DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 4 ^th  day of November,  2022

Present      :   Sri.Vinay Menon V., President                                                                

                :   Smt.Vidya A., Member             

                :   Sri.Krishnankutty N.K., Member  

                                                                                      Date of Filing:  01.07.2019 

CC/189/2019

          Nasar, S/o Noorudeen

          Chalakkal Kalayikode House

Elavampadam, Near Juma Masjid

Palakkad -676 104

(By Adv. Jockin. A. Pereira )                                                  -               Complainant

                                                                                                   Vs

 1.      M/s Sakthi Finance Ltd

          Regd. Office : 62, Dr. Nanjappa Road

          P.B.3745, Coimbatore.  641018.

 2.      The Authorised Signatory

          M/s Sakthi Finance Limited

          Branch Office:   Kurikkal Plaza, Kacheri padi,

          Opposite court Complex ,

          Manjeri.  676 121

3.       Mohandas. V

          S/o Vakkatta  Parambil Krishnan Nair

          Niramaruthur .P.O ,Near Kalliyath Hospital,

          Tirur, Malappuram. 676 109,

4.       Hamsakutty

          S/o Moochikaparambil Abdul  Jalal

          BP Angadi, Tirur,

          Malappuram. 676 109,                                                    -          Opposite parties     

(By Adv.Viju. K. Raphael for opposite party 1&2)

O R D ER

By Sri. Krishnankutty, N.K, Member

1.       The complainant availed a hire purchase loan of Rs. 45000/- for the purchase  of a Ashok Leyland G.203-AL- 1612 G/V used goods vehicle bearing registration No. KA-21.A-1666 on  the guarantee of opposite parties 3and 4. The vehicle was duly transferred to the name of the complainant and insured with New India Assurance Company Ltd BP Angadi. According to the complainant while executing the HP agreement he and the guarantors (Opposite party 3 & 4) were constrained to sign on several blank papers, printed documents etc. No copy of the agreement was given to the complainant. He was paying the instalments regularly. In spite of that, the opposite party company opted for executing another document as Rechart  agreement against law & public policy. The opposite party company charged interest, interest on interest and penal interest from the complainant and started threatening the complainant using goondas. Meanwhile on 22/04/2019, the opposite party sent a letter to the complainant stating that he is a chronic defaulter and asking him to surrender the vehicle and threatening of seizure of the vehicle, if the dues to the tune of Rs. 499307/- is not paid.  This high handed approach of the opposite party affected his income and day to day livelihood resulting in a total financial loss of  Rs. 200000/-to the complainant. According to him , he has already paid  11 lakhs as repayment to the loan account and the balance payable must be less than Rs. One lakh only. In between, on 14.06.2019  the goondas of the opposite party rushed to the residence of  the  the complainant for effecting seizure of the vehicle.  Hence he approached this Commission seeking an order to restrain the opposite party from seizing the vehicle and also for compensation of Rs. 200000/- apart from other reliefs and cost.

2.          Notices were sent to the opposite parties. Opposite parties 1& 2 entered appearance and  filed their common version as opposite party 2 is only a branch of the opposite party 1.   Opposite parties 3&4 didn't enter appearance and hence were set ex-parte. In fact, they are only the guarantors for the loan availed by the complainant.

3.       The pleadings of the versions filed by opposite party 1& 2 are as follows.

a.        Since the complainant is engaged in commercial and business activities like transporting vegetables to various parts of Kerala, his complainant will not come under the purview of the Consumer protection Act 2019.

b.         The subject matter of the complaint is based  on  the terms and conditions of the HP agreement executed by the complainant while  availing the loan and as per the agreement dated 29.02.2016 it was mutually agreed between the parties to resolve the disputes through  arbitration of sole Arbitrator  to be nominated by the opposite  party. Accordingly the opposite party has already nominated Mr.K.K. Krishnankutty, Retired Judge from Kozhikkode as sole arbitrator and he shall decide the dispute according to law.

c.            The loan  availed by the complainant is Rs. 600000/- and the total amount payable is Rs. 794400/- including the finance charges and as per the agreement  it is payable in 34 monthly installs  of  Rs. 23000/- and the 35^th & last installment of Rs. 12400/-. The complainant has so far paid Rs. 452625/- and the balance outstanding is Rs. 544159/- inclusive of additional hire charge  of Rs. 199005/-.

d.         The complainant has not paid instalments properly  there was delay in paying monthly installments and there was no repayment after 30/06/2018. Hence the account has already been classified as Non Performing Asset (NPA) in the books of the opposite party company.

e.         The hire purchase agreement empowers the opposite party to exercise their rights of repossession in case of delay or default in paying monthly instalments and hence their lawful action for recovery in an account already classified as NPA is fully justified.

4.         Issues involved.

A.      Whether the complaint is maintainable under Consumer Protection Act 2019?

 B.     Whether there is any deficiency in service or unfair trade practice on the part of  opposite parties?

 C.     Whether the complainant is entitled for the reliefs sought for?

 D .Reliefs, costs if any?

5.       The complainant though filed proof affidavit didn't mark any document as evidence. Evidence of the opposite party Company comprises of proof affidavit and documents marked as Ext. B-1 to B-5. All these documents were objected to on the ground that they are photocopies. There is no allegation that they are forged or fabricated.  Ext.B4 the bank account statement is objected also for the reason that it is not accompanied by the statutory certificate. In the absence of any evidence to show that these documents are forged or fabricated or any objection from the complainant regarding the contents, of these documents, this Commission is accepting these documents as such. Further the complainant has not produced any documentary evidence in support of his arguments.

Exhibit B1 is the copy of   Hire Purchase agreement between the complainant and the opposite party company. B2 is the copy of the letter dated 06.07.2019 written by the opposite party company to opposite parties 3& 4 who are the guarantors to the loan. B3 is the postal Acknowledgement Card and B4 is the statement of the loan account. B5 is the letter addressed to Sri. K.K Krishanakutty Retired  District Judge Kozhikkode nominating him as  Arbitrator.

6.       Issue No.1

The complainant is engaged in the activity of transporting vegetables as self employment activity to earn his livelihood and not as a big business activity. Hence issue 1 is decided in favour of the complainant.

Issue No. 2

The proof affidavit filed along with the documentary evidence produced by the opposite party company clearly  show that actions taken by them are  normal recovery steps taken by any lender  in case  any loan account  become irregular, especially when it is classified as non  performing Asset in their books. These steps are taken in the interest of recovering the loan which is essential for the existence of any financial institution. Hence these actions can't be treated as deficiency in service or unfair trade practice.

7.       In the result, the complaint is dismissed and the complainant is not entitled for any relief.

              In the facts and  circumstances of the case no order as to costs. Parties are directed to suffer their respective costs.

Pronounced  in open court on this the day of 4th day of November, 2022.

                                                                                         Sd/-

                                                                             Vinay Menon V

                                                       President

                   Sd/-

               Vidya  A

                               Member   

                                                                                              Sd/-

                                                                                        Krishnankutty N.K.

                                                                                                Member

Appendix

Exhibits  marked from the side of complainant

Nil

Exhibits  marked from the side of opposite party

B-1- Higher purchase agreement dt. 29/02/2016.

B-2 - Letter dt. 6/07/2019 to complainant and guarantors.

B-3 -Postal acknowledgement card from the complainant

B -4 -Loan account statement issued on 06/07/2019.

B-5 - Letter regarding the appointment of Arbitrator dt. 15/07/2019.

Witness examined from the side of complainant –

Nil

Witness examined from the side of opposite parties.-

Nil

Cost- Nil