IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of August, 2023
Present: Sri. Manulal. V.S, President
Smt. Bindhu.R, Member
Sri. K.M. Anto, Member
CC No. 111/2020 (Filed on 14/08/2020)
Complainant Chacko P.M.
S/o. Mathan,
Panavelikunnel House,
Amayannoor P.O
Ayarkunnam village,
Kottayam.
(Adv. Rayin K.R.)
Vs.
Opposite party : 1) Muthoot Vehicle and Asset
Finance Ltd. Muthoot Crown Plaza
Near Anupama Theatre,
T.B. Road, Kottayam.
2) Manager,
Muthoot Vehicle and Asset
Finance Ltd. Muthoot Chambers,
2nd Floor, Kurian Towers,
Banerji Road, Ernakulam
Presently having its office at
Kadavanthara, Ernakulam
(For Op 1 and 2, Adv. R. Ajith)
O R D E R
Sri. Manulal. V.S, President
Case of the complainant is as follows:
The complainant brought a Hyundai i20 ERA VTVT BS IV Vehicle bearing registration number KL 5AQ 3445 .The complainant availed vehicle loan from the Pala branch of the opposite party on 05-06-2017. The original loan amount of Rs.5,46,000/- and the interest rate was 8.202% percentage in 84 monthly installments. The EMI was Rs.10,232/- per month. The loan was stated to be complete on 5 -6-2024. The complainant was very regular in repayment till January 2020 but afterwards due to global Corona pandemic he was unable to pay off on regular basis. During the end of February 2020 the complainant was issued a notice for payment of the defaulted EMIs. On receipt of the said notice the complainant contacted the opposite party, and the opposite party informed that they were ready for settlement as and when the complainant shall pay the defaulted amount. It is alleged in the complaint that at the same time the opposite party has filed an arbitration claim before one Joby A Thamby, Arbitrator as per Act no 3/2016. It is submitted in the complaint that no prior notice was served to the complainant before referring the dispute for arbitration. In early March 2020, the complainant approached the opposite party with many schemes of compromise and they were ready to pay off the defaulter EMI. At the same time the complainant received a notice for the appearance From the Honorable District Court in CMA (ARB) no 16/ 2020 which was filed under Section 9 of the Arbitration Conciliation Act for taking possession of the said vehicle by the opposite party. The case was posted on 5/3/2020. But on 3/3/2020 a person named Pushpan representing himself as a retired police officer along with some henchmen forcibly took the possession of the car from the premises of another person. It is alleged in the complaint that at the time of taking illegal and possible possession of the car no notice to the complainant over the person in possession of the place where the vehicle was kept was not given. No surrender letter or notice of handing over the vehicle or mahazer or inventory was made or served to the complainant. The opposite party has acted illegally and unofficially so as to defraud the customers as well as the company. In fact from the said date itself the complainant was running from pillar to Pillar for getting a nod for settlement and for payment of defaulted EMI or the full amount foreclosure of the vehicle loan. The complainant made a proposal to remit the whole amount in one time and the opposite party agreed for the same and made a proposal in one time for closure of loan. But when the complainant informed the same, the opposite party altered his stand and demanded more money. It is alleged in the complaint that when such a talk was carrying on, the opposite party without any information to the complainant transferred the vehicle to one Shamnath. According to the complainant the said acts of the opposite party was deliberate and intended to cheat the complainant. Even without having original documents the said vehicle was transferred illegally. The opposite party with malicious intention has shown a very small amount for the second hand sale. The same is illegal and deceptive. Now the vehicle is used by a third person without proper documents and the same shall cause unnecessary hardship to the complainant. In the complaint, it is submitted that the complainant is ready to pay off any defaulted EMI or pay off the loan as one time settlement by rescheduling the debt by reducing the un availed duration and fixing the same with 8.02 percentage interest. The complainant is entitled to get back the vehicle. According to the complaint the act of the opposite party deploying illegal measures has caused untenable loss to the complainant. Hence this complaint is filed for an order to direct the opposite Parties to accept the defaulted EMI or Pay off loan as one time settlement by rescheduling the debt by reducing unavailed duration and fixing the same with 8.02 percentage interest and return the vehicle to conduct auction afresh under directives of this Commission And to direct the opposite parties to pay Rs.25000 to the complainant for the mental, monetary and physical damages.
Upon Notice from this Commission opposite parties appeared before the commission and file joint version as follows:
The first opposite party is non-banking Finance Company. The complainant had borrowed Rs.5,46,000/- from the Pala branch of the first opposite party for the purchase of KL- 5AQ- 3445 Hyundai i20 ERA car. Consequent To this an agreement of loan was executed by the complainant on 5/6/2017 for repaying the same at 8.02% flat interest rate. The EMIs commencing on 4/7/2017 for a period of 84 months was fixed at Rs.10,235/-. The complainant’s wife stood as guarantor. Due to the non-payment of the EMIs in performance of the obligations under the agreement the matter was referred for arbitration by the virtue of the specific clauses in the agreement. The said fact was informed to the complainant also. The second opposite party had sent a lawyers notice to the complainant in January 2020 demanding repayment of the arrears. But the complainant was not prepared to repay the dues the matter was referred to arbitration reference number 3 of 2020. A statement of claim was also preferred before the arbitrator.
An interim petition for repossession of the vehicle was filed under Section 17 before the arbitrator who passed an interim award for surrendering the vehicle by the complainant to the opposite party. In execution of the said interim award the second opposite Party preferred an application under section 17 (2) of the arbitration and conciliation act as CMA (a r b) no 163 of 2020 before the Honorable district and session Court at Ernakulum and consequently an advocate Commissioner was appointed by the court. In furtherance of the order of the district court the Advocate Commission assisted by an executive of the second opposite party with the assistants of Manarcad Police the vehicle was seized from the residence of one Jikku. The Advocate Commissioner after effecting the seizure of the vehicle has reported the seizure to the district court. The Honorable District Court had passed the order of deputing the Advocate Commissioner to effect seizure in view of the likelihood of the complainant evading the process and shifting the vehicle. The Advocate Commissioner has prepared an inventory and produced it before the court along with the report and consequently the vehicle had been released to the second opposite party.
No proceedings under SARFEASI act has been initiated by the second opposite Party. The second opposite party has only taken lawful repossession of the vehicle in pursuance to the orders of the district court Ernakulum in execution of the interim award passed under section 17 of the Act.
The opposite Parties have acted strictly in accordance with low to repossess the vehicle. In spite of the repeated request and in spite of assurance of coming to the office of the first opposite party several times, not a single rupee has been repaid by the complainant. It is in such circumstances the second opposite Party filed an application seeking permission to sell the vehicle and the same was allowed by the arbitrator and there after the sale of the vehicle was effected after publishing advertisements of the auction of the vehicle in newspaper. The highest bid amount quoted was informed to the complainant. Even after getting the knowledge of highest bid amount, the complainant has neither raised any dispute nor offered any bid amount. The vehicle was sold to the person who offered the highest price and the sale of the vehicle was also intimated to the complainant. The ownership of the vehicle was transferred in the name of the purchaser complying all formalities and the request for surrendering the registration certificate was also not responded by the complainant. The complainant had also handed over the signed form 29 and form 30 to the second opposite party for enabling the transfer of the ownership of the vehicle. Second opposite party had credited the amount received in the sale of the vehicle as such in the account of the complainant. There is no deficiency in service or unfair trade practice from the part of the opposite parties.
In this case complainant and power of attorney holder of the first and second opposite parties filed proof affidavit. Exhibit A1to A5 where marked from the complainant’s side. Exhibits B1 to B10 where marked from the side of the opposite parties.
On evaluation of complaint, version and evidence on record we would like to consider the following points:
- Whether the complainant has succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
(2) If so what are the reliefs and cost?
Point number 1 and 2 together
There is no dispute on the fact that the complainant had borrowed Rs.5,46,000/- from the Pala branch of the first opposite party for the purchase of Hyundai i20 ERA car bearing registration number KL-5-AQ- 3445. it is also admitted by both the parties that the rate of interest for was 8.202% and the repayment is for a period of 84 months at an EMI of Rs.10,235/- per month.
According to the complainant he was very regular in repayment till January 2020 and he was unable to remit the EMI due to covid Pandemic. The specific case of the complainant that is while the settlement talk is going on the opposite parties forcibly repossessed the vehicle and sold it in auction.
The complaint was resisted by the opposite parties contending that in spite of the receipt of lawyers notice The complainant did not repay the dues, therefore the matter was referred to the arbitration as arbitration number 3 of 2020. An interim application for repossession of the vehicle was filed before the arbitrator and the same was allowed by the arbitrator. Exhibit b2 is the order passed by the arbitrator in IA 1 of 2020. On a mere reading of exhibit B2 we can see that the opposite party filed a CMA before the Honorable district court Ernakulum and took the possession of the vehicle in pursuance of the order of the district court in CMA. So we cannot accept contention of the complainant that the opposite parties took the possession of the vehicle illegally and forcibly.
In M/S Magma Fincorp Ltd. vs. Rajesh Kumar Tiwari [Civil Appeal No. 5622 of 2019] hon’ble Supreme Court has held as under:
“79. The Financier continues to remain the owner of a vehicle, covered by a hire purchase agreement till all the hire installments are paid and the hirer exercises the option to purchase. Thus, when the Financier takes re-possession of a vehicle under hire, upon default by the hirer in payment of hire installments, the Financier takes repossession of the Financier’s own vehicle.
80. When the agreement between the Financier and the hirer permits the Financier to take possession of a vehicle financed by the Financier, there is no legal impediment to the Financier taking possession of the vehicle. When possession of the vehicle is taken, the Financier cannot be said to have committed theft.
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90. In a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement, non- service of proper notice would tantamount to deficiency of service for breach of the hire purchase agreement giving rise to a claim in damages. The Complainant consumer would be entitled to compensatory damages, based on an assessment of the loss caused to the complainant by reason of the omission to give notice. Where there is no evidence of any loss to the hirer by reason of omission to give notice, nominal damages may be awarded.”
In case on hand on reading of exhibit B2 we can see that though the notice was issued by the arbitrator to the complainant he did not care to appear before the arbitrator and file his objection. Exhibit B9 is the notice issued by the first opposite party to the complainant on 7-3-2020.First opposite party vide exhibit B9 called upon the complainant to pay Rs.5,09,400/- which is the due as on 14-1-2020 and to take back the vehicle within 7 days of the receipt of the letter and further informed that if the complainant failed to do so the vehicle would be disposed .
After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding installments and gave an assurance to pay future installments in time. It is evident from exhibit A2 notices. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier. The Complainant had not tendered payment. On the basis of the above discussion we are of the opinion that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the opposite parties. In the result the complaint is dismissed.
Pronounced in the Open Commission on this the 24th day of August, 2023
Sri. Manulal. V.S, President Sd/-
Smt. Bindhu.R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of RC book (KL-05-AQ-3445)
A2 series – Copy of lawyers notice dtd.29-05-2020to the opposite parties
(2 nos.)
A3 series – Copy of postal receipts (2 nos.)
A4 – Copy of lawyers notice dtd.29-05-2020
A5 – Copy of postal receipt
Exhibits marked from the side of opposite party
B1 – Copy of power of attorney
B2 – Copy of IA 1 of 2020 in Arbitration Reference No.3 of 2020 by
Arbitral Tribunal
B3- Copy of quotation for purchase of vehicle
B4 – Copy of newspaper cutting of advertisement dtd.21-03-2020 of
Mathrubhumi newspaper
B5 – Copy of letter dtd.1-07-2020 by 2nd opposite party to complainant
B6 – Copy of postal receipt
B7 – Copy of postal acknowledgement card
B8 – Copy of confirmation agreement
B8(a)- Copy of aadhar card
B9- Copy of letter dtd.07-03-2020 by 2nd opposite party to complainant
B10- Copy of letter dtd.15-03-21 by RTO Kottayam to the 2nd opposite
party
By Order
Sd/-
Assistant Registrar
