D.O.F. 01.12.2011

                                            D.O.O. 15.01.2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                   :                President

                   Smt. Sona Jayaraman K.  :               Member

                   Sri. Babu Sebastian         :               Member

Dated this the 15^th day of January, 2014.

C.C.No.359/2011

1. Hameed Kurukkan Manikkoth

    S/o. Assainar

    Tharayil Peedikayil

    Nayakkan House,

    Keeriyad

    Valapattanam, Kannur-9.                                 :         Complainants

2. Sameer Nayakkan

    S/o. Hameed Kurukkan

    Tharayil Peedikayil, Nayakkan House,

    Keeriyad, Valapattanam,

    Kannur-9

(Both Rep. by Adv. C. Bhaskaran)

1. Magma Fincorp Limited

    Magma House

    24, Park Street, Kolkata – 700016

2. Manager

    Magma Fincorp Limited                                    :         Opposite Parties

    Branch Office, J.R. Complex

    Talap, Kannur-4

(Both rep. by Adv. Philip T. Varghese)

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite parties to receive `5,08,540 by instalment or lump sum amount from the complainant and to return all the related documents of the vehicle including the cheques issued by complainant closing the loan account.

          The case of the complainant is as follows: Complainant has taken a higher purchase loan for `23,50,000 to an Excavator Jc13/Js81.  The total price was `28,50,000.  Opposite party agreed to finance `23,50,000.  It was agreed to pay a total amount `30,51,264 by 48 monthly instalments @ `63,588 each per month.  The first complainant has been paying monthly instalments `63,588 each.  According to the opposite party the running balance is only `1,25,346 including delayed payment charge `52,072 on 19.11.2011.  There is no provision for delayed payment charge in the agreement.  Opposite party started legal proceeding against the complainant.  Opposite party filed application under Section 9 of Arbitration and Conciliation Act 1996 before Hon’ble High Court of Calcutta to appoint receiver to take possession.  The complainant’s are ready to pay the running balance `1,25,346 including delayed payment charge `52,072 if opposite party allows to continue the agreement of hire purchase.  The complainants are ready to pay future instalments after withdrawing all the legal proceedings.  The said higher purchase was taken for 4 years and complainants are prepared to pay the amount including the interest for 4 years.  Hence this complaint for an order directing the opposite party to receive `5,08,540 by instalment or lumpsum amount from the complainant and to return of all related documents cheques and to close the loan account.  The demand to pay unnecessary interest and delayed payment charge is illegal and unjustifiable.  Hence this complaint.

          Pursuant to the notice sent by the Forum opposite party made appearance and filed version denying the main allegations of complainant.  The brief of the contents raised by the opposite party is thus :  The complainant had availed loan and executed agreement on 08.06.2010.  The loan was agreed to pay 48 monthly instalments.  He is bound to pay instalments on the 1^st day of each month.  In case of delay he is bound to pay penal interest.  During the pendency of the proceedings before High Court of Calcutta the complainant cleared the installments in arrears and regularized the account.  Complainant undertook to pay balance amount installments on the due dates along with the interest due from him on account of delay.  So the opposite parties have withdrawn the proceedings initiated by them before the Hon’ble High Court of Calcutta.  Opposite party has no intention torepossess the Excavator at present.  As the opposite parties have withdrawn the proceedings before the High Court of Calcutta considering the request of the complainant and his understanding to pay the future instalments along with the penal interest done, the relief sought for in the complaint has became infructuous.  On the above pleadings the following issues have been taken for consideration.

1.  Whether there is any deficiency in service on the part of opposite party?
2. Whether the complainant is entitled for the remedy as prayed for?
3. Relief and cost.

The evidence consists of the oral testimony adduced by the complainant and Ext.A1 to A6.  Complainant/PW1 was cross examined elaborately for opposite parties but thereafter opposite parties remained absent.  Though opposite party received notice issued by Forum they have not turned up and made appearance before the Forum.  No evidence adduced by opposite parties. 

          Complainant adduced evidence by way of affidavit evidence that opposite parties allowed `23,50,000 (Twenty Three Lakh Fifty Thousand  only) and agreed to pay interest `7,01,264 as interest.  It was fixed pay the amount by 48 instalments @ `63568 per month and opposite party obtained 3 blank cheque from complainant.  Complainant paid the amount regularly which will be revealed by voucher copy of the ledger.  The case filed against complaint before the Hon’ble High Court was false.  Affidavit evidence further states that he was paid `2542724 upto 21.11.2013.  The balance to be paid according to payment schedule is only `5,08,854 which he is ready to pay.

          In cross examination complainant deposed that he is not liable to pay the delay payment charges with interest.  He was not aware of such terms.  He was not told to pay delay payment charge at the time of taking the loan.  PW1 also deposed that he has paid instalments even after filing this complaint and he has paid all the instalments upto 21.06.2012.  He has also stated that the excavator is used for his livelihood.

          Though complainant was elaborately cross examined by opposite party, they did come forward to adduce any evidence to rebut the evidence given by the complainant.  The pleading in the version is not an evidence.  Hence merely filing version is not enough to establish the case.  No one was examined on the part of opposite party.  Even in cross examination complainant deposed that he has paid entire instalments upto 21.06.2012.  If that is not true opposite party should have been adduce evidence and state  was wrong.  Ext.A6 goes to show that complainant has paid `63,568 on 21.11.2013.  Complainant also produced that part of ledger as on 22.11.2013 for the agreement code H9/G/0121/09/000055.  It is pertinent to note that repayment schedule had been prepared in advance including all types of interest including cost up to termination of the loan period.  Hence opposite party is not entitled to ask for any amount over and above already agreed upon.  Opposite party failed to prove that complainant has violated any of the conditions of the agreement.  Hence the claim of legal charge from the complainant cannot be justified.  Opposite party failed to convince the Forum the rate of penal interest legally chargeable on default of repayment towards the principal amount.  They have not taken interest to place facts and figures before the Forum, inorder to establish their case shattering the case of complainant. Available evidence prove the case of the complainant as true.

          Taking into consideration the facts and circumstances of the case we are of opinion that there is deficiency in service on the part of opposite party and complainant is entitled to get an order directing the opposite party to receive the balance amount `5,08,540 by lump sum amount from the complainant and to close the loan account returning al the related documents.  Thus issues No.1 to 3 are answered partly favourable to complainant.  Order passed accordingly.

          In the result, complaint is allowed partly directing the opposite party to receive the balance amount `5,08,540 (Rupees Five Lakhs Eight Thousand Five Hundred and Forty only) and to close the loan account returning all the related documents including cheques, within one month of receiving the amount.  Complainant is entitled to execute the order after 30 days of payment of the amount.

          Dated this the 15^th day of January, 2014.

                           Sd/-                      Sd/-              Sd/-

                       President               Member          Member   

APPENDIX

Exhibits for the Complainant

A1.  Ledger

A2.  Copy of lawyer notice dated

A3.  Demand notice by OP.

A4.  Notice issued by Arbitrator.

A5.  Copy of payment receipt

A6.  Original payment receipt issued by OP.

Exhibits for the opposite party

Nil

Witness examined for the complainant

PW1. Complainant

Witness examined for opposite party

Nil

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT