By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows:-
1. The complainant is self-employee, who purchased a vehicle bearing No.KL 59-971 from the first and second opposite parties. The complainant paid Rs.1,50,000/- by cash and availed a loan of Rs.2,50,000/- from the first and second opposite parties. The vehicle was delivered to the complainant but the registration certificate was kept by the first opposite party and promised that they will arrange to produce the records through an agent for all RTO purposes.
2. The complainant agreed to repay the loan amount of Rs. 2,50,000/- through 29 monthly installments. At the time of sanctioning the loan the first opposite party directed the complainant to put signature in many printed forms, blank forms, a book containing so many blank records, copy of election identity card, signed stamp papers and 8 numbers of signed blank cheque leaves to hand over to the opposite party. In addition to that three cheque leaves and two stamp papers were also obtained from a friend of complainant. It was informed that the interest is calculated at flat rate and the complainant is bound to pay the interest and principals in 29 months’ time through installments. The 29 instalments can be paid at the rate of 10,069/- rupees for convenience. The commencing month was 25/05/2015 and the total amount payable was Rs.2,92,001/-, including interest calculated at flat rate. The first installment of Rs. 10,069/- already deducted from loan amount of Rs.2,50,000/- by the first and second opposite parties.
3. The complainant used to pay the loan amount and usually paid Rs.11,000/-to close the loan as early as possible. For the second fitness test, no registration certificate was made available to the complainant even after many requests. Only after three months the same was made available to the complainant. The complainant was forced to pay fine for the fitness test apart from this the vehicle was off the road for these three months. The original registration certificate was with the first opposite party and they failed to produce the same before the authorities through their agents i.e before the regional transport officer and other authorities.
4. The complainant was ready and willing to pay the loan amount as agreed. The opposite party is adjusting the paid amount not to the loan amount and they are adjusting the paid amount to inspection charges, interest charged on interest, notice charges, collection charges, miscellaneous charges etc, which were not even heard off. The complainant took a loan of Rs.2,50,000/- but only Rs.2,39,031/- was adjusted towards the value of the vehicle. Out of the loan amount, Rs.10,069/- is to be deducted which was collected when the loan was granted. When the complainant noted that the amounts are not adjusted to the loan and the opposite party was adjusting the loan amount illegally, the complainant intimated that he is ready to close the loan. The opposite party demanded more than that of the installment amount whenever amount is paid. The complainant submitted payment schedule as follows: -
Dated 27/02/2016- 11,000/-
Dated 28/12/2015-11,000/-
Dated 27/01/2016- 11,000/-
Dated 20/108/2015- 10,600/-
20/11/2015 -10,500/-
30/06/2018 -11,000/-
14/10/2015- 11,170/-
27/02/2018- 11,600/-
27/07/2015- 10,100/-
25/06/2015 -10,070/-
25/05/2015 -10,170/-
26/05/2016 -11,000/-
28/03/2016- 11,000/-
27/04/2016 – 11,000/-
27/06/2016- 11,000/-
27/07/2016 – 11,000/-
29/08/2016 – 11,000/-
26/09/2016 – 11,000/-
24/10/2016 – 10,070/-
20/09/2017 – 11,300/-
20/09/2017 – 22,400/-
11/08/2017 – 11,850/-
22/05/2017 – 10,500/-
27/02/2017 – 10,070/-
25/02/2017 – 10,070/-
03/01/2017 – 10,069/-
27/03/2018 – 11,000/- and an amount of Rs.14,000/-. The complainant submit that he paid total amount of Rs.3,06,539/-. The opposite party demanding Rs.30,000/- to close the loan and they are demanding illegal amounts in the name of additional hire charges. The opposite parties were threatening the complainant. The complainant submit that the receipt issued by first and second opposite parties will not reveal any details and all payment is shown a hire purchase advance. Whereas no hire purchase agreement was entered in to between the complainant and the first and second opposite party.
5. The first and second opposite parties endorsed the loan agreement in the registration certificate of the vehicle before the third party only on 05/05/2015 with the forged records. The complainant paid an amount of Rs.3,06,539/- till date. The first opposite party along with goondas came to the house of the complainant on 04/07/2018 at about 10 am in the morning and stated that the vehicle belongs to the first and second opposite party.
6. The complainant submits that the officials of the first and second opposite parties are demanding Rs.30,000/- to close the loan and threatened that they will seize the vehicle since they are in possession of all records. The opposite parties demanding Rs.30,000/- as the interest on interest, re-possessing charge, inspection charges and balance instalments etc. The demands of the opposite parities are illegal and opposed to public policy and so the same is a deficiency in service. The complainant submit that he is liable to pay Rs.2,92,001/- and the complainant had paid Rs.3,06,539/- due to first and second opposite parties. The complainant submit that the first opposite party intimated that the loan is having an interest rate at 24% to 36 % flat rate and only on payment of the said amount loan will be closed. The complainant contacted the opposite party and they failed to provide the basis of their claim. The first opposite party is very influential and they will do anything. The opposite parties trying to seize the vehicle without informing the complainant, to extract huge amounts. The opposite party is trying to extract illegal amount from the complainant without any authority. The first opposite party never hired the vehicle to the complainant and no hire purchase agreement was entered in to by the complainant and opposite parties one and two. The complainant alleges willful latches and deficiency in service on the side of opposite parties one and two and the same caused irreparable loss and hardship to the complainant. Hence the prayer of the complainant is that to direct the first and second opposite parties to issue hire purchase termination letter regarding vehicle No. KL-59-971 and in case the first and second opposite parties not issued the hire purchase termination letter, order the third opposite party or the concerned officer to cancel the endorsement in the registration certificate of vehicle No. KL-59- 971. It is also prayed compensation of Rs.80,000/- along with cost from the first and second opposite parties.
7. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed version.
8. The opposite parties one and two submitted that the complaint is not maintainable before the Consumer Commission and the matters are subject to the arbitration process under Arbitration and Conciliation Act. The complaint is time barred one. The agreement is admittedly executed on 25/04/2015 and so the complainant ought to have preferred this complaint on or before 24/04/2017 and so the complaint is not maintainable under section 24 a of CP Act 1986.
9. The dispute with respect to interest and the willingness to pay the amount as per agreement reveals the fact that the dispute is with respect to settlement of accounts and so it will not come under the jurisdiction of Consumer Disputes Redressal Forum.
10. The vehicle tracks cruiser involved in this complaint is using by the complainant for the commercial purpose and so the submission of the complainant that it is for his lively hood is not correct.
11. The opposite party submitted that the complainant availed loan of Rs.2,50,000/- on 25/04/2015 from the second opposite party furnishing vehicle No.KL- 59- 971 tracks cruiser as security and the loan was agreed to repay through 36 monthly instalments of Rs.10,069/-. But the allegation that at the time of availing the loan the complainant issued signed printed forms, blank forms, books and signed 8 cheque leaves etc are utter false. The statement that three cheques and two stamp papers obtained from the friend of the complainant is also false and baseless. The statement that the loan amount must be repaid through 29 monthly installments is also false one. The complainant failed to remit the loan amount duly and, on that account, the opposite party was entitled to collect penal interest as per the agreement and the same was made understand to the complainant. The complainant signed in the hire purchase agreement realizing the terms and conditions. The account statement furnished in para 5 of the complainant is also false and baseless. The opposite party is prepared to present true statement of account of the complainant.
12. The allegation that the opposite parties one and two managed registration certificate of the vehicle through false document is denied. The registration certificate will be issued to the registered owner on endorsement of hire purchase on the registration certificate. The complainant was duly received the registration certificate of the vehicle from the third opposite party. The opposite parties denied the allegation that on 04/07/2017 at about 10 am, the first opposite party along with gundas approached at the residence of the complainant and claimed the vehicle belongs to first and second opposite party. The opposite parties do not collect any amount against the terms of agreement between the complainant and opposite parties. The complainant failed to remit instalments duly and so the opposite parties are entitled to collect inspection charges, interest and notice expenses as per the terms of the agreement. Since there are dues from the side of complainant the opposite parties one and two are not liable to issue HP termination letter. The documents produced by the complainant and from the complainant itself, It can be seen that the installment payment was not duly made by the complainant. As per terms, the complainant is liable to pay Rs.68,469/- till 20/11/2018 and the corresponding account statement is produced herewith
13. The allegation that the opposite parties collected interest at the rate of 24% and up to 36 % is incorrect. The allegations that the opposite parties realizing additional hire charges, notice charges, inspection charges and seizure chargers are also incorrect.
14. The averment that the opposite parties are attempting to seize the vehicle is also baseless. The opposite parties are acting in accordance with the terms of agreement. Hence the submission of the opposite party is that the prayer in the complaint is not as per section 14 of Consumer Protection Act and so the complaint is liable o dismissed with the cost of the opposite parties.
15. The third opposite party filed version. The third opposite party submitted that the vehicle is LMV contract carriage bearing registration No. KL 59-971 owned by Sri Ibrahim S/o Kuttirayin, koothradan House, Konampara, Malappuram w.e.f 07/06/2014 is hire purchase agreement with BRD securities Kizhakethala downhill post Malappuram. The third opposite party is not liable or responsible for the agreement between the complainant and financier. As per rule 61 (1) of Central Motor Vehicle Act 1989, an application for making an entry of termination of agreement of hire purchase, lease or hypothecation referred to in sub section 3 of section 51 shall be made in form 35 rule signed by the registered owner of the vehicle and the financier, and shall be accompanied by the certificate of registration and the appropriate fee as specified in rule 81. Opposite party placed Central Motor Rule 61 for the perusal.
16. The complainant and first and second opposite parties filed affidavit and documents. The complainant produced documents Ext. A1 to A6. The documents on the side of opposite party marked as Ext. B1 and B2. Ext. A1 series are cash receipt vouchers issued to the complainant. Ext. A2 is HP pass book issued dated 25/05/2015. Ext. A3 series is copy of cash receipt vouchers. Ext. A4 series are cash receipts issued to the complainant (10 in number). Ext. A5 series are cash receipt vouchers (8 in number). Ext. A6 series cash receipt vouchers (3 in number). Ext. B1 is account statement in respect of hire purchase amount of Rs.2,50,000/- dated 25/04/2015. Ext. B2 is certified copy of resolution passed in the meeting of board of directors of BRD securities limited dated 28/05/2020. The third opposite party did not file affidavit or document.
17. Heard the parties, perused affidavit, and documents. The following points arise for consideration: -
- Whether the complaint is maintainable?
2) Whether there is unfair trade practice or deficiency in service on the part of
the opposite parties?
3) Relief and cost.
18. Point No.1
The opposite parties one and two submitted that as per the agreement and terms and conditions, the complaint is not maintainable and the complaint is to be referred for arbitration proceedings. It is further submitted that the complaint is time barred one and the issues raised by the complainant is with respect to settlement of account and so the complaint cannot be entertained under Consumer Protection Act. The contention of the opposite party is based on terms and conditions in the agreement. But the opposite party did not produce the terms and conditions between the complainant and opposite parties one and two. It is well settled position that the presence of arbitration clause in an agreement will not oust the jurisdiction of Consumer Dispute redressal Commission and the remedy under Consumer Protection Act is an additional one. The opposite party herein has not issued the hire purchase termination letter to the complainant and so the nature of cause of action is continuing one and so the question of limitation does not arise. So we do not find the contention of the opposite party is with merit oriented and we find complaint is maintainable .
19. Point No.2 & 3
The case of the complainant is that he availed loan from the first opposite party for Rs.2,50,000/- and as per the terms and conditions, he is liable to repay the loan amount through 29 installments . The complainant admitted that he is ready to pay the entire amount to the opposite party as per the terms and conditions of the hire purchase agreement. But neither the complainant nor the opposite party produced written conditions of the hire purchase agreement before the Commission. The documents produced by the complainant Ext.A1 to A6 do not reveal the terms and conditions of the hire purchase agreement. The series of cash receipts produced by the complainant shows the payment of installments towards the loan amount. But the verification of the payment dates of the instalments reveals that the complainant could not remit the installment amounts on exact date. Thought the opposite party did not produce hire purchase agreement, they produced Ext. B1 account statement to reveal the dates of remittance from the side of complainant. Ext. B1 also reveals the delayed payment of instalments.
20. On perusal of documents, the Commission is not convinced to pass order directing the opposite party to issue HP termination as prayed by the complainant and not able to give the direction to cancel HP endorsement from the registration certificate. The complainant even contented that there is no hire purchase agreement between the complainant and opposite parties but there is HP endorsement in the registration certificate of vehicle. So, what can be presumed that there is a loan transaction between complainant and opposite parties one and two and which is certainly governed by an agreement. The parties are liable to comply the terms and conditions of the agreement. The opposite party is in possession of the agreement, who is liable to produce the said document before the Commission for the proper adjudication of the complaint. It is not certain from the documents that whether the complainant is liable to remit the amount through 29 instalments or through 36 instalments, which is vital to determine the liability. So what can be directed in this complaint is that the opposite party is only entitled to realize the arrear amount from the complainant on the date of filing this complaint on the basis of agreement executed between the parties and the opposite parties are not entitled to realize interest or penal interest from the date of filing this complaint. With the above observation the complaint stands dismissed.
Dated this 16th day of May, 2023.
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.A1 to A6
Ext.A1: series are cash receipt vouchers issued to the complainant.
Ext.A2: HP pass book issue dated 25/05/2015.
Ext A3: series is copy of cash receipt vouchers
Ext A4: (series) Cash receipts issued to the complainant (10 in number).
Ext A5: (series) Cash receipt vouchers (8 in number).
Ext.A6: (series) Cash receipt vouchers (3 in number).
Witness examined on the side of the opposite party: DW1 and DW2
Documents marked on the side of the opposite party: Ext. B1 and B2
Ext.B1: Account statement in respect of hire purchase amount of Rs.2,50,000/- dated
25/04/2015.
Ext.B2: Certified copy of resolution passed in the meeting of board of directors of
BRD securities limited dated 28/05/2020.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
