BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint  Case No :  755 of 2009

Date of Institution :  26.05.2009

Date of  Decision   :  23.03.2010

Sankait Gupta s/o Sunil Gupta, #34, Basant Vihar, D.C. Road, Hoshiarpur, Punjab.

 ……Complainant

V E R S U S

(1)     Mahindra and Mahindra Financial Services Ltd., body of Corporate, Incorporated under the Companies Act, 1956, having its Branch Office, situated at SCO No. 3, 1^st Floor, Madhya Marg, Sector 26, Chandigarh, through its authorized representative Sh. Anurag Sharma.

(2)     Mahindra and Mahindra Financial Services Ltd., SCO No. 304, 1^st Floor, Pam Rose Building, Opposite International Hotel, Jalandhar.

.…..Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

          SH.ASHOK RAJ BHANDARI       MEMBER

PRESENT: Sh.Rajeev Gupta, Adv. for the Complainant.

         Sh.Sanjay Judge, Adv. for OPs.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, with a view to purchase a brand new Mahindra Scorpio car, the Complainant paid a sum of Rs.1,20,000/- in cash to the OP on 7.1.2006 and also obtained a loan of Rs.5,95,000/- from it (OP No.2), which was to be repaid in 60 EMIs of Rs.12,600/- each. Even the 1^st EMI of Rs.12,600/- was also paid and 10 blank cheques bearing No. 032331 to 032340 were also issued to the OP No.2. After completion of all the formalities, a Demand Draft for a sum of Rs.5,95,000/- was issued by OP No.2 in favour of M/s P.P. Motors at Karnal. Accordingly, after giving the said Demand Draft to said M/s P.P. Motors, the Complainant took the delivery of Mahindra Scorpio Car 2.6 GLX with Temp. Regn. No. HR61(T)3864, Engine No. 74810 and Chassis No. 61378. It was told by the said Car Dealer that rest of formalities of obtaining Registration Certificate would be completed by the OP No.2 being the Financier. It was averred that due to some financial crises, the Complainant could not pay the subsequent EMIs for the month of Feb.,2006 to July, 2006 in time and made the payment of Rs.45,000/- on 21.8.2006 (Annexure P-1) against the outstanding amount of Rs.63,000/-, at Ludhiana Branch Office of Mohindra & Mohindra Financial Services Ltd., thereby leaving a balance of Rs.18,000/- as outstanding in the loan account. Further, on 2.11.2006, he made payment of Rs.80,000/- against the outstanding amount of Rs.68,400/- (Annexure P-2) and requested the OP No.2 to credit the excessive amount deposited by him in the subsequent EMI for the month of December, 2006. After crediting the amount of Rs.80,000/- deposited by the Complainant, a sum of Rs.1,000/- remained outstanding against him in the loan account. It was alleged that the OP No.1 filed a false complaint against the Complainant by fileing a sum of Rs.63,000/- on the blank Cheque No. 32331, dated 10.7.2006, issued by him as a security at the time of taking the loan amount of Rs.5,95,000/-. At the instance of OPs that they would withdraw the complaint u/s 138 of N.I.Act against the Complainant, he also paid a sum of Rs.55,000/- in cash to OP No. 2 on 24.5.2007 against the outstanding amount of EMIs for the month of Jan. 2007 to May 2007 (Annexure P-3), but instead of honouring the commitment, they told him to make the payment of Rs.63,000/-  for which the complaint is pending along with Rs.9,000/- which was actually outstanding in the loan account of the Complainant. He tried to make OP No.2 understand the whole issue, but it was not ready to hear any thing. Finally, on 24.5.2007, the employees of OP No.2 took the forcible possession of the vehicle. Thereafter, the complaint tried to contact the dealing hand of OP No.2, who flatly refused to do anything and rather, advised him to approach OP No.1, which when contacted, also told him to make the payment of Rs.63,000/- along with balance outstanding amount in the loan account, failing which they would fill the amount of their choice on the other bank cheques of the Complainant, lying with them. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed that the OPs be directed to:-

i.   To release the above said vehicle to the Complainant.

ii.  To accept the balance amount in installments.

iii. Not to impose penalty and other frivolous charges.

iv.  Not to sell/alienate the above said vehicle to any other person in any manner till the decision of this Forum.

v.   To pay Rs.8.00 lakh as compensation for causing harassment, mental agony and sufferings.

vi.  To pay Rs.11,000/- towards litigation cost.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs in their joint written statement, while admitting the factual matrix of the case/reply, pleaded that no documentary evidence had been appended by the Complainant of having paid a sum of Rs.1,20,000/-. The Complainant defaulted in making the regular payments by way of EMIs as due and applicable upon him towards the discharge of his liability, but against the sum only a part payment was made on 21.8.2006 for a sum of Rs.45,000/-; whereas, the outstanding amount was much more. No request of adjustment of any amount was ever made by the Complainant. Nevertheless if any excess payment was received by the OPs, that automatically stands credited against the outstanding amount of the loan and was accordingly, adjusted in future EMIs. It was submitted that the Complainant owed a sum of Rs.7,55,130/- towards the discharge of his liability and towards the realization of the same, the OPs attempted to realize the payment due and payable by the Complainant towards the OPs. The OPs had acted as per law to recover their outstanding amount due and payable timely, by the Complainant who had defaulted in making regular EMIs towards the discharge of his liability. The Complainant owed a sum of Rs.3,61,800/- as on date, the over dues towards the loan amount to the OPs and the OPs were within their legal right to recover their outstanding dues legally as per law. The pre-closure amount including additional finance charges and other expenses such as delayed payments, legal charges were to the tune of Rs.7,55,130/- as the loan period was upto 16.12.2010. The vehicle was still in the possession of the Complainant. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      Parties led evidence in support of their contentions.

5]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsels for the Complainant and OP Nos.1 & 2. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having purchased a Mahindra Scorpio Car by making payment of Rs.1.20 lakh in cash on 7.1.2006 and also obtaining a loan of Rs.5.95 lakh from OP No. 2, repayable in 60 EMIs of Rs.12,600/- each, have all been admitted. The 1^st EMI of Rs.12,600/- was paid by the Complainant to the OP and 10 blank cheques bearing No.032331 to 032340 were also issued to OP No. 2. Accordingly, OP No. 2 paid the loan amount of Rs.5.95 lakh to M/s P.P. Motors at Karnal, from where the Complainant had purchased the vehicle. A Temp. Registration No. HR61(T)3864 was also allotted to the said Mahindra Scorpio Car.

ii] It is also an admitted fact that the Complainant on account of certain financial problems, could not pay the subsequent EMIs for the months of Feb. 2006 to July, 2006 (i.e. for 06 months), but made subsequent payments in piecemeal i.e. Rs.45,000/- on 21.8.2006 and Rs.80,000/- on 02.11.2006. As per the Complainant, by making these payments, he had cleared all pending EMIs and that only a sum of Rs.1,000/- remained outstanding against him in the loan account. The Complainant further says that OP No. 1 filed a false complaint against him by filling a sum of Rs.63,000/- in the blank cheque No. 32331, dated 10.7.2006, which had been issued by him only as a security at the time of taking the loan amount of Rs.5.95 lakh. Keeping in view this development, in which the OPs had filed a case against him u/s 138 of the Negotiable Instruments Act, he further paid a sum of Rs.55,000/- in cash to OP No. 2 on 24.5.2007, against the outstanding EMIs for the months of January, 2007 to May, 2007. As per the Complainant, even then, the OPs did not withdraw the case filed by them against him u/s 138 of the Negotiable Instruments Act, but on 24.5.2007, the employees of OP No. 2 took forcible possession of the vehicle and when he contacted the OPs to get back the vehicle, he was told to pay another Rs.63,000/- along with balance outstanding in the loan account.

iii] All these allegations made by the Complainant have been denied in the joint written statement of the OPs, saying that the Complainant was a defaulter in making regular payments in discharge of his outstanding liability in the loan account.  He was only making part payments and never cleared the entire outstanding balance in his loan account at the proper time. As per the OPs, the Complainant still owed them a sum of Rs.7,55,130/- towards the discharge of his liability and that they have taken only legal steps to recover their outstanding amount. The OPs further say that even after making all the payments of the EMIs as on date, the Complainant owes a sum of Rs.3,61,800/-, apart from legal charges to the tune of Rs.7,55,130/-. Lastly, as per the OPs, the vehicle in question was still in the possession of the Complainant; whereas, as per the Complainant, the vehicle has been seized by the OPs from him on 24.5.2007. 

iv] Apart from the other allegations, the Complainant has also stated that he does not have any proof for the purchase of the vehicle and also not made M/s P.P. Motors, Karnal, as a party, from where he had purchased the said vehicle, on account of the fact that the OPs did not supply the original documents of the Car to him and as a result of which, the temporary number of the vehicle could not be converted into a permanent regular number. Keeping in view these facts, he has no grievance whatsoever, against the said M/s P.P. Motors, Karnal and, therefore, he has not made them as a party in the present case. Moreover, he is not seeking any relief against that party. All the reliefs being asked by him are only against OP No. 1 and OP No. 2.

v]  From the detailed analysis of all the facts and figures of the case, including the documents available in the file, it is quite clear that the Complainant has not been at all punctual and regular in making payments of the EMIs to the OPs. The latest statement of account dated 28.2.2010, issued by the OPs, in respect of the car loan account of the Complainant, shows that the Complainant had paid EMI installments starting with 16.1.2006 and ending with 16.3.2007 i.e. 16 EMI installments in all. Subsequent to this date and till February, 2010, he has not made any payment into his loan account. Therefore, it is well established that the Complainant is a chronic and persistent defaulter. As on date, the outstanding balance standing in his account is Rs.4,37,400/-, besides penal charges of Rs.2,45,824/-, which remains unpaid till date. In respect of the second allegation of the Complainant against the OPs i.e. that his vehicle was seized by the OPs forcibly from him on 24.5.2007, is also not supported by any document or evidence. There is neither a seizure report of taking over of the said car forcibly by the OPs or about the voluntary surrender of the vehicle by the Complainant to the OPs. There is also no DDR/FIR lodged by the Complainant against the OPs against the forcible seizure of the car by the OPs and lastly, the OPs have also stated on oath through an affidavit that the car in question was still in the possession of the Complainant and not with them. All these documents and assertions made by the OPs have not been adequately and satisfactorily rebutted by the Complainant with reliable evidence or document. The Complainant has failed to produce any cogent evidence or corroborative document in support of his contention that the OPs have forcibly taken possession of his vehicle. In view of this, the allegations of the Complainant cannot sustain. On the contrary, the pleadings and arguments of the OPs stating that the Complainant is a regular and chronic defaulter in paying EMIs, are supported by the Statement of Account of the Complainant’s loan account, which could also not be rebutted by the Complainant to establish his case. The Complainant has also not attached any Loan Agreement signed by him and the OPs, stating the detailed terms and conditions of the loan taken by him from the OPs, so that he could show as to which terms and conditions of the loan agreement were violated by the OPs. In fact, in the entire complaint, as well as the written arguments, put on record by the Complainant, there is no mention anywhere about the violation of the terms and conditions of the Loan Agreement. It is also an established fact, duly admitted by the Complainant himself that he has been making payments of the EMIs only in piecemeal and on adhoc basis and never in full discharge of the outstanding EMIs. He has not been paying the EMIs on the dates, when these actually fell due, which has resulted in the levying of late payment charges, overdue charges and other penalties imposed by the OPs, as per their Rules and which has resulted in swelling the outstanding balance in the Loan Account.

6]      Keeping in view the foregoings, as also the entire record on the file, it is our considered view that the Complainant has not been able to conclusively prove the allegations levelled by him against the OPs, both in respect of his being declared as a chronic and regular defaulter in making payment of the EMIs, as also in respect of the alleged forcible possession of his Mahindra Scorpio Car by the OPs on 24.5.2007.  Both these allegations remain unproved and unsupported by any cogent evidence or other corroborative documents. Therefore, these allegations of the Complainant against the OPs simply fall flat and are not sustainable. Thus, we do not find any deficiency of service or indulgence in an unfair trade practice on the part of the OPs. Therefore, the present complaint cannot succeed in favour of the Complainant and against the OPs. As such, we dismiss the complaint. However, the respective parties shall bear their own costs.

7]     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

23.03.2010                                       Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                Sd/-   

(ASHOK RAJ BHANDARI)

MEMBER

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