DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 30^th day of January 2018

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P. Member                                                     Date of filing:  29/12/2016

               : Sri.V.P.Anantha Narayanan, Member

(C.C.No.213/2016)

Abuthahir.S,

S/o Saidu Muhammed,

Perumbarachalla House,

Kozhinjampara Post,

Chittur Taluk,

Palakkad District, Pin – 678 555                                            -           Complainant

(Adv.K.P.Nouphel)

 V/s

1.  IndusInd Bank Limited,

     Office at 1^st Floor, Lakshmi Elclave,

     Chandra Nagar, Palakkad

     678 007

    (Represented by its Manager).

2.  IndusInd Bank Limited,

     Office at Rama Bhavan, Near Parutheli Palam,

     Tool Junction, Edappally-Kochi

     682 204

     (Represented by its Manager)

3.  Muhammed Haneefa.A,

      S/o Abdul Gafoor,

      North Street,

      Kozhinjampara Post,

     Chittur Taluk,

     Palakkad – 678 555.                                                          -           Opposite parties
(Adv.P.Valsala)

O R D E R

By Smt.Suma.K.P. Member,

The case of the complainant is that on 20.01.2014 the complainant purchased a new brand TATA LPT 903/34 CLB BS2 Lorry Vehicle chasis and engine without body, having a ex-showroom price of Rs.11,12,048/- after availing a loan of Rs.8,85,000/- from the 1^st opposite party.  The vehicle was purchased by the complainant for finding his livelihood by running the same.  The vehicle was registered as KL-70-5839.  As such at the time of buying the vehicle the complainant paid a sum of Rs.2,27,048/- from his pocket as the margin money.  Apart that the complainant paid a sum of Rs.2,10,000/- to built the body of the lorry and spend and paid another sum of Rs.1,20,000/- as sales tax and apart the road tax, insurance and permit cost worth total Rs.55,000/- was also paid by the complainant after purchasing the vehicle.  As such on road cost of the vehicle at the time of purchase would come at Rs.14,97,048/-.  Out of this, Rs.8,85,000/- is only availed as a loan from the opposite party.  The balance sum of Rs.6,12,048/- is paid by the complainant at the time of buying the vehicle towards the onroad cost.  After purchasing the vehicle the complainant paid a total sum of Rs.4,25,000/- by way of 17 monthly proper installments without any default till 16.09.2015.  However due to the market crisis, the complainant could not pay the balance in time and thereafter the opposite party was reluctant to receive the installments by saying that the payment is delayed and the entire loan is to be paid in the lump sum.  Hence, the complainant was force to pay the due by way of DD dated.16.09.2015 for a sum of Rs.25,000/-.  Hence, within 21 months of the loan the complainant paid a total sum of Rs.4,50,000/- to the opposite parties.  Apart that complainant spend the sum of Rs.6,12,048/- towards initial expenses on the onroad cost of the vehicle.  As such within 21 months of the delivery of the vehicle the complainant had spend a sum of Rs.10,62,048/- towards the deal.  In the meanwhile the 1^st opposite party seized the vehicle from the custody of the complainant on 18.12.2015 on an alleged default of Rs.50,000/-.  At the time of seizing the vehicle the vehicle was in a good condition which was used only for 35200 kilo meter and in all other respect the vehicle was of brand new condition.  Inspite of the sale by way of settlement the complainant again paid a sum of Rs.40,000/- by way of DD dated.02.03.2016 and Rs.50,000/- by way of bank payments.  As such towards the said loan of the vehicle the complainant paid a total sum of Rs.5,40,000/- that to even after seizing the vehicle by the opposite party on 18.12.2015 without using the vehicle by the complainant.  At the time of availing the loan opposite parties obtained so many numbers of blank signed white papers, unfilled printed papers and revenue stamp affixed with blank sign papers and blank signed stamp papers and blank signed cheque leaves of the complainant as well as that of his guarantor by saying that those are necessary for completing the formality of the HP transaction.  The vehicle was purchased by the complainant exclusively to find a livelihood by means of self employment.  The vehicle was hypothecated to the opposite parties vide endorsement on its registration certificate.  The terms of the hypothecation was that the complainant has to repay the loan amount of Rs.8,85,000/- by way of 47 monthly installments @ Rs.25,000/- per month including interest/hypothecation charges.  Hence, the instalments of the said deals runs from 21.02.2104 up to 21.12.2017 for 47 months and the vehicle was seized on 18.12.2015.  Since the complainant felt very difficult to continue the hypothecation and its repayment on 26.12.2016 he approach the 1^st opposite party and requested to settle the hypothecation by stating that one Mr.Abdul Kader Jailani, aged 42 years from Kozhinjampara of Chittur Taluk, Palakkad is prepared to buy the vehicle for Rs.8,00,000/- after settling the account.  The complainant also requested the opposite party to settle the account and to repay the surplus after settling their account legally.  The vehicle was sold for Rs.8,00,000/- as stated above, complainant is entitled to get a balance sale consideration of Rs.4,00,000/- after settling the dues of the opposite parties.  But the opposite parties were reluctant to sell the vehicle to the above buyer and to settle the deal but instead they were trying to sell the vehicle for a scrap value and there by trying to hook the complainant in loan liability and trying to trouble the complainant by hooking into false cases by using the signed blank papers and cheque leaves of the complainant and his surety which was entrusted to the opposite party at the time of availing the loan for the said vehicle.  Now the opposite party alleges that they are entitled to get a sum of Rs.5,00,000/- from the complainant.  The complainant objected the said figure and demanded to settle the matter amicably on 26.12.2016 for which the 1^st opposite party was not willing.  The complainant further alleges that demanding a sum of Rs.5,00,000/- by the opposite party to clear the dues and cancelling the HP is illegal and amounts to deficiency of service and unfair trade practice.  Hence the complainant had filed this complaint seeking a direction to direct the opposite party to pay an amount of Rs.2,50,000/- towards deficiency in service, mental agony, damages and compensation and to direct the opposite parties to return the blank signed white papers, cheque leaves, and revenue stamp affixed by blank papers after settling the account and to repay the balance sale consideration of Rs.4,00,000/- after selling the vehicle to the prosperous buyer and to pay the cost of the above proceedings.   

Notice was issued to the opposite parties for appearance.  1^st & 2^nd opposite party entered appearance and filed their respective version.  3^rd opposite party remained absent inspite of accepting notice.  Hence, he was called absent and set ex-parte. 

1^st and 2^nd opposite parties stated that they are the same legal entity.  They admits that the complainant had purchased the vehicle and hypothecated the same from them availing a loan of Rs.8,85,000/- and that the vehicle was registered as Kl-70-5839.  But, he had purchased the vehicle for wholesale business of poultry chicken, using the vehicle for transportation of live chicken and the said vehicle was purely used for commercial purpose.  The complainant is the nephew of the 3^rd opposite party who was running the chicken business jointly with the complainant and the loan was availed for purchasing light commercial vehicle for commercial purpose.  Hence, the complainant will not come under the definition of consumer and on the sole ground itself the complaint is to be dismissed.  As per the agreement executed by the complainant with the opposite parties 1 & 2, the 3^rd opposite party was the guarantor, they had to repay Rs.11,849,70/- in EMI for the period of 48 months starting from 21.02.2014 to 21.12.2017 payable on or before the 21^st day of every English calendar months.  The complainant and 3^rd opposite party are jointly and severally liable to pay the amounts to the opposite parties 1 & 2.  The 1^st & 2^nd opposite party submits that, the claim by the complainant that he had pay Rs.4,25,000/- by way 17 monthly installment without default till 16.09.2015 is incorrect and wrong.  He had paid only Rs.3,49,400/- and that too in defaulted payments.  The complainant had willfully defaulted in payment of committed installments within the due date as stipulated in the repayment schedule attached to the loan agreement which is the very essence of the contract and the complainant failed to adhere the financial discipline and thereby caused the account to be classified as nonperforming assets warranting necessary action from the side of the opposite party which is a bank controlled by the Reserve Bank of India.  The total amount paid by the complainant was only Rs.3,74,400/-.  In the above circumstances opposite parties were forced to initiate action against the complainant under the SARFAESI ACT before the Chief Judicial Majistrate Court, Palakkad and as per the order dated.30.09.2015 an Advocate Commissioner was appointed and the vehicle was seized and handed over to the authorized officer of the opposite party.  But the said proceeding under the SARFAESI ACT before the CJM Court, Palakkad was challenged by the complainant before the Hon’ble High Court of Kerala and as per the judgment dated.02.03.2016, the Hon’ble High Court held that the total overdue amount is Rs.3,22,000/-, together with assured interest and the complainant is directed to pay the said amount with interest in 8 equal and subsiding monthly installments commencing from 15.03.2016 and further that the complainant continues to keep paying the regular installments as per the original loan schedule, then the recovery steps are kept in abeyance by the opposite parties.  The opposite parties gave upto date statement of accounts to the complainant.  But he had miserably failed to comply with the conditions imposed by the Hon’ble High Court of Kerala.  As per the judgment of Hon’ble High Court mentioned above, if the complainant commits default in respect of any of the instalments, he will loose the benefit of the judgment and this opposite parties can continue the recovery proceedings and hence, this opposite parties can initiate further steps to recover the amount due.  The allegation that the complainant had paid Rs.4,80,000/- and Rs.6,12,048/- towards initial expense and road cost and in total he had paid Rs.10,62,048/- etc. are absolutely incorrect and wrong.  The allegation that the vehicle was seized from the custody of the complainant for the alleged default of Rs.50,000/- and that the vehicle was in a good condition, used only for 35,200 kilo meter and the vehicle was in brand new condition are all incorrect and wrong.  The complainant had paid only Rs.65,000/- after the judgment of the Hon’ble High Court of Kerala mentioned above.  The allegation that the complainant requested to settle the accounts by selling the vehicle to Abdul Kadher Jailani for Rs.8,00,000/- is also incorrect and wrong.  He has not made any such proposal for settlement.  The opposite parties issued a presale notice on 14.06.2016 to the complainant and requested the complainant to surrender the RC book of the vehicle since he did not surrender the RC book the opposite party filed application before the Joint RTO Chittur, for issuing a fresh RC under the MV Act in favour of the bank.  The complainant opposed the same and approached the Hon’ble High Court of Kerala and as per the judgment dated.28.10.2016 the Hon’ble High Court of Kerala directed Joint RTO, Chittur to take a decision in the application for issuance of fresh RC book within one month.  The fresh RC book of the vehicle was given to the opposite party and then the vehicle was sold for Rs.2,65,000/- on 31.12.2016 by these opposite parties after adopting all the statutory formalities.  Opposite parties had never obtained signed blank papers or cheque leaves from the complainant and the complainant had violated the terms of the agreement and also the direction of the Hon’ble High Court of Kerala.  The above complaint lacks bonafides and it’s truly experimental.  Hence, the complaint had to be dismissed with cost. 

Complainant filed chief affidavit.  Opposite parties filed application as IA 141/2017 seeking permission to cross examine the complainant.  Application was allowed but, the complainant was absent for cross examination.  Opposite parties also filed affidavit.  Ext.A1 was marked from the side of the complainant.  Exts.B1 to B4 was marked from the side of the opposite parties.  Evidence was closed and the matter was heard. 

The following issues that arises for consideration are.

1. Whether there is any deficiency of service from the part of opposite parties ?
2. If so what are the relief and cost?

Issues No.1 & 2

We have perused the affidavits and documents produced before the Forum. The complainant was continuously absent for cross examination by the opposite party inspite of granting several chances.  It is evident from Ext.B3 & B4 that the complainant is bound to pay Rs.3,22,000/- with assured interest to the opposite parties in 8 equal and subsiding monthly installments.  But, the complainant had not produced any evidence to the effect that he had cleared the entire dues and complied the directions of the Hon’ble High Court.  In the above circumstances we cannot attribute deficiency of service on the part of the opposite party. 

Hence, the complaint is dismissed. 

Pronounced in the open court on this the 30^th  day of January 2018.

                       Sd/-

                 Shiny.P.R.

                   President 

                        Sd/-     

                   Suma.K.P.

                    Member

                        Sd/-

    V.P.Anantha Narayanan

                    Member

Exhibits marked on the side of complainant

Ext.A1            -  Photo copy of RC Book – KL-7-5839

Exhibits marked on the side of Opposite parties

Ext.B1 -  Valuation report dated. 30.12.2016 of the Vehicle No. KL-7-5839

Ext.B2 -  Photo copy of Quotation for Purchase of vehicle dated.22.12.2016

Ext.B3 -  True copy of the judgment of the Hon’ble High Court of Kerala, dated.02.03.2016

                of WP (C) No.39166 of 2015 (U)

Ext.B4 -  Photo copy of judgment of the Hon’ble High Court of Kerala, dated.28.10.2016

                of WP (C) No.26482 of 2016 (I)

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Cost   

            Nil