(As perA.A.Jain,Honorable Member)
Complainant filed this complaint against Opposite.Parties for seeking various reliefs as per prayer clause . :-
1 Complainant's case in short is that ,he has purchased one L.M.V.Mahindra Saloon Taxy bearing Registration No. MH-35/2754 manufacturing year 2003 and this vehicle was finance by Mahindra & Mahindra Finance Services Ltd., Bombay Branch. Due to heavy installments payable by complainant, he approached to O.P.No.1 for finance to clear off the then balance debt of Rs.1,03,000/- of Mahindra & Mahindra finance Services Ltd. That, vide agreement dated 6.5.2007 O.P.No.1 agreed to finance Rs.103000/- to complainant and issued cheque for the said amount to Mahindra & Mahindra finance Services Ltd. on receipt of said amount Mahindra & Mahindra released it’s hypothecation rights and O.P.No.1 got the vehicle hypothecated in his favour. Complainant further submitted that Rs.1,50,000/- had never been financed to complainant by O.P.No.1 . At the time of making documents for finance, the column for amount payable has deliberately been left blank. Later on complainant came to know that O.P.No.1 fraudulently entered the figure of Rs.1,50,000/- as loan amount while actual finance was Rs.1,03,000/- only.
2 Complainant came to know unofficially that Rs.2,21,550/- was outstanding dues on him after paying Rs.53,150/- as installments. As per the above outstanding amount O.P.No.1 has charged Rs.2000/- as traveling expenses, Rs.4000/- as settlement charge and Rs.15500/- towards expenses for R.T.O. Rs.3000/- paid to a Anna and complainant submits that all these figures are bogus and false.
3 On 26.05.2008 complainant has entered into an agreement to sell this vehicle to O.P.No.2 for the consideration of Rs.3,25,000/- . O.P.No.2 has paid Rs.50,000/- on 26.05.2008 and Rs.20,000/- on 29.05.2008. Than O.P.No.2 further agreed to pay remaining installments to complainant . That, till then the complainant has paid Rs.53,000/- by installments to O.P.No.1 . The O.P.No. further agreed to pay balance amount fo Rs.1,05,000/- to the complainant up to 31.12.2008. Complainant has given possession of vehicle to O.P.No.2.
4 Than O.P.No.1 after false calculation alleged complainant that he is entitled for only Rs.28,450/- only so complainant has taken back the possession of this vehicle from O.P.No.2 after informing to Police Department. Complainant agreed that the said action of O.P.No.1 is unfair trade practice. Complainant prayed that to declared that outstanding of Rs.2,21,500/- is false. That, the contention of O.P.No.1 is that they had financed Rs.1,50,000/- to the complainant is false and not liable to pay this amount to O.P.No.1. Complainant further prayed that direction be given to O.P.No.1 to give correct and legal account to him and O.P.No.1 be also restrained from taking forceful possession of the vehicle. Complainant also prayed to direct O.P.No.2 to pay Rs.1,05,000/- to complainant and balance amount to O.P.No.1 as per agreement. Then declare the act of O.P.No.1 to finance loan of Rs.2,50,000/- to O.P.No.2 is illegal and unbelievable in law. Complainant also prayed to direct to O.P.No.1 & 2 to pay Rs.5000/- as damages for harassment and mental agony and Rs.5000/- as the cost of the case.
5 This Forum has issueed notice to the O.P.No.1 & 2 under Section 13 of Consumer Protection Act 1986 to appear before this Forum personally or through their advocate and submit their written statement (Reply) about above complaint. As per the report given by Post Master, Gondia on dated 15.12.2008 that both the opposite parties were served the registered notice and acknowledgement was also received. But both the Opposite Parties were absent on various dates of hearing. Hence Forum has passed an order against them on 16.12.2008 to proceed with the complaint exparte against the Opposite Parties. On dt. 22.12.2008 Forum has heard the argument of complainant and complainant also filed some documents and one case law.
6 On verifying all the records and hearing argument of complainant, only point arise for our consideration whether complainant is entitled for any relief as per prayer clause and our finding is that complaint is partly allowed due to following reasons :-
REASONS
7 As per submission of complainant O.P.No.1 has financed Rs.1,03,000/- only to complainant for paying dues of Mahindra & Mahindra FinanceCo. But there was no any agreement on record about interest and terms and condition of hire purchase scheme. The record shows about the exploitation of needy borrowers. And this is clear example of “unfair trade practice”.
8 Complainant has not paid the full amount of loan to O.P.No.1 and he has sold this vehicle to O.P.No.2 without clearing the loan amount of O.P.No.1 or without permission of O.P.No.1 . Because complainant has not paid loan amount within four years Mahindra & Mahindra Finance Co. For clearing loan of first financer he has taken loan from O.P.No.1. Without clearing loan of O.P.No.1, he has sold the vehicle to O.P.No.2.
9 Complainant has filed document No. 3 issued by Deputy Regional Transport Officer, Gondia. In that Document in Column “17” it was stated that vehicle was financed by Shriram Finance Co. Ltd. Which seems that O.P.No.1 has financed this vehicle through Shriram Finance Co.Ltd. But due to non availability of record, agreement, fact, was not clear. Again this vehicle was sold to O.P.No.2 by receiving advance of Rs.70,000/- . That , due to the conduct of the complainant mentioned above, complainant is not entitled for damages for mental agony, compensation and cost of case.
10 Complainant has submitted one case law “I(2006) CPJ 46 N.C.
Shriram Transport Finance Co.Ltd. Vs. Surekha Khanuji Khemnar.
Revision Petition No. 2662 of 2005 – Decided on 23.11.2005.
Consumer Protection Act, 1986 – Section 21 (b)
“Banking and financial services- vehicle financed, seized due to default in payment of installment- Creditor’s right akin to those of hypothecate, possession of security can not be taken without intervention of Court - Vehicle seized without intervention of Court – State Commission directed financer to release seized vehicle and complainant to pay monthly installment to bank – Order just and equitable – No interference required in revision”.
The aforesaid ciatation is squarely applicable to the case in hand which is also proceeded exparte against the O.P. and the contention of the complainant having gone unchallenged. We proceed to pass following order. :-
ORDER
1 Complaint is partly allowed.
2 The O.P.No.1 restrained from taking forceful possession of the vehicle owned by the complainant bearing No. MH/35/2754.
3 As this Forum does not know regarding the transaction of loan amount, rate of interest and terms and conditions of finance, all the parties are having liberty to move to Civil Court for any other relief.
4 As per the circumstances of case No order as to cost.
