By Sri. MOHANDASAN.K, PRESIDENT

1.Complaint in short is as follows: -

    The complainant purchased a motor cycle from 3^rdopposite party   and which is numbered as KL-53-L-7404.  The 2^ndopposite party provided financial assistance for purchasing the vehicle from 3^rd opposite party.  The loan number was L2WPER05079786.  As per terms of agreement, the complainant was liable to repay the loan amount as 36 equal monthly instalments of Rs. 2006/- from the date of availing loan. The opposite party had collected 8 signed blank cheques numbered from 396952 to 396959. Moreover, three revenue stamp affixed white papers were also collected from the complainant.  The complainant remitted 14 instalments from 2017 June onwards. Due to Cardiac ailment to his father, he could not remit four instalments. Thereafter complainant approached 4^thopposite party, who is the collecting agent of 2^nd opposite party to remit the amount.   But he said that since four instalments has been defaulted, the 4^thopposite party is not able to receive the money from the complainant and the complainant was informed that he will get information from legal office at Calicut.  The complainant was directed to repay the loan amount on receipt of information from legal office.   Since no notice of information was received from 4^th opposite party, the complainant again approached the 4^th opposite party.  But he refused to accept the money and also said that, he has to pay the loan amount on receipt of phone call from Calicut and the complainant need not approach the 4^th opposite party for the purpose. It was told by one Mr. Shajahan, who was present at the office of 4^thopposite party. Thereafter complainant did not receive any communication from opposite parties.  On 15/03/2019 a person namely Hareesh Nambiar, who claims to be legal officer called the complainant over telephone No.0495 4050785 and directed the complainant to remit defaulted 8instalments within 4 days or to surrender the vehicle and also said that if the complainant fails to do so the opposite parties will forcefully seize the vehicle.   It was also said that the opposite parties will initiate legal action and there is order from Pune to repossess the vehicle.  The complainant informed the opposite party that he is not able to remit 8 instalments together and also sought time till 31/03/2019, but the opposite parties threatened the complainant about the consequences if the complainant fails to remit the amount on or before 19/03/2019. The complainant without any other option agreed to remit the amount. 

2.       The complainant could not raise the amount, but could raise amount of Rs.  6018/- towards three instalments, but the 1^stopposite party refused to receive the money and insulted the complainant using filthy words.  The complainant informed the opposite party that the vehicle is part of his livelihood and he cannot go to the work place without the vehicle.  But the opposite party did not considered his words but one collection agent Mr. Subbin called the complainant, but he also threatened the complainant.  Thereafter complainant did not receive any notice from Court or from Arbitrator. There is more than one year balance period for closing the loan amount.  If the attempt of the opposite party succeeds it will affect the livelihood of the complainant. Hence the prayer of the complainant is that opposite party be restrained from repossessing the vehicle and also from collecting exorbitant interest and charges from the complainant.   Complainant also claims for compensation of Rs. 50,000/- and Rs. 20,000/- as cost. 

3.     On admission of the complaint notice was issued to the opposite parties and opposite party No. 1 to 3 entered appearance and filed version. Opposite party No.4 did not turn up, hence called him and set exparte. 

4.             The 1^stand 2^ndopposite party filed version denying the entire averments and

allegations in the complaint. According to 1^st and 2^nd opposite party, the complaint is not maintainable and liable to be dismissed.  The complainant   is being a defaulter cannot be termed as customer and on that score the complaint is not maintainable.

5.         It is submitted that the 2^nd opposite party is only a financier and he   extended financial assistance to the complainant on request for purchase of a motor cycle, which is selected by a complainant himself and they are not liable and responsible for dealings with the 4^th opposite party, who is in any way connected with the opposite parties No.1 and 2. The complainant is not disputing at any point on loan agreement and there is no allegation against the terms and conditions also. 

6.      The opposite parties denied that that the 2^nd opposite party arranged financial assistance to the complainant with the 3^rd opposite party, since the 2^nd opposite party itself being a Finance company, there is no need to arrange financial assistance with any other. It is admitted that the complainant had availed a loan from the 2^nd opposite party and executed an agreement as L2WPER05079786, with 2^nd opposite party.  But denied that at the time of loan, the complainant was forced to issue 8 blank cheques of the SBT, Makkaraparamba Branch, bearing no.396952 to 396959, 3 blank white papers, affixing Revenue stamp papers etc. As per the record of 2^nd opposite party, the complainant had issued two cheques bearing serial No. 396951 & 396952 from which one cheque No.396951 was used for registration of mandate and the same was bounced and another cheque No.396952 is available with the 2^nd opposite party which was entrusted by the complainant as security to the loan and 2^nd opposite party hold full right to recovery the dues.  It is only to evade payment of legitimate dues, the present complaint filed with false allegations.  The opposite party submitted that on 17/01/2020 there is due of Rs. 11,950/- towards EMI dues and Rs. 17,040/- towards other dues along with Rs.  8,020/- payable towards future EMI’s. The opposite parties admitted that the complainant had paid 14 instalments, but from the month of June 2017, no amount was paid thereafter. The opposite party submitted Loan Agreement clause 16(a) and clause 24 on security and clause 25 - Events of default in support of the contention of opposite parties.  The opposite parties submitted that the complainant never approached opposite parties for repayment of the loan.   The opposite parties submitted that since complainant had not approached 2^nd opposite party for repayment after payment of 14 instalments, these opposite parties had no knowledge about the dealings between the complainant and the 4^th opposite party. The opposite parties  denied that  on 15/03/2019,  at noon,  the first opposite party  had told  from the telephone No. 0495 4050785 that the complainant  had to pay 8 instalments , within 4 days,  unless he had to surrender  the  vehicle  or they would  forcefully  take the vehicle  and  proceedings  are already  taken  at Pune to repossess the vehicle  and also threatened the complainant  and that he would face the consequences, if he did not pay the dues  within 19/03/2019 and which was compelled to be accepted by the complainant.  All the allegations of the complainant are narrated only for the purpose of this complaint.   The opposite parties   contended that complainant being a defaulter cannot be termed as customer and thereafter several precedents set by State Commission  holding that defaulter cannot be termed as a consumer as defined under Consumer Protection Act 1986.

7.           The opposite parties submitted that the loan account is being due, opposite

party No.2 had issued Loan Recall Notice to the complainant on 05/11/2019 and called back the loan. But the complainant failed to close the loan account. The opposite parties No.1 and 2 referred Loan Return Notice, Foreclosure statement attached to pay the dues and close the loan account.  The opposite party submitted that there is no cause of action for filing the complaint and there is no any deficiency of service or unfair trade practice from the part of first and second opposite parties at any point of time.  But the complainant himself is deficient from the agreed terms and condition of the loan agreement by not making payment of loan instalments and was in default. The opposite party had given enough opportunities to the complainant about outstanding dues but to the best reason known to the complainant that the complaint not given any heed to the request of the 2^nd opposite party. The vehicle is subject to hypothecation and is a security to the said loan as per the agreement and the complainant is not disputing any of the terms and conditions   in the agreement.  The deficiency happened from the part of the complainant and was in default, violated the terms and conditions, was a gross defaulter and considering the aspects, complaint is liable to be dismissed with appropriate cost.  It is also submitted by the opposite parties that the complainant’s case is not at all bonafide and the complainant   had not suffered any inconvenience, harassment or mental agony as alleged. The complainant is not entitled for any amount whether by way of compensation or by way of litigation cost. It is submitted that there was no any unfair trade practice from the side of 1^st and 2^ndopposite parties nor any deficiency in-service, the allegations made in the complaint are frivolous, baseless and misconceived and the complaint is liable to be dismissed.  The complainant did not approach with clean hands and which is the fundamental maxim that a person should approach court of law in equity, with perfect propriety of conduct and with clean hands.  This complaint is filed with misconceived facts suppressing material facts and which is a typical example of vexatious litigation and so the complaint is liable to be dismissed with cost of the opposite parties.

8.       The complainant and opposite parties No.1 to 3 filed affidavit and documents. Documents on the side of complainant marked as Ext. A1 and A2. Ext. A1 is copy of CD of sound record, Ext. A2 is  copy of complaint before SHO, Mankada.   Documents on the side of opposite party No.1 and 2 marked as Ext. B1 to B4.  Ext. B1 is  copy of Auto loan agreement , Ext. B2 is  Cheque bounce Memo dated 03/07/2017, Ext. B3 is copy of  Lawyer notice  dated 5/11/2018, Ext.B4 copy of  Loan Foreclosure statement  dated  16/01/2020.  

9.       Heard both sides, perused affidavit and documents. Following points arise for consideration:-

1. Whether the complaint is maintainable?
2. Whether there is deficiency in service on the part of opposite parties?
3. Relief and cost?

10. Point No.1

         The opposite parties contented that the complaint is not maintainable since the complainant is a defaulter of payment and thus not a consumer.  In this complaint it is admittedly a fact that there is a hypothecation agreement between complainant and 2^nd opposite party.  As per the agreement, the complainant has to repay the loan.  The complainant is bound to repay the amount through 36 monthly instalments. The payment of instalments commences on 03/07/2017.  The complainant paid 14 instalments but he could not pay 4 instalments meanwhile.  Thereafter complainant approached opposite party for short further time to clear the arrear instalments and denial of the same lead to filing this complaint.  As per the terms of the agreement, he has given time to repay loan amount up to 2020 June, which shows that the complainant has got enough time to clear his instalments as per terms of agreement.  The Consumer Protection Act defines who is a consumer. It has stated that even promised to pay a consideration is covered the definition of consumer.  So default in making certain number of instalments will not oust a loanee from the scope of definition “consumer”. The complainant had agreed to pay the delayed instalments also. So we do not find any reason to uphold the submission of the opposite parties that the complainant is not a consumer only because he is a defaulter.

11. Point No.2

        The complainant availed loan from the 2^nd opposite party agreeing to repay the amount through 36 monthly instalments. The payment of instalments commences from 03/07/2017 as per Ext. B1 document.   The complainant could not make four instalments after payment of 14 instalments. As per Agreement Ext.B1 the 2^nd opposite party has got right to take initiative for the realisation of loan amount. The complainant approached this commission with the apprehension that the opposite party is preparing to seize the vehicle from the complainant and so sought an order against forceful seizing of the vehicle and also collecting exorbitant interest from the complainant. Complainant also prays for compensation and cost.  It can be seen that the complainant is still in possession of the vehicle and there is arrear of instalments also.  The complainant filed affidavit in lieu of evidence on 11/11/2021 reiterating the same. 

12.    The perusal of terms of agreement it can be seen that the period of loan amount expired in 2020 June.  The opposite party is entitled for the realisation of the loan amount.  The vehicle is being with the complainant, it will not be proper to allow the prayer of the complainant as such. The commission has perused documents produced by the complainant Ext. A1 and Ext.A2.  There is no further details about Ext.A2 complaint filed before the Mankada Police Station.  Ext. A1 is claimed to be sound recording of telephonic conversation between complainant and 1^st opposite party. The commission is not certain whether the conversation is with first opposite party or not.  But the narration in the affidavit as the response from the first opposite party is in tune with the voice recorded in Ext A1.  The commission do not reproduce the conversation as a part of this order.    No doubt the words are used in an unparliamentary way, which is not expected from the side of opposite party and the Commission condemn this sort of use of filthy language against consumers like complainant.  The Commission is not able to consider the same as a ground to allow the claim of the complainant. The complainant approached honestly the opposite party to repay the amount for a breathing time.  As per the agreement   there is provision to pay the defaulted amount with penal interest also.  That being the situation the approach of the opposite parties cannot be upheld at all.  At the same time the opposite party has not further proceeded against the complainant except serving loan recalled notice.  The opposite party is entitled to proceed legally for realising the hire purchase amount.  Hence, we do not find deficiency in service from the part of opposite party as alleged by the complainant.  The proper way to resolve the complaint is to close the loan amount as per terms of agreement.  The complainant seen filed this complaint apprehending realisation of exorbitant interest from the complainant. The opposite party is restrained from collecting penal interest from the complainant since after filing this complaint.  The opposite party  is expected to  consider the  claim of the complainant  in a lenient way  by  avoiding  penal interest  for the defaulted  instalments from the period of filing this complaint  till the  completion of  loan agreement period of 2020 June. 

13.    In the light of  above facts and circumstances  we do not  find deficiency in service  on the part of the opposite parties  and opposite parties are  allowed to  realise  the loan arrears  as per loan agreement  taking a  lenient view  towards the  penal interest for the pending period of this complaint and  the complaint is disposed with the above  observation  and the complaint  stands dismissed  accordingly.