Date 30/01/2013
Per Mr.B.A.Shaikh Hon’ble Presiding Judicial Member
1. This appeal is preferred against the judgment and order dated 17/07/2007 passed by Dist. Forum, Ahmednagar in.CC. no.617/2006 by which the complaint has been dismissed and complainant has been directed to deposit cost of Rs 5000/- with the said Forum and further direction has been given to pay Rs 20,000/- to the opponent No. 1 deposited by the complainant in Dist. Forum below as per interim order.
2. The complainant has preferred this appeal. His case in brief is that he had purchased Mahindra Pick Up Van from the dealer/respondent No.3 Bora Auto for Rs 3,74,000/- He obtained loan of Rs 1,34,000/- from respondent No. 1 which was paid to respondent No. 3 towards part of price of that vehicle. He paid balance amount incash directly to the respondent No. 3 Bora Auto. He had agreed to repay the said loan of Rs 1,34,000/- in 20 monthly installments of Rs 7,800/- each. He could not repay the said installments in time. Therefore, the respondent No. 1 threatened him about taking possession of that vehicle from him. The complainant therefore was ready to pay due installments. The respondent No. 1 said that entire dues be paid at one time or otherwise vehicle will be forcibly taken away. Therefore the complainant prayed that direction be given to the opponent to take from him amount of the installments due and not to take possession of that vehicle from him and they be directed to pay him Rs 10,000/- towards compensation and Rs 2,000/- towards cost of litigation.
3. The opponent No. 1 filed its written version and thereby resisted the claim. It submitted that, it had advanced loan of Rs 3,49,000/- to the complainant and he agreed to repay the same with finance charges of Rs 1,19,000/- . It further submitted that the said loan was tobe repaid in 60 installments of Rs 7800/- each , but the said installments were not paid regularly, inspite of repeaded demands It also submitted that, an amount of Rs 3,77,822/- was due from the complainant and he had agreed to foreclose the said account. It is still ready for rebate for premature termission of contract and hence, there is no deficiency in service provided by it to complainant. It denied that, only Rs 1,34,000/- was advanced by it by way of loan. It therefore submitted that complaint may be dismissed.
4. The respondent No. 2 filed no written statement. The respondent Nos. 3 and 4 in their written statement denied the case of complainant and submitted that complaint may be dismissed.
5. The Dist. Forum below after considering evidence brought on record and hearing advocates of contensting parties, believed the aforesaid defence of respondent Nos. 1, 3 and 4 and came to the conclusion that the loan advanced by respondent No. 1 was to be repaid tobe in 60 installments and that complainant paid only 13 installments out of 23 installments due and still 37 installments are due from the complainant. It also observed that, the complainant did not deposit due installments during pendency of complaint, despite of interim direction given by it to him. Therefore, it held that complainant is not entitled to any relief. It therefore dismissed the complaint and passed the impugned order.
6. It is submitted by Shri. K.N.Lokhande the learned advocate appearing for appellant/complainant that though direction was given by the Dist. Forum below to the opponent No.1, it produced no documents to show that it had advanced loan of Rs 3,49,000/- to the complainant and hence, adverse inference may be drawn against it. He further submitted that the loan agreement was signed by the complainant when it was blank and hence it can not be proved that loan of Rs 3,49,000/- was advanced to the complainant by the respondent No. 1. The appellants advocate also filed written notes of argument. In brief it is stated in the said notes of argument that appellant/complainant had paid Rs 2,50,000/- to the dealer Bora Auto by cash and it was told to appellant that he will get receipt of that amount lateron from the Bora Auto Office, Pune but the said receipt was not given. It is further stated that complainant deposited Rs 20,000/- in the Dist. Forum below and in affidavit complainant has stated that he did not sale the vehicle to anybody but the Dist.Forum has come to wrong conclusion. It is further stated that the respondent No. 1 forcibly took possession of that vehicle on 19/09/2007 though order of status quo passed by this Commission was inforce. Hence, it is submitted by learned advocate of the appellant that appeal may be allowed.
7. On the other hand advocate Shri.A.K.Patani appearing for respondent No. 1 supported the impugned order and relied upon the decisions in the following cases.
i) Mahindra & Mahindra Finance Company Ltd – V/s- Sankatha Prasad and others, reported in 212 (I) CPR 197 (NC).
ii) Mahipalsingh –V/s- S.D., OP. City S/Divn, reported in 2012 (I) CPR 44 (NC).
iii) Shriniwas – V/s- Mahindra Finance, reported in 2011 (3) CPR 113 (NC)
The ratio laid down in these cases in brief is that in case of default in paying loan amount, as per agreement, financier is authorised to repossess vehicle and that a person who approaches Forum with unclean hands and conceals material facts, is not entitled to relief under law.
8. The, burden lies on complainant/appellant to prove that he had taken loan of Rs 1,34,000/- from the respondent No. 1 and he had paid balance price of Rs 2,40,000/- incash to the respondent No. 3 Bora auto dealer towards entire price of Rs 3,74,000/- of the Mahindra Pick Up Van purchased by him from the said respondent No. 3. However, the complainant besides his own affidavit, produced no evidence to prove the same. It is surprising to note as to how huge cash of Rs 2,50,000/- was paid by complainant to the dealer Bora Auto, without receiving any receipt thereof. It does not appear natural that complainant would pay such huge amount to the said dealer without taking any receipt from him. Therfore on this ground the case of the complainant can not be accepted that he had paid Rs 2,50,000/- in cash to the dealer Bora Auto.
9. On the contrary the respondent No. 1 had produced before Dist.Forum affidavit, loan agreement, statement showing due installments, arrears of installments and penal interest. The loan agreement showing that total loan of Rs 3,49,000/- was advanced by the respondent No. 1 to the complainant is rightly believed by the Dist.Forum below, in the absence of any cogent evidence in rebutal. Non production of other documents by the respondent No. 1 before the Dist. Forum, though called for, is no ground to disbelieve the aforesaid documents produced by the said respondent No. 1 .The appellant can not take new ground in this appeal that, his signature was obtained on blank agreement of loan by respondent No. 1, when no such plea was taken in complaint by him. Moreover, it is not stated in the complaint as to actually what amount in cash was paid by complainant to the Bora auto dealer and why receipt of that payment in cash was not obtained by the complainant from the said dealer. The complaint is very vegue as regards these material perticulars. The complaint also does not show as to how many installments were paid and when they were paid. The complaint also does not show as to actually what amount was due from the complainant on the date of complaint. Thus in the absence these material pleadings and in the absence of the aforesaid material evidence, it can not be said that there is deficiency in service provided by respondent to the complainant by demanding the amount due from him. In our view, as per loan agreement the respondent No. 1 is entitled to reposses the vehicle in case of default in payment of installments due. The complainant himself admitted in the complaint that he did not paid installments regularly.
10. The complainant as observed above has not proved that the respondent No. 1 has advanced loan of Rs 1,34,000/- only to him Therefore, the Dist. Forum has rightly refused to grant any relief to the said complainant. It also rightly directed the complainant to deposit Rs 5,000/- in the Forum as costs due to filing of false complaint. However, it is seen that as per provison of Section 26 of Consumer Protection Act, 1986, direction can be given to pay costs to opposite party, if the complaint is found frivolous or vexatious. In the present case we find complaint as not frivolous or vexatious . Moreover, no direction can be given to deposit cost of Rs 5000/- in District Forum as per aforesaid provision. Hence, direction given about deposit of penalty of Rs 5000/- in District Forum needs to be set aside by partly allowing appeal. We find no error in other conclusion arrived at under impugned judgment and order. Hence following order.
O R D E R
1. The appeal is partly allowed.
2. The direction given in clause No (iv) of impugned order about deposit of penalty of Rs 5000/- in District Forum below in Dist. Forum below is set aside. Rs 5000/- if deposited in District Forum Ahmednagar be refunded to the complainant, after verification of record.
3. Rest of impugned order is confirmed.
4.. Copies of this judgment and order be issued to both the parties.
Pronounced on 30th January 2013
