KOTTAK MAHINDRA BANK LIMITED Vs. MICHAEL
LAWS(KERCDRC)-2009-7-7
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Decided on July 31,2009

Kottak Mahindra Bank Limited Appellant
VERSUS
MICHAEL Respondents




JUDGEMENT

- (1.)THE appellant herein is the opposite party in the Consumer Complaint No. 130/06 on the file of CDRF, Idukki. The said complaint was filed by the respondent herein as complainant claiming compensation of Rs. 50,000 for the illegal seizure of the vehicle which was offered as security for availing a loan of Rs. 1,20,000. The complainant has also sought for the relief of getting back the seized vehicle in the alternative to refund Rs. 2,00,000 being the price of the vehicle with cost of Rs. 3,000. The opposite party (appellant) entered appearance before the Forum below and filed written version contending that the complaint is not maintainable as there is an arbitration clause in the loan agreement executed between the complainant and the opposite party; that the opposite party is empowered to re -possess the vehicle which was hypothecated to the opposite party by virtue of the loan agreement executed by the complainant in favour of the opposite party; that the complaint defaulted in making payment of the instalments as agreed and so the opposite party re -possessed the vehicle. It is further contended that the complainant was not willing to take back the vehicle by paying the recover charges incurred by the opposite party. Thus, the opposite party prayed for dismissal of the complaint.
(2.)BEFORE the Forum below, the complainant was examined as PW1 and Exts. P1 to P9 documents were marked on his side. The opposite party was absent and did not adduce any evidence in support of their contentions in the written version. On an appreciation of the facts, circumstances and evidence on record, the Forum below passed the impugned order directing the opposite party to refund a sum of Rs. 1,49,440 which the complainant invested for the said vehicle. The opposite party has also been directed to pay compensation of Rs. 15,000 to the complainant for the deficiency of service on the part of the opposite party in seizing the vehicle forcibly. The complainant has been allowed Rs. 1,500 as cost of the proceedings. Aggrieved by the said order, the present appeal is preferred by the opposite party herein.
(3.)WE heard both sides. The learned Counsel for the appellant (opposite party) submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that the opposite party was empowered and authorized to re -possess the vehicle as per the loan agreement entered into between the complainant and opposite party on 23rd May, 2005. He relied on copy of the agreement produced as document No. 3 along with this appeal memorandum. He also relied on copy of the accounts maintained by the opposite party in the name of the complainant with respect to the loan transaction between the complainant and the opposite party. The copy of the accounts has been produced as document No. 2 in this appeal. It is further submitted that the Forum below had no jurisdiction to entertain the dispute involved in the complaint as there is an arbitration clause in the loan agreement. He also requested for remanding the matter to the Forum below for affording sufficient opportunity to the appellant/opposite party to adduce evidence in support of the contentions raised in the written version. On the other hand, the learned Counsel for the respondent/complainant supported the impugned order dated 12.10.2006 passed by the CDRF Idukki in CC: 130/06. He argued for the position that the forcible possession of the vehicle by the opposite party would amount to deficiency of service and that the opposite party had no authority under law to take law into his hand. He also relied on the uncontroverted testimony of the complainant as PW1 and the documentary evidence adduced from the side of the complainant. Thus, the respondent requested for dismissal of the present appeal. Points that arise for consideration are:
1. Whether the Forum had jurisdiction to entertain the complaint in CC:130/06 in view of the arbitration clause in the loan agreement entered into between the complainant and the opposite party?

2. Whether the contention of the opposite party (appellant) that by virtue of the terms and conditions in the loan agreement opposite party had the authority to re -possess the vehicle from the possession of the complainant on the ground of default in making payment of instalment can be upheld?

3. Whether there was any deficiency of service on the part of the opposite party in possessing or repossessing the vehicle from the possession of the complainant?

4. Is there any sustainable ground to interfere with the impugned order dated 12.10.2006?

5. Whether the request for remand made by the appellant/opposite party can be allowed?

Point Nos. 1 to 5:



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