Orissa

Jagatsinghapur

CC/168/2021

Manoj Kumar Mohanty - Complainant(s)

Versus

Branch Manger kotak mahindra Bank Ltd - Opp.Party(s)

Mr.N.C.Barik

29 Oct 2022

ORDER

                                                                                 JUDGMENT

 

            Complainant has filed the consumer complaint U/s.35 of C.P. Act, 2019 seeking the following reliefs;

            “Direct the opposite parties to supply the up to date account statement with copy of loan documents and exempt the penal interest illegally imposed by the opposite parties in the loan account and release the vehicle with loaded coal”.

            The brief fact of the consumer complaint is that, the complainant in order to maintain his livelyhood applied for vehicle loan to the opposite party No.1 for transportation and the opposite party No.1 after complying all formalities and after executing agreement with opposite party No.1 availed the loan from the opposite parties amounting to Rs.26,95,332/- payable in 49 monthly installments of Rs.68,000/- for sixteen months and Rs.69,772/- for the month of June, 2020 and Rs.70,976/- for 32 months and out of the aforesaid EMIs the complainant has already paid al the installments till 22.9.2021 excluding the Covid-19 period. The opposite parties by practicing unfair trade practice handed over the vehicle through their agent on 25.9.2021 with loaded coal without supplying any seizure lost. The complainant sustained mental agony and suffering which amounts to Rs.5,00,000/- and also sustained loss of cost of the coal amounting to Rs.15,00,000/-.

            The opposite parties filed their written version as stated under;

            The opposite parties denies all the allegations contained in the complaint, except those, which are specifically admitted hereinafter and nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed. The complaint filed by the complainant is an abuse of process of law and is not maintainable as the complainant has approached this Commission by suppressing the material facts. The opposite parties are not providing any service rather the complainant approached the opposite parties for availing finance and entered into written agreement after agreeing to the terms and conditions as stipulated in the agreement. The usage of the vehicle concerned was also commercial in nature. The contract categorically states that the vehicle was purchased for commercial purpose.  The complainant has regular defaulted in making payment of monthly EMI and has become chronic defaulter. Rather, the petitioner is allows late in payment of the EMI and hence, the interest and penal charges as per the agreement has been levied upon the complainant. The terms and conditions of the agreement entered into between the complainant and the company clearly stipulates that in the “Event of default”, the company has right to take possession of the secured asset, and has further right to auction the same and even after adjusting the auctioned amount if there is still outstanding amount against the borrower, then the borrower is still liable to make payment of the same. The opposite parties are not providing any service, rather the complainant approached the opposite party for availing finance and entered into written agreement after agreeing to the terms and conditions as stipulated in the agreement. The complainant has not been making payment as per agreed terms and condition and the schedule of payment date of EMI. As on 03.9.2022, 16 EMIs is pending against the complainant, which is amounting Rs.10,98,789.69 (EMIs) + Rs.4,96,846.84 (Overdue/Penal)= Rs.15,95,636.53. Now bank has declared NPA to this loan amount. The complainant had made payment part EMIs on 30.9.2021 amounting to Rs.50,000/- as per interim order passed by this Hon’ble Commission, after that no single penny has paid by complainant to opposite party.

            This Commission vide order dt.29.9.2021 directed to release the asset (vehicle) bearing No.OD-050AN2653 in favour of complainant on receipt of Rs.50,000/- within three days and not to take any coercive action against the complainant in respect to aforesaid vehicle till 21.10.2021 and also complainant is directed to pay monthly regular EMI. After order dt.29.10.2021 both parties on 21.10.2021 & 03.11.2021 from 11.11.2021, 26.8.2022 both parties took no steps except the complainant on 29.11.2021.

            The matter was heard on 30.8.2022 and 06.9.2022 along with E.A. No.21/2022. The counsel for complainant filed a time petition which is hereby rejected as we have given sufficient time in hearing both the cases and keeping in view of large number pendency cases since 2014.

            The complainant has taken loan from Kotak Mahindra Bank Ltd, Janapath Branch, Bhubaneswar, but he is not a party in consumer complaint as well as E.A. The complainant has impleaded Regional Manager, Kotak Mahindra Bank Ltd. Bhubaneswar and Branch Manager, Kotak Mahidnra Bank Ltd. Paradeep Branch. The Branch Manager, Paradeep has no roll in this case. Both the parties were issued with Regd. Notice on 30.9.2021 and opposite parties have entered their appearance on 03.112021 by filing Vakalatnama executed on 21.10.2021 signed by Kotak Mahindra Bank Ltd. Bhubaneswar Branch. It is therefore presumed that though the Branch Manager, Bhubaneswar Branch was not made party he was aware of the case. It is apt to mention here that quorum was not available this Commission from 17.4.2021 to 15.3.2022.  

            The complainant has deposited Rs.50,000/- on 30.9.2021 as per order dt.29.9.2021 in misc case No.115/2021. But it is most unfortunate that both parties have slept over the matter without any communication to each other, for which both are squarely responsible. Either the complainant has no interest to run the vehicle or opposite parties are in deep slumber as the vehicle/asset is in their custody and order of this Commission have not been implemented.

            Fact of the case is not at all disputed that complainant has taken a loan from opposite parties amounting of Rs.26,95,332/- and it has been repaid in 48 installments. Installment is fixed at monthly from 01.11.2018 to 01.02.2020. Due to Covid-19 subsequently it was refixed as Rs.69,572/- and from 01.9.2020 to 01.4.2023 was fixed Rs.70,976/-. Both parties are binding by the contact/agreement and time is running out on 01.4.2023 being the date of termination of contract for which we reject prayer of complainant for any time of hearing as we have heard both the cases simultaneously.

            Keeping in view the peculiar situation and case of both the parties so also the condition of mortgage vehicle we think it just and proper to dispose of matter within the following observation. Since both the parties have slept over the matter without communicating each other by way of written intimation either to release the vehicle of complainant or to take back the vehicle by paying the regular installments for which we held that since both the parties slept over the matter from 30.9.2021 to 29.10.2022 covering a period of thirteen months for which we direct that the complainant shall bear six month fifteen days and opposite parties shall be responsible for six months fifteen days period of delay for not carrying out of order.

            We therefore direct to extend the period of contract by six months i.e. 01.10.2024. The opposite parties shall not claim any overdue interest on the amount and bear the stock yard charges for six months. The complainant shall pay 30% of the pending EMIs as on the date of release of vehicle for which we direct both the parties to settle the matter in their own interest as soon as possible. The complainant shall pay regular installment and pending dues to be equally divided up to 01.10.2023. On receipt of 30% of dues the vehicle shall be released by the opposite parties immediately latest within 03 days. With the aforesaid observation and direction the consumer complaint is disposed of. No cost.