Complainant Rahul Sharma through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to handover the possession of vehicle Truck (Tata LPT2518/Load Body, Model 2012) Registration no.PB-35Q-2669, bearing Chassis no.MAT448033C2H17249, Engine no.B59180322163276472 to him. Opposite party be further directed  not to impose, recover any un-accrue and arbitrary charges from him and  also to pay compensation to the tune of Rs.2,00,000/- with interest for deficiency in service, mental pain and agony suffered by him.

2.          The case of the complainant in brief is that for the purpose of earning his livelihood he purchased a vehicle i.e. Truck (Tata LPT2518/Load Body, Model 2012) Registration no.PB-35Q-2669, bearing Chassis no.MAT448033C2H17249, Engine no.B59180322163276472 after borrowing a loan from the branch office of opposite party at Pathankot vide hypothecation agreement XVFPPVF00000789969 and has been paying installments to the opposite party. The loan documents were signed in the office of opposite party at Pathankot and the loan was sanctioned and disbursed at Pathankot. He has further pleaded that as per loan agreement he obtained loan amounting to Rs.16,05,150/- and was obliged to repay the same in the mode of 47 monthly installment of Rs.44,166/- PM commencing from 1.9.2012 upto 1.7.2016 and he has already cleared more than Rs.12,50,000/- loan amount. Despite receipt of regular monthly installments the opposite party through its Gunda elements has illegally and forcibly snatched the loaded vehicle at Etah (UP). The vehicle is loaded with goods (thread) and is in the illegal custody of opposite party. He approached the opposite party and asked about the unlawfulness and requested them to release the vehicle at once from there illegal custody but they refused to do so and has alleged that his loan case is running short with 3-4 installment and they will release vehicle only when he pay an amount of Rs.1,70,000/- viz. 1,50,000/- towards arrears, 10,000/- towards vehicle seizing charges and Rs.10,000/- towards illegal gratification. He has next pleaded that on careful perusal of statement of account it has been transpired that the opposite party have made deliberate shady debit entries in his loan account. Certain unaccounted, unprecedented, un-accrued and arbitrary charges on the pretext of field visit charges, overdue charges, bounce charges etc. have been illegally debited in his loan account. It is next pleaded that various anomalies and malpractices have been practiced by the opposite party, in his loan case, which amounts to unfair trade practice, besides deficiency in service. Hence this complaint.

3.       Upon notice, the opposite party appeared and filed its written reply through its counsel by taking the preliminary objections that the complaint is not maintainable; the present complaint is liable to be dismissed as presently the opposite party is not in possession of the vehicle in question rather it is with the complainant. At the time of repossession of the vehicle in question, the complainant was in default and after the repossession of the vehicle in question as per norms of loan agreement executed between both the parties the opposite party on the request of the complainant agreed to return the possession of the vehicle to the complainant by accepting only Rs.1,35,000/- against due installments alongwith repossession charges. The complainant promised to make the regular payment of the future installment in timely manner and also to clear the outstanding amount. After taking the possession of the vehicle in question, the complainant has now again made numerous defaults as reflected in the statement of account and has also breached the promise of making timely payment and even failed to clear the outstanding amount; the complainant has no locus standi to file the present complaint; complainant has no cause of action to file the present complaint; the complaint of the complainant is liable to be dismissed as the loan agreement contains an Arbitration Clause. The parties to the agreement consented to refer the dispute to the arbitrator and confer the jurisdiction on the arbitrator and at present a sum of Rs.5,41,873/- is outstanding due against the complainant as on 25.11.2015. Apart from this the future amount to the tune of Rs.3,53,328/- alongwith upto date interest is due as per the statement of account duly maintained by the opposite party in due course of business which the opposite party entitled to recover from the complainant. The complainant is liable to pay the same. On merits, it was submitted that the vehicle in question was repossessed in accordance with Article 11 of the loan agreement duly executed between the complainant and the opposite party. Thereafter the vehicle in question was released to the complainant and presently the opposite party is not in possession of the vehicle in question rather it is with the complainant. After taking the possession of the vehicle in question, the complainant has now again made numerous defaults in making the payment of monthly installments and has also breached the promise of making timely payment and to clear the outstanding amount. The complainant has filed this false and frivolous complaint just to wriggle out of his legal liability to clear the outstanding/loan amount. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

4.       Complainant tendered into evidence his own affidavit Ex.C1 alongwith other documents Ex.C2 to Ex.C11 and closed the evidence. 

5.      Sh.Vikal Sharma, Legal Attorney of opposite party tendered into evidence his own affidavit Ex.OP1 alongwith other documents Ex.OP2 to Ex.OP5 and closed the evidence.

6.      We have carefully gone through the pleadings of both the parties, arguments advanced by their respective learned counsels and have also appreciated the documents/evidence produced on record along with the incidental scope of adverse inference for of some documents ignored to be produced by the contesting litigants with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint. We find that the relief sought by way of delivery of the re-possessed vehicle back to the complainant (by the OP financer) has turned infructuous by the complainant’s non-rebuttal to the OP financer’s claim of release of the re-possessed vehicle in its written statement, accompanying affidavit Ex.OP1 & release letter Ex.OP5 etc. Further, in order to judiciously adjudicate the next prayed relief of ‘cessation/restriction’ to levy of arbitrary & other charges; we examine A/c Statement Ex.C2, Payment Receipts Ex.C4 to C11, Application Form Ex.OP2, Loan Agreement Ex.OP3 & the A/c Statement Ex.OP4. We find the documented Rate of Interest being as: flat @7.33%/ net IRR @13.51% PA quite follow the RBI directives on vehicle loans but the rate of additional penal interest @ 48% PA is surely ‘exorbitant’ and in contravention of the RBI guidelines on moderation of commercial loans thus amounting to ‘deficiency in service’. Further, the repayment mode has been indicated as: NONPDC i.e., not through post dated cheques but PDC’s # 891393 to 891396 drawn upon OBC, Pathankot stand procured on records amounting to ‘unfair trade practice’ and thus lining up the OP financers to an adverse award under the Act. In our considered opinion the ‘consent’ by way of ‘signing’ the loan documents/agreement by the complainant (comprising of self-damaging clauses) cannot be the prompts of ‘free-consent’ but surely an outcome of his ‘subservient’ status/position to the influential OP financers who being people of means and influence do manage to execute such self-damaging ‘legal’ at the hands of ignorant clients & that amounts to ‘unfair trade practice’ along with ‘deficiency in service’ as envisaged under the provisions of the Act. The OP financers are thus held liable to an adverse statutory award.   

7.       In the light of the all above, we are of the considered opinion that the complaint is based upon a genuine grievance pertaining to an infringement of consumer rights, indeed having incurred/taken effect. The OP financers have mercilessly exploited the subordinate/subservient position of the complainant (being a borrower in default only for 2-3 nos. of EMIs). The OP financers have charged an exorbitant penal rate of interest against the market rate of 18% PA, duly capped at the extant guidelines of the Reserve Bank of India. No doubt the OP being a private Lender his disputes pertaining to the ‘advancing of loans’ shall be determined as per the contracted ‘Terms & Conditions’ but these shall not be totally “un-bridled”. Even the private lenders are governed by certain set of RBI approved guidelines and the OP has failed to produce the same and those produced by him alleged to have been accepted by the complainant do not conform to those set out by the prime governing authority. Moreover, the OP has failed to produce the extant terms of sanction and other details of the penal charges/delay period interest etc exposing itself to the inference of guilt. Thus we find and hold the OP guilty of having indulged in unfair trade practices and also deficient in service in its dealings with the complainant, as duly discussed above. However, we do not propose costs/compensations/damages etc in line with the spirit of the Act that does not favor any 'undue enrichments' to the complainant but the 'Redressal of consumer disputes' accompanied with judicious compensation in deserving cases. Thus we partly allow the present complaint and ORDER the Opposite Party financer to pay him the balance amount (if any) received in excess of the principal amount of loan along with the accrued interest at the documented rate of 13.51% P.A. only. The OP financers shall complete the above exercise and get the same checked, attested by a Chartered Accountant and mail the same to the complainant within 30 days of the receipt of the copy of these orders so that remaining repayments (if any) are paid (by the complainant) as per the original time-schedule.

8.          Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                                                                   (Naveen Puri)

                                                                            President.                                                                                   

ANNOUNCED:                                          (Jagdeep Kaur)

June 24, 2016                                                      Member.

*MK*