BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 88 of 2017
Date of Institution : 18.4.2017
Date of Decision : 6.2.2018.
Mathra Bai aged about 65 years widow of Shri Lekh Raj, Caste Kamboj, resident of village Bhavdin, Tehsil and District Sirsa.
……Complainant.
Versus.
The Branch Manager, Kotak Mahindra Bank Rania Road, Near Tara Baba Kutia Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Smt. Sanju Bala, Advocate for the complainant.
Sh. Lucky Duggal, Advocate for opposite party.
ORDER
The case of the complainant in brief is that complainant had purchased a tractor Sonalika through the finance service of the opposite party on payment of Rs.one lac as advance to the tractor agency and the remaining amount of Rs.2,60,000/- was agreed to be paid by the complainant to the opposite party in easy installments. After the purchase of the vehicle, she got the same registered in her name from the concerned registering authority. It is further averred that complainant kept on making the payment of installments regularly to the op without any interruption and she was never declared defaulter in making the payments of the installments. In this manner from the date of purchase of the aforesaid vehicle, the complainant has already paid eight installments to the opposite party. It is further averred that before the date of payment of ninth installment, some officials of the op bank visited the house of complainant. At the time of their visit, the complainant was not present in the house and her son who is handicap was present alone in the house. The tractor in question was also standing in the house. That the officials of the op bank immediately after visiting the house took the possession of the tractor with them and tried to take the same with them. The son of the complainant present in the house tried to stop them and asked about the reasons for taking the possession of the tractor in such an illegal manner but the officials of the op bank openly asserted that the same is being taken by them on account of non payment of the installments and also because of the fact that the complainant is the defaulter. Whereas as per law, prior intimation was to be given to the complainant before taking the possession of the tractor but no such intimation was ever given by the op to the complainant and as such the act of taking the possession of the tractor without intimation to the complainant amounts to a criminal act. Further at the time of taking the possession of the vehicle by the officials of the op bank, no installment was due against the complainant. It is further averred that the complainant has always been making the payments of the installments to the op without any break and she was never declared defaulter and she is still ready and willing to make the payment of the remaining installments time to time as agreed by her. That the complainant thereafter approached to the opposite party and requested to handed over the possession of the vehicle to her but the op kept on avoiding the requests made by complainant. The complainant further came to know that the op has already sold out the aforesaid tractor of the complainant to any other third person without having any right and authority. It is further averred that thereafter the complainant sent a registered legal notice to the opposite party calling upon the op to hand over the possession of the vehicle to the complainant within a period of 15 days from the date of receipt of the notice but inspite of service of legal notice, neither any reply was received nor the claim of the complainant was admitted by the opposite party. Hence, this complaint.
2. On notice, opposite party appeared and filed written statement taking certain preliminary objections regarding maintainability; cause of action and suppression of true and material facts. It is further submitted that after availing of loan facility from op bank, the complainant did not pay the installments regularly. The complainant stopped to make loan amount to the op. In this regard a notice was also issued to the complainant but the complainant did not pay heed on the same. Then as per agreed settlement the op approached before the Arbitral Tribunal of Sh. Kamaljit Singh Sole Arbitrator, Chamber No.DBA-67 District Courts, Jalandhar and moved an application under Section 17 of the Arbitration and Conciliation Act, 1996 for appointment of Receiver and also to seize the tractor of complainant in default of payment of loan amount. The said application was accepted and the Tribunal appointed the receiver with a direction to forthwith seize vehicle ITL Sonalika 750-DI, Registration No. HR-24S-9868 vide order dated 12.12.2015. Thereafter, op also moved an application to the Arbitrator to give permission for sale of the said tractor, which has also been accepted by the Tribunal vide order dated 22.7.2016. In this way the tractor of the complainant has been taken in possession properly in legal manner. The complainant was previously intimated by the answering op and also requested to pay the balance loan amount but the complainant did not pay heed for the same, hence the tractor of the complainant has been taken in possession legally. Remaining contents of complaint are also denied.
3. The complainant produced her affidavit Ex.C1, affidavit of Kewal Krishan guarantor Ex.CW1/A, copy of order dated 12.12.2015 passed by Arbitrator Ex.C2, copy of the order dated 22.7.2016 passed by the Arbitrator Ex.C3, copy of statement of account Ex.C4, copy of handicapped persons medical certificate Ex.C5, payment receipts Ex.C6 to Ex.C18, copy of letter dated 17.11.2016 Ex.C19, postal receipt Ex.C20 and copy of legal notice Ex.C21. On the other hand, op produced affidavit of Sh. Arvind Kumar, Branch Manager Ex.RW1/A, copy of statement of account Ex.R1, copy of order dated 12.12.2015 Ex.R2, copy of the order dated 22.7.2016 Ex.R3, copy of post repossession notice Ex.R4, copy of postal receipt Ex.R5, copy of letter dated 17.11.2016 Ex.R6 and copy of details of sale of repossessed vehicle Ex.R7.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. From the copy of statement of account Ex.C4 placed on file by complainant and Ex.R1 placed on file by opposite party, it is evident that loan amount of Rs.2,69,390/- was allowed to the complainant vide loan agreement date 22.1.2014 for purchase of tractor and the loan tenure was for 36 months and loan was repayable in 12 quarterly installments. The date of first installment was 5.4.2014 and loan maturity date was 5.1.2017. Accordingly, the complainant purchased the Tractor Sonalika through the finance service of the opposite party by paying an amount of Rs.1,00,000/- as part of cost of tractor. According to the complainant, she paid eight installments to the opposite party but before the date of payment of 9th installment, some officials of the op bank visited the house of complainant and took the possession of the tractor in the absence of complainant and at that time her handicapped son was present in the house who resisted the officials of the op for taking the tractor with them but they forcibly took away the tractor with them. The opposite party has not denied payment of eight installments by the complainant but according to op, the complainant became irregular in making installments and ultimately defaulted. Though, the opposite party claimed an amount of Rs.1,56,863.61 as arrears of outstanding amount towards the complainant before the Arbitrator on 3.10.2015 while seeking permission to seize the tractor in question and the Arbitrator vide order dated 12.12.2015 appointed Sh. Pardeep Kumar, authorized representative of claimant as receiver to seize the tractor in question of the complainant but however the opposite party has failed to place any evidence on file to prove that an amount of Rs.1,56,863.61 was actually outstanding against the complainant on the above said date. The statement of account Ex.R1 produced on file by op itself contradicts its plea which shows that six installments each of Rs.29700/- stands paid and an amount of Rs.7382.15 only was overdue on account of overdue interest on 3.10.2015 i.e. the date of application to Arbitrator. Seventh installment of Rs.29700/- was paid in parts. Again, eighth installment of Rs.29700/- was paid on 6.4.2016. No doubt, it emerges out from the record that the tractor of the complainant has been sold to the third party after initiating arbitration proceedings and after permission of sale by the Arbitrator. Now at this stage, sale of the tractor in question of the complainant cannot be undone and the question to be decided by the Forum is as to what amount the complainant was liable to pay to the opposite party towards loan.
6. The opposite party has placed on record copy of post repossession notice dated 14.7.2016 Ex.R4 addressed to the complainant vide which the opposite party demanded an amount of Rs.1,55,928/- from the complainant as due amount besides charges of sale. The opposite party has also placed on file copy of postal receipt which is not readable and op has not placed on file any acknowledgement to show that actually the above said notice was received by the complainant. One more postal receipt Photostat (Ex.R5) has been placed on file which is dated 5.10.2016 but copy of no document placed on file by op to show as to what document was despatched to the complainant and whether the same was actually received by her. Further more, the Arbitrator vide order dated 22.7.2016, while according permission to the bank to sell the aforesaid subject vehicle in question at the best possible price also directed to sell the same after getting the valuation done from the approved valuer and adjust the sale proceeds thereof towards the outstanding amount, if any and a report of the sale proceeds alongwith the statement of accounts of the respondents after the sale be placed on record. However, the op has not placed any valuation report or record of the sale proceeds on the file for consideration of the Forum. The opposite party has placed on file copy of details of sale of repossessed vehicle as Ex.R7 wherein the valuation amount of the tractor has been shown as Rs.2,00,000/-, principal outstanding has been shown as Rs.81,273.87, amount of unpaid installment has been shown as Rs.29,700/-, amount of next EMI and for broken period has been shown as Rs.3599.54, repossession charges has been mentioned as Rs.14300/-, parking charges has been mentioned as Rs.3520/-, legal charges and valuation charges has been mentioned as Rs.4450/-, foreclosure charges as per foreclosure report has been mentioned as Rs.4,673.18 and penal outstanding as per foreclosure has been mentioned as Rs.19,360.15 and by deducting parking charge of Rs.3520/- as paid by buyer in parking, an amount of Rs.1,96,480/- has been shown as deposited in the bank and by adjusting the outstanding amount against the complainant, the op refunded an amount of Rs.38,950/- to the complainant through cheque No.159772 sent alongwith letter dated 17.11.2016 though complainant refused to take the said cheque. To prove the case, the op has produced an affidavit of Sh. Arvind Kumar, Branch Manager of op bank.
7. The perusal of the record as placed on file by the complainant and op has revealed that loan amount of Rs.2,69,390/- was to be paid in 12 quarterly installments each of Rs.29700/- total amounting to Rs.3,56,400/- including interest of Rs.87010/- at flat rate of 10.77% (approximately). Hence, it is quite clear that each installment was comprised of part of principal and due interest. On the date of sale of tractor only four installments each of Rs.29,700/- including interest was outstanding against the complainant totaling Rs.1,18,800/- and overdue interest, if any, on account of delay in payment of installments. As is evident from Ex.R7, only a sum of Rs.114,573/- (Rs.81273.87 plus Rs.29700/- plus Rs.3599.54 ) was payable by the complainant in addition to overdue interest, if any. Since it was the decision of the op to recall the loan before the expiry of tenure of loan, the opposite party was entitled to amount of remaining four unpaid installments representing principal outstanding and the interest thereon and overdue interest, if any and the opposite party is not entitled to recover repossession charges of Rs.14,300/- and no record about expenditure of the amount in this regard has been placed on file. Further more, since the opposite party has not placed on record details of expenditure of any legal charges and valuation charges, therefore, the op is not entitled to recover the amount of Rs.4450/- as claimed by op from the complainant. The opposite party is not entitled to charge foreclosure charges as foreclosure is an option available to borrowers for closure of loan account earlier to the fixed term of the loan and as in the present case the complainant did not opt for foreclosure of the loan amount, therefore, said charges are not recoverable from the complainant. The op has not placed on record any document regarding rate of penalty in case of delayed payment of installment. Therefore, we accept the amount of Rs.19,360.15 as penal outstanding as claimed in Ex.R7 by op. The op has also not placed any record in respect of other expenses relating to sale/ foreclosure. In our considered opinion, only Rs.133933/- (Rs.114573/- unpaid installments including interest thereon and Rs.19360/- penalty on account of delay in payment of installments) was payable by complainant to the opposite party. The op is liable to refund excess proceeds amounting to Rs.62,547/- (Rs.1,96480 minus Rs.1,33933/-) to the complainant alongwith interest @10.77% from 17.11.2016, the date of letter as per Ex.R6. However, the amount if already paid may be deducted. The complainant has prayed to hand over the possession of the vehicle. But as mentioned above at this stage the sale of the tractor cannot be undone. Hence, the possession of vehicle cannot be handed over to her. From the foregoing facts and circumstances, it is proved beyond any doubt that the bank adopted unfair trade practice and was deficient in service and is liable for the same.
8. In view of the above, we partly allow the present complaint and direct the opposite party to refund an amount of Rs.62,547/- alongwith interest @10.77% per annum from 17.11.2016 till actual payment to the complainant and the amount, if any already refunded shall be deducted. We also direct the opposite party to pay a sum of Rs.25,000/- as composite compensation and litigation expenses to the complainant. The opposite party is liable to comply with this order within a period of 30 days from the date of receipt of copy of this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:6.2.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
