agreement No.80162085 on 30.03.2021 against the vehicle namely POWERTRAC 445 bearing Reg.No.KA-26 T-3512.  Borrowers agreed to repay the loan liability amount by way of equated half yearly installments of Rs.55,819/- each in 8 installments commencing from 04.10.2011 to 04.04.2015.  However, the borrowers had become chronic defaulters in repayment of the agreed installments for the reasons best known to them.  Despite several demands, reminders, requests and follow ups, the borrowers failed to pay the timely payment as and when it was required for payment under the agreed repayment schedule to the agreement.  In view of the defaults in repayment of the agreed installments from the borrowers, it was constrained to issue loan recall notice dated 18.08.2014, but they failed to comply the said notice.  It is further submitted that, as per the loan agreement, the matter was referred to Arbitration by issuing notice dated 03.09.2014 and an Arbitration proceedings in ACP No.170/2014 was registered before the Sole Arbitrator and the Hon’ble Tribunal by invoking Section 17 of the Arbitration and Conciliation Act, 1996 pleased to pass an interim order of possession of the vehicle on 29.09.2014 and thereafter, on 18.11.2014 conclude the matter by passing on award directing the borrowers to pay an amount of Rs.2,01,839/- with interest as awarded with permission to take possession of the vehicle and dispose it of in a public auction or private treaty.  After the order of Hon’ble Tribunal, OP No.1 had processed to repossess the vehicle and accordingly had repossessed the vehicle on 21.02.2015 with proper intimation as the jurisdictional police.  After taking possession of the vehicle, OP No.1 has issued a pre-sale notice dated 28.02.2015 to the borrowers demanding them to pay the noticed amount within the mentioned period with default clause of selling the vehicle, but they failed to come forward to pay the same.  After that, OP No.1 put the vehicle for auctioning and accordingly in a public/online auction the vehicle was sold out for Rs.2,06,000/- on 31.03.2015 to one Mr. Lingaraj Neelappa Venkatapur of Haveri, the highest bidder and the sale proceeds were adjusted to the loan account of the borrowers.  Thereafter, on 31.03.2015 a post-sale notice was issued to the borrowers intimating to come forward to pay the loss on sale payable by the borrowers, but they failed to pay the same.   Even in otherwise, in all such aspects, the borrowers proceeded to lodge a false complaint before the Ron Police in Crime No.78/2015 punishable u/Sec.3 and 4 of Karnataka Prohibition of Charging Exorbitant Interest Act, 2004 and Sec.341, 504 r/w 34 of IPC and upon receipt of notice by the said Police dated 29.09.2015, OP No.1 submitted written explanation annexing all the relevant documents before the said Police on 05.10.2015.  Being aggrieved by the registration of Crime No.78/2015 of Ron Police, OP No.1 filed a Criminal Petition No.101842/2015 before the Hon’ble High Court of Karnataka, Dharwad Bench on 18.11.2015 seeking to quash the entire proceedings of the Crime No.78/2015 of Ron Police, after hearing the matter, the Hon’ble High Court passed an interim order of stay to the entire proceedings by its order dated 20.11.2015 and also issued notice to the respondents and finally concluded the matter by allowing the petition by quashing the entire proceedings registered in Crime No.78/2015 by its order dated 17.06.2016.  complainant by knowing well all the developments of the matter before the different Court of law/authority has filed this complaint, the same must not be appreciated by this Commission.  As stated supra, an Arbitration award in ACP No.170/2014 was registered and concluded by fixing the liability on the borrowers.  Subsequently, OP No.1 by acting under the respective orders of the Hon’ble Tribunal had taken possession of the vehicle and auctioned the same and also appropriated the sale proceeds to the loan account of the borrowers.  The borrowers are liable to pay the loss on sale amount to the OP No.1 as per the post-sale notice of OP No.1.  The Hon’ble National Commission reveals in its several rulings that, once the Arbitration award is passed in a dispute under the provisions of Arbitration and Reconciliation Act, 1996, the Consumer Commission is not empowered to decide the dispute.  The said aspect is affirmed in the order of Hon’ble National Commission dated 20.06.2007 passed in the matter filed between S Balwant Sing Vs. Kanpur Development Authority reported in III (2007) CPJ 425 (NC) and Installment Supply Ltd., Vs. Kangra Ex-Serviceman Transport dated 05.10.2006 reported in I(2007) 34 (NC).  The borrowers being aggrieved by the order of Hon’ble Arbitral Tribunal passed in ACP No.170/2014 or by the order of Hon’ble High Court of Karnataka in Cri.P.No.101842/2015 failed to challenge those orders before the appropriate Court of Law for the reasons best known to them.  Hence, the respective orders passed by both the Authorities of law have attained the finality and binding on the borrowers including the complainant in the matter since he is also one of the borrowers to OP No.1.  Therefore, in the light of aforementioned comprehensive discussion, the present complaint does not survive for consideration and hence, prayed for dismissal of the complaint.                         

Written Version of the OP 2

1. The OP No.2 contended that, complaint of complainant is false, frivolous and vexatious in law or facts, the same is liable to be dismissed.
2. It is further submitted that, there is no tripartite contract between the complainant and with this OP, the complainant is not a consumer to the OP No.2 and the complainant is put to strict proof of the same and hence prayed to dismiss the complaint as this Commission has is no jurisdiction to entertain this complaint.

4.      The complainant has filed his affidavit evidence and filed 08 documents.  The Senior Legal Manager of OP No.1 and OP No.2 filed their respective affidavit evidence and filed 18 documents, which are as follows;

COMPLAINANT FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
C-1	Postal receipt
C-2	Postal Acknowledgement
C-3 & 4	Legal Notices	23.11.2015 & 23.06.2018
C-5	RC Book
C-6 & 7	B-Register Extracts
C-8	Legal Notice

 

OPs FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
OP-1	Application for Tractor and Farm Equipment Loan
OP-2	Agreement for Loan and Guarantee
OP-3	Loan Recall Notice
OP-4	Letter for resolving
OP-5	Claim Petition No.170/2014
OP-6	Statement of claim
OP-7	Interim order in Arbitration case Proceedings No.170/2014
OP-8	Award in Arbitration Case No.170/2014
OP-9	Foreclosure statement
OP-10	Pre repossession intimation to Police Station
OP-11	Post repossession intimation to Police Station
OP-12	Pre-sale notice
OP-13	Post-sale notice
OP-14	Statement of account	04.10.2000 to 04.10.2019
OP-15	Reply to Notice
OP-16	Police Complaint
OP-17
OP-18	Order in Cri.P.No.101842/2015

 

5.     On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudication which are as follows:

 1.      Whether the Complainant proves that, the complaint is filed well within time?

 2.      Whether the complaint is falls under the jurisdiction of this Commission?

 3.      What order?

6.      Our Answer to the above points are:-

1.  

 

2.  

 

3.  

REASONS

7.      Point No-1 & 2:-  The complainant has filed this complaint against the OPs stating that, OP No.1 seized the vehicle of the complainant without intimation of the same and OP No.3 had been purchased the same from OP No.1 and submits that, the complainant paid the loan amount to OP No.1 properly and only 3 installments are due.  Further it is submitted that, his father was looking after all these things and he died in the year 2018.  Again he approached and enquired with OP No.1, they gave an assurance that, they will return back the said vehicle to the complainant.  Hence, he filed the complaint after lapse of limitation. 

8.      On the other hand, OP No.1 submits that, the dispute arise in the year 2015 since because the father of the complainant not paid the loan amount properly.   As such the cause of action arises from 2015 itself.  Hence, the complaint is not filed within limitation period.  Further it is submitted that, as per the agreement between the father of complainant and OP No.1, if any dispute arises between the barrower and the Bank, the matter has to be referred to arbitration, the same had been done by OP No.1 by issuing the Notice on 03.09.2014 under the Arbitration Proceeding ACP No.170/2014, the same was registered before the Sole Arbitrator appointed for the same.  Hon’ble Tribunal by invoking Sec.17 of Arbitration and Conciliation
Act, 1996 passed an interim order of possession of the vehicle on 29.09.2014.  further OP submits that, the Tribunal had concluded the matter on 14.09.2014 passing an Arbitrary award directing the barrower to pay an amount of Rs.2,01,838/- with interest with a permission to take the vehicle and dispose of it in a public auction or private treaty.

9.      On-going through the records on file from both the side, while filing the complaint itself, Commission raised a question before the complainant that, whether the complaint falls under C.P Act because, the complainant filed the complaint not well in time and hence, the point is kept open by this Commission for discussion in a main concluding order.  When OP filed written version along with the document, it is clear that, the complainant had come to the Commission with the clean hands to say that, the said issue had been concluded before the Arbitrator Tribunal.  When OP filed the document pertaining to the same, the fact had been revealed before the Commission.  On the other hand, complainant had not filed the complaint within the limitation period and merely sending the notice to OPs will not extends the limitation.  As per the above discussion, Commission answers both the points in Negative.

10.    Point No.2:-        For the reasons and discussion made above we proceed to pass the following:-

6698606.  

1. The complaint filed by the complainant is dismissed. No order as to costs.   
2. Send a copy of this order to both parties free of cost.  

          (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 16^th day of February-2021)

 

 

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

             MEMBER                                                     PRESIDENT