CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Santhosh Kesavanath P. President
Smt. Bindhu M. Thomas, Member
CC No. 319/2009
Saturday, the 18th day of December, 2010
Petitioner : M.K. Thomas,
Madamkunnel,
Vazhoor, Kottayam
(By Adv. M.J Thomas)
Vs.
Opposite parties : 1) The Branch Manager,
Indus Ind Bank,
Kattuveettil Buildings,
Nagampadam, S.H Mount,
Kottayam.
2) The Manager,
Indus Ind Bank Ltd,
Shalom Towers, 34/138 D Bye pass
North End, Edappally, Kochi.
O R D E R
Sri. Santhosh Kesavanath P., President
Case of the petitioner filed on 23..10..2009 is as follows.
Petitioner in order to purchase a Mahindra Max pick-up van, availed a hire purchase loan on 20..10..2004, from the first opposite party. The total loan amount sanctioned was Rs. 3,99,260/-. Out of the loan amount Rs. 53,760/- is the finance charges and Rs. 25,500/- is the insurance deposit. As per terms of the loan agreement loan is to be paid in 47 monthly installment. The EMI for the first 30 installment is Rs. 8810/- next 16 installment is Rs, 7,960/- last 47th installment is Rs. 7,600/-. Petitioner paid first installment of Rs. 8,810/- and 16 Cheques for Rs. 7,960/- and one Cheque
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for Rs. 7,600/-. According to the petitioner Cheques given by the petitioner were regularly encashed due to the maintenance of sufficient amounts in his account to
honour the Cheques. First opposite party informed the petitioner that Cheques bearing No. 325977 and 325980 for Rs. 8810/- was lost and same was not encashed and requested to make payment of the amount covered by the Cheque. Petitioner on 15..10..2008 remitted cash for Rs. 17,620/- for which the first opposite party had issued receipt dtd: 15..10..2008. Entire EMI was encashed by the first opposite party. Petitioner after payment of the amount approached the first opposite party to issue NOC to cancel the hypothecation agreement. But the opposite party informed the petitioner that petitioner is liable to pay an amount of Rs. 10,692.72 in addition to the excess amount of Rs. 8,810/-. According to the petitioner act of the opposite party in not returning the excess collected amount and non issuance of the NOC and duplicate key after closing the loan transaction is an unfair trade practice. Further more, the demand of additional amount of Rs. 10692.72 amounts to unfair trade practice. So, he prays for a direction to the opposite party to issue the NOC for terminating the higher purchase noted in the RC book. Petitioner demands return of the duplicate key and refund of Rs. 8810/-. Petitioner also claims refund of the excess amount and collection charges collected from him. Petitioner claims cost and compensation.
First and second opposite party entered appearance and filed joint version contenting that petition is not maintainable. According to the opposite party petitioner is not a consumer and the dispute is not a consumer dispute. So, they pray for dismissal of the petition. Rate of interest for the loan amount is not diminishing rate. But the rate
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is for through out the loan amount till the period prescribed for closing the loan amount. As per the agreement opposite parties are entitled for 36 % interest in case of delayed payment by the borrower. EMI is fixed as 47 installments. First 30 installments are for Rs. 8810/- each and the remaining 17 installments for Rs. 7,960/- each. The details of the payment is produced. The installments due date is 26th of every month. Opposite party denied payment of Rs. 8,810/-. As stated in the petition according to the opposite party the calculation shown by the petitioner are false. Petitioner is liable to pay interest as per the terms and conditions of the agreement. Opposite party presented Cheque only on the date shown in the Cheque. The amount shown in the said Cheques are received by the opposite party only after clearing the Cheque from the petitioners bank. So, the petitioner is liable to pay the collection charges, AFC charges and additional interest for the delayed payment. According to the opposite part the demand of the opposite party is legal. There is no deficiency in service or unfair trade practice on their part. So, they pray for dismissal of the petition with their costs.
Points for considerations are:
i) Whether there is deficiency in service or unfair trade practice on the part of the opposite parties?
ii) Relief and costs
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A5 documents on the side of the petitioner and Ext. B1 and B2 documents on the side of the opposite party.
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Point No. 1
The crux of the case of the petitioner is that opposite party has not issued NOC to the petitioner even after remitting the entire loan amount. Opposite party received an amount of Rs. 8,810/- in addition to the loan amount to be paid by the petitioner. Further more demand of the opposite party for additional amount of Rs. 10,692.72 is illegal. It is admitted by both parties that the higher purchase loan amount is to be repaid by 47 monthly installment. The EMI for the first 30 installments is Rs. 8,810/- and next 16 installments is Rs. 7,960/- and 47th installment is Rs. 7,600/-. The only question to be decided in this case is whether the opposite parties are entitled for Rs. 8,810/-, recovered as excess, and whether the claim of the additional amount is sustainable. The definite case of the opposite party is that since the petitioner had given out of station Cheque the
opposite party will receive the amount after the due date. Further more since the petitioner had given dated Cheques opposite party can only present the said Cheque at the date shown in the Cheque. So, they are legally entitle for AFC charges, collection charges and additional interest for delayed payment. Further more according to the opposite party the petitioner has not given any additional amount of Rs. 8810/-. Here the opposite party has not produced any document to prove that they insisted the petitioner to give dated installment Cheques. Further more if the opposite party insisted the petitioner about station Cheques and petitioner had given out of station Cheques the petitioner is liable for the collection charges. We are of the view that in an ordinary prudence if the opposite party insisted the petitioner for station Cheques for the installments. Petitioner can very well open a new account in a bank to the subjective
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satisfaction of by the opposite party. Petitioner produced a receipt issued by the opposite party for an amount of Rs. 17620/-. Receipt is marked as Ext. A1. From Ext. A1 it can be seen that petitioner remitted an amount of Rs. 17,620/- on 15..10..2008. Petitioner sweared in his affidavit that the amount thus remitted as per Ext. A1 document is as per the demand of the opposite party that the Cheque bearing No. 3,25,977/- and 3,25,980/- each for Rs. 8,810/- was lost. Opposite party has not categorically denied the averment of the petitioner with regard to the said aspects. Further more, from Ext. A1 it can be that the amount shown in Ext. A1 probably be 2 installments of Rs. 8,810/-. From Ext. A2 bank statement it can be seen that lost Cheque bearing No. 325977 was encashed on 4..5..2005. So, from Ext. A2 it can be seen that the petitioner had paid an excess amount of Rs. 8810/-. Opposite party has not produced any document to prove that they are eligible for an additional amount of Rs. 10692.72 so in our view demands for Rs. 10692.72 is illegal. The act of the opposite party in not issuing NOC for terminating the higher purchase noted in the RC book and non return of the duplicate key to the petitioner amounts to deficiency in service and unfair trade practice. So, point No. 1 is found accordingly.
Point No. 2
In view of the finding in point No. 1, petition is allowed and the petitioner is entitled to the relief sought for. In the result (i) opposite party is directed to issue NOC to the petitioner for terminating the higher purchase noted in the RC Book of the petitioner’s vehicle bearing No. KL 5 R 7826 (ii) opposite party is directed to return the duplicate key of the petitioner (iii) opposite party is ordered to refund Rs. 8,810/-. the
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excess amount collected from the petitioner to him. Further more the claim of the opposite party for an amount of Rs. 16,092.72 in our view is illegal. Petitioner is entitled for an amount of Rs. 1,000/- as cost of the proceedings. If the direction No. (i) and (ii) is not complied as ordered petitioner is entitled for an amount of Rs. 20,000/- as compensation for the loss and sufferings. Order shall be complied with within one month of the receipt of the copy of this order.
Dictated by me transcribed by the Confidential Assistant corrected by me and
pronounced in the Open Forum on this the 18th day of December, 2010.
Sri. Santhosh Kesavanath P., President Sd/-
Smt. Bindhu M. Thomas, Member Sd/-
APPENDIX
Document for the petitioner
Ext. A1: Receipt Dtd: 15..10..2008 issued by the Indus Ind Bank.
Ext. A2: Statement of account of the petitioner kept in the Federal Bank Ltd.
Ext. A3: Copy of letter Dtd: 25..11..2008 issued by the petitioner to the opposite party
Ext. A4: Registered letter issued by the opposite party to the petitioner dtd: 24..12..08
Documents for the Opposite party:
Ext. B1: Repayment schedule of the petitioner.
Ext.B2: Statement of account of the petitioner.
By Order,
Senior Superintendent
Despatched on / Received on
amp/ 5 cs
