Haryana

Ambala

CC/155/2012

SATISH KUMAR - Complainant(s)

Versus

L AND T FINANCE LTD. - Opp.Party(s)

R.K DUGGAL

11 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 155 of 2012

                                                          Date of Institution         : 18.05.2012                             

                                                          Date of decision   : 11.04.2017

 

          Satish Kumar age about 60 years son of Shri Satnam Singh Luthra, resident     of house No.70, New Hamida Colony, near Luxmi Cinema, Yamuna Nagar,          Tehsil Jagadhri, District Yamuna Nagar.

 

……. Complainant.

 

 

1.       Executive Head, L & T Finance Limited Mahesh Nagar, Ambala Cantt.

2.       Head Branch Office, L & T Finance Limited SCO 32, Sector -26D, Madhya      Marg, Chandigarh.

3.       L & T Finance Limited 38, Luxmi Towers, C-25, G Block, Bandra Kuria           Complex, Bandra (E), Mumbai, through its Managing Director.

 

 

….…. Respondents.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   MS. ANAMIKA GUPTA, MEMBER       

 

Present:       Sh. R.K. Guggal, counsel for complainant.

                   Sh. Puneet Sirpaul, counsel for OPs.

 

ORDER:

                   In nutshell, brief facts of the present complaint are that the complainant purchased a tractor make Sawaraj-735, in Yamuna Nagar bearing registration No. HR-02-Q-2343 and the same was financed with the OPs vide Loan cum Hypothecation agreement No. 00001/TLA/09203 dated 29.09.2006 under Kisan Gaurav Loan cum Hypothecation Agreement to the tune of Rs.2,55,000/- and Rs.1,00,000/- was paid in cash and at the time of agreement, the OPs also got the signature of the complainant on some blank papers. Further submitted that the complainant had paid the installments of the said loan of Rs.9,105/- to the OPs upto 29.11.2007 but thereafter, the OPs did not turn up to the receive their installment. Further submitted that on 09.02.2008, the OPs forcibly took the possession of the said tractor from the complainant and his driver and further got the signature of the driver of the complainant forcibly on some papers and the complainant moved an application to the S.P., Yamuna Nagar, but no action has been taken so far. Further submitted that on 19.02.2008, the OPs sent a false and frivolous notice to the complainant in which they told that a sum of Rs.2,29,301/- are outstanding towards the complainant and thereafter on 22.02.2008 the complainant received another notice form the OPs in which they demanded a sum of Rs.35,525/- from the complainant. Further submitted that when the complainant went to the OPs with the said amount of Rs.35,525/-, the Ops refused to accept the same and told the complainant to deposit the entire amount immediately and further threatened the complainant to sell his said tractor to somebody and to misuse the blank signed papers of the complainant  illegally, unlawfully and forcibly for which they have got no right title or interest. Further submitted that the complainant filed a civil suit titled as “Satish Luthra Vs. L & T on 13.03.2008, in which stay was granted by the Hon’ble court, but the said suit has been dismissed as withdrawn on 08.01.2009 to file the present complaint before this Hon’ble Forum. Further submitted that if the OPs are not restrained from achieving their said illegal missions and designs, the complainant shall suffer irreparable loss and injury. Hence, the present complaint.

2.                Upon notice, OPs appeared and filed written statement submitting that  the said vehicle was voluntarily surrendered by the complainant and the present complaint is filed after a gap of long time and as per clause set out in the terms and conditions of the hypothecation agreement, this Hon’ble forum does not have the territorial jurisdiction to entertained the present complaint as per clause. Further submitted that the relationship between the complainant and the OP is pursuant to the contract entered into between the parties hereto and the complainant in the entire complaint has no where contented or averred that the OPs have in any manner breached or violated any of the previous provisions and conditions of the contract and as per clause 14.2 of the agreement entered into between the parties hereto; all disputes, differences claims and questions whatsoever arising out of this agreement shall be referred to the sole arbitrator. Further submitted that as a matter of fact the complainant had availed loan from the company and signed the agreement after understanding all the terms and conditions of the agreement. A loan was lent to the complainant to be repaid in monthly installments. But the complainant did not turn out to be a good borrower; he committed regular and intention default and did never obey his commitment of timely payments. There was regular and prolonged delay in the payment of monthly installments and therefore the complainant himself surrender the vehicle in question and thereafter presale notice was given on 19.02.2008 to the complainant and her wife Harpreet Kaur. Moreover intimation was also given to the SSP, Yamunanagar regarding the surrender of the vehicle immediately. In the presale notice date 19.02.2008, it was clearly mention in the notice that in case of non-compliance of the said notice with in the prescribed period the answering OPs shall be constraint to sell the said Tractor. After receiving the presale notice the complainant did not turned up, thus due to the non-compliance of the said notice in the prescribed period, the said was tractor sold on 20.03.2008 at the best available price, by the answering OPs along time after the period mentioned in the said notice expired, after reserving their right to recover the balance amount which might fall short after sale of the said tractor. Further submitted that the complainant is not a consumer as per the definition of consumer under the Consumer Protection Act. As the vehicle financed to the complainant is commercial vehicle and is being used for commercial purpose and the same is evident from the averments made by the complainant himself in his complaint.

3                 To prove his version complainant has tendered affidavit as Annexure C-X alongwith documents as Annexure C-1 to annexure C-19 and closed his evidence. Counsel for OP has also tendered affidavit as Annexure R-X alongwith documents Annexure R-1 to Annexure R-15 and closed his evidence.

4.                We have heard learned counsel for the parties and carefully gone through the case file. It is admitted fact that the complainant had purchased a  tractor in question for an amount of Rs.3,50000/- and same was financed by the OP for Rs.2,55,000/- and Rs.95000/- were paid as earnest money by the complainant and it is also not disputed that the complainant has to pay the loan amount in 18    bi-monthly/equal installment of Rs.18210/- each. The OP alleged that the complainant failed to pay the installment as per schedule and they have issued the notice dated 26.01.2008 Annexure R-1 for payment of the installment amounting to Rs.17315/- and current installment of Rs.18210/-. The total amount of Rs.35525/- alongwith the penal interest within seven days otherwise as per the penal clause in agreement, they are liberty to initiate the legal action & can terminate the agreement and exercised our right to repossess the vehicle in question. OP has further alleged that complainant has surrendered the vehicle on 09.02.2008, however, no documents has been placed on the file with regard the alleged surrender. It seems that vehicle in question has been forcibly repossessed by the OPs.            It is proved on the file, the total amount has been paid by the complainant as on the date of the repossession is Rs.91945/- as per Annexure R-15 i.e. account statement, as outstanding amount was due on 09.02.2008 is Rs.1,45,680/- (16 installment x Rs.9105/- or 8 installments in bi monthly). Accordingly, the total amount due as on date of the repossession come to Rs.53745/- and total outstanding loan installment as on 09.02.2008 which was Rs.1,82100/- (Total instatement 20 x Rs.9105/- or 10 x Rs.18210/-). So, it is clear that the complainant has paid the total amount of Rs.91945/- against the total amount of 8 bi-monthly installments or 16 month installments. In this way, the complainant was in arrear of the Rs.53745/- as on 09.02.2008 and balance amount remaining 20 installment per month or 10 bi-monthly installment come to Rs.182100/-. So, the total amount due towards the complainant in the month of February 2008 was Rs.235845/- (Rs.1,82,100+Rs.53745/-). The pre-payment of the remaining 20 installment includes the interest also. So at the most of OP were entitled to recover the sum of Rs.235845/-. The complainant had purchased the vehicle for Rs.3,50,000/- on 29.09.2006. On the other hand, OP has alleged that they had sold the vehicle for the sum of Rs.2,30000/- in the month of March 2008 but there is no documents on record with regard to actual sale transaction and OP has also not disclosed the details of the sale. It means that OP has not adopted any legal procedure before selling the vehicle in question. In this way, OP has indulged in the unfair trade practice. To strengthen his case, counsel for OP has placed reliance on case law settled by Hon’ble National Consumer Disputes Redressal Commission New Delhi case title Sri Jasobanta Narayan Ram Vs. The Branch Manager, L & T Finance Limited 2014(2)CLT 31 and Tata Motors Ltd. ors. Vs. Ashish Aggarwal & ors. page 34, 2014(2) CLT which are not applicable in the present case.

5                 As in any case, we hold that the value of the vehicle at the time of the alleged sale was not less than Rs.2,97,500/- after deduction 15% depreciation as per depreciation table of purchased price i.e. Rs.3,50,000/-. In this way, total value of the vehicle in question comes to Rs.2,97,500/- and OP has alleged that they have sold the vehicle in question for Rs.2,30000/-/. Hence, the OPs have sold the vehicle less than the value of the vehicle mentioned above. So, OPs are liable to pay an amount of Rs.61,655/- to the complainant (Rs.297500/- actual assessed cost an amounting Rs.2,30000/- as vehicle sold by OPs – Rs. 5845/- amount due against the complainant as mentioned above =  Rs.61,655/- )

So, we are of confirmed view that there is a great deficiency in service on the part of the Ops and unfair trade practice and the present complaint is partly allowed with costs and costs is assessed Rs.10000/-. We also assess the compensation to the tune of Rs.20000/- on account of harassment suffered by the complainant at the hands of the OPs and direct the Ops to comply with the following direction within thirty days from receipt of copy of the order:-

(i)        To pay Rs.61,655/- to the complainant with interest @ 9% from the date of the complaint which was initially instituted on 20.02.2009 at Yamuna Nagar till its realization.

(ii)       To pay Rs.20,000/- on account of compensation

(iii)     To pay Rs.10,000/- as  cost of proceedings.

                   Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on :11.04.2017                                                  Sd/- 

                                                                                       (D.N. ARORA)

                                                                                                 President

 

                                Sd/-

                    (ANAMIKA GUPTA)

                                                                                                 Member