| ORDER | DATE OF FILING : 27.05.2014. DATE OF S/R : 30.07.2014. DATE OF FINAL ORDER : 11.04.2016. Sri Judhistri Garai, son of late Fanindra Garai, residing at village Chandipur, Paschim Belari, P.S. Shyampur, P.O. Khuragachi, District Howrah, PIN 711315. ………………………………………………………… COMPLAINANT. 1. Branch Manager, INDUSIND Bank Ltd., ‘ having its office at Duckback House, 41, Shakespeare Sarani, Kolkata 7000 17. 2. Bhandari Auto Mobiles Ltd., situated at Jalan Gate 3 No., Argori N.H. 6, P.O. Andul Mouri, P.S. Sankrail, District Howrah, PIN 711302.………………………………………………OPPOSITE PARTIES. P R E S E N T Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS. Hon’ble Member : Smt. Jhumki Saha. Hon’ble Member : Shri A.K. Pathak. F I N A L O R D E R - This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Judhistri Garai., praying for directing the o.p. no. 1, Branch Manager, Indus Bank Ltd., to charge the EMI as Rs. 15,850/- for 52 E.M.Is. which was settled on 30.07.2013 alternatively refund of Rs. 6,79,100/- which was illegally charged as EMIs on 08.02.2014 and 11.03.2014 and to direct the o.p. no. 2 to pay compensation of Rs. 2,50,000/- for physical and mental harassment and Rs. 10,000/- as litigation costs.
- The case of the petitioner is that he being an unemployed youth for the maintenance of his livelihood by way of self employment purchased one school bus being Model No. TATA LP 912 Ex/4920 BS IV Engine no. 497 TC 41 JYY 853650 with registration no. WB 25E5959 from the o.p. no. 2, Vandari Automobiles Ltd.situated at Jalan Gate 3 No., Argori, N.H. 6, P.O. Andul Mouri, P.S. Sankrail, Howrah, on payment of consideration of Rs. 14,86,421/- 24.04.2012 out of which he made down payment of Rs. 3,16,421/- and the balance amount of Rs. 11,70,000/- was financed by o.p. no. 1, Indus Bank, by a loan being loan a/c no. WCC 00529L. It was agreed that the petitioner would repay the loan by 48 monthly installments of Rs. 33,800/- each upto June, 2013 and also the petitioner paid Rs. 43,812/- to o.p. no. 1 for one year insurance charge and Rs. 1,05,000/- for other charges.
- The petitioner paid a sum of Rs. 4,39,400/- by way of payment of 13 installments and then made a proposal to o.p. no. 1 to make lump sum payment of Rs. 2 lakh in order to minimize E.M.Is. The petitioner paid Rs. 2 lakhs and then the regular E.M.I. ought to have been Rs. 15,850/- and he has to pay 54 E.M.Is. as per his proposal. Even though the petitioner paid Rs. 2 lakhs on 30.7.2013 and after one month of making payment of Rs. 2 lakhs while going to pay the E.M.I. amounting to Rs. 15,850/- p.m. then the o.p. no. 1 refused to take such E.M.I. of Rs. 15,859/-. On 08.02.2014 the authorized representative of o.p. no. 1 came to the petitioner that he has to make E.M.Is. amounting to Rs. 20,050/- but the petitioner reminded him of Rs. 15,850/-. The o.p. no. 1 threatened if the E.M.I. of Rs. 20,050/- not paid then they would acquire the school bus and the petitioner then paid Rs. 20,050/- on 11.03.2014. On January, 2014 the petitioner received a notice that he shall have to pay of Rs. 8,58,000/- remaining outstanding and if he fails to make such payment then he has to face the consequences. Thus being continuously harassed and being threatened that he would be dispossessed of the bus, the petitioner filed this case with the above prayers.
- The o.p. no. 1 contested the case by filing a written version denying material allegations made in the petition and submitted that the case is not maintainable and also hopelessly barred by limitation. The o.p. no. 1 submitted that the petitioner is not a consumer and filed this case which is harassing in nature and so be rejected U/S 26 of the C.P. Act, 1986. The o.p. admitted the case of loan of the petitioner who satisfied the terms and condition of the loan facility and entered into an agreement on 29.11.2013 with the o.p. no. 1, bank which granted a sum of Rs. 8,58,000/- as loan and to pay the principal with interest by 53 monthly installments starting from 07.01.2014 to 07.05.2018 with monthly installment of Rs. 20,500/-. The petitioner was to pay 10 installments being Rs. 20,500/- each and another 10 installments of Rs. 20,200/- and 4 installments of Rs. 20,000/- and 6 installments of Rs. 30,000/- and another 10 installments of Rs. 29,800/- and 6 installments of Rs. 28,000/- and 5 installments of Rs. 30,000/- and Rs. 16,100/- as 53rd installment. The installments was paid within 7th of each month. There was no loan of Rs. 11,70,000/- but the actual loan was Rs. 8,58,000/-. They further submitted that the petitioner paid only two installments out of 53 and never made any proposal for change the E.M.I. The petitioner surrendered the vehicle in question and the o.p. no. 1 sold the same but could not recover the amount due and sent letter to the petitioner and asked to pay the amount on 09.09.2014. Thus being a false case the same be dismissed.
- The o.p. no. 2, Bharat Automobiles, though served with notice did not appear in the case and did not contest the case by filing written version and thus the case is heard ex parte against the o.p. no.1.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.P. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS : - All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of his case, the petitioner filed affidavit as well as purchase documents and the smart card, the insurance documents as well as the tax token. In the instant case the petitioner prayed before the Forum directing the o.ps. cancelling their claim of Rs. 8,50,000/- which was illegal and arbitrary and to accept the E.M.I. amount of Rs. 15,850/- and also his prayer for compensation of Rs. 2,50,000/- and litigation costs of Rs. 10,000/-. It is the admitted case of the parties that the petitioner took a loan of Rs. 11,70,000/- from the o.p. and he made payment of 13 E.M.Is. @ Rs. 33,800/- and thus he made a total payment of Rs. 4,39,400/- by payment of such 13 E.M.Is. and also he made a lump sum payment of Rs. 2 lakhs and thus the loan amount was substantially reduced after payment of such over Rs. 6 lakhs amount and the claim of the o.p. bank that he is to make payment of Rs. 8,58,000/- is illegal and the notice sent by the o.p. no. 1 for making such payment was also illegal and the court to pass necessary order. It is noticed further that the petitioner made the last payment on 30.07.2013 being Rs. 2 lakhs and prior to that he paid regular E.M.Is. of Rs. 33,800/- upto June, 2013 and he made a total payment of Rs. 4,39,400/- by such 13 E.M.Is. So since 30.07.2013 he made no other payment in the loan account and filed this case on 27.5.2014 when he got the notice of the o.p. bank in January, 2014 that he is to make payment of Rs. 8,58,000/- failing which the o.p. no. 1 would dispose of the bus which was purchased by the petitioner taking loan from the o.p. no. 1.
- It is the established principle of law that when a person purchased a vehicle with loan from bank or other any financial institution then the bank or the financial institution remains as owner of the vehicle even though the person taking the loan purchased property. There is no denial in this case that the petitioner is not a consumer and thus being a consumer of the bank the petitioner took loan and it was his duty to repay his loan by the monthly installments fixed in the agreement as both the petitioner and the o.p. are bound to comply the terms and conditions as laid down in the agreement made by the parties. The petitioner in the instant case instead of repaying the loan stopped payment since 30.07.2014 when he made last payment of Rs. 2 lakhs. Thus the petitioner in the instant case made utter violation of the terms and conditions of the loan agreement signed by him and the o.p. no. 1. It is noticed from the loan agreement dated 29.11.2013 that the loan amount of Rs. 8,58,000/- was sanctioned by the o.p. bank and the petitioner was to repay the loan amount and the petitioner also by a letter dated 29.11.2013 promised to pay Rs. 8,58,000/- being the loan amount financed together with applicable interest thereon. It is not clear from the documents as to actually how much amount was paid by the petitioner to the o.p. bank in his first loan of Rs. 11,70,000/- but as per the statement of the petitioner he paid Rs. 6,81,314/- to the o.p. bank. It is noticed from the agreement dated 29.11.2013 that in case of default by the petitioner to repay the loan installment the o.p. bank could charge additional interest and in the instant case it is clearly noticed that the petitioner has not paid any amount after such loan agreement of 29.11.2013 and also his letter dated 29.11.2013 proved the fact that he accepted to make payment of Rs. 8,58,000/- on 29.11.2013. By not making the payment of the said amount he violated the terms of the agreement. Further the petitioner has not approached the Forum in clean hands because once in his petitioner he stated that he took a loan of Rs. 11,70,000/- from the o.p. and again from the loan agreement dated 29.11.2013 it is noticed that the loan amount was Rs. 8,58,000/- as also confirmed by his letter dated 29.11.2013 that he promised to pay o.p. no. 1 a sum of Rs. 8,58,000/-. Thus the petitioner cannot get relief from the Forum as he has not approached the Forum in clean hands.
In the result, the claim case fails. Court fee paid is correct. Hence, O R D E R E D That the C. C. Case No. 311 of 2014 ( HDF 311 of 2014 ) be dismissed on contest without cost against the o.ps. Supply the copies of the order to the parties, free of costs. DICTATED & CORRECTED BY ME. ( B. D. Nanda ) President, C.D.R.F., Howrah. | |
