By: Smt. E. Ayishakutty,Member
Complainant is the registered owner of the vehicle KL 7 K4282 TATA Tipper. For purchase of this vehicle he availed a loan of Rs. 2,40000/- from opposite party. He had to pay this amount with interest and service charge with in36 months . The total amount he had to pay Rs.3,30000/- including interest Rs. 90,000/- as per the hire purchase agreement executed with opposite party. The payment of the loan as per agreement is started from 15/02/2008 and ended on 15/01/2011. Complainant had paid Rs. 2,25000/- to opposite party but he seized the vehicle by using gundas before 24/07/2010. Complainant approached opposite party and requested to release the vehicle but opposite party demanded some amount to release the vehicle. Complainant paid Rs. 82,000/- in total to release the vehicle but opposite party demanded Rs. 2 lakhs for the defaulted payment, even though the complainant had paid Rs. 2,25,000/- to the loan. Therefore complainant filed this petition before the Forum alleging deficiency of service on the part of opposite party.
Complainant prays to direct opposite party to release the vehicle along with all documents of the vehicle on payment of the balance amount of the loan with lawful interest. He also request to direct him to give Rs. 50,000/- for the mental agony and financial loss along with cost of Rs.5000/-
Opposite party filed version. He denies the averments and allegations of complainant except those which he specifically admitted. He admits the issuance of loan to the complainant. He submits that on 15/02/2008 complainant availed a loan of Rs. 2,40,000/- from opposite party by executing a loan agreement for purchasing the vehicle KL 7 K 4282 TATA Tipper vehicle. The total agreement value was Rs. 3,30,000/- including interest of Rs. 90,000/-. He further submits that complainant had paid a total amount of Rs. 2,28,650/- as per the account maintained by opposite party. He denies the averments of complainant that opposite party had repossessed the vehicle from the house of complainant. He further submits that he has not demanded 2 lakh rupees for releasing the vehicle. Complainant is a chronic defaulter of the loan payment. He had to pay an amount of Rs. 3,30,000/- as per loan agreement out of which complainant had paid Rs.2,28,650/- only. The last due date of the loan was on 15/01/2011. If the complainant is failed to pay the loan amount with in the stipulated period, he is entitled to claim over due compensation from the parties of agreement. He has entitled to get Rs. 69,858/- as over due compensation from the complainant. He is liable to pay an amount of Rs. 1,97,080/- in total to opposite party as on 04/03/2011. Opposite party submit that he can retain the vehicles ownership till the amount is finally recovered. He submits that he never repossessed the vehicle till the date, complainant is not proper and hence the complaint is liable to be dismissed with cost of opposite party.
Complainant filed affidavit with documents as evidence. Ext A1 and A2 marked on his side. Opposite party filed counter affidavit. Ext B1 and B2 marked on behalf of him. No oral evidence adduced both sides.
The points to decide:-
i Whether opposite party is deficient in their service?
ii Whether the vehicle is under the custody of opposite party?
iii If so what is the relief and cost.
The main allegation of the complainant is that even though he had paid Rs.2,25,000/- to opposite party towards the loan amount, he seized his vehicle from his house by using some gundas on 20/07/2010 six months before the last due date of the loan. He was ready to pay the balance amount with lawful interest, but opposite party demanded a huge amount which is not liable to pay to him. Opposite party content that complainant is a chronic defaulter of the loan payment and he is liable to pay Rs. 1,97,080/- together with further over due compensation 36% per annum. As per Ext. B1, the loan agreement executed between them shows that complainant availed a loan of Rs. 2,40,000/- from opposite party for purchase of the alleged vehicle. Complainant had to pay this amount with interest Rs. 90,000/- with in 36 months. He had to pay 3,30,000/- in total including interest with in the stipulated period from 15/02/2008 to 15/01/2011. As per the version of opposite party as well as Ext B2 shows that complainant had paid Rs. 2,28,650/- 5 months before the last due date of 15/01/2011. Complainant was ready to pay the balance amount of Rs. 1,01350/- with reasonable interest for the delayed payment. But Ext. B2 shows that opposite party demanded Rs. 69,858/- as overdue charge for the belated payment. As per Ext.B1, the loan agreement the additional interest for the belated payment is 3% per annum. But Ext A2, the lawyer notice issued by opposite party on 11/03/2011 shows that he had demanded overdue compensation 36% per annum. As per Ext. A2 opposite party directed the complainant to pay Rs. 1,97,080/- together with future overdue compensation 36% per annum. There fore we hold that the demand of opposite party such a huge amount to the belated payment of the loan is deficiency of service and unfair trade practice.
(ii) Another contention of opposite party is that he never repossessed the vehicle from the house of complainant and again submits that the vehicle is not in his custody. But complainant in his affidavit assure that the vehicle was seized by opposite party from his house on 20/07/2010 due to some default in the payment of loan, and demanded to pay some amount. Accordingly complainant had paid Rs. 82,000/- to release the vehicle. But opposite party demanded Rs. 2 lakh for releasing the vehicle from their custody. Opposite party says that complainant is a chronic defaulter of the loan payment. But he has not taken any steps to recover the defaulted amount from the complainant except Ext A2 the lawyer notice issued on 11/03/2011. Complainant was ready to pay the balance amount with reasonable interest for the defaulted payment. Even now also he is ready to pay the balance with reasonable interest to release the vehicle from opposite party. Opposite party has not produced any evidence to prove the vehicle is not in his custody. He has not adduced any oral evidence also. If opposite party would not have repossessed the vehicle from him complainant has no need to file a complaint before the Forum alleging that opposite party repossessed the vehicle from him. In such circumstances we belive the words of complainant and hence we hold that the vehicle KL7-K 4282 TATA Tipper was repossessed by opposite party on 20/07/2010 and kept it in their custody.
(iii) Complainant is ready to pay the balance amount of the loan with reasonable interest as per agreement. As per Ext B2, the account maintained by opposite party shows that complainant had paid Rs. 2,28,650/- in total toward the total payment of Rs. 3,30,000/- including Rs. 90,000/- as interest for 36 months. The last due date for the payment was on 15/01/2011. The balance he has to pay Rs. 1,01350/- towards the entire amount of Rs. 3,30,000/-. This amount carries interest of 15% per annum including additional interest 3% from 15/01/2011 the last due date of the loan till the payment of entire balance. On payment of this amount opposite party shall release the vehicle KL 7-K 4282. with its entire documents.
In the result complaint partly allowed and opposite party is directed to release the vehicle KL-7-K 4282 with its entire documents including higher purchase termination letter to the complainant on payment of Rs. 1,01350/- with 15% interest from 15/01/2011 till the payment. We direct opposite party to pay Rs. 2000/- as cost to the complainant for the litigation. The order shall comply with in one month from the date of receipt of copy of this order.
Dated this 21st day of July , 2012.
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E. AYISHAKUTTY, MEMBER, (In-Charge of President)
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MOHAMMED MUSTHAFA KOOTHRADAN, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to A2
Ext.A1 : Hire purchase payment detailes
Ext.A2 : Lawyer notice issued by opposite party, dated 11th day of March 2011
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext.B1 to B2
Ext. B1 : Loan cum hypothecation agreement. , Dated 15th day of February 2008.
Ext. B2 : Agreement details and financial details
Dated this 21st day of July , 2012.
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E. AYISHAKUTTY, MEMBER, (In-Charge of President)
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MOHAMMED MUSTHAFA KOOTHRADAN, MEMBER
