Kerala

StateCommission

A/13/310

MAHINDRA & MAHINDRA FINANCIAL SERVICES - Complainant(s)

Versus

JIJI P - Opp.Party(s)

POOVAPPALLY M. RAMACHANDRAN NAIR

28 Oct 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO.310/2013

JUDGMENT DATED 28/10/2015

  

PRESENT:

 

SMT. A. RADHA                            :         MEMBER

SHRI. K. CHANDRADAS NADAR :        JUDICIAL MEMBER

SMT. SANTHAMMA THOMAS    :        MEMBER

 

 

APPELLANTS:

 

1. M/s. Mahindra & Mahindra Financial Service Ltd.,

Registered office at Gate way Building,

Appolo Bunder, Mumbai-400 001.

 

2.  M/s. Mahindra & Mahindra Financial Service Ltd.,

Branch office at Chandra Nagar, Palakkad

(Represented by its power of attorney)

 

(By M/s. Poovappally M Ramachandran Nair & Others)                     

             

                        Vs

 

RESPONDENTS:

 

1. Jiji P.S., S/o. Poulouse,

Pookkattu House, Kolanchira Post,

Vadakkancherry, Palakkad Thaluk.

 

2. Poulouse S/o Aiype, Pookkattu House,

Kolanchira Post,Vadakkancherry,

Palakkad Thaluk.

           

(By R₂ Adv:  K.P. Nouphal)  

                

 

           

 

JUDGMENT

 

SMT. A. RADHA  :  MEMBER

 

          Appellants are the opposite parties who came up in appeal against the order passed in C.C.No.43/2012 on the file of CDRF, Palakkad. 

2. The case of the complainants are that the 1^st complainant availed a loan from 2^nd opposite party for  Rs.7 Lakhs on 31/07/2007 for purchasing a Tipper Lorry ‘Swaraj Mazda’.  The 2^nd complainant is the guarantor for availing the loan.  It is asserted in the complaint that the 1^st complainant repaid Rs.2,50,000/- in 15 monthly instalments.  The complainant approached the opposite party to settle the loan and to repay the balance in lump sum.  It is stated in the complaint that the 2^nd opposite party approached the opposite parties to obtain the original of all the receipts of the repayment and connected documents prior to final settlement for verification.  The allegation of the complainant is that the opposite parties kept the documents and were not ready to return the document to the complainant.  It is stated in the complaint that the opposite parties obtained blank signed cheque leaves of the complainants and blank signed stamp papers and revenue stamp affixed blank signed papers.  The signatures in unfilled column in printed papers were also obtained as security for repayment by the opposite parties.  It is alleged in the complaint that the opposite parties misused the blank signed cheques of                 1^st complainant and filed a complaint under Section 138 of NI Act before the JFMC, Palakkad.  The complainant was constrained to surrender the vehicle in order to rescue himself from the ST case and as such the opposite parties withdrew the case.  It is also asserted in the complaint that the vehicle would be sold to 3^rd party for            Rs.8 Lakhs and the balance amount of Rs.3 Lakhs would be repaid to the complainant after settling the outstanding amount of Rs.5 Lakhs.  Further allegation is that the excess amount received from the sale proceeds amounting to Rs.3 Lakhs as promised was not remitted to the complainant.  The cost of the vehicle at the time of forfeiture was more than Rs.9 Lakhs.  The opposite party committed deficiency in service and it is to be compensated.  The complaint is filed for Rs.3,50,000/- to be remitted to the complainant towards the excess sale proceeds received and also for compensation and cost of proceedings.

          3.  It is admitted in the version filed by the opposite parties that the complainant availed a loan for purchasing a Tipper Lorry.  The amount financed was Rs.7 Lakhs and finance charges come to Rs.3,10,368/-.  The amount is to be repaid in 54 monthly instalments of Rs.20,265/-.  The 1^st installment was fixed as Rs.17,383/- and it is to be paid on 25^th of every month.  The complainant was a defaulter in repaying the monthly instalments and  additional finance charges and other charges were due to be paid as per the terms of the agreement.  The complainant was liable to pay an amount of         Rs.6 Lakhs towards the loan transaction.  The allegation of the complainant that the opposite parties obtained original receipts of repayment and other documents is alleged for the purpose of filing the complaint.  The acceptance of blank cheque leaves and signed stamp papers are also denied and the complainant is trying to avoid the repayment of loan.  It is also contended that no assurance was made on the part of opposite parties to repay any balance amount from the sale proceeds after deduction and remittance towards the loan amount.  It is admitted that a ST case was filed against the       1^st complainant and it was not by using blank cheques as alleged by the complainant.  As per the terms of the agreement the complainant had issued cheque for outstanding dues for the equated monthly instalments.  As the due amount was defaulted the opposite party has no other way except to take appropriate legal action against the complainant.  As per the terms of agreement the arbitration proceedings were initiated and there had an interim order to repossess the vehicle.  Based on the order of the arbitrator with the assistance of the Police Authorities, the complainant had to  surrender the vehicle to the opposite party.  The complaint is filed in order to escape from the liability of repayment of the loan amount entitled to the opposite parties and there is no deficiency on the part of opposite party in taking legal action taken against the complainant. 

4.  The evidence consisted of the oral testimony of complainant as PW1 and documents were marked as exhibits A1 and A2 and on the part of opposite parties DW1 and DW2 were examined and    Exbts. B2 to B11 were marked. 

5.  It is submitted by the counsel for the appellant that the respondent availed a loan for Rs.7 Lakhs to purchase a Tipper Lorry and the finance  charges was Rs.3,10,368/-.  The amount has to be repaid in 54 monthly instalments of Rs.20,265/- on 25^th of every month.  The respondent was a chronic defaulter in paying monthly instalments and he had to pay the additional financial and other charges as per the terms of agreement.  As per the terms of agreement arbitration proceedings initiated against the respondent and an interim order was passed by the arbitrator to repossess the vehicle of the complainant in November 2009.  Thereafter the          2^nd respondent surrendered the vehicle to the appellant and the vehicle was assessed by a surveyor which comes to Rs.4,65,000/-.  The vehicle was sold to the highest bidder in response to the advertisement for Rs.5,40,000/- and that amount was adjusted towards the loan dues.  It is argued that due to the default in the equated monthly instalments for which cheques were issued by the complainant were presented and filed ST case against the respondent.  The case was withdrawn on remittance of the sale amount of vehicle towards the loan account.  The complainant is not a consumer under Section 2(d) of the Consumer Protection Act.  It is also brought to our notice that there is an arbitration clause in the loan agreement between the parties and any dispute between the parties has to be referred to the arbitrator.  The respondent had not paid the entire dues towards the loan account.  The complaint is filed in order to shirk from the liability to pay the balance loan amount.  The Forum Below on a miscalculation ordered to pay Rs.13,000/- as compensation and Rs.2000/- as cost of proceedings which is not sustainable.  The calculation taken up by the Forum Below is not based on the terms and conditions of the agreement entered into between the parties.  It is settled law that parties are bound by the terms of contract and the order passed by the Forum is only to       set-aside. 

6.  The counsel for the 2^nd respondent argued that the vehicle was repossessed by the appellant in 2010.  The loan was availed for purchase of Tipper Lorry was admitted.   The counsel pointed out that as per Exbt: B6 a valuation report submitted by the surveyor shows that the vehicle was found in roadworthy condition and the market value assessed was for Rs.4,65,000/-  The year of manufacture of the vehicle was 2007 and value of the vehicle was Rs.8 Lakhs.        He also pointed out that the vehicle was sold to one Mr. Shibu for around Rs.5,40,000/- is merely  a quotation and nothing is on evidence to show any other quotations received from any other person.  Exbt.P7 produced by the appellant cannot be taken into evidence on the ground that it pertains to the auction of cars and       3 wheelers and not Tipper Lorry.  The auction held on 21/03/2011was exclusively for cars and 3 wheelers which was held at Manjillas Auto Garrage, Kalathodu, Puliparambu.  Hence no evidence adduced by the appellant to show that there had ample evidence of the auction notice of the said Tipper Lorry.  The sale of the Tipper Lorry notice amounts to deficiency in service and the balance amount shown as Rs.6,11,000/- outstanding amount to be paid after remittance of auction sale amount to the loan account of the respondent is merely to harass respondent.  The vehicle is of 2007 and was sold in 2010 and the condition of the vehicle was roadworthy hence the depreciation showed and the value calculated against the quotation for Rs.5,40,000/- cannot be taken into evidence as it does not give any substantial evidence with notice of sale.  Hence based on the sale proceeds adjusting the loan amount cannot be given any evidentiary value and the complaint is to be allowed in favour of the complainants.

          7.  We have heard both the counsels in detail.  The respondent availed loan from the appellants for the purchase of Tipper Lorry on agreement to repay the amount in 54 equated monthly instalments.       On default of the repayment of loan amount the appellant initiated ST case against the respondent using the cheques issued in favour of the appellant while availing the loan.  The repayment of Rs.2,50,000/- was admitted by the respondent and in lieu of the ST case and subsequent to the order of the arbitrator the vehicle was repossessed and sold by the appellant.  It is pertinent to point out that Exbt. B7 produced by the appellant specifically mention regarding the sale of   3 wheelers and Autorickshaws.  The auction held on 21/03/2011 which the appellant relying as the auction notice given in paper publication, it is to be to point out that the auction notice does not contain the sale of Tipper Lorry and it is restricted to the sale of cars and 3 wheelers.  Hence the auction notice of Tipper Lorry is absolutely a false contention raised by the appellant.  However, it is admitted that the sale was held and the quotation was given by one Mr. Shibu for Rs.5,40,000/- admitted by the appellant and were in receipt of Rs.5,40,000/- though the vehicle was of 2007 model.  As per the loan account maintained by the appellant the respondent is liable to pay an amount of Rs.6,11,175/- towards the liability against the loan transaction.  It is clear from the documents the appellants received Rs.5,40,000/- by way of sale and remittances by the complainant was admitted as Rs.2,50,000/-.  We are of the considered view that as the auction notice was not given before sale to the respondent there is deficiency in service on the part of appellant/opposite party.  Matters being so, the appellants are not entitled to recover any further amount as he had already repossessed the vehicle and sold the vehicle without prior notice to the respondent which amounts to deficiency in service.

          In the result, appeal is dismissed and we uphold the order passed by the Forum Below.  The order is to comply within 30 days on receipt of this order.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

 

 A. RADHA                    :         MEMBER

 

 

 

 K. CHANDRADAS NADAR  : JUDICIAL MEMBER

 

 

 

 SANTHAMMA THOMAS    :        MEMBER

 

 

 

Sa.

 

 

 

 

 

 

 

 

 

KERALA STATE CONSUMER

 DISPUTES REDRESSAL

                                                           COMMISSION

      THIRUVANANTHAPURAM

 

 

 

 

 

 

 

 

 

 

 

APPEAL NO.310/2013

JUDGMENT DATED 28/10/2015

  

 

 

 

 

 

 

 

 

 

Sa.