The present complaint filed U/s 12 of the Consumer Protection Act' 1986 (for short, 'the Act') by the complainant Harjit Singh prays for the necessary directions to the opposite parties to issue No Due Certificate regarding the vehicle in question bearing Registration No.PB-02-AG-9777 to him and to withdraw their illegal demand of Rs.3,99,924/- being raised vide notice dated 17.12.2015 and also to withdraw the impugned notice dated 17.12.2015 and the opposite parties be also directed to return his blank cheques at the time of finance of the vehicle in question as security purposes and to pay the  amount of Rs.1,65,000/- and to pay compensation to the tune of Rs.50,000/- on account of mental and physical harassment suffered by him, in the interest of justice.

2.      The case of the complainant in brief is that he is unemployed youth and he purchased Truck Trolla 2214 of 10 Tyres for earning his livelihood by way of self employment. He being jobless approached to the opposite party no.1 for purchase of the said vehicle bearing Registration No.PB-02-AG-9777 for Rs.4,40,000/- which was financed with the opposite parties by the earlier owner of the said vehicle. He has paid the amount of Rs.1,15,000/- to the opposite party no.1 in cash from his own pocket on 20 August 2013 and the opposite party no.1 has financed the said vehicle for the amount of Rs.3,25,000/-. Thereafter, he got registered the same with the Registering Authority. He deposited Rs.80,000/- with the opposite parties. At the time of finance of the said vehicle, the opposite parties had obtained blank cheques from him with the pretext that the same has been kept for security purpose. He has next pleaded that his business was shut down and he was not in a position to pay instalments regularly and as such he approached the opposite parties and requested them to settle the account and to receive back the vehicle. Ultimately, the opposite parties have agreed with his proposal and they took the possession of the vehicle in question on 23.3.2015. Thereafter the opposite parties in his absence had sold away the vehicle in question to some other person and have received Rs.4,00,000/- but the opposite parties have not made payment of any excess amount to him as agreed upon by him. Actually as per the settlement, there was outstanding finance amount of Rs.2,35,000/- towards him and the opposite parties have sold the vehicle to the tune of Rs.4,00,000/- and thus he is entitled to the sum of Rs.1,65,000/- from the opposite parties. He has next pleaded that notice dated 17.12.2015 was issued to him by the opposite party alleging therein that an amount of Rs.3,99,924/- was due against him. This fact is totally wrong as he has already settled all the account with the opposite parties and he is rather entitled to get the amount of Rs.1,65,000/- from the opposite parties. Hence this complaint.

 3.        Upon notice, the opposite parties appeared and filed their written reply through their counsel taking the preliminary objections that the complaint is not maintainable against the opposite parties; the jurisdiction of this Ld.Forum is barred to the complainant as the complainant is using the vehicle in question for commercial purpose and earning profits only and there is an arbitration agreement between the complainant and the opposite parties to raise all the dispute, issues, rights and liabilities before the Arbitrator only and the complainant has not come to the Ld.Forum with clean hands and has filed this false and frivolous complaint against the opposite parties with an ulterior motive to delay the payment of the due loan instalments as such the complainant is liable to pay the exemplary costs for this illegal act. On merits, it was submitted that the complainant had himself surrendered his vehicle to the opposite parties for organizing the open auction for adjusting the sale proceeds of the vehicle in question in the loan account of the complainant. He has also agreed to pay the remaining loan amount and interest thereon after adjusting the sale proceeds of the said vehicle. The vehicle in question was sold in the open auction in the presence of the complainant with his consent to the highest bidder for an amount of Rs.1,99,950/- which was adjusted in the loan account of the complainant, but the complainant had not paid the rest of the loan amount to the opposite parties inspite of the repeated requests. Now an amount of Rs.4,67,299.75/- is still due against the complainant upto 19.03.2016. The opposite parties had issued a demand notice dated 17.12.2015 to the complainant for clearing the entire outstanding loan amount wherein the complainant had been requested to clear the then entire outstanding due amount of Rs.3,99,924/-within a period of seven days from the receipt of the said notice and also requested him that in case of failure on the part of the complainant, the opposite parties will refer the matter for the arbitration. The complainant has filed the present complaint only to delay the due loan instalments and by concealing the true facts from this Ld.Forum. It was also admitted that a demand notice dated 17.12.2015 had been issued by the opposite parties to the complainant. All other averments made in the complaint have been vehemently denied and lastly, the complaint has been prayed to be dismissed with costs.

4.      Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1, alongwith other documents Ex.C2 and Ex.C3 and closed the evidence. 

5.       Sh.Satish Kumar Authorized Representative of Shriram Transport Finance Co. Ltd. tendered into evidence his own affidavit Ex.OP1, alongwith other documents Ex.OP-2 to Ex.OP-4 and closed the evidence.  

6.        We have thoroughly examined the available evidence on the records so as to interpret the meaning and purpose of each document and also the scope of adverse inference for of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the respective learned counsels of the present contestants. We find that the present dispute had arisen on account of the alleged OTS (one-time settlement) demand of Rs.3,99,924/- (to settle the outstanding of Rs.4,67,299/75p) as raised by the opposite party financers upon the present complainant who upon being unable to make further ‘repayment’ had himself ‘handed over’ (facilitated re-possession) of the financed Truck on 23.03.2015 for the purposes of ‘re-sale’ by the OP financers to recover the ‘loan’ outstanding and to return the ‘surplus’ to him, if any. The OP financers have further justified their ‘demand’ by alleging that the ‘repossessed’ Truck was sold for Rs.1,99,950/- on 26.11.2015 and with application of further interest the outstanding re-raised to Rs.4,67,299/75p as on 19.03.2016.

7.       We however find that the complainant had already paid Rs.1,15,000/- as margin to purchase one re-possessed Truck on 20.09.2013 for Rs.440,000/= by raising a loan of Rs.3,25,000/- (from the OP financers) repayable @ Rs .11,543/- per month up to 20.01.2017 i.e., for 40/41months (ROI being a flat of 13.68 % p.a. i.e., more than 27 % PA on diminishing balance basis). The complainant made a repayment of Rs.72,000/- plus (Ex.OPP2) as against the alleged repayment of 80000/-. In addition, the complainant also alleges to have spent Rs.1.0 Lac approx. on the appreciation and maintenance of the financed Truck and claims its market value to be around Rs.4.0 Lac & that has been allegedly sold for Rs.1.99 Lac by the OP. However, in the absence of any cogent evidence, the complainant’s claim shall amount to bald statement, only. But, the financed Truck has been admittedly sold by the OP financers to have apparently received the outstanding amount if not more and is thus not entitled to raise any more demand upon the complainant. It is not understood as to how an on-road running Truck sold out for Rs.4,40,000/- on 20.09.2013 by OP financers themselves fetches a market value of Rs.1.99 Lac on 26.11.2015 with the facilitated repossession on 23.03.2015. It is never the case of the OP financers that the sold Truck in question was in a dilapidated condition and thus sold out for a throw away half the price. We are of the considered opinion that the complainant in the absence of adequately cogent evidence shall not be entitled to any refund-share in the Truck Sale proceeds but surely enough he cannot be unscrupulously exploited by raising unjustified demands of arbitrary repayments of the extinguishable outstanding in the said Truck Loan. We are supported in our above legal proposition by virtue of judgment of the honorable NCDRC, New Delhi in FA 377 0f 1997 titled: Orissa State Financial Corporation vs. Bhawani Shankar Mohanty; holding thereby, the low priced auction sales to be at par with ‘deficiency in service’ as per the applicable statute. However, it be reduced to writing for the statutory purposes that the OP financers failed to produce some cogent evidences/loan-agreement/document(s) etc despite having availed of many opportunities but for un-explained reasons produced on records.

8.       Lastly, in the light of the all above, we partly allow the present complaint and thus ORDER the OP financers to write-off/set-aside the arbitrary and the illegal outstanding balance in the complainant’s Truck Loan A/c and issue him the requisite ‘No Dues Certificate’ along with the ‘return’ of the ‘post dated cheques’ besides to pay Rs.5000/- as cost and compensation to the complainant within 30 days of the receipt of the copy of the present orders failing which proceedings u/s 27 CPA shall be initiated against the Ops.

9.       Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

              (Naveen Puri)

                                                                                   President   

Announced:                                                        (Jagdeep Kaur)       

July,11 2016                                                              Member

*MK*