Date of Filing:       06.03.2013

                                                                                                                       Date of Disposal:  10.05.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1.

PRESENT:     THIRU.J.JUSTIN DAVID M.A., M.L.,                                       :   PRESIDENT

                        TMT.K.PRAMEELA, M.COM.,                                     :   MEMBER I

                       THIRU.D.BABU VARADHARAJAN, B.Sc., B.L.,       :   MEMBER-II

CC.No.11/2013

FRIDAY, THE 10^th  DAY OF MAY 2019

Mr.R.Anandhan,

S/o.N.Ramakrishnan,

Residing at No.6/16,

Pillayar Koil Street, Sholipalayam Village,

Sholipalayam Post, Ponneri Taluk,

Thiruvallur District.                                                               ….. Complainant.                            

                                           //Vs//

1.The Authorized Officer,

   Bajaj Finance Limited,

   (Formally known as Bajaj Auto Finance limited)

   Akurdi, Pune - 411 035.

2.The Branch In charge,

    Bajaj Finance Limited,

   K.L.N.Auto Mobile private Limited,

   Redhills.

3.The Manager,

   Pallavan Grama Bank,

   Karanodai Branch,

   Karanodai,

   Chennai - 600 067.                                               ……..Opposite parties.

This complaint is coming for final hearing before us on 25.04.2019 in the presence of M/s.A.R. Poovannan Counsel for the complainant and M/s.L.Thanigaivel, Counsel for the 1^st and 2^nd opposite parties and 3^rd opposite party was set ex-parte for non appearance and having perused the documents and evidences on both sides, this forum delivered the following.

ORDER

PRONOUNCED BY THIRU J.JUSTIN DAVID, PRESIDENT.

 This complaint has been preferred by the complainant under section 12 of the Consumer Protection Act -1986 against the opposite parties for seeking direction to return the two wheeler Bajaj Discover (M4G) to the complainant and to pay a sum of Rs.3,00,000/- towards compensation for mental agony and hardship caused to the complainant due to the deficiency in service on the part of the opposite parties and cost.

2. The averments of the complaint is brief as follows:-

The complainant purchased a  Bajai Discover (M 4G) two wheeler with KLN Auto Mobiles (P) at No.88/46, Bye Pass Road, Naravarikuppam, Redhills, Chennai-600052. The complainant for purchasing the above vehicle needed financial assistance and the 2^nd opposite party who was very much available in the show room has accepted to arrange for financial assistance with the 1^st opposite party. The complainant entered into a hypothecation agreement and an under taking to repay the loan by equal monthly installments.  As per the loan agreement, the total amount payable by the complainant is Rs.44,172/- .Therefore, the complainant on 24.05.2017 has issued post-dated cheques bearing Nos.722541-722558 drawn on Pallavan Grama Bank, Karanodai Branch for a sum of Rs.2454/- each towards the payment of EMI. The complainant deposited the required amount every month to honor the cheqes issued by the complainant and accordingly the cheque for the month of July 2012 was cleared on 16.07.2012.  The complainant maintained sufficient balance in his account for the payment of EMI’s for the subsequent months also and the opposite parties for the reasons best known to them has not realized the same through the cheques already submitted to the opposite parties.  But the complainant was shocked and he received a notice from the opposite party dated 11.10.2012 stating that the complainant has not paid the EMI for the month of August and September 2012.  The complainant has remitted the cheque amount and is maintaining sufficient balance enabling the recovery and it is for the opposite parties to recover the same from the complainant’s account.  Therefore on 26.10.2012 issued a reply notice dated 11.10.2012 narrating all the above facts and the same was duly acknowledged on 01.11.2012.  The complainant also deposited the next EMI payment is his bank account for the month of October also.  In the meanwhile the opposite party on 08.11.2012 has seized vehicle from the complainant’s house without the knowledge and consent of the complainant or even any intimation.  The complainant when contacted the office of the opposite party and then it was informed that the vehicle was seized by opposite party for the non-payment of EMI’s and therefore the complainant was put to great hardship and strain.  The complainant is maintaining proper balance in his account for the realization of the cheques issued by the complainant and it is for the opposite parties to recover the same from the complainant’s account.  The complainant is no way responsible for the fault and it is purely negligence on the part of the opposite parties. The opposite party on 24.11.2012 issued a legal notice claiming repayment of loan with all false allegations that the complainant requested the opposite party to recall the loan and he voluntarily surrendered the vehicle on 21.11.2012. There is no necessity to surrender the vehicle or to recall the loan by the complainant as he has already deposited the required amount in his account. The act of the opposite party in seizing the vehicle and sending contradictory notices clearly shows their deficiency in service.  Further the allegations that the complainant himself has surrendered the vehicle and requested to recall the loan is totally false and it amounts to unfair trade practice. The complainant to clarify his part on 14.12.2012 made a representation with his bank, to confirm whether the cheques for the payment EMI’s were returned from his account. The Branch Manager has clearly replied that no such cheques were received by their office.  The act of the opposite party is against the loan agreement and it amounts to gross deficiency in their service.  The complainant purchased the vehicle for developing his business contacts and because of this illegal seizure, the complainant is put to very great hardship.  Further due to the mistake crept by the opposite party, the complainant’s name was notified as a defaulter in CIBIL and the complainant is put to mental agony.  Therefore the complainant is obliged to file his complaint for damage and compensation. Hence this complaint.

3. The contention of written version of the 1^st and 2^nd opposite party are briefly as follows:-

The 1^st opposite party’s office at Chennai is at Bajai Finance Limited, Bharani Business Center, 2^nd floor No.2/A, Dr. Bhanumathi Ramakrishna Road, Saligramam, Chennai - 93.  With respect to jurisdiction whether this Hon’ble Forum has Jurisdiction or not to entertain this complaint, this 1^st opposite party leave the decision of this Hon’ble forum.  The complainant approached the 1^st opposite party for financial assistance for purchase of a two wheeler and after understanding the terms and condition of loan scheme by the complainant and agreed to the effect, the 1^st opposite party brought down the said agreed terms and condition in to an executed and signed loan agreement by the complainant in favour of the 1^st opposite party and the same was numbered as L2WCHE01716511 on 29.05.2012.  The 1^st opposite party based on the request and understanding the credit worthiness of the complainant sanctioned the loan requested by the complainant for Rs.44,172/-, which includes financial charges of Rs.7172/- for 18 month tenure for a monthly installments of Rs.2454/-.  The complainant in order to ensure repayment of all loan installments in time without any delay or default (i.e. every 8^th of respective months) signed and issued 18 post-dated  cheques (which is one of the repayment made of the 1^st opposite party) through his bank Pallavan Grama Bank, Karanodi, Thiruvallur District which is a sponsored bank by Indian Bank.  Prompt repayment of loan installment in time without any delay or default is the core essence of the loan agreement as per clause 9.  The collection and presentation of post-dated cheque for repayment of loan installments is one of the repayment facility extended by this 1^st opposite party to its customers on request and the same was also extended to the complainant.  The said facility does not bar/absolve/wave the complainant in repayment of the respective month default installments by way of cash or DD even in case of the said post-dated cheque does not reaches to the complainant bank for any reason what so ever.  The complainant has grossly violated terms and condition of the said loan agreement by not remitting the loan installments which was not debited from the complainant’s bank account at any point of time.  As on 26.11.2012 the complainant is in due of Rs. 9816/- towards installments arrears and Rs.4250/- accumulated due to non-payment of loan installments in time and also due to making dishonor of loan installments. The Hon’ble Supreme Court itself has laid down a law “A defaulter cannot be termed as a consumer as defined under the consumer Protection Act” as such a defaulter cannot maintain a complaint alleging deficiency of service on the financier.  Thus the complainant has not approached this Hon’ble forum with clean hands against the 1^st opposite party and the complaint deserve to be dismissed on the ground itself against the 1^st opposite party. The complainant has signed and issued 18 post dated cheques through his banker Pallavan Grama Bank, Karanodi, Thiruvallur District which is a sponsored bank by Indian Bank.  The complainant is in due of Rs.4908/- along with other charges of Rs.800/- as on Sep-12.  Even after repeated request and personal follow-up the complainant has not taken any interest to regularize the said due and has acted against the agreed terms and condition of the loan agreement.  Constrained by this attitude, the 1^st opposite party recalled the said loan and 1^st opposite party sent an official communication to that effect via. Loan recall notice dated 11.10.2012 to the complainant. On receipt of the notice the complainant replied through his counsel with vague and false contention and allegation.  The complainant does not given heed to the 1^st opposite party request.  Constrained by the attitude of the complainant is not agreeing for regularizing the said loan account, the 1^st opposite party with no other alternative acted as per the rights available through the said loan agreement in taking peaceful possession of the said vehicle on 10.11.2013. The 1^st opposite party has not committed any illegal act or acted against the said loan agreement.  The act of taking peaceful possession of the subject vehicle is as per the terms and conditions of the loan Agreement only.  It is true that the 1^st opposite party has sent telegrams dated 10.11.2012 on taking peaceful possession of the subject vehicle as per the terms and condition of the loan agreement duly adhering to all laws of land and also a second telegram as reminder on 23.11.2012 as per internal process of the 1^st opposite party company.  Even on sending pre-sale intimation letter dated 24.11.2012 to the reason best known to the complainant, the complainant has not approached the 1^st opposite party.  The above said vehicle is still in the covered possession of the 1^st opposite party. It is denied and disputed that, the 1^st opposite party adopted any unfair trade practice as alleged or at all.  It is further denied that, any act of the 1^st opposite party is deficiency in service and it is further denied and disputed that the case is bona fide and in the ends of justice. The several precedents set by Hon’ble Supreme Court and different High Court, National forums holding the finance company true and bona fide owner of the vehicle financed till the repayment of the outstanding dues and financer is having full right for taking possession back its security on default and on violation of the said terms and condition of the loan agreement and therefore the complaint may be dismissed along with cost a direction to remit total loan outstanding of Rs.41,718/- along with default charges.

4. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1 to Ex.A12 were marked.  While so on the side of the 1^st and 2^nd opposite parties proof affidavit filed as their evidence and Ex.B1to Ex.B6 were marked.  Further written argument filed on both sides and oral argument adduced on both sides and 3^rd opposite party was set ex-parte for non appearance before this forum.

5. At this juncture, the point for consideration before this Forum is:-

(1) Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties 1and 2?

(2) Whether the opposite parties 1 and 2 are liable to return the two wheeler bearing Registration No.TN-18-L-4134 to the complainant?

(3) Whether the complainant is entitled for compensation and cost of proceedings with the opposite parties?

(4) To what other reliefs, the complainant is entitled?

6. Point No.1 to 3:-

It is admitted by both the parties, that the complainant has purchased a two wheeler Bajai Discover (M 4G) with KLN Auto Mobiles (P) at No.88/46, Bye Pass Road, Naravarikuppam, Redhills, Chennai-600052.  It is also admitted by both the parties that the purchase of the above two wheeler, the complainant has obtained loan of Rs.37,000/- from the 1^st opposite party and the complainant also agreed to repay the loan amount with interest of Rs.44,172/- by 18 installments at the rate of 2454/- per months.  The complainant also issued 18 post dated cheques bearing Nos. 722541 to722558 drawn on Pallavan Grama Bank, Karanodai Branch for a sum of Rs.2454/- each towards repayment of EMI, at the time of availing loan. According to the complainant, that the complainant has deposited the remaining amount every month to honor the cheques issued by the complainant and accordingly the cheque for month of July 2012 was cleared on 16.07.2012.

7.  The 1^st and 2^nd opposite parties admitted that they have sanctioned the vehicle loan of Rs.37,000/- and the said amount with interest totally Rs.44,172/- repayable at the rate of 2454/- per months for the period of 18 months.  Ex.B1 is the copy of loan agreement.  As per B1 loan amount is Rs.37,000/- and the amount disbursed is Rs.35,605/- to the complainant. The opposite party deducted interest of Rs.1295/-and service tax of Rs.100/- totally 1395/- from the loan amount of Rs.37,000/- and the remaining amount of Rs.35,605/-only disbursed to the complainant.  The 1^st opposite party calculated the interest for 18 months and arrived the total amount of Rs.44,172/-repayable at the rate of 2454/- per months for the period of 18 months.  The complainant issued 18 post dated cheques for a sum of Rs.2454/- each towards the repayment of EMI.  The 1^st opposite party also deposited two cheques and the same was encashed.  Ex.B2 is the copy of the statement of account of the 1^st opposite party in which it is clearly stated that the cheque No.722541 was encashed on 08.07.2012 and cheque No.722542 was encashed on 08.08.2012.

8. The 1^st and 2^nd opposite party contended that the complainant had not paid monthly installments as per agreement and therefore they have issued a notice on 11.10.2012 which has been marked as Ex.B4.   Thereafter, since the complainant has not paid the monthly installments the 1^st opposite party ceased the vehicle on 08.11.2012 and informed the same to the complainant through telegram.  On the other hand the complainant alleged that he issued 18 post dated cheques to the 1^st opposite party and the complainant deposited the required amount every month to honour the cheques and therefore there is no default on the part of the complainant.  Hence this forum is to find out whether the complainant paid the installments every months and 1^st opposite party seized the vehicle illegally and whether the above act of the 1^st and 2^nd opposite parties amounts to deficiency in service and unfair trade practice.   

9. It is admitted by both the parties that the complainant issued 18 post dated cheques for a sum of Rs.2454/- each towards repayment of EMI to the 1^st opposite party at the same of availing the loan.  The complainant also deposited the required amount in his account to honor the cheques.  Ex.A1 is the copy of pass Book of the complainant.   Ex.A1 shows that the complainant has deposited sufficient amount in his account to honor the cheques but the 1^st and 2^nd opposite parties has not presented the cheques issued by the complainant for collection.  The 1^st opposite party through his counsel issued a notice dated 11.10.2012 to the complainant to repay the loan amount.  Ex.A2 is the copy of notice.  The complainant through his counsel issued a reply notice on 26.10.2012 stating that the 1^st opposite party has received 18 post dated cheques on 24.05.2012 duly signed by the complainant and the 1^st opposite party failed to encash the remaining cheques.  Ex.A3 is the copy of reply notice.  The opposite parties failed to deposit the cheques issued by the complainant and the other hand seized the two wheeler vehicle from the custody of the complainant on 08.11.2012 without prior intimation or consent and the same was informed by the 1^st opposite party to the complainant by telegram only on 10.11.2012.  Ex.A5 to Ex.A8 are copy of telegrams and therefore the 1^st and 2^nd opposite party in violation of the agreement seized the vehicle and the above attitude of the opposite parties amounts to not only unfair trade practice but also amounts to deficiency in service.

10. The opposite parties contended that they have deposited the above cheques for collection and the same were returned.  Ex.B3 series are the copy of return memo and copy of cheques issued by the complainant.  On perusal of Ex.B3 this forum finds that the cheque No.722543 was returned on 13.09.2012 on the reason wrongly delivered not drawn on us and another cheque No.722544 was returned on 12.10.2012on the reason wrongly delivered not drawn on us and also cheque No.722545 was returned on 14.11.2012 on the reason wrongly delivered.  Therefore the above cheques were not returned on the reason insufficient fund.  But it is returned on the reason wrongly delivered not drawn on us.  So it is the mistake on the side of the opposite parties.  The complainant has deposited sufficient fund in his account to honor the above cheques.  The cheques were returned not for insufficient fund but for other reasons.  The above return of the cheques was not informed to the complainant, but the 1^st opposite party suddenly seized the vehicle from the custody of the complainant on 08.11.2012.  The 1^st and 2^nd opposite parties neither retuned the cheques to the complainant nor request the complainant to issue fresh cheques before seized of the vehicle.  The 1^st and 2^nd opposite parties has every right to seize the vehicle, if there is any default in payment of monthly installments as per the agreement. 

11. But here the complainant has paid the monthly installments regularly and also the complainant has deposited sufficient amount in his account to honor the above cheques and therefore there is no default on the side of the complainant.  On the other hand, the 1^st and 2^nd opposite party in violation of the agreement seized the vehicle and the above attitude of the opposite parties amounts to unfair trade practice and deficiency in service and thereby the complainant unable to use the vehicle from 08.11.2012.  The complainant is no way responsible for the return of cheque and non-payment of installments and it is clearly seen that there is no negligence on the part of the complainant and the complainant is also unable to use the vehicle to develop his business and he put to mental agony and financial loss.  Under these circumstances the opposite parties 1 and 2 jointly and severally are liable to return the vehicle to the complainant and the complainant is also entitled for compensation and cost of proceedings.  The 3^rd opposite party bank issued a letter to the complainant stating that they have not received cheque bearing Nos.722542, 722543 and 722544 for OBC collection.  Ex.A11 is the copy of the letter.  Hence it is clear that the opposite parties 1 and 2 are not presented the cheques for collection to the drawee Bank.  Further the 3^rd opposite party is a formal party and the complainant has not sought any relief against the 3^rd opposite party.  Hence the complaint against the 3^rd opposite party is liable to be dismissed. Thus the point Nos.1 to 3 are answered accordingly.

12. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly, 1^st and 2^nd Opposite Parties jointly and severally are directed to return the complainant’s vehicle bearing Registration No.TN-18-L-4134 to the complainant within one month from the date of receipt of the copy of this order.  Further the 1^st and 2^nd opposite parties are directed to pay a sum of Rs.40,000/- (Rupees Forty thousand only) towards compensation for causing mental agony  to the complainant due to the deficiency in service on the part of the opposite parties and also to pay a sum Rs.10,000/-(Rupees Ten thousand only) towards cost of this litigation to the complainant. In respect of OP3, this Complaint is dismissed without costs.

The above amount shall be payable by the 1^st and 2nd opposite parties within two  months from the date of receipt of this copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum on this 10^th May 2019.

     -Sd-                                              -Sd-                                                             -Sd-

MEMBER-II                                 MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite parties 1and 2:-

     -Sd-                                              -Sd-                                                             -Sd-

MEMBER-II                                 MEMBER-I                                                   PRESIDENT