BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.398 of 2016
Date of Instt. 16.09.2016
Date of Decision: 06.09.2017
1. Jaswinder Kaur aged about 45 years W/o Parminder Sngh R/o House No.396, Mohalla Karol Bagh, Ward No.519, GNDU Campus, Jalandhar.
..........Applicant/Complainant
2. Parminder Singh R/o House No.396, Mohalla Karol Bagh, Ward No.519, GNDU Campus, Jalandhar.
..........Co Applicant
Versus
1. Bajaj Finance Limited, Registered Office at Mumbai Pune Road, Akurdi, Pune 4110035, Maharashtra, India.
2. Bajaj Finance Limited, Branch Office, Sahota Complex, First Floor, Jalandhar.
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. VS Rana, Adv Counsel for the complainant.
Sh. MS Jass, Adv Counsel for the OP No.1 & 2.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein alleged that the complainant approached the OP No.2 for financial assistance to purchase Passenger Carrier/RE 205 D LPG and the loan was sanctioned to the complainant, as per the mutual understanding of both the parties. A loan agreement numbered as LSWJAL01324519 dated 31.10.2011 was signed between the complainant and the OP No.2. In this agreement, Bajaj Finance Ltd has extended a financial facility of Rs.1,55,376/- including Rs.45,376/- for financial charges starting from 10.12.2011. In this agreement 1st installment was paid in advance to Bajaj Finance Ltd. The said vehicle was duly secured to loan and hypothecated to Bajaj Finance Ltd and the complainant is regularly paying the installments. The complainant had paid the installments up to January, 2014 and there is an outstanding balance of Rs.12,948/- towards installments in the account of the complainant alongwith 1824/- overdue. The OPs are regularly crediting the interest illegally in the loan account of the complainant, which is against the rules and regulation of Reserve Bank of India. Up to January, the outstanding balance in the account of the complainant is Rs.12,948/- alongwith interest of Rs.1824/- but in June 2015, the balance is Rs.79,890/-.
2. That on 29.06.2015, the above said vehicle was taken into possession by the OP No.2 and sold to some other party without the consent of the complainant for Rs.17,500/- even the OPs have issued a sale/purchase letter to the complainant. The counsel of the complainant replied the legal notice which was served by the OP No.2 to the complainant and the information demanded by the counsel of the complainant was not up to the mark. Due to serious deficiency in service and unprofessional behaviour of the OP, the complainant has suffered great mental loss. The complainant has been made to suffer by the OPs despite of their own defective, inefficient and negligent service and without any fault from the part of the complainant and as such the present complaint filed with the prayer that the complaint of the complainant may be accepted and necessary direction may kindly be issued to the OPs to hand over the vehicle to the complainant and also readjust the loan account of the complainant and further OPs be directed to pay compensation of Rs.50,000/- and litigation expenses of Rs.11,000/- to the complainant.
3. Notice of the complaint was given to the OPs, who filed joint reply and contested the complaint by denying all the allegations made in the complaint, however, it is admitted that the complainant has obtained a loan on hypothecation of the vehicle and further admitted that the loan was sanctioned for 36 months with an EMI of Rs.4316/-. At the time of loan agreement, the complainants have gone through and agreed all the terms and condition of the loan agreement scheme and then only the complainants had signed and executed the loan agreement. The OPs also states that the complainants have opted one of the repayment mode by way of cash. It is clearly understood by the complainants that, prompt repayment of loan installments in time without any delay or default i.e. on or before 10th of respective month was the core essence of the loan agreement. It is also submitted by the OPs that the copies of all loan documents and papers executed and signed by the complainants were immediately handed over to complainants. The subject vehicle is a security to the said loan and is duly hypothecated to the OPs till closure of the loan and further submitted that the complainants have grossly violated the terms and condition of the subject loan agreement by not remitting loan installments and as on January, 2014, the complainants were in due of Rs.53,616/- (Rs.12,948/- towards installment overdues + Rs.1824/- towards other overdues alongwith Rs.38,844/- towards future installments). However, default of loan is an admitted fact. Hence it is totally denied that up to Jan 2014, the complainants have paid installments regularly as alleged by the complainants. The OPs requested to the Complainants several times to clear the outstanding total loan dues or to handover the vacant and peaceful possession of the vehicle to the OPs in order to avoid legal action but the complainants did not take any interest for clearance of outstanding dues nor surrendered back the secured hypothecated assets. Thereafter continues follow up by the OPs for clearance of due but the complainants never turned up, hence the OPs have issued vehicle inspection cum demand notice dated 06.01.2014 and informed the complainant to remit the total outstanding dues of Rs.9719/- (i.e. Rs.8362/- towards installments dues + Rs.1087/- towards other over dues). However, even after receipt of the said notice, the complainant has failed and neglected to remit the outstanding dues and regularize the loan account and was in dues. Even after receipt of the notice dated 06.01.2014, these complainants have not shown any interest to regularize the loan account and hence constrained by this attitude of complainants with no other alternative the OPs have recalled entire loan vide Loan Recall notice dated 07.02.2014 and informed the complainants to remit net outstanding amount of Rs.53,616/- and also informed complainants that in failure to remit the net outstanding amount surrender the subject vehicle with OPs but even after receipt of loan recall notice dated 07.02.2014, the complainants failed to close the loan account, vide loan recall notice dated 07.02.2014 and also failed to surrender back the subject vehicle with the OPs. Later constrained by the attitude of the complainants, the OPs acted as per the clause 23 © of agreed terms and conditions of loan agreement and also as per the said terms and conditions, the OPs took the peaceful possession of the vehicle in a day light on as is where is basis with due knowledge of the complainants, hence it is totally denied that the OPs have taken the possession of the vehicle without consent of the complainants as alleged by the complainants and same is subject to strict proof on documents. At the time of taking peaceful possession of the vehicle the complainants loan account was in due of Rs.51,792/- towards installment over dues, Rs.28,098/- towards other over dues and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
4. In order to prove the case of the complainant, complainant herself tendered into evidence her duly sworn affidavit Ex.C1 and affidavit of Parminder Singh Ex.C2 alongwith some documents Ex. C3 to Ex.C5 and closed the evidence.
5. Similarly counsel for the OP No.1and 2 tendered into evidence affidavit Ex.OPA alongwith some documents Ex.OP-1 to Ex.OP-12 and then closed the evidence.
6. We have heard the learned counsel for the parties and also gone through the case file very minutely.
7. After considering the over all factors, it reveals that a taking of loan by the complainant i.e. Rs.1,55,376/- on 31.10.2011 and its payment was also agreed to be paid in 36 monthly installments of EMI Rs.4316/- per month and mode of payment was also agreed by cash on or before 10th each month and it is also admitted that the vehicle in question was duly hypothecated with the OP till closure of the loan and as per version of the complainant as alleged in the complaint that up to January, the outstanding balance in the account of the complainant is Rs.12,948/- alongwith interest of Rs.1824/- but in the month of June 2015, the balance is shown Rs.79,890/-, which is actually wrong because the complainant had paid the installment upto January, 2014 and as such on the basis of wrong calculation, the OP No.2 had taken the possession of the vehicle and sold the same to some other party without the consent of the complainant for Rs.17,500/- and whereby the complainant suffered great mental loss, harassment and there is a serious deficiency in service on the part of the OPs.
8. Though the plea taken by the complainant is well elaborated in the complaint as well as in the affidavits of both the complainants i.e. Ex.C1 and Ex.C2 but this plea is not authenticated by any documentary evidence by the complainant, complainant is required to produce on the file copy of the statement of account to prove that he has paid the entire loan amount up to January, 2014 but the complainant has not brought on the file any account statement or any other document, showing that the entire loan amount has been already paid rather the complainant himself brought on the file Ex.C3 Demand Notice dated 11.01.2016 and Detail of Payment demanded by the OP i.e. Ex.C4.
9. As per defence, set up by the OPs is that a sum of Rs.12,948 towards installment and Rs.1824/- towards overdue alongwith Rs.38,844/- towards future installment in total Rs.53,616/- and as such the complainant is from the very beginning is defaulter in payment and there is a defaulter clause in the agreement Ex.OP2 and as per the term and condition of the agreement, the OP is entitled to recover interest, additional/penal interest, fee expenses and all other sums whatsoever including from the borrower regarding that the counsel for the OP referred Clause 21 of the agreement and further Clause 22 of the agreement even some default, whereby the right was given to the OP to dispose of the vehicle, if the over due loan amount is not adjusted by the complainant and further submitted that a Pre-Sale Notice was also given to the complainant on 29.06.2015, whereby asked to deposit the outstanding due amount of Rs.79,890/- and copy of the same is produced on the file Ex.OP-6 and its postal receipt given in bulk by the Postal Department is also attached with this letter, where from it is clear that the said Pre-Sale Intimation Notice Ex.OP-6 was given to the complainant either to deposit the amount of Rs.79,890/- or the vehicle will be put on sale, prior to this Pre-Sale Intimation, a notice Ex.OP4 dated 06.01.2014 was also given to the complainant to deposit the EMI arrear i.e. monthly installment of Rs.9719/-, the copy of the letter dated 06.01.2014 is Ex.OP4 and then again notice was given to the OP before taking legal action and copy of the same is Ex.OP5, whereby complainant was asked to deposit the net outstanding amount as on 07.02.2014 i.e. Rs.53,616/- and the said letter Ex.OP5 was sent to the complainant through Registered Post and copy of the Postal Receipt given by the Postal Department in bulk is attached with this letter but the complainant did not bother to hear the request of the OP and ultimately valuation of the vehicle was got assessed and Valuation Report is Ex.OP8, whereby the value of the vehicle was assessed Rs.16,500/- and ultimately the vehicle of the complainant was sold for Rs.17,500/- and the said amount is adjusted in the letter Ex.C3 dated 11.01.2016 and then again a notice was given to the complainant for depositing the net amount due i.e. Rs.62,390/-, the said letter is dated 11.01.2016 Ex.C3 and then an other reminder dated 18.05.2016 was given to the complainant for depositing of the due amount of Rs.62,390/- and the said letter is Ex.OP11 but despite that the complainant did not bother to deposit the amount and in order to corroborate the above version that a sum due towards the complainant, OP has also brought on the file copy of the statement of account Ex.OP7 and if we go through the account statement Ex.OP7, then we can say without any hesitation that the complainant remains defaulter through out the period, when so then the OP is entitled for penal interest and accordingly we find that the OP has rightly demanded the due amount from the complainant and further the complainant has miserably failed to prove the allegation as made in the complaint and accordingly we do not find any force in the argument put forth by the learned counsel for the complainant and therefore the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
06.09.2017 Member President
