By Smt. Saji Mathew, Member:-
The gist of the case is as follows:- The Complainant has availed a loan of Rs.2,70,000/- on the security of his vehicle KL 12B 3376 Ambassador Car in the month of July 2004 from the 1st and 2nd Opposite Parties. While disbursing the loan amount the Opposite Parties have retained the original R.C book and obtained signed stamp papers and signed blank cheques leaves from the Complainant. The loan has to be repaid in equal monthly instalments of Rs.6,230/- within a period of five years. The Opposite Parties have not provided any chart or loan agreement papers. The Complainant was made to believe that the R.C and other documents would be returned after the payment of half the amount of loan. The Opposite Parties have not issued any receipts. The Complainant has paid the loan instalments regularly for 1 ½ years. Thereafter since his business being collapsed he could not make the payment in time. Hence the surrendered the vehicle on 30.9.2006 and the 2nd Opposite Party fixed the market value at Rs.2,69,000/- though the vehicle had a market value of Rs.2,75,000/-. The Opposite Parties promised that the balance amount after deducting the dues will be returned to the Complainant. Then the Opposite Party has send a notice to the Complainant stating that they have sold out the vehicle for an amount of Rs.1,25,000/- and loan amount of Rs.91,262/- is payable by the Complainant. Then an arbitrator was appointed by the Opposite Parties to adjudicate the matter of loan. The arbitration proceedings were at Mumbai. The Opposite Parties sold the vehicle after one year of surrendering at the lowest price. The deficiency in service and unfair trade practice on the side of the opposite parties caused loss and suffering to the Complainant. The vehicle is surrendered and hence the Complainant is entitled to get back the amount he paid towards the loan. Therefore, the Complainant prays for an order directing the 1st and 2nd Opposite Parties to repay Rs.1,25,000/- and to pay a compensation of Rs.50,000/- and other costs.
2. The 1st and 2nd Opposite Parties filed version and stated that the complainant was very irregular in repayment of the loan and defaulted in spite of the continuous follow up and reminders from the Opposite Parties. Hence the Complainant surrendered on 26.3.2007. Then the Opposite Party send a pre-sale notice to the Complainant. As there was no response from the Complainant, the vehicle was sold on 23.8.2007 for Rs.1,25,000/- after completing all the procedures. Total closing figure of the Complainants loan amount as on 23.08.2007 was Rs.2,16,262/- and after adjusting the sale proceeds there in a balance of Rs.91,262/- still pending in petitioner's loan account. Towards this amount, the Complainant issued a cheque of Rs.90,000/- dated 17.1.2008. When this cheque was dishonoured due to insufficient funds, the Opposite Party initiated legal proceedings under Negotiable Instrument Act before the Judicial First Class Magistrate, Aluva. The Opposite Parties deny all other allegations of the Complainant it is not the complainant but the Opposite Party who suffered loss due to the acts of the Complainant. The Opposite Parties therefore prays for an order dismissing the complaint.
3. The Complainant filed chief affidavit and documents were marked as Ext.A1 to A9. Opposite Party also filed chief affidavit and documents were marked as Ext.B1 to B4.
4. The matters to be decided are:- 1. Whether the case is maintainable before the Forum? 2. Whether there is any deficiency in service on the part of the Opposite Parties? 3. Whether the Complainant is entitled to get any relief?
5. Point No.1:- As per order in I.A No.141/2010 the issue of maintainability was decided.
6. Point No.2:- The Complainant states that he has paid Rs.1,25,000/- towards the loan. Ext.A2 series shows payment nearby up to this amount. The Opposite Party claims that after deducting the price of the vehicle an amount of Rs.91,262/- is yet to be paid by the Complainant. But the Opposite Parties have not produced any statement of accounts for proving the claim. The Opposite Party also have not produced any documents to show the price for which the vehicle was sold. The Complainant contented that he has surrendered the vehicle on 03.09.2006. But the opposite party's case is that the vehicle was surrendered only on 26.3.2007. Both parties have not produced any documents in support of their statements. Ext.B3 and B4 (presale notice and post sale notice) do not disclose the date of repossession of the vehicle. Ext.B4, the post sale notice does not show the price which the vehicle fetched. The Opposite Parties have admitted that they have charged penal interest for the delayed payment of instalments. They can charge penal interest only after the agreement period.(2008 CPJ N.C P-40 in Ashok Leyland Finance Ltd V/s Ramjilal Gupta) The acts and proceedings of Opposite Parties have been found arbitrary and unilateral and hence point No.1 is found against the Opposite Parties.
7 Point No.3:- As there is no proper accounting or transparency in the sale and loan dealings of Opposite Parties, their further claim for the remaining due is not correct. The Complainant's prayer for return of the amount paid towards the loan and compensation are not sustainable.
Therefore, the complaint is partly allowed and the Opposite parties are directed not to collect further amount towards the liability of the loan agreement regarding the vehicle KL 12 B 3376. The Opposite Parties are directed to pay Rs. 1,000/- (Rupees One thousand only) as cost of the petition to the Complainant within 30 days of the receipt of this order. Pronounced in open Forum on this the day of 31st July 2010.
PRESIDENT: Sd/- MEMBER : Sd/- MEMBER : Sd/-
A P P E N D I X Witnesses for the Complainant: Nil. Witnesses for the Opposite Parties: Ni. Exhibits for the Complainant: A1. Letter. dt:20.08.2007. A2. Letter. dt:08.12.2009. A3. Copy of Letter. dt:26.12.2009. A4. Copy of Letter. dt:19.12.09. A5. Copy of Letter. dt:07.01.2010. A6. (1 sheet). Copy of Saving Bank Ledger. A7. Copy of Certificate of Registration. dt:26.07.2004. A8 Series. Certificate. dt:05.08.2004. A9. Copy of Cash/Credit Bill. dt:23.07.2004. Exhibits for the Opposite Parties: B1. Copy of Power of Attorney. B2. Copy of Loan Agreement. dt:24.07.2004. B3. Copy of Letter. dt:20.08.2007. B4. Copy of Letter. dt:24.08.2007.
| | [HONORABLE MRS. SAJI MATHEW] Member[HONORABLE MR. K GHEEVARGHESE] PRESIDENT[HONORABLE MR. P Raveendran] Member | | 
