BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.07 of 2015

Date of Instt. 09.01.2015

Date of Decision :09.10.2015

Anil Kumar son of Govardhan Dass, R/o House No.2584, Khlifa Gate, near Gurudawara Thamji Sahib, Kartarpur, District Jalandhar.

..........Complainant Versus

1. Branch Manager, Indusind Bank Ltd, 4th Floor, 501 Alfa Estate, 39 GT Road, Jalandhar.

2. Parminder Singh Manager, Indusind Bank Ltd., 4th Floor, 501 Alfa Estate, 39 GT Road, Jalandhar.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.KC Malhotra Adv., counsel for complainant.

Sh.Kanwar Ajay Singh Rana Adv., counsel for OPs.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that complainant above named law abiding citizen availed term loan to the tune of Rs.1,47,000/- for purchase of vehicle Alpha Passenger on 21.3.2013 from M/s Raga Motors Pvt Ltd, GT Road, Pragpur, Jalandhar having temporary certificate of registration No.PB-08-BL(Temp) 0944, Chasis No.MAILE3FYSG 5A93737 and engine No.A2L06900281 for Rs.1,75,000/- to earn his livelihood by means of self employment. The contract bears No.PJJ01756G dated 29.3.2013 with expiry date 21.12.2016 for period of 36 months. The customer code number allotted was CU2710844. The EMI fixed is Rs.30735/- (Rs.5690/-) for 36 months commencing from 29.3.2013 to 21.2.2016 with interest @11.80%. Monthly equated installment of repayment of loan as per terms loan agreement have been regularly paid and credited/adjusted in the loan account of the complainant. Although the complainant has been regularly paying monthly installments in his loan account yet suddenly on 11.9.2014, without any prior notice opposite party No.2, Sh.Parminder Singh, Manager of opposite party No.1, accompanied by some bad elements unknown to the complainant came to bus stand used for small vehicles at about 1.00 PM to 1.30 PM in Jalandhar bus stand and approached the complainant who was awaiting for passengers. Opposite party No.2 asked the complainant to handover/deliver the key and documents of the said vehicle without assigning any reason and valid cause but the complainant refused to do so and also enquired identity of those bad element persons. Thereupon opposite party No.2 with the help of such associates forcibly and in illegal manner snatched the key of his vehicle and unlawfully took away the said vehicle of the complainant, despite his protest. The complainant visited bank branch of opposite parties and requested and assured opposite parties regarding the repayment of loan installments due as per the terms and conditions of the loan agreement, and also requested to return his vehicle which was taken illegally in perfect running condition. However, the opposite parties did not pay any heed to genuine and bonafide request of the complainant, inspite of his apprising opposite parties that the said vehicle is only source of his livelihood by self employment and without it the complainant will be unable to earn his livelihood and repay regular installments of his loan. The opposite party No.1 has sent a notice for sale of vehicle vide letter dated 30.12.2014, ignoring completely the letters replied by the counsel of the complainant. On such like averments, the complainant has prayed for directing the opposite parties to return the vehicle to him in perfect and good running condition and further to provide him loan account statement regarding amount due, if any and further legible copy of loan agreement. He has also prayed for directing the opposite parties not to demand any EMI for the period vehicle was in their possession and not to claim any parking or other charges during the period vehicle remained in their possession. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply pleading that the Forum has got no jurisdiction to entertain and try the present complaint as under clause 23 of Loan Agreement dated 22.3.2013 executed between the complainant and the opposite party No.1, there is an arbitration clause which states that in case any dispute arises between the parties, the same shall be referred to the arbitrator at the option of the opposite party No.1. Thus the present complaint is liable to be dismissed. The complainant has concealed the material facts from the Forum and thus the present complaint is liable to be dismissed. The true facts are that the complainant had entered into loan agreement dated 22.3.2013 with the opposite party No.1 regarding the purchase of the vehicle in question and as per loan agreement, the finance amount is Rs.1,47,000/- interest charges is Rs.52,038/- total amounting to Rs.1,99,038/- which the complainant agreed to pay to the opposite party No.1 in 36 monthly installments with effect from 29.3.2013 to 21.2.2016, Rs.5690/- p.m per installment. Further the complainant also agreed to pay penal interest or other misc. expenses to the opposite parties in case of default in making monthly installments to the opposite party No.1. However, the complainant made a default in making monthly installments to the opposite party No.1 and the official of the opposite party No.1 visited number of times to the complainant regarding the demand of outstanding amount but the complainant delayed it on one pretext or other and finally surrendered the vehicle in question to the opposite party No.1 vide surrender letter dated 11.11.2014 and after the surrender of the vehicle in question on 11.11.2014 and the opposite party repossessed the vehicle in question. It is pertinent to mention that a sum of Rs.21,000/- is over due against complainant which the complainant is liable to pay to the opposite parties. Till day a sum of Rs.42,918/- is still outstanding against the complainant which the complainant is liable to pay to the opposite parties. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA to Ex.CE alongwith copies of documents Ex.C1 to Ex.C10 and closed evidence.

4. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OP/A alongwith copies of documents Ex.D1 to Ex.D3 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. Counsel for the complainant contended that opposite parties repossessed the financed vehicle without any notice and forcibly. On the other hand, the version of the opposite parties is that the complainant was unable to pay the EMIs regularly and committed default and voluntarily surrender the vehicle vide surrender letter dated 11.11.2014. He further contended that the version of the complainant that vehicle was forcibly repossessed on 11.9.2014 stand falsified as after the above date the complainant had made payments to the opposite party bank and in case the vehicle has been forcibly repossessed on 11.9.2014, the complainant would not have made payments to the opposite party bank after that date.

7. After hearing the arguments of both the parties on 16.9.2015, the case was adjourned for 22.9.2015 for orders. However, after the case was posted for orders, counsel for the complainant moved an application for amendment of the complaint on 21.9.2015 alleging that date of 11.9.2014 was wrongly typed due to computer error instead of 9.11.2014. In the application, the complainant has further alleged that error or omission was accidental and through the over sight occurred in date and month typed in legal notice dated 4.12.2014. Counsel for the complainant contented that amendment can be allowed at any stage. He further contended that the Hon'ble Supreme Court has held that on technical ground application for amendment of the pleading can not be denied and rules of procedure are intended to be hand made to the administration of justice. In support of his above contentions, the complainant has relied upon Dr.Ali Mohammad Shahi and another Vs. Harbans Lal alias Bansi 2000(1) CLT 183 and Sau.Shailaja and another Vs. Peerless Finance Corporation 1997(2) CLT 392.

8. We have carefully considered the above contentions advanced by learned counsel for the complainant. There is no dispute regarding the law laid down in the above cited authorities regarding amendment of the pleadings. Application for amendment of the complaint can be allowed at any time provided the same is bonafide in nature. It appears that complainant has moved an application for amendment regarding the date of forcibly repossessing the vehicle just to defeat the contention of the opposite parties that even after the date of alleged forcible repossession the complainant made payment. In our opinion, the application for amendment is not bonafide in nature and is dismissed as such.

9. So far as, objection regarding arbitration clause under loan agreement is concerned, it is well settled that remedy provided under the Consumer Protection Act is in addition to and not in interrogation of any other law for the time being inforce. Now, the question which falls for determination is, whether the complainant voluntarily surrendered the financed vehicle to the opposite party bank? The opposite parties have produced letter of surrender dated 11.11.2014 Ex.D2 which is duly signed by Anil Kumar Complainant. Where a person signs any document, the presumption is that he has signed the same after fully understanding its contents. In M/s. Grasim Industries Ltd & Anr. Versus M/s. Aggarwal Steel 2010 (1) SC 33, it has been held by the Hon'ble Supreme Court as under:-

"In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise, no signature on a document can ever be accepted."

10. The opposite parties have also placed on record statement of account dated 30.1.2015 in respect of account of the complainant and from the perusal of the same it is evident that complainant made payment of Rs.4700/- on 30.9.2014, Rs.3700/- on 29.10.2014 and Rs.1900/- on 31.10.2014. In case the vehicle has been forcibly repossessed by opposite parties on 11.9.2014, the complainant would not have made aforesaid three payments thereafter. So this fact also falsify the version of the complainant. Consequently, we hold that complainant voluntarily surrendered the vehicle on 11.11.2014 and executed letter of surrender dated 11.11.2014 in this regard. So far as, sale of the vehicle is concerned, the opposite parties were restrained vide order dated 9.1.2015 from selling vehicle in question of the complainant.

11. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. However, the opposite parties are directed to give notice to the complainant before selling his vehicle. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

09.10.2015 Member Member President