By Smt. C.S. Sulekha Beevi, President,
1. Complainant purchased a Swaraj Mazda Goods Carriage by availing loan of Rs.5,00,000/- from second opposite party. The amount was to be repaid in 47 EMI and the first instalment was payable on 05-12-2006. The last instalment date is 05-10-2010. Eight cheque leaves were given to opposite party at the time of availing loan. Complainant remitted seven monthly instalments. Due to default in making payments opposite parties seized the vehicle in the last week of August, 2007 without giving any notice. On 31-8-2007 the repossession of the vehicle was informed to the complainant by telegram. Complainant then approached opposite party and expressed willingness to pay the defaulted amount in order to get back the vehicle. But opposite party did not heed to this request. In November, 2007 2nd opposite party informed the sale of the vehicle and demanded a sum of Rs.2,00,000/- towards the balance. That the vehicle was sold without giving a notice of sale to complainant. That complainant is not liable to pay any further amount after seizing the vehicle. Complainant fears that opposite party will misuse the cheques. Hence this complaint claiming for compensation of two lakhs and seeking a direction against opposite party to return the cheques.
2. Opposite party filed version admitting the finance transaction. It is contended that the vehicle was purchased for commercial purpose. The complainant availed finance of Rs.5,00,000/- and as per terms and conditions he has to repay Rs.6,15,503/-. Complainant has to remit monthly instalments on 5th of every month. The complainant committed default and therefore he has to remit over due charges @ 24% per annum upon the monthly defaulted instalments. That complainant violated the terms and conditions of the agreement. That no cheque leaves were taken. The vehicle was not seized. Opposite parties several times requested the complainant to pay the instalments. But complainant did not turn up. At last on 18-7-2007 opposite parties issued through courier service demanding to pay Rs.4,78,702/- with interest till realization and also to return the vehicle. Though complainant received the notice he did not remit any amount. But on 31-8-2007 complainant surrendered the vehicle with registration Certificate and other documents. The same day complainant executed document of surrender. Opposite party has not sent any telegram informing seizure of the vehicle. On the same day the vehicle was inspected by Mr. Ranjish and the market value was assessed as Rs.2,45,000/-. Thereafter the vehicle was sold after giving wide publicity through internet. On 18-9-2007 the vehicle was sold at the best market price which was Rs.3,00,000/-. The amount was credited to the account of the complainant. Still there is balance of Rs.1,90,702/- which is due from complainant. On 28-9-2007 opposite parties issued a notice to complainant that the vehicle was sold for Rs.3,00,000/- and complainant is liable to pay balance. Though he received the notice complainant did not pay any amount. The other allegations are denied. The complaint is filed only to escape from the liability to pay the above balance amount. That complainant is not entitled to any reliefs.
3. Evidence consists of the sworn affidavit of the complainant and Exts.A1 to A3 marked for him. Opposite party filed counter affidavit and Exts.B1 to B7 marked for opposite party. Either side has not adduced any oral evidence.
4. The main grievance of the complainant is that the vehicle was seized and sold by opposite party illegally. He is also aggrieved by the demand to pay Rs.2,00,000/- even after the sale of the vehicle by opposite party.
5. The allegations are refuted by opposite party contending that the vehicle was not seized/repossessed but was willfully surrendered by complainant. It is also submitted that even after repeated notices complainant did not remit the amount and hence the vehicle was sold for Rs.3,50,000/- which was the highest price available. That complainant is therefore liable to pay the balance due after credit of the sale consideration to his account.
6. Opposite party relied upon Ext.B3 dated, 31-8-2007 which is a letter of surrender of the vehicle together with the relevant documents of the vehicle. Besides denying and disputing Ext.B3 complainant contended this document to be a fabricated one. It is the case of complainant that opposite party repossessed the vehicle without knowledge of complainant and later send a telegram on 31-8-2007 informing the complainant about the repossession of the vehicle. Ext.A3 is this telegram send through BSNL. It is clearly stated in Ext.A3 that the vehicle is repossessed by opposite party Bank. This telegram produced in original is genuine and reliable. On perusal of Ext.B3 it is a letter of surrender in printed form in which the blanks have to be later filled. Ext.B3 does not bear the signature of the complainant in full. Several such signatures purported to be that of complainant's is seen in several places of Ext.B1 hire purchase agreement. It can be easily presumed that Ext.B3 might have been signed by the complainant in blank at the time of putting the numerous signatures in Ext.B1 while availing the loan. After repossessession opposite party has used this surrender form filling up the blanks to contend that the vehicle was wilfully surrendered. If the vehicle was not repossessed opposite party could not have send Ext.A3 telegram. The complainant can never fabricate a document like a telegram. Opposite party has merely denied Ext.A3 but has not challenged its' genuineness. Further opposite party contends to have send Ext.B5 presale notice calling upon the complainant to pay the loan amount and take back the vehicle. If the vehicle was wilfully surrendered by complainant as contended by opposite party then it is sheer irony that opposite party issued a notice to complainant calling upon him to pay the balance loan amount and take back the vehicle. For these reasons the contention of opposite party that the vehicle was surrendered is unbelievable and unacceptable to us. We have no doubt to hold that the vehicle was repossessed by opposite party as submitted by complainant. The vehicle has been admittedly sold by opposite party after repossession.
7. Then the question arises for consideration whether the repossession of the vehicle and it's sale is legal and proper. Complainant has no case that the vehicle was repossessed by using force. Even then the owner/complainant is entitled to notice prior to repossession reminding him about the default and also notice prior to sale of the vehicle. According to opposite party on 18-7-2007 a notice prior to repossession as issued to complainant through courier service, intimating him about the default of instalments. Ext.B2 series are the copy of this notice along with the consignment note. In Ext.B2 notice opposite party has reminded the complainant about arrears and the default. Further on 05-9-2007 opposite party has issued a presale notice by registered post in which it is stated that the vehicle will be sold if the complainant does not pay the loan and take back the vehicle. Ext.B5 series is the copy of the notice with the postal receipt. The acknowledgement card is not produced. Ext.B6 series is the post sale notice dated, 28-9-2007 produced along with copy of notice and it's acknowledgement card. The postal receipt for issuing Ext.B6 is not produced by opposite party. In Ext.B6 it is stated that the vehicle was sold on 27-9-2007.
8. Exts.B2 and B5 notices were denied and disputed by complainant. He admitted receiving Ext.B6 notice informing the sale of vehicle. The proof of delivery of Ext.B2 and the acknowledgement card of Ext.B5 is not produced. Even if we assume that Ext.B2 and B5 were not served to the complainant it has to be considered, that complainant admittedly defaulted after seven instalments. He was aware of repossession of the vehicle on 31-8-2007. Still there has been no effort on the side of the complainant to make any further payment. In Ext.B6 complainant was informed about sale of the vehicle and was intimated that he has to pay Rs.1,90,202/- being the balance in the loan after credit of the sale consideration. This complaint is filed only on 21-2-2008. The absence of immediate action on the side of complainant impells us to infer that complainant has approached the Forum only when opposite party has initiated some steps to recover the balance of Rs.2,00,000/-. Complainant has sworn that the purchase price of the vehicle is Rs.6,00,000/-. He availed loan of Rs.5,00,000/- and has repaid totally Rs.86,394/-. A brand new vehicle has been sold by opposite party for a very low price of Rs.3,00,500/-. Opposite party is duty bound to conduct the procedure of sale in a fair and transparent manner. No document is produced to support the contention of the consideration received. When the vehicle has been repossessed and sold for such a low price to the detriment of the complainant, opposite party cannot then turn around and demand from the complainant any sum chalked out according to their whims and fancies. In such circumstances complainant is not liable to pay any further amount towards the said transaction. Due to the default committed, which is violation of the terms of agreement, the relief sought for compensation is to be disallowed. In the interest of justice we consider that a direction against opposite party not to proceed against complainant for recovery of any amount towards the transaction which is the subject matter of this complaint will be adequate relief to the complainant. Opposite party is restrained from using cheques if any submitted by complainant, at the time of availing loan.
9. In the result, we dismiss the complaint with the above directions. We make no order as to costs.
Dated this 14th day of July, 2009.
Sd/- C.S. SULEKHA BEEVI, PRESIDENT
Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil Documents marked on the side of the complainant : Ext.A1 to A3 Ext.A1 : Photo copy of the Amortization Schedule given by opposite party to complainant. Ext.A2 series : Payment receipts (7 Nos.) from opposite party to complainant. Ext.A3 : Telegram sent by opposite party to complainant. Witness examined on the side of the opposite parties : Nil Documents marked on the side of the opposite parties : Ext.B1 to B7 Ext.B1 : Photo copy of the Credit facility application form by complainant to opposite party. Ext.B2 : Photo copy of the Loan recall notice dated, 18-7-2007 from opposite party to complainant. Ext.B3 : Letter dated, 31-8-2007 from complainant to opposite party. Ext.B4 : Valuation report dated, 31-8-2007 by Insurance Surveyor. Ext.B5 : Photo copy of the presale letter dated, 05-9-2007 from opposite party to complainant. Ext.B6 : Photo copy of the Post sale notice with A/D dated, 28-9-2007 from opposite party to complainant. Ext.B7 : Photo copy of the statement of account of complainant.
Sd/- C.S. SULEKHA BEEVI, PRESIDENT
Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER
......................AYISHAKUTTY. E
......................C.S. SULEKHA BEEVI
......................MOHAMMED MUSTAFA KOOTHRADAN | | 
