Kerala

Idukki

CC/2/2020

Rajappan - Complainant(s)

Versus

mahindra financial service ltd - Opp.Party(s)

Adv: c k babu

13 Oct 2022

ORDER

DATE OF FILING : 3.1.2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  13^th  day of October, 2022

Present :

                    SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.2/2020

     Between

Complainant                                        :   Rajan, S/o. Krishnan,

                                                                 Puthenpurayil House,

                                                                Mlamala, Manjumala,

                                                                Idukki.

(By Adv:  C.K. Babu)

        And

Opposite Party                                     :   Mahindra Finance,

                                                                 1^st Floor, Seheerom Plazza,

                                                                 Erattayar Road,

     BSNL Office, Idukki.

(By Adv: Saji Augustine)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 (the Act, for short).  Complaint averments are briefly discussed here under :

 

          Complainant had availed a loan of Rs.3 lakhs from opposite party, namely, Mahindra Finance, Kattappana, on 3.1.2018, for purchase of a Motor Cab (taxi) Mahindra Jeeto Mini Van LXD D+4 bearing Registration No.KL-37-D-3130.  Loan was to be repaid in 48 Equated monthly instalments of Rs.8710/-.  On 15.4.2018, vehicle met with an accident and was entrusted for repairs with authorised service centre at TVS, Kattappana, on 2.5.2018.  However, vehicle was not repaired by service centre.  Complainant had filed CC 153/2019, before this Commission against service provider, which is still pending.  As vehicle could not be plied owing to accident, complainant was  only able to pay 11 instalments towards repayment of loan.  On 30.12.2019,                                                                                                               (cont....2)

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a representative of opposite party had approached complainant and demanded Rs.5 lakhs towards arrears of loan, which was to be paid within 15 days.  Though complainant had demanded a statement of account, it was not furnished to him.  Complainant submits that the amount is claimed without any basis.  Rate of interest should not exceed 2% above the maximum rate of interest charged by commercial banks.  No law permits opposite party to claim an exorbitant amount either as interest or other charges under any head.  Complainant is ready and willing to repay outstanding amount as per law, or in the alternate to surrender the vehicle for market value.  Opposite party has no manner of right to seize the vehicle by force.  Representative of opposite party had threatened that the vehicle will be seized forcibly if entire arrears of Rs.5 lakhs as claimed by opposite party is not paid.  Complainant prays for a direction against opposite party for issuing a statement of account and to settle account as per law or in the alternate to take back the vehicle for market value.  He also seeks a direction against opposite party restraining it from seizing the vehicle forcibly.  Complainant claims Rs.20,000/- further towards legal expenses.

 

          2.  Opposite party had appeared and filed written version.  Its contentions are briefly narrated here under :

 

          According to opposite party, complaint is not maintainable in law or upon facts.  It is only an abuse of process of this commission.  On 28.12.2017, complainant had executed a loan agreement with opposite party.  Loan amount was to be repaid with interest in Equated Monthly Instalment of Rs.8710/-.  As per loan agreement, defaulted EMIs will attract additional interest till date of payment.  Opposite party was not aware of any accident which the complainant claims was caused, involving the vehicle in question.  Opposite party should not be penalised for any such incident and it has all the privileges and rights over the vehicle as per loan agreement. Complainant has paid only 5 instalments.  Defaults started from 5.6.2018.  It is incorrect to say that the default was after the accident.  No employee of opposite party had approached complainant and demanded Rs.5 lakhs or the vehicle as alleged.  Complainant had not approached opposite party requesting statement of account.  Opposite party provides all its customers’ statement of account free of cost on all working days during working hours.  No illegal or arbitrary demand was made by opposite party.  It has statutory right to demand additional interest on overdue instalments.  No coercive steps were taken by opposite party for seizing the vehicle.  Complainant has suppressed material facts and has made misleading statement in his pleadings.  There is no cause of action.  Complaint is only an attempt to make unlawful gains.  Complainant is not entitled for the reliefs prayed for.  There is no deficiency in service or unfair trade practice.  Complaint is to be dismissed with compensatory costs.

                                                                                                              (cont....3)

 

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          3.  After the filing of written version, case was posted for evidence after affording sufficient opportunity to both sides for taking steps.  On the side of complainant, he himself was examined as PW1 and Exts.P1 to P7 were marked.  No evidence was let in by opposite party, though  sufficient opportunity was granted for same.  Hence evidence was closed and both sides were heard.  Now the point which arise for consideration are :

1)  Whether opposite party had demanded exorbitant or illegal interest, charges or any amount towards loan arrears ?

2)  Whether there is any deficiency in service or unfair trade practice on 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 :

 

          Learned counsel appearing for complainant would reattriate pleadings of complainant and submit that his evidence with regard to the facts alleged is convincing.  Able counsel would submit that demand for exorbitant and illegal interest and other illegal charges made by opposite party amounts to deficiency in service.  There was threat to seize the vehicle forcibly also from the side of opposite party.  Learned counsel has placed  reliance on a decision of Hon’ble Kerala High Court in the matter of Basheer M.H. Vs. Wheels Auto Finance, Kaloor and another,  [2017 (3) KHC 3], in support of his contentions.  Learned counsel appearing for opposite party submitted in reply that the vehicle in question was surrendered by complainant during the pendency of this case.  That apart, there is no evidence to show that any illegal demand was made by or on behalf of opposite party for exorbitant interest or any other amount.  Complaint is only experimental in nature.  Same is to be dismissed with costs. 

 

          Thus, these are the rival contentions.  It is seen from the evidence tendered by complainant and Ext.P7, that the vehicle in question was surrendered by complainant on 23.12.2020.  Ext.P7 is a letter sent by complainant to opposite party admitting that he had executed a loan agreement with opposite party for repayment of Rs.4,12,203/- in Equated Instalments as per schedule attached to loan agreement.  He has further admitted that he was unable to pay instalments regularly.  That, as on the date of Ext.P7, Rs.2,09,040/- is overdue.  That he had voluntarily surrendered the vehicle.  He also states in the letter that the vehicle is to be disposed of at the best available market price and sales proceedings are to be credited against total amount remaining unpaid.  Though the letter is dated 23.12.2020, which was during the pendency of this case, those facts were not brought to the notice of this Court, until the complainant turned up for giving evidence.  First prayer in the complaint is for a direction against opposite party for issuing a statement of account and statement of account as per law or in the alternate to                                                                                                                       (cont....4)

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take back the vehicle for market value.  As per Ext.P7, complainant himself has admitted that loan overdues are of Rs.2,09,040/- as on the date of surrender letter.  He has no complaints that excess interest or charges were demanded by opposite party in Ext.P7.  He also has no grievance that a statement of account has not been given to him.  Leaving that apart, as far as alternate prayer is concerned, as the vehicle has been admittedly surrendered by complainant to opposite party, no direction against opposite party to take back the vehicle for market value is necessary.  Relief (b) is for a direction against opposite party to prevent it from seizing the vehicle by force.  Since the vehicle has already been surrendered, this prayer is now fructuous.

 

          We have gone through the decision submitted by learned counsel for complainant.  As per Section 7(1) of the Kerala Money Lenders Act of 1958, before amendment in 2019, a money lender can demand interest upto 12% as per notification SRO 255/2005.  As per Ext.P2 loan agreement, total amount to be repaid is Rs.4,12,203/-.  Loan amount is Rs.3 lakhs.  Interest comes to Rs.1,12,203/- for 4 years.  Percentage of interest per year would work out to only 9.35% per year.  Under this circumstances, we find that no exorbitant or illegal interest is payable as per Ext.P2 agreement.  Complainant has not stated who is the representative, who had demanded Rs.1 lakh towards loan overdues and threatened him with forcible seizure of the vehicle.  This representative is not made a party to this case.  Besides, as per Ext.P7, complainant himself had surrendered the vehicle acknowledging liability with no complaints that any exorbitant interest or other charges are being extracted from him.  Hence his case that Rs.5 lakh was demanded and that there was threat to sieze the vehicle by force are not at all convincing

 

          For these reasons, we find that complainant has not succeeded in proving that there was any deficiency in service from the part of opposite party or that it had resorted to unfair trade practice. As mentioned earlier, rate of interest charged as per Ext.P2 loan agreement is only 9.35% per annum.  Apparently, complaint is only an attempt by complainant to retain the vehicle which was lying in the workshop and gain time, probably even to avoid payment by pressurising opposite party.  Complaint appears to us as frivolous in nature.  Complainant is not entitled for any of the reliefs claimed as such.  Point Nos.1 to 3 are answered accordingly.

 

5.  Point No.4 :

 

          In the result, this complaint is dismissed.  We find that it is vexatious and frivolous.  Therefore, opposite party is entitled for compensatory costs in this case.  Considering the circumstances of the case, the amount involved and also the fact that an interim order was obtained from this Commission against opposite party, we are of the view that the complainant should pay Rs.5,000/- as compensatory cost apart from                                                                                                                     (cont....5)

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litigation cost of Rs.2,000/- to opposite party and we direct him to pay so, within 45 days from the date of receipt of a copy of this order.  If not, compensatory cost of Rs.5,000/- shall carry interest at the rate of 12% per annum from the date of order, till date of payment or realisation.  Parties shall take back copies of pleadings, documents and applications submitted by them after appeal time.  Interim orders passed in this case shall stand vacated. 

 

                    Pronounced by this Commission on this the   13^th   day of October, 2022

 

 

                                                                                                    Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

 

                              Sd/-

 SMT. ASAMOL P., MEMBER

 

                        Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                           (cont....6)

 

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1        -   Rajan

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1    -  Copy of RC book.

Ext.P2    -   Copy of loan agreement.

Ext.P3    -   Copy of CC No.153/2019 filed before this Commission.

Ext.P4    -   Receipts 4 in numbers.

Ext.P5    -  Receipt dated 11.4.2018.

Ext.P5(a) -  Receipt dated 23.1.2019.

Ext.P5(b)-  Receipt dated 24.11.2018.

Ext.P6     -  Pass Book.

Ext.P7     - Vehicle surrendering letter.

On the side of the Opposite Party :

Nil.

 

 

 

                                                                                          Forwarded by Order,

 

 

 

                                                                                   ASSISTANT REGISTRAR