Kerala

Idukki

CC/18/2021

Shine Augustine - Complainant(s)

Versus

Kotak Mahindra Prime ltd - Opp.Party(s)

05 May 2023

ORDER

DATE OF FILING : 2.2.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  5^th  day of  May,  2023

Present :

                   SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.18/2021

     Between

Complainant                                       :        Shine Augustian, S/o. Augustian,

                                                                   Parakkattel House,

                                                                   Muthalakkodom P.O.,

                                                                   Pin : 685 595.

(By Adv:ShajiThengumpillil)

        And

Opposite Party                                    :        The Manager,

                                                                   Kotak Mahindra Prime Ltd.,

                                                                   Thadikkaran Centre, Palarivattom,

                                                                   Kochi – 685 595.

(By Adv: Babichen V. George)

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

          1. This case originates from a complaint filed under Section 35 of the Consumer Protection Act, 2019 (the Act, for short).  Case of the complainant is briefly discussed hereunder :

 

          Complainant had availed a loan of Rs.10 lakhs on 15.3.2019 from Palarivattom branch of M/s. Kotak Mahindra Prime Ltd., the opposite party herein, represented by its manager, for purchasing a Mercedes Benz car bearing Reg. No. KL-08-AZ-5900.  Loan was to be repaid in 36 equated monthly instalments of Rs.36,000/- each, beginning from 5.4.2019 till 5.4.2022.  Total amount to be paid was inclusive of agreed rate of interest  in addition to the principal.  12 monthly instalments totaling to Rs.4,32,000/- were paid by complainant until 5.4.2020.  Due to outbreak of Covid pandemic, complainant was unable to made  further payment of 3 monthly instalments.  Receipts were not being issued for payment made by him which he  inferred was owing to Covid pandemic situation.   All payments made by complainant were not given credit to.  Besides, complainant sustained heavy financial loss owing to Covid 19 pandemic and loan instalments were defaulted.  Complainant had then approached opposite party with Rs.1,08,000/-, which according to him was full amount repayable, in October, 2020, to close the loan.  However, opposite party demanded more amount than due as per the agreement and also demanded pre-closure charges.  Complainant submits that he was                                                                                                           (cont…..2)

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ready to pay balance amount in lump  and had demanded loan account statement which was not given to him.  As per agreement terms, instalment amount would include only principal and agreed interest.  Opposite party has no right to collect more amount as default charges or penal interest.  Opposite party, complainant submits, is making preparations to take forceful possession of vehicle using his goons.  It has no right to do so.  Demand of amount not covered by the agreement, refusal to give statement of account and attempt to take forceable possession of  vehicle amount to deficiency in service.  Complainant prays for a direction against opposite party to restrain it from taking forceful possession of the vehicle, to settle the account of complainant and to award Rs.2500/- as compensation and even amount as litigation costs from opposite party.

 

          2.  Upon notice, opposite party had appeared and filed written version.  Its contentions are briefly discussed here under :

 

          According to opposite party, case is bad for non-joinder of necessary parties.  Kotak Mahindra Prime Ltd. is a finance company which cannot be represented by a manager of its branch.  Manager so arrayed is not a necessary party.  Complaint does not contain correct details of  loan availed by complainant.  He had availed a car loan of Rs.9,95,000/- on 28.2.2019, which was repayable in 36 monthly instalments each of Rs.35,250/-.  1^st EMI was on 1.4.2019 and last EMI was to be paid on 1.5.2022.  Complainant had paid Rs.12,69,000/- and balance remaining payable is Rs.12,26,138/- as on 30.4.2022.  It is incorrect to say that receipts were not being issued to complainant for payments made by him.  Opposite party was prepared and ready to give statement of account to complainant.  However, there was no such demand from him.  Complainant is a chronic defaulter.  Mode of payment agreed between the parties was by electronic clearing system (ECS).  Complainant has stated that he had paid various amount at various places to one agent of opposite party.  This would reveal that he was not making regular payments as per ECS as agreed by him.  Often his account did not have sufficient balance to cover payment of instalment due.  This was the reason for collection of different amounts from different places by collection agents.  All payments made by complainant are duly accounted for  by opposite party.  Complainant had not approached opposite party with Rs.1,08,000/- to settle the loan account in October 2020 as claimed by him or on any other occasion.  Opposite party has not refused to receive lump sum payment.  It has not demanded anything more than what was agreed upon by the parties.  Opposite party has not made any preparation to take forceful possession of vehicle using gundas.  Opposite party is alaw abiding company.  It will act only as per  law.  Opposite party has every right to recover its debt by lawful means.  Opposite party is not responsible for financial crisis of  complainant.  There was no demand for any settlement by complainant with regard to his loan account.  There is no  deficiency in service from the side of opposite party.  it is a NBFC operating under the directions of                                                                                                            (cont….3)

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RBI.  Complainant had defaulted 15 instalments.  This irregularity in payment and details of dishonour are revealed from statement of account of complainant.  There was no demand for penal charges or interest.  Complainant is liable to pay loan amount along with interest, penal charges and other charges as agreed upon by him in the loan agreement.  Demand for defaulted amount will not amounts to deficiency in service.  Complaint is to be dismissed with costs.

 

          3.  After filing of written version, case was posted for steps and then for evidence.  Despite availing repeated opportunities, complainant had not appeared and given evidence to prove his case.  Copy of RC produced by him along with complaint, which is the only document produced from his side, was marked as Ext.P1.  Counsel for opposite party submits that opposite party has no evidence in the light of the fact that there was no attempt to give evidence by complainant except for the production of Ext.P1.  As complainant or his counsel were not present for hearing, we have heard the counsel for opposite party alone.  He submits that there is no evidence to prove the case as such and hence complaint is to be dismissed with costs.  Now the point which arise for consideration are :

1)  Whether complaint is bad for non-joinder of necessary parties ?

2)  Whether there is any deficiency in service from the side of opposite party ?

3)  Whether complainant is entitled for the reliefs prayed for ?

4)  Final order and costs ?

 

4.  Point Nos.1 to 3 are considered together for the sake of convenience :

 

          As per the written version, first contention taken is that of non-joinder of necessary parties.  In the complaint, opposite party, so shown is the manager of M/s. Kotak Mahindra Prime Ltd., functioning in Palarivattom, Kochi.  There is nothing in the cause title or in the body of the complaint to show that the manager has been impleaded as representing the company as such.  Opposite party have contended that even it is presumed otherwise, manager has no authority to represent opposite party which is a private limited company registered under the Companies Act.  We find force in these contentions.  As there is no proper representation for the company, which is presumably arrayed as opposite party as represented by manager, we cannot hold that finance company as such has been made a party to the suit.  Suit is not properly framed and is bad for non-joinder.

 

          According to complainant, opposite party had claimed more amount towards penal and other charges which were not agreed upon by him at the time of execution of loan agreement.  This was a matter which he was supposed to prove by leading evidence.  Except for Ext.P1, which is photocopy of RC relating to the vehicle purchased by him after availing the loan, nothing was produced by him to show that                                                                                                           (cont….4)

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opposite party had demanded amount not covered by the loan agreement.  Complainant has not produced duplicate of loan agreement which is presumably in his possession and neither has he taken steps to cause production of original loan agreement by opposite party.  His contentions that only interest is payable apart from principal as per loan agreement, is not at all convincing.  Opposite party has a case that in case of default, company has the right to get default and other charges from complainant as mentioned in the loan agreement. He has no case that those charges coupled with interest would offend S.7 of kerala Money Lenders Actor any other Statute. Asmentioned earlier, there is not  even a shred of evidence to prove that penal or other charges were demanded. Complaint is silent about the rate of interest or excess charges or other amounts purportedly demanded, pleadings as such are vague in this respect.  There is no evidence to show that the complainant had asked/demanded for statement of account relating to his loan from opposite party and that there was  refusal from its side to give such a statement.

 

          Complainant has failed to prove the alleged acts of omission or commission constituting deficiency in service from the side of opposite parties.  He is not entitled for the reliefs prayed for.  Point Nos.1 to 3 are answered accordingly.

 

5.  Point No.4 :

 

          In the result, complaint is dismissed, under the circumstances, without costs.  Parties shall take back extra copies, without delay.

 

                              Pronounced by this Commission on this the  5^th  day of May, 2023

 

 

                                                          SRI. C. SURESHKUMAR, PRESIDENT

 

 

 SMT. ASAMOL P., MEMBER

 

 

SRI. AMPADY K.S., MEMBER

 

 

 

APPENDIX :

Ext.P1   -  Copy of RC of the vehiclebearing Reg. No. KL-08-AZ-5900.