By Sri. MOHANDASAN.K, PRESIDENT

1.Complaint in short is as follows: -

      The complainant availed the loan of Rs. 3,50,000/- for the purpose of purchasing 2013 model ERTIGA car bearing registration No. KL-10-AP-9807 from the opposite parties.  As per the terms and conditions of the loan  the complainant has to repay  Rs. 5,12,000/- in 30 monthly instalments commencing from 04/05/2016 and ends with 04/10/2018.  The first 20 instalments are of Rs. 17,500/- and the remaining 10 monthly instalments is of Rs. 16,200/-each. The first opposite party is the agent of the second opposite party and the complainant availed the loan through the first opposite party.   The husband of the complainant remitted instalments on behalf of the complainant regularly to the first opposite party.  The first opposite party issued temporary receipt for the same.  Thereafter on receipt of the said payment from the first opposite party, the second opposite party usually issued original receipt for the said payment. Normally the said procedure will take two-week times. The complainant regularly paid monthly instalments and the opposite parties issued receipt for the same. 

2.    The husband of the complainant Mr. Abdul Razak also had availed a loan for purchasing another vehicle.  He also paid monthly instalments of the said vehicle and opposite parties issued receipts for the same.  The complainant had paid Rs. 35,000/- rupees on 02/01/2018 towards the payment of monthly instalments of two vehicles to the first opposite party.  The first opposite party received the said amount and issued temporary receipt for the same.  But the complainant not received original receipt from the 2^nd opposite party for the said payment.  It was learned that first opposite party did not give, the said amount to the second opposite party.    So, the complainant lost faith in the opposite parties.  The husband of the complainant told the first opposite party that without getting original receipt from the second opposite party, the complainant will not remit the balance instalments. 

3.           The second opposite party demanded to pay penal charges for the payment made on 02/01/2018 for Rs. 35,000/- for which according to complainant the first opposite party alone is responsible.  The first opposite party being the agent of the second opposite party, the 2^nd opposite party is vicariously liable for the same.  The complainant received a letter on 07/01/2020 from the 2^nd opposite party demanding 1,97,000/- along with additional hire charges for which the complainant is not liable.  The default happened only because of the act of the opposite parties.

4.      Due to the act of the opposite parties, the complainant has to suffer lot of hardships and mental agony.  The complainant prays for compensation of Rs. 50,000/- from the opposite parties.  The complainant prayed to issue direction that not to repossess the vehicle bearing registration No. KL-10-AP-9807 and also direct to adjust the payment of Rs.17,500/- towards the loan amount.  The complainant also prays for direction to issue clearance letter to cancel the hypothecation endorsement from the registration certificate of the vehicle by accepting the actual amount due.  Complainant prays cost of Rs. 10,000/-.

5.           On admission of the complaint, notice issued to the opposite parties and the opposite parties entered appearance and filed the version.  The second opposite party filed detailed version and the first opposite party filed Memo adopting the version of second opposite party.

6.         The second opposite party admitted that they  lent a loan in favour  of the complainant on 04/04/2016 executing Hire Purchase Agreement for a sum of Rs.5,12,000/- for purchasing  vehicle namely 2013 Model ERTIGA bearing registration No. KL-10-AP-9807.  As per the agreement complainant agreed to repay the loan amount in 30 monthly instalments as per schedule - B of the Hire purchase agreement.  As per the agreement first 20 instalments is to be paid at the rate of Rs. 17,500/- and the remaining 10 instalments at Rs.16,200/-. The entire loan amount shall be paid on or before 04/10/2018 commencing from 04/01/2018 and the instalment due for each month shall be on every 4^th day of English calendar month till the completion of 30 instalments.  The husband of the complainant Mr. Abdul Razak stood as guarantor for the loan amount. 

7.    The opposite party submitted that the complainant is being party to Hire purchase agreement, is bound to comply the terms and conditions in making payment of monthly instalment and in case of default complainant is liable to remit additional hire charges at the rate of 30% per annum.  The complainant was a chronic defaulter which can be seen from schedule-B of the Hire purchase agreement.  The complainant made payment with much delay.  The complainant made delay in making payment at least 10 instalments up to 7/03/2018, which shows the delay of more than one month.  The complainant herein filed this complaint suppressing the material facts.  The complainant approached this Commission suppressing the material fact and obtained   interim order restraining the opposite parties from repossessing the vehicle till the disposal of IA No. 160/2020.  So, the submission of the opposite party is that the complainant had approached this authority with unclean hands and suppressing the real fact and so the complainant is not entitled for any relief as prayed.  The opposite party cited the decision of Hon’ble Supreme Court of India reported in (2007) 4 SCC 221 Para 21 to 39 between A.V. Pappayya Sastry Vs Govt of A.P. and in (2006) 7 SCC 416 Hamza Haji Vs State of Kerala. The contention of the opposite party is that the complainant obtained the order by practising or playing role which cannot be held to be legal and in consonances with by concealing the material facts that she was a chronic defaulter in repaying EMI. The submission is that the complainant played before this authority deliberately hiding the true facts and so complaint is liable to be dismissed. 

8.    The opposite parties denied the averments of the complainant that on 02/01/2018 the first opposite party issued temporary receipt but no original receipt was issued by the 2^nd opposite party and so she abstained from remitting the balance instalments.  But it can be seen that the complainant remitted 17,500/- rupees on 14/02/2018 and also on 07/03/2018.  The opposite party also submitted that the complainant remitted Rs. 3,15,000/- till 07/03/2018 out of the total due amount of Rs. 5,12,000/-. Hence the submission of the opposite party is that the complainant is liable to pay Rs. 1,92,000/- along with additional charges at the rate of 30% per annum for delayed and defaulted payments till the date of realisation.  The opposite party admitted the payment of Rs.35,000/- by the complainant on 02/01/2018 towards the monthly instalments of two vehicles including the vehicle stands in the name of the complainant in CC.NO.115/2020 before the Consumer Disputes Redressal Commission. But it is submitted that there were arrears in instalments due for the year 2017 had already been accumulated likewise very same date of credit was also given in the name of her husband.  The opposite parties never disputed the payment of Rs.35,000/- and the same was adjusted towards the loan amount.  The submission of the opposite parties is that though there were several defaults in repayment of loan instalments, opposite parties magnanimously allowed the complainant to retain the vehicle instead of repossessing of it.  The specific case of the opposite parties is that the complainant so far has paid Rs 3,15,000/-  and the disputed amount of Rs. 17,500/- is part and parcel of the  above total amount paid by the complainant.  As the claim of the complainant to adjust Rs. 17,500/- once again in the pending loan amount is nothing but an attempt of unjust enrichment which cannot be allowed.  Therefore, the prayer of the opposite parties  is to vacate the interim order granted in IA.No.160/2020 and dismiss the complaint imposing exemplary cost to the complainant.

9.      The complainant and opposite party filed affidavit and documents.  The document on the side of complainant marked as Ext. A1 to A4. Ext. A1 is copy of pass book. Ext. A2 is Series of cash receipts in 18 Nos., Ext. A3 is a lawyer notice, Ext. A4 is payment schedule.  Opposite party filed documents and they are marked as Ext. B1 to B3. Ext. B1 is copy of Hire purchase agreement, Ext. B2 is payment schedule-part of agreement. Ext. B3 is   Payment chart.

10.    Heard both sides, perused affidavit and documents. Opposite parties are also filed Notes of arguments. The following points arise for consideration: -

1. Whether there is deficiency in service on the part of the opposite parties?
2.  Relief and cost.

11.      The case of the complainant is that, he availed loan from the opposite parties executing Hire Purchase Agreement and he was regular in making payment of instalments.  But on 02/01/2018 the husband of the complainant remitted an amount of Rs. 35,000/- of the two vehicles to the first opposite party.  Though the first opposite party received the amount and issued temporary receipt, the second opposite party did not issue original receipt.  The complainant submitted that, the first opposite party did not give the said amount to the second opposite party and the complainant lost faith in the opposite parties.  The husband of the complainant who was remitting the instalments regularly said to the first opposite party that without getting original receipt from the 2^ndopposite party, that he will not remit balance instalments. The complainant produced 17   original receipts issued by the 2^nd opposite party and the temporary receipt issued by the first opposite party.

12.        The opposite parties contended that the complainant was a chronic defaulter and there was number of delayed payments, even the delay was caused more than one month in certain occasions.  The opposite parties admitted that payment of 35000/-rupees on 02/01/2018 and it is submitted that the same was accounted towards the instalment payment.  The specific contention of the opposite parties that the complainant has not stated the total amount paid towards the loan amount of Rs 5,12,000/-.  The opposite party has submitted that the total payment made by the complainant was Rs.3,15000/- and the balance amount as per the loan agreement is Rs. 1,97000/- and penal interest.  The opposite party accordingly issued notice to the complainant directing to remit outstanding dues of Rs. 197,000/- along with additional hire charges for the delay in payment.

13.     The perusal of complaint and the affidavit will not reveal the total amount which the complainant remitted towards the loan amount. The opposite parties  submitted that  the amount remitted by the  complainant  has accounted  towards the  defaulted  instalments  and so the question of  non-accounting of the payment  made  on 02/01/2018 does not arise. According to the opposite parties, the same has been accounted on 21/12/2017. The opposite parties are also submitted that the complainant had remitted the instalments on 14/02/2018 and 07/03/2018, which is after the remittance of 02/01/2018, the disputed non receipt of original receipt. The contention of the complaint that the complainant abstained from remitting instalments, due to non-issuance of original receipt is baseless.  The Commission finds the submission of the opposite parties to be given due appreciation. It can be seen that the complainant has not initiated any steps on non-issuance of original receipt for the payment of the instalments.   The unilateral abstaining from payment of instalments is not a due course of action from the side of complainant.  On the other hand, opposite party had issued notice to the complainant. Thereafter the present complaint filed before this Consumer Disputes Redressal Commission. Considering the averments and perusing the affidavit of the complainant a direction to the opposite parties was given that not to seize the vehicle till the disposal of IA.No.160/2020.  Now from the documents and the averments in the affidavit it can be seen that there is substantial amount is due to the opposite parties. That being the situation the Commission cannot hold the case of the complainant as merit oriented, but a false case with legally not sustainable grounds.  Hence the Commission dismiss the complaint with permission to the opposite parties to realise the hire purchase amount as per agreement, but it is directed to exempt the penal interest from the date of filing the complaint till disposal of the complaint.  The order passed in IA 160/2020 also  stands revoked and the complaint stands dismissed.