CONSUMER DISPUTES REDRESSAL FORUM
Palakkad, Kerala
Dated this the 15th day of May 2017
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing: 16/12/2015
: SMT. SUMA K.P, MEMBER
: SRI. V.P. ANANTHA NARAYANAN, MEMBER
CC/190/2015
Suresh S/o. Kesavan
Pulikkode House,
Alathur Post,
Palakkad – 678 541 : Complainant
(By Adv. Dhananjayan)
Vs
1.M/s. Mahinra & Mahindra
Finance Service Ltd., Cochin.
2. MD or Authorised Signatory,
M/s. Mahindra & Mahindra
Fianance Sevicer Ltd. Cochin
3.The Manager
M/s. Mahindra & Mahindra
Fianance Sevicer Ltd. Office at 2nd Floor,
T.M complex, Chandra Nagar P.O
Palakkad – 678 007 : Opposite parties
(By Adv. Viju K Raphel)
O R D E R
By Smt. Suma K.P.Member
The case of the complainant is that on :-
The complainant has availed a higher purchase facility from opposite party to purchase a new passenger vehicle Maruti Ertiga VDI Diesel for his and his family use. Complainant and opposite parties thus have entered into and
executed a hire purchase loan agreement on 27/12/2012 bearing HP loan No. 2379866 dated Dec. 2012. The total amount of loan availed by the complainant was Rs. 8,31,781/- The total EMI was fixed as Rs. 16,900/- per month and term and tenure of the loan was 60 months commencing from 28/12/2012 for 5 years. The complainant was then paying the EMIS regularly and promptly by paying Rs. 16,900/- from 27/12/2012 to 25/06/2014. Thereafter due to the reasons which fell beyond his control he could not pay the EMIS for one and half years ie, from 25/06/2014 to 25/11/2015. Hence his payment is due for 17 months, the complainant was ready and willing to pay the future installments, but now opposite parties have directed to the complainant to pay the entire arrears and also to surrender the vehicle immediately. Even on the surrender the vehicle, the opposites parties would resort litigation by alleging that they are entitled to get AFC ie, Additional Finance Charges ie, by inflicting exorbitant interest on the complainant. There remains 2 full year period and tenure for the maturity of loan and before the period the opposite parties are not legally empowered to demand the complainant to surrender the vehicle. The demand of opposite parties are illegal and collections and calculations of interest by the opposite party are illegal and would come under the definition of unfair trade practice and deficiency of service. Hence the complainant had approached before the forum seeking an order directing the opposite party to order. The opposite party not to confiscate the complainant’s vehicle till the loan attains maturity and to direct the opposite parties to stop the unfair trade practice and direct them not to repeat it, and also direct the opposite party to allow and permit the complainant to pay the EMI’s from 24/12/2017 which are not defaulted and refrain the opposite parties from collecting penal interest or Additional Finance Charges by adding and accruing penal interest in the non defaulted EMI’s. and also to pay Rs. 50,000/- as damages to mental agony suffered by the complainant.
Along with complaint the complainant has also filed an interrogatory application to issue urgent prohibitory order against the opposite parties that they or their men shall not repossesses the complainant vehicle forcefully or by adopting and indulging or resorting any illegal means and without following the lawful methods and without obtaining any sanction or order from any authority of law or without obtaining any order from any court of laws or under due process of law.
Opposite parties filed counter in the application and also submitted that they are ready to file an undertaking affidavit stating that the vehicle will not be reposed illegally . Accordingly opposite parties filed undertaking affidavit and on the basis of the undertaking affidavit IA was closed.
Notice was issued the opposite parties for appearance. Opposite party entered appearance of through counsel and filed their version stating the following.
The complainant is not maintainable either in law or on facts . The contention of the complainant that he complainant had taken a HP loan for his Maruthi Suzuki Ertiga Vehicle bearing Reg. NO.KL-49-D-6373 for his personal use is true. The total amount financed was Rs. 10,14,000/- which is to be paid in EMI for tenure of 60 months and will end on 24/12/2017 . As on 31/12/2015 the total installment dues on the loan account including interest is Rs. 2,99,595/- The future balance is Rs. 38,870/-. Thus the total amount the complainant is liable to pay to the opposite parties herein as per the terms of the agreement is Rs. 6,88,295/- as on 31/12/2015. The complainant will be liable to pay interest and
other charges as per the terms of loan agreement between the complainant and the opposite parties. For the loan arrears in the loan account of complainant till its payment. All the actions taken by this opposite parties are in accordance with the law of the land and also as per the terms of the contract.
As admitted by the complainant in the complaint he has committed default in payment of EMI’s towards loan account, and has committed ‘default’ as defined by the agreement entered into between the complainant and the opposite parties . On default from the side of complainant, as per the terms of the agreement, opposite parties can foreclose the loan and can demand the entire loan account balance, and can also demand the possession of the hypothecated vehicle from the complainant . Opposite parties is at liberty to sell the hypothecated vehicle in “ as is where is condition” to the best available price in the market and to adjust the sale proceeds to the outstanding balance in the loan account of the complainant. If at all the opposite parties has demanded the complainant to pay the entire balance in the loan account, it was done as per the terms of agreement. Both parties are bound by the terms of the agreement. Further the complainant is dreaming of a situation where the complainant is surrendering the vehicle, of which the complainant has not , and the action which will be taken by the opposite parities. The opposite parties has never done anything in derogation of law. Every action taken by the opposites party, including the calculation of interest, is an accordance with the law prevailing in the land and as per the terms of agreement entered into between the parties The opposite parties has initiated the Arbitration proceedings against the complainant and Arbitration Tribunal has already passed an interim order in the above matter appointing a receiver to take custody of the vehicle and to produce the same before Arbitration Tribunal. The condition of the complainant
that he has suffered mental agony and is entitled for compensation are all denied by the opposite parties. The complainant has not paid the entire dues towards the loan account and this complaint is only a preemptive attempt by the complainant to somehow escape from the liability towards the opposite parties and to stop further action from the opposite parties to recover the outstanding dues towards the loan account. There is no deficiency of service on the part of opposite parties and the complaint has to be dismissed with cost.
Complainant filed chief affidavit and opposite parties filed application as IA No 494/16 seeking permission to cross examine complainant . Since no counter was filed application was allowed . But the complainant was not present for cross examination . Opposite parties also filed affidavit and documents .
Ext. A1 to Ext. A7 was marked from the part of the complainant and Ext. B1 to Ext. B4 was marked on the side of opposite parties. Evidence was closed and the matter was heard.
The following issues that arises for consideration:-
- Whether there is any deficiency of service on the part of opposite parties?
- If so, what is the relief and cost entitled to the complainant?
Issue 1&2
We have perused the documents as well as affidavit filed before the forum. It is obvious from Ext. A5 and Ext. B3 that the complainant had outstanding dues of Rs. 3,54,900/-. Complainant has also admitted that he could not pay the EMI’ for more than 1½ years payment dues for 17 months. He had admitted in the complaint that he and the opposite parties are legally obliged and bound to adhere on the terms and conditions of the agreement and no one is permitted to violate it as per the said terms and conditions. As per terms of the agreement the opposite party can foreclose the loan and can demand the entire loan account balance from the complainant in case of default. They can also demand the possession of the hypothecated vehicle. This being the legal position, we cannot attribute deficiency of service on the part of the opposite parties . More over it is evident from Ext. B4 that, the opposite parities has initiated Arbitration proceedings against the complainant in this matter and the Arbitration Tribunal has already passed an interim order by appointing a
receiver to take custody of the vehicle and produce before the Tribunal . From the above discussions, we are of the view that there is no deficiency of service on the part of the opposite parties and hence the complaint is dismissed without cost.
Pronounced in the open court on 15th May 2017.
Sd/-
Smt. Shiny. P.R
President
Sd/-
Smt. Suma. K.P
Member
Sd/-
Sri. V.P.Anantha Narayan
Member
Exhibits marked on the side of the complainant
Ext. A1 - Photocopy of certificate of Registration of complainant vehicle bearing
No. KL-49- D – 6373.
Ext.A2 - Copy of repayment schedule of the complainant’s vehicle issued by 3rd
opposite party - dated 02/01/2013
Ext.A3 - Copy of Finance scheme issued by op3 for and on behalf of all op’s
conditions of repayment on 2nd page.
Ext.A4 - Copy of letter issued by 3rd opposite party to complainant, dated
03/01/2013.
Ext.A5 - Copy of statement of accounts dated 15/11/2014.
Exhibits marked on the side of the opposite party
Ext.B1 - Certified copy of power of attorney.
Ext.B2 - Original loan agreement dated 28/12/2012
Ext.B3 - Copy of account statement of the complainant maintained in the
opposite party company during the regular course of business dated
29/02/2016.
Ext.B4 - Copy of Arbitration proceeding dated 22/01/2016
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite party
Nil
Cost allowed
Nil
