DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 7th day of November, 2019
C.D Case No. 90 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sri Purna Chandra Mallick
S/o Satrughna Mallick
At/Po: Satasola,
Ps: Bhandaripokhari,
Dist: Bhadrak
……………………. Complainant
(Versus)
Branch Manager
TATA Motor Finance Ltd.
Balasore Branch, Sahadevkhunta, Remuna Roa, Balia,
Dist: Balasore
…………………………..Opp. Parties
Counsel For Complainant: Sri C. Sahoo & Others, Adv
Counsel For the OP: Sri T.K. Harichandan & Others, Adv
Date of hearing: 26.08.2018
Date of order: 07.11.2019
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the OP that the complainant has alleged against the OP being aggrieved with the deficiency of service and unfair trade practice and illegal claim of the amount Rs 25,251/- by the OP, this complaint bears the aforesaid claimed against the OP. The complainant approached the OP for financing a loan to purchase a TATA Pickup four wheelers vehicle. The OP is the leading vehicle finance organization and different branch office at various places in Odisha including Balasore and the OP EMI collection office is also situated within the jurisdiction of Bhadrak. The complainant purchased four wheelers (Magic 8 SEA) bearing No. OR-22C-4437 vide loan account No. 5000385729 and customer ID No. 2000918433 and executed a hire purchase agreement on dt. 27.04.2009 there was a condition that the complainant would repay the loan amount to the O.Ps in 47 monthly installments. The monthly EMI fixed Rs 8,615/- and the repayment would be started from 27.05.2009. According to the terms and conditions the O.Ps financed loan to the complainant from purchasing a TATA Pickup Magic and the principal loan amount of the vehicle was amount to Rs 2,65,000/-. The compound interest charges was amount to Rs 1,07,000/- on total amount was Rs 3,72,000/-. According to the said agreement the complainant issued 47 blank cheques with signature without mentioning date and amount in favour of O.Ps towards monthly EMI. The OP pressed the cheque in the Bank long before to the EMI date violating the terms and conditions of the agreement. The EMI was repaid on 27.04.2009 and the next EMI date was fixed on 27.05.2009. But the OP pressed the cheque dt. 15.05.2009 before 12 days of the EMI date for which the cheque was bounced. The OP charged Rs 450/- towards returner charge but the complainant requested to the OP to pressed the cheque in every month on the same 27th day. After that the OP intentionally pressed the cheque on 15th day of each month for which the cheque was bounced.
In this way the complainant repaid all the 47 EMIs to the OP by means of cheque and cash within agreement period. After repayment of total loan amount vide Rs 4.04,905/-. The OP did not issue NOC in favour of the complainant. In the mean time the complainant ahs repaid all the outstanding loan amount to the OP. Still then the OP has not issued NOC in favour of the complainant. The OP has demanded Rs 25,251/- towards returner charges from the complainant failing which the OP had threatened to the complainant to repossess the vehicle and sale the same by the help of some hooligans. The matter has not yet been settled between the complainant and OP. The OP has not issued NOC in favour of the complainant till yet, as a result of which the complainant has taken shelter under this Forum for obtaining natural justice. Hence the complainant has sought for the following reliefs.
1. The OP be directed to issue NOC in favour of complainant and handed over all the document.
2. The OP be directed to pay Rs 10,000/- to the complainant for deficiency of service and mental agony.
3. The OP be directed to pay Rs 10,000/- to the complainant towards litigation fees.
Documents relied upon by the complainant (Xerox copies).
1. Copy of account statement- 12 sheets.
2. Copy of loan snacpact- 1 sheet.
3. Copy of money receipts- 10 sheets.
4. Copy of advocate notice- 2 sheets.
The OP appeared in this Forum through his concerned advocate and filed his written version along with the Xerox copies of the documents. The OP has averred that a Tata Motors Finance Ltd. the company duly incorporated U/s 45-IA of the RBI Act 1934, as a systemically important Non-Banking finance company, having its registered office at Nanavati Mahalaya, 3rd Floor, 18, Homi Mody Street, Mumbai- 400001 is a renowned “Asset Finance Company” across India and is widely acclaimed for its reputation and service. The OP submits that it has carved a niche for itself in the sector of vehicle finance and is a company with nation-wide repute. The complainant borrowed and this OP financier have entered into a Loan cum Hypothecation cum Guarantee Agreement and are bound by the terms and conditions stated in the said agreement. The OP has denied all the allegations made by the complainant accept those which is specifically in the written version. The complaint filed by the complainant it is an abuse of process of law and is not maintainable. The averments made in the complaint are vague, baseless and with the malafide intention. The complainant has made misconceived and baseless allegations of deficiency in service without any documentary evidence in support of the allegations made in the complaint. The complainant has also been guilty of late payment of the installments. A copy of the repayment details is annexed herewith as Annexure- A. The OP states that defaulted, late and part payments by the complainant have resulted in addition of the delayed payment charges or accrued overdue charges along with remaining balance towards the installments. Thus, it is apparent that the complainant by way of late, part and defaulted payment has grossly violated the terms of the agreement and hence, there cannot be any complaint of deficiency of service against the OP.
That, the complainant has opted to repay the installments through cheques and has deposited post dated cheques with the OP towards the repayment of the loan installments. It is submitted that the cheques issued by the complainant towards the repayment of the loan have been dishonored regularly due to insufficient funds maintained in the Bank account by the complainant, which proves the mala fide conduct on his part. A copy of the rejected receipts is annexed herewith as Annexure-B. The details as mentioned in the subject chart clearly evidences the fact that the cheques have been dishonored by the banker of the complainant due to insufficient funds. Under these circumstances, the complainant cannot be any given compensation/reliefs after having breached the contractual terms and concealed the fact of dishonor of several cheques due to insufficient funds before this Hon’ble Forum. That both the complainant and OP are governed strictly by the terms and conditions laid down in the hire purchase agreement and the later operated in conformity with the same. It is submitted that the OP have acted as per the terms and conditions of the said agreement. The complainant with mala fide intention evaded in paying the loan installments and even after release of the vehicle is continuing to default and is acting in a mala fide manner. It has been held by Hon’ble Apex Court in the case of Managing Director, Orix Auto Finance (India) Ltd. Vs. Jaganath Singh & Anr., (2006) 2 SCC 598 and also by the Hon’ble National Commission in the case of Manager, St, Mary’s Hire Purchase Vs. M.A Jose, III 1995 CPJ 58 (NC) that there is no legal impediment on the failure of the Hirer to pay the due installments and the fact that after repossession, in financier disposed it off cannot be a ground for the hire to contend that he was prejudiced. Hence, there lies no question of deficiency in service on part of the OP. Without prejudice to the foregoing submission, it is submitted that the instant complaint makes out no ground for relief under the provisions of section 14 of the CP Act, 1986. The onus lies on the complainant to show that the reliefs as contemplated under section 14 can be given for the deficiency in service provided to the complainant. In the present case, it is crystal clear that there has been no unfair trade practice adopted by the OP and/or deficiency in service on the part of the OP. The instant complaint is liable to be dismissed under section 26 of the CP Act, with costs for being false, frivolous, and vexatious and mis-joinder. Documents filed by the OP.
1. The details of PAL Movers Finance Ltd (Annexure- A)- 4 sheets.
2. The details of repayment by the complainant- 5 sheets.
3. The details of incurred- 3 sheets.
4. The details of amount instrument (Annexure- B)- 7 sheets.
5. The details of date, year, tenure, RC No, Chassis No and Engine No.- 3 sheets.
6. The details of amount financed- 7 sheets.
OBSERVATION
We have already perused the complaint and written version filed by the complainant and the OP as well as the documents filed by them. The complainant is the borrower under the OP which is the leading premier vehicle finance organization. As the complainant is borrower and the OP is creditor but no party has submitted any loan agreement. In absence of the loan agreement the learned Forum is in darkness to decide the case. On the other hand the complainant has filed a repayment schedule which has been treated as the Annexure- 2. After going through the different pages of repayment schedule which has been treated as Annexure- 1 to 12. According to the complainant at the time of the execution of the loan agreement the complainant has deposited 47 blank cheques with the OP. The said loan agreement was executed by both parties on 27.04.2009. According to the terms and conditions of the loan agreement the complainant would have to start the repayment from 27.05.2009. The principal amount of the loan is Rs 2,65,000/-, the Tata Finance and the compound interest charges is amount to Rs 1,07,000/- and the total amount is Rs 3,72,000/-. The first cheque was pressed on 15.05.2009 vide amount Rs 8,770/-. The next date of repayment was 27.05.2209 as per the loan agreement the loan was financed on 27.04.2009. The next EMI date on 27.05.2009 but the OP pressed the cheque on 15.05.2009 before 12 dates of the EMI date for which the cheque was dishonored. But the OP intentionally pressed the cheque on 15th day of each month for which the cheque was bounced. So the complainant is not solely responsible of cheques. The OP charged Rs 25,251/- towards returner charges. As per the repayment schedule the complainant has already repaid 47 EMIs to the OP.
Further we have observed that it is a fact that the complainant is a chronic defaulter of the aforesaid loan. We have observed the repayment schedule that till dt. 27.04.2013 the borrower has paid Rs 38,06,557/- and the said amount has been received by the creditor the OP. The total amount of the loan was Rs 4,05,060/- and the balance is pending upon the complainant Rs 1,08,503/-. It is clearly evident from the repayment schedule that the complainant has not paid the installment No. 1, 2 4, 8, 10 etc. The complainant had to repay the loan on EMI basis. He has repaid Rs 7,865/- on dt. 15.06.2009 but on 15.07.2009 the complainant has defaulted to pay the EMI on dt. 15.08.2009 no amount was repaid but on 15.09.2009 Rs 8,615/- paid towards EMI. The complainant has repaid on 28.10.2009 but on 26.10.2009 no amount was paid on 26.11.2009 the complainant repaid Rs 8,615/-. The complainant again repaid Rd 8065/- on 26.11.2009 then this same amount was repaid on 26.12.2009. Further the complainant repaid Rs 8,165/- on 06.02.2010, on 25.02.2010 EMI was paid Rs 8,615/-. The complainant repaid the EMI towards the loan the complainant ahs also repaid Rs 8,615/- on 24.03.2010, he has also repaid Rs 8,615/- on 24.03.2010. Further Rs 1762/- on dt. 22.03.2010, was the balance money but Rs 3,86,557/- was the collected amount and the balance money was Rs 18,00,503/- in 43 days. The OP has imposed upon the complainant overdue charges which is just and proper because he has defaulted to pay the EMI regularly. Heard the complainant filed any copy of the loan agreement it would have supported the stands of the complainant. In absence of the loan agreement the learned Forum is confused the veracity of the loan terms and conditions etc. We are relying upon the repayment schedule as well as statement of accounts. Complainant should have taken shelter under this Forum with clean hands. Hence it is ordered;
ORDER
The complaint be and the same is allowed on part against OP on contest without cost and compensation. The complainant is directed to pay the outstanding EMIs and overdue charges according to the repayment schedule. The OP is also directed to handover NOC to the complainant as soon as on receipt of the aforesaid amount. Both parties are also directed to comply the order on receipt of copy of the same.
This order is pronounced in the open Forum on this day of 7th November, 2019 under my hand and seal of the Forum.
