BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  :  MEMBER

C.C. No. 213/2012 Filed on 09.07.2012

ORDER DATED: 09.12.2016

Complainant:

Baby Lissy. T.S, Chandayil Veedu, Pallickal Town, Pallickal, Thiruvananthapuram-695 604.

                               (By Adv. K.P. Shibi)                                         

Opposite parties:

1. M/s Kotak Mahindra Prime Ltd., represented by its Chairman, 36/38 A, Nariman Bhavan, 227, Nariman Point, Mumbai-400 021.

2. Deputy Manager, M/s Kotak Mahindra Prime Ltd., 4^th Floor, Thadikkaran Centre, Palarivattom, Cochin-682 025.

3. The Managing Director, M/s Kotak Mahindra Prime Ltd., Ground Floor, S:1, White Heaven, Vellayambalam, Thiruvananthapuram-3695 010.

                             (By Adv. Thirumala K. Bijukumar)

This case having been heard on 07.10.2016, the Forum on 09.12.2016 delivered the following:

ORDER

SRI. P. SUDHIR:  PRESIDENT

Complainant’s case is that the complainant has availed a loan for borrowing a LMV Motor Car by model name MA Wagon R LX of Maruti Suzuki India make bearing Reg. No. KL 16 C 9900 from the 1^st opposite party through its branch office at Kochi, the 2^nd opposite party.  The account number of the said loan was CF -3165902 dated 14.02.2006.  The total amount financed was Rs. 3,13,360/-.  The period of recovery was 59 months and the equated monthly installment for repayment was fixed at Rs. 6,640/-.  The interest rate was not mentioned.  The repayment date fixed for the first installment was 05.03.2006.  The monthly EMIs were collected from the complainant at her residence through the 1^st opposite party’s collection agencies, i.e by the 3-5 opposite parties.   They had collected the amount towards the repayment of the said loan account in installments till 2011.  As per the agreement the loan of the complainant is to be closed and the Non-Liability Certificate is to be issued to her.  But they are not willing to close the loan agreement stating that balance amount of Rs. 69,579.30 is to be paid for it.  Hence they are reluctant to issue the Non-Liability Certificate.  The 3^rd opposite party had issued a detailed accounts copy dated 28.10.2011 in respect of the loan transaction claiming balance amount of Rs. 88,783/- towards the foreclosure receivables/payables to the complainant.  On 19.12.2011, the complainant had sent a legal notice through her counsel to the Kotak Mahindra Prime Ltd. to issue her the Non-Liability Certificate in respect of the vehicle No. KL 16 C 9900.  The opposite parties through the legal notice has demanded an amount of Rs. 69,579.30 from the complainant.  The authorities of the KotakMahindra had never informed the complainant about the exact rate of interest and the deduction of the amount remitted by the complainant in respect of the loan transaction.  Highly exorbitant rate of interest and illegal charges had been levied from the complainant by the opposite parties for the aforesaid loan transactions.  There is serious breach of contract, deficiency in service and unfair trade practice from the opposite parties in the above said loan repayment of the complainant.  The complainant has no dues to repay since she had already paid the total loan amount to the opposite parties as on date.  Thus the complainant has suffered a heavy unfair trade practice from the part of the opposite parties.  The complainant is entitled to get the Non-Liability Certificate.  As per the agreement the complainant had already remitted the loan amount.  Hence she is entitled to get the Non-Liability Certificate from the opposite parties.  Hence complainant approached this Forum for getting the Non-Liability Certificate of her Maruti Wagon R LX bearing Reg. No. KL-16 C 9900 and compensation. 

Notice sent to opposite parties and opposite parties appeared and contested the case.  As per the version of opposite parties, the contention taken is that the complainant had availed a loan of an amount of Rs. 3,13,360/-.  The terms and conditions of the loan were reduced in the writing and the loan agreement No. CF 3165902 dated 14.02.2006 was executed at the branch office at Thiruvananthapuram.  The said agreement is having a total agreement value of Rs. 3,91,760.  The complainant had purchased a Maruti Wagon R LX vehicle using this loan which was consequently allotted the Reg. No. KL-16-C-9900 and as per the terms of the loan agreement the said vehicle was hypothecated by the complainant in favour of the opposite party, as and by way of a collateral security.  The said loan agreement was signed by the complainant as the borrower.  Laila Beevi signed the agreement as co-borrower and Lijumon. J.S had signed the agreement as guarantor and therefore the complainant, co-borrower and guarantor are bound by themselves to the terms & conditions of the said agreement, thereby making both them jointly and severally liable.  The allegation that the interest was not mentioned is absolutely wrong.  The interest rate is specifically mentioned in the loan agreement.  The complainant, co-borrower and guarantor who are well educated had thoroughly gone through the documents before executing their signature.  Despite the regular and persistent follow-up by opposite party, the complainant had failed and neglected to make proper payment and they had defaulted in the payment of installments.  The complainant had paid the monthly installment in a very irregular pattern.  It is very clear from the dates of payment mentioned in this paragraph.  And as a result, a huge amount occurred as outstanding in the account of the complainant by way of unpaid installments and the late charge applicable as per the terms of the agreement.  The cheques issued by the complainant towards the monthly installments were dishonoured.  The complainant has to pay principal amount along with broken period interest and miscellaneous charge.  As on 16.07.2012 an amount of Rs. 69,700/- is outstanding.  The complainant has no right to get the non-liability certificate as claimed for when there is an outstanding dues pertaining to the loan transaction.  If the EMIs are paid in correct interval without any default no late charges shall be applicable to the loanee but when there is a delay in or any defaults the late charges and other miscellaneous charges applicable as per the loan agreement shall be paid by the loanee.  Moreover in the present case 60 cheques given by the complainant towards the repayment of the installments were dishonored.  Thus the complainant is liable to pay cheque bounce charges applicable as per the agreement.  The complainant is well aware of the terms of the loan agreement and is now raising such frivolous and absurd allegation as to evade the payment of the legally enforceable dues outstanding towards the opposite party.     

Issues:

1. Whether there is deficiency of service or unfair trade practice on the part of opposite parties?
2. Whether the complainant is entitled for the reliefs sought for?

Issues (i) & (ii):- Complainant filed chief examination affidavit and Exts. P1 to P8 marked and 3^rd opposite party filed chief examination affidavit and Exts. D1 to D4 marked.  The issue before this Forum is that whether there is deficiency of service on the part of opposite parties.  Ext. D2 is the agreement executed by the complainant and opposite parties and parties to the agreement are bound by the terms and conditions of the contract.  Interest rate is mentioned in clause 14(1)(IV) as 36% in Ext. D2.  The settlement of account is outside the purview of this Forum.  It is seen from Ext. D2 that complainant failed and neglected to make proper payment and there is defaulted payment of installments.  Complainant had paid all the installments but in a very irregular pattern and as a result huge amount became outstanding in the amount by way of unpaid installments and late charges.  The cheques issued to the opposite parties are also dishonoured.  The arbitration clause is made mentioned in clause 30 and 31of the hypothecation agreement.  The latest amendment in Arbitration and Conciliation Act (Amendment) 2015 oust this Forum from trying this case.  Since we are only on the deficiency of service and unfair trade practice for which complainant failed to prove her case.  With the above reason, we are constrained to dismiss the complaint without cost.

In the result, complaint is dismissed without cost. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 9^th day of December 2016.       

         Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

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C.C. No. 213/2012       

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of R.C Book

P2     - Copy of temporary receipt

P3     - Copy of advocate notice dated 19.12.2011

P4     - Postal receipts ( 5 Nos.)

P5     - Acknowledgement cards ( 4 Nos.)

P6     - Copy of statement of account dated 28.10.2011

P7     - Copy of agency temporary receipt & temporary receipt

P8     - Reply notice dated 23.01.2012

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

D1     - Copy of resolution passed at the meeting on 07.01.2014

D2     - Copy of loan agreement

D3     - Copy of Accounts Copy dated 20.01.2014

D4     - Copy of Loan recall notice dated 19.11.2010

                                                                                                      Sd/-

PRESIDENT

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