By Sri. Mohamed Ismayil.C.V, Member

The grievance of the complainant is as follows:-

1.       On 24/07/2019, the complainant availed a loan of Rs. 2,05,000/- from the opposite party for purchasing KL-54-L-8836 RE-MAXIMA CARGO DIESEL BS GOODS CARRIER. As per the agreement, EMI of the loan was fixed as Rs. 6,397.65/- repayable in 48 instalments to the opposite party.  So  far  the complainant repaid  24 instalments which comes to the   tune  of total  Rs. 1,47,050.35/- including last instalment remitted on 29/06/2021.  Even during the struggling period of covid -19 pandemic, the complainant managed to repay the loan amount with much constraints. According  to the complainant, if  the EMI  of Rs. 6397.65/- is paid  in 48 instalments, then   the total amount  will come  to the tune of Rs. 3,07,072/- covering both  principal  amount  and its interest.  The complainant claimed that the remaining balance is only Rs. 57,950/- and on 09/07/2021 the complainant approached the opposite party for making repayment of the entire balance amount. But the opposite party did not receive the amount   stating that   the complainant should pay 34 instalments of amount to close   the loan.  On the basis of demand made by the opposite party, the complainant has to pay total 58 instalments instead of 48 instalments which was stipulated in the agreement deed.  According to the complainant, then the total liability would come to the tune of Rs. 3,71,046.30/-.   If such amount is paid, out of which almost half amount would be the interest of the principal loan amount.  The unilateral alteration in the agreement created panic on the complainant.  The complainant availed loan from the opposite party  on the condition  of making  repayment  in 48 instalments and  the opposite party also made believe the complainant in such manner.  The complainant would not have availed the loan, if 58 monthly instalments were stipulated in the agreement.  It is alleged in the complaint that the opposite party is threatening of institution of cases against the complainant and surety and make damages to Cibil score. The complainant is not ready to entertain relationship with the opposite party.  On 15-07-2021 the complainant sent a lawyer notice to the opposite party, but turned down.  The act of the opposite party caused financial loss and mental agony to the complainant.  So the complainant approached this Commission for an order to make payment of balance due of Rs. 57,950/- to the opposite party and thereby close the loan.  It is also prayed by the complainant to make an order to direct the opposite party to pay Rs. 1,00,000/- as compensation for sufferings  of mental agony  and hardship.

2.      The complainant is admitted on file and issued notice to opposite party directing to appear on 30/09/2021.  But on that day the opposite party was absent and hence set exparte.  On 22/11/2021 the opposite party filed   an application numbered as IA 500/2021 to set aside the exparte order.  The Commission allowed the same and opposite party filed version.

3.       In the version it is stated by the opposite party that it is a non banking finance company registered under Indian Companies Act, 1956.  The opposite party further stated that it had extended financial facility to the complainant and a loan agreement was executed between the opposite party and complainant. The loan was sanctioned for 48 months of EMI of Rs. 6,398/- starting from 07/09/2019.  At the time of execution of the loan agreement, the complainant had gone through and understood all the terms and conditions of the loan agreement.  According to the opposite party, for the remittance of EMI the complainant opted one of the repayment mode by way of direct cash.  The core essence of the agreement is that repayment of loan instalments shall be made on time without delay or default i.e. on or before 7^th of respective months. It is stated by the opposite party that the complainant was irregular in payment of instalments right from the beginning.  The complainant violated the terms and conditions of the agreement.  It is  contended by the  opposite party that it got  overall  right over the property  extended as security  by the  defaulter at the time  of execution  of the loan  agreement.  According  to the opposite party, it  has  granted moratorium on payment of all instalments  falling due  between 01/03/2020 to 31/05/2020 which  was further extended till  31/08/2020.  The benefit of said moratorium policy was also extended to the complainant.  So the opposite party is rescheduled and existing tenure of the loan as increased to 57 instalments, the opposite party revealed in the version. The opposite party requested several times to clear the outstanding total loan dues or to handover the possession of the vehicle, but the complainant was turned down.  So the opposite party sent a loan recall  letter to the complainant on 04/10/2021 demanding  to remit net outstanding amount of Rs. 2,26,838/-. It is also contented that the defaulter cannot be termed as a consumer.  According to the opposite party as on 29/11/2021  the complainant has remitted the partial amount  of Rs. 1,11,243/- toward  EMI and  Rs. 4,550/-towards other due charges to the said loan account and is in due of Rs. 31,990/-  towards EMI arrear and Rs. 4356/- towards other over dues along with Rs. 18,678/- payable towards future instalments and hence the opposite party  denied and  disputed that the complainant has remitted the amount of Rs. 1,47,050/- i.e. 24 EMI. The opposite party has not received alleged legal notice dated 15/07/2021 issued by the complainant. According to the  opposite party, the complaint itself reveals that the complainant had not remitted the EMI’s along with other over dues (accrued due to  non payment of EMI on its due date)  and himself  has violated   the  agreed  terms and conditions of loan agreement and  instead of   making  repayment of loan amount the complainant   has taken  shelter of the Commission with false allegation and  malafide intention of causing illegal  loss to the opposite party.  It is also stated that no cause of action has arisen for filing the complaint. There is no deficiency in service caused by the opposite party and complainant has not entitled for any relief.  The complaint does not fall under a consumer dispute and it is added in the version that no mental agony and hardship is suffered   by the   complainant and so the opposite party is prayed for dismissal of the complaint.

4.       The complainant and the opposite party filed affidavits.  The complainant produced documents and marked as Exts. A1 to A6.  Ext.A1 document is copy of lawyer notice dated 15/07/2021 along with acknowledgement card dated 19/07/2021 issued to the opposite party to the complainant.  Ext.A2 series documents are the same lawyer notice dated 15/07/2021 and original postal receipt dated 16/07/2021 issued to the complainant. Ext.A3 document is the copy of payment receipt made on 29/06/2021.  Ext. A4 document is the copy of statement of account showing the details of payment made by the complainant.  Ext.A5 document is the statement showing duration and EMI of loan issued by the opposite party. Ext. A6 document is the copy of Loan Recall Letter dated 04/10/2021 issued by the opposite party to the complainant. The documents produced by the opposite party is marked as Ext. B1 to Ext.B3 documents.  Ext. B1 document is the copy of loan agreement executed between the complainant and the opposite party.  Ext. B2 document is the copy of statement of account of the complainant.  Ext. B3 document is the copy of Loan Recall Letter dated 04/10/2021 issued by the opposite party to the complainant. 

5.           Heard both sides. Perused documents and affidavits.  The points considered by the Commission are:-

1. Whether there is deficiency in service committed against the complainant by the opposite party.
2. Relief and cost.

6. Point No.1 and 2 :- 

       The very case of the complainant is that he availed a loan of Rs. 2,05,000/- from the opposite party  for purchasing a vehicle.   As per loan agreement the complainant has to repay Rs. 6,397.65/- per every month covering the period of 48 months.  The loan agreement was produced by the opposite party   and same is marked as Ext. B1 document.  It is contended by the complainant that he had remitted 24 instalments which comes to the tune of total Rs. 1,47,050.35/- including the 24^th instalment made on 29/06/2021.  The complainant produced Ext. A3 document to prove the payment made on 29/06/2021.The complainant also produced the copy of statement of account showing the entire transaction between the complainant and opposite party  and same is marked as Ext. A4 document.  The opposite party   also produced same document of statement of account and marked as Ext.B2 document.  According to the complainant even during the period of Covid -19 pandemic, he made repayment of EMI with much constraints. Ext.A3 document support the claim of the complainant. Ext. A5 and Ext.B1 documents clearly shows that the tenure of the loan is 4 year i.e. 48 monthly instalments.  As per record, the last payment was made 29/06/2021 and first payment was made on 07/09/2019.  According to the complainant, he repaid Rs.1,47,050.35/- as 24 instalments within that period.  Evaluating available evidences, it can be seen that from 07/09/2019 to 29/06/2021, the complainant ought to have remitted 22 instalments within that period and he remitted total Rs. 1,47,050.35/- almost  equal to 23 instalments.  Even though Ext. A4 and Ext.B2 documents show that the complainant not made all payment on due dates of each instalments, a sizable amount is remitted by the complainant during that period. So slightest change occurred in repayment on due dates cannot taken seriously.  The allegation raised by the complainant is that instalments of loan payment was changed arbitrarily and unilaterally by the opposite party. According to the complainant the balance of the loan due is Rs. 57,950/- only.  When he reached to the office of opposite party to repay the above said balance amount, he was informed of change in the number of instalments.  So it is contented that the change in the number of instalments will bring more financial burden on the complainant.  It is further added that the complainant has to pay total amount of Rs. 3,71,046.30/- if  he agreed  to  pay in accordance with the changed instalments i.e.  more instalments than fixed by  Ext. B1 document.  It was  stated  in the  complaint that 48 instalments comes to the tune of Rs. 3,07,072/- including  both  the principal amount and interest. Exts. A1 and A2 documents show that an attempt was made by the complainant to repay the loan amount even within the loan period.  It can be find that the opposite party is not turned up and was hesitant to give proper information about loan due details to the complainant. But later the attempt made by the opposite party through issuance of Ext.B3 and Ext.A6 documents (both are same) cannot be treated as a proper step to legalise its action taken against the complainant.   According to the complainant, he already remitted Rs. 1,47,050.35/- as on 29/06/2021.  The pleadings in the complaint itself reveals that the complainant should have remitted a total of Rs. 1,60,022/- as the  balance due  as on  07/08/2023  not Rs.  57,950/- as stated in the complaint.  From the evidences, the Commission finds that the loan period will be ended up on 07/08/2023.  The complainant is not willing to continue the transaction with the opposite party as is evident from the complaint and affidavit. As per Ext.B1 document first due date for payment of instalments started on 07/09/2019 and final EMI is scheduled on 07/08/2023. The evidence shows that the complainant remitted total of Rs. 147,050.35/- by way 24 instalments.  Ext. B1 document shows that EMI is fixed to the tune of Rs. 6398/- per one month.  Ext. A3 document shows that last payment was made on 29/06/2021 i.e, during the time moratorium.  So  the Commission finds  that  within period 23^rd instalment,  the  complainant  remitted  a total of Rs. 1,47,050.35/- to the  opposite party  and it means the paid amount  covered 23 instalments.  Ext. B1 document also reveals that the complainant need to be paid Rs. 1,02,104/-as interest and other charges to the principal amount of Rs. 2,05,000/-. When calculating the interest per every month it come to the tune of around Rs. 2127/-.  In this situation, if the complainant is permitted to repay the entire due amount in lumpsum then it is justifiable to deduct the interest of the loan amount for the remaining month.  The Commission also finds that the complainant approached the opposite party for repayment of entire loan amount and a letter was sent to the opposite party for the same purpose and it produced before the Commission as Ext.A2 document.  The steps taken by the complainant for closure of loan is came to the notice of the opposite party on 19/07/2021.  So the Commission is exonerating the complainant from the payment of interest from 24^th instalments onwards by deducting the interest of total Rs. 55,306/- coming under that period.  The complainant is liable to pay Rs. 1,11,042/-(Rupees One lakh eleven thousand and forty two only)  to the opposite party as the balance amount  of loan instalment to close the loan and thereby discharge the liability.  Ext.B1 document and Ext. A5 document clearly shows that the EMI is fixed as 48 instalments.  The moratorium period availed during covid-19 pandemic cannot be treated as default period.  Ext. A4 and Ext. B2 documents shows that the tenure of loan is extended to arbitrarily by the opposite party.  From the evidence it can be seen that no notice was issued to the complainant prior to change in the period repayment of instalments.  The act of the opposite party is arbitrary and without any basis.  The act of the opposite party can be considered as an attempt to exploit its customer, who is suffering due to the destruction of Covid -19 pandemic.  It is not fair to shift the burden of business of the opposite party entirely upon its customer unilaterally.  The act of opposite party to change the number of instalments of EMI can be considered as unfair trade practice resulting financial loss and mental agony to the complainant.  It can also find that dispute between the complainant and opposite party arisen only after the enhancement of number of instalments of EMI by the opposite party.  So Commission allows the complaint partly in the following manner:-

1. The complainant is directed to remit Rs. 1,11,042/-(Rupees One lakh eleven thousand and forty two only)   to the opposite  party as the balance amount of loan agreement executed between the complainant and opposite party.
2. The opposite party is directed to pay Rs. 50,000/-(Rupees Fifty thousand only)  to   the complainant as the compensation  for unfair trade practice committed against  the complainant .
3. The opposite party is directed to pay Rs. 10,000/-(Rupees Ten thousand only)  as  the cost of the proceedings to the complainant.
4. The opposite party is also directed to issue No Objection Certificate to the complainant for producing before the Motor Vehicle Department.
5. The opposite party is also directed to receive the balance amount of Rs. 51,042/- (Rupees Fifty one thousand and fourty two only) from complainant after deducting amount of compensation and cost of proceedings ordered above by the Commission. 

            The parties shall comply this order within 3 months from the date of receipt of copy of this order, otherwise the entire amount shall bear 9% of interest per annum from the date of order till realisation.

Dated this 31^st day of December, 2022.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant                         : Nil

Documents marked on the side of the complainant                       : Ext.A1to A6

Ext.A1 :  Document is copy of lawyer notice dated 15/07/2021 along with

                 acknowledgement card dated 19/07/2021 issued to the opposite party to

                 the complainant. 

Ext.A2 :  Document are the same lawyer notice dated 15/07/2021  and original postal

                receipts dated 16/07/2021 issued to the complainant.

Ext A3 :  Document is the copy of payment receipt made on 29/06/2021.

Ext A4 :  Document is the copy of statement of account showing the details of

                payment made by the complainant. 

Ext A5 :  Document is the statement showing duration and EMI of loan issued by the

                opposite party.

Ext.A6 : Document is the copy of Loan Recall Letter dated 04/10/2021 issued by the

              opposite party to the complainant.

Witness examined on the side of the opposite party                         : Nil

Documents marked on the side of the opposite party                       : Ext.B1to B6

Ext.B1 : Document is the copy of loan agreement executed between the complainant

               and the opposite party. 

Ext.B2 : Document is the copy of statement of account of the complainant. 

Ext.B3 : Document is the copy of Loan Recall Letter dated 04/10/2021 issued by the

               opposite party to the complainant.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER