Andhra Pradesh

Chittoor-II at triputi

CC/35/2017

Nandhibakthula Sai Manoj Kumar, S/o N.Prakash Reddy - Complainant(s)

Versus

S.V.C. Finance, represented by its Managing Partner - Opp.Party(s)

V.Devendra, M.Jayasankar

11 May 2018

ORDER

         

 

                                                                                                Filing Date: 31-08-2017                                                                                                               Order Date: 11-05-2018

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

Present: - Sri. M. Ramakrishnaiah, President

                                                     Smt.T.Anitha, Member

 

FRIDAY THE ELEVENTH DAY OF MAY, TWO THOUSAND AND EIGHTEEN

 

C.C.No.35/2017

Between

Nandhibakthula. Sai Manoj Kumar,

Hindu, aged about 28 years, Unit incharge of

Surya daily newspaper, S/o. N. Prakash Reddy,

Thatimakula Palli (V&P),Yerravaripalem Mandal,

 Chittoor District.                                                                             … Complainant

 

And

S.V.C. Finance, rep. by its Managing Partner,

Old D.No.477/B, New D. No. 600 A,

Mosque Road, Tirupati, Chittoor District.                                       … Opposite party

 

        This complaint coming on before us for final hearing on 27.04.2018 and upon perusing the complaint, affidavit, written version, written arguments of the complainant and opposite party and other relevant material papers on record and on hearing of             Sri. M. Jayasankar & Sri. V. Devendra, counsels for the complainant and Sri. K. Ramesh Babu, counsel for the opposite party having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SRI. M. RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

        This complaint is filed under section 12 of the Consumer Protection Act 1986, by the complainant against the opposite party for the following reliefs: i) to direct the opposite party to  return the motor cycle bearing No.AP03AV 3009 to the complainant,   ii) to direct the opposite party to delete its company name from the registration certificate of the complainant’s vehicle with his own expenses, iii) to direct the opposite party to pay compensation amount of Rs. 50,000/- to the complainant for causing mental agony and harassment and iv) to direct the opposite party to pay costs of the complaint and pass such other or further reliefs as the Forum deems fit and proper in the circumstances of the case.

         2.The brief averments of the complaint are: that the complainant purchased YAMAHA YZF R15 BSIII model motor cycle on 08.08.2011 by paying Rs.65,000/- as down payment by availing Rs.60,000/- from opposite party as loan on hire purchase agreement which is repaid in 24 equal monthly installments at Rs.3,400/- per month, the complainant bear the registration expenses. Whereas the opposite party has to bear the expenses for removal of its name from Registration Certificate after completion of the loan. On the same day, he took the possession of the vehicle referred to above and entered into hire purchase agreement with the opposite party. Subsequently the complainant paid the total loan amount in prescribed installments regularly. The opposite party also closed the account but did not issue No due certificate and also did not remove its name from registration certificate of the vehicle.

        That on 12.08.2017 the staff members of the opposite party along with others came to the house of complainant and forcibly seized the vehicle. On 14.08.2017 the opposite party sent seizure notice dt: 12.08.2017 with all false allegations. Subsequently the opposite party stated that the complainant stood as guarantor to one D.Sudheer Kumar who also purchased a vehicle by obtaining loan from opposite party and committed default in payment of loan amount to the opposite party. Therefore, the opposite party seized the vehicle of the complainant and said that if the complainant pays the loan amount of D. Sudheer Kumar the opposite party will release the vehicle of complainant. The complainant is a unit in charge of Surya daily News Paper and the vehicle is very much essential to him. That though the complainant paid entire loan amount regularly as per the terms and conditions of hire purchase agreement, the opposite party seized his vehicle. Thus there is deficiency in service on part of the opposite party and also opposite party adopted unfair trade practice. Hence the complaint.

        3. The opposite party No.1 filed its written version  admitting that, the complainant availed loan Rs.60,000/- from opposite party for purchase of YAMAHA Motor Cycle where cost is Rs.1,25,000/- in total he made the down payment of Rs.65,000/- on 08.08.2017, entered in to hire purchase agreement with the opposite party on the same day. The complainant has availed loan of Rs.60,000/- which is repayable in 24 equal monthly installments at Rs.3,400/- per month. But the complainant paid only 9 installments in full and thereafter committed default in payment of remaining 15 installments due to the opposite party despite several demands. That the opposite party issued legal notice dt: 26.04.2017 calling upon the complainant and the guarantor, to pay the outstanding amount of Rs.96,000/- including interest and penalty for irregular payments as on 25.04.2017. The said notice was returned un served with an endorsement “Continuously absent”. The opposite party sent seizure notice to the complainant on 02.09.2017 demanding to repay the amount due within 15 days failing which, the vehicle will be seized. The complainant got issued notice dt: 20.09.2017 to the opposite party i.e. 20 days after filing the complaint. (31.08.2017). Complainant has a defaulter and yet to pay remaining 15 monthly installments along with interest and penalty amount. If the complainant paid the outstanding loan amount, the opposite party has no objection to return the vehicle.

         The opposite party further contended that, it is true that the complainant stood as a guarantor to one D.Sudheer Kumar who purchased vehicle under finance from opposite party. But he has not paid the loan amount so that, the opposite party seized complainant’s vehicle and the opposite party instructed the complainant to pay the loan amount of D.Sudheer Kumar then only the vehicle will be return. There is no deficiency in service on part of the opposite parties. When the borrower committed default in payment of installments due, the opposite party being financial institution is at liberty to recover amounts due and also even by seizure of the vehicle covered by the under hire purchase agreement and prays the Forum to dismiss the complaint with costs.

        4. The complainant filed its evidence affidavit as PW-1 and got marked Ex: A1 to A3. Whereas the opposite party field its evidence affidavit as RW-1 and got marked Ex:B1 to B12. Both parties have filed their respective written arguments which are part and parcel of the record.

       5. Now the points for consideration are:-

              (i)  Whether the complainant discharged the loan amount full to the opposite party as contended or committing default in payment of loan installments?

             (ii)  Whether there is any deficiency in service on part of the opposite party?                  

             (iii)  Whether the complainant is entitled for the reliefs sought for?

             (iv)  To what Relief?

                     6.Point No (i):-   At the outset we have to state, admittedly the complainant has filed only four (4) receipts covered by Ex:A2, Ex:A1 xerox copy of Registration Certificate and Ex:A3 notice dt: 12.08.2017. Though the complainant specifically avered in complaint and his evidence affidavit as well as in his written arguments that he has paid the total amount due to the opposite party regularly as per the terms and conditions of hire purchase agreement (Ex:B3), he has filed only four (4) receipts viz.,

                     a). Receipt No.456 dt: 19.10.2011 for Rs.3,400/-.

                     b). Receipt No.493 dt: 09.12.2011 for Rs.3,400/-.

                     c). Receipt No.4189 dt:16.03.2012 for Rs.3,400/-.

                     d). Receipt No. (Nill) dt: 06.07.2012 for Rs. 5,000/- totally an amount of             Rs. 15,200/- except this four receipts the complainant did not file any receipts in proof of the payment of remaining 20 installments. The loan was availed by the complainant on 08.08.2011 the installments will commence from 08.09.2011 and it will be concluded by 08.09.2013. However, the opposite party admitted that the complainant has paid nine (9) installments in full Rs.30,600/- in total and committed default for the remaining 15 installments. The installments paid were also irregular the complainant never paid any installment as stipulated by 8^th of every month from 08.09.2011 onwards.  The complainant failed to prove that, he has paid the total installments (24 in No) to the opposite party in order to discharge his loan.

                    7.  The complainant admitted that he stood as guarantor to the loan availed by one D.Sudheer Kumar from the opposite party who also committed default according to opposite party.  In this regard we have to state that, when the borrower committed default the finance institution is at liberty to recover the loans given to the borrower with agreed rate of interest as per the terms and conditions of hire purchase agreement.  The guarantor is also liable on par with the principal borrower. The finance institution got even right either to proceed against the principal borrower only or against the guarantor or against  both, to recover the loan amounts due to the financial institution.  Therefore we cannot find default with the financial institution. By virtue of the contents of complaint, evidence affidavit of PW-1 coupled with Ex:A2 receipts it is found that, the complainant has paid only four(4) installments in a sum of Rs.15, 200/- since the opposite party fairly conceded that the complainant has paid  nine (9) installments out of  24 which comes to Rs.30,600/-So, it is apparent prima facie that, the complainant is defaulter and failed to establish that he has paid the total amount due to the opposite party. Accordingly this point is answered.

         8.Point No(ii):-  To answer this point we have to state that, the opposite party being a financial institution advanced loan amount of Rs.60,000/- to the complainant on 08.08.2011 for purchase of YAMAHA YZF R15 BSIII model motor cycle, the complainant has made a down payment of Rs.65,000/- entered in to hire purchase agreement (Ex:B3)  with the opposite party and took away the motor cycle. The opposite party further contended that they have searched for the complainant for about two years in the nearby villages but finally they could trace out the complainant in the village and after serving the seizure notice dt: 02.09.2017, seized the vehicle on the same day. The opposite party having served the seizure notice on the complainant giving 15 days time for payment of entire loan amount due, ought to have waited till the 15 days time is over. However, the vehicle was with the opposite party till today admittedly and also stating that if the complainant pays entire loan amount due, they will release the vehicle bearing No.AP03AV 3009 to the complainant. The complainant instead of discharge the loan amount due, filed the complaint taking unsustainable plea that he has discharged total amount due to the opposite party, without there being any evidence.  Therefore, we are of the opinion that, the opposite party is rightly claiming amount due from the complainant and the complainant is also liable to pay the remaining 15 installments along with interest @ 18% p.a. as agreed in Ex:B3, to the opposite party. Under the above circumstances we are of the opinion that, there is no deficiency in service on part of the opposite party or the opposite party has not adopted the unfair trade practice. According this point is answered.  

        9.Point (iii):-    To answer this point we have to state that, the complainant failed to prove that he has paid entire loan amount due to the opposite party, Ex:A2 shows that the complainant has paid only four installments in a sum of Rs.15,200/-. So far as remaining installments are concerned at one stage the complainant stated that he lost the receipts for remaining installments. At another stage, he contended that the opposite party is not in the habit of passing on receipts for the payments made. This version is appears to be unsustainable. If the opposite party is not in the habit  of passing on receipts how could the complainant get four receipts covered by Ex:A2 and how nine(9) receipts will be available with the opposite party as shown in Ex:B12. By virtue the evidence available on record coupled with Ex:A2, Ex:B3, B10 to B12 it is proved that, the complainant has committed default in payment of installments from 10^th installment onwards. The complainant failed to establish that, he has paid the entire 24 installments as per the terms and conditions of hire purchase agreement under Ex:B3 on the other hand, it is established by the opposite party that the complainant is a defaulter. Defaulter is not entitled for any reliefs. Therefore, the complainant is not entitled for the reliefs sought for. Accordingly this point is answered.

         10.Point (iv):-   In view of our holding on points 1 to 3 we are of the opinion that, the complainant failed to establish that he has paid the entire 24 monthly equal installments in order to discharge the loan amount of Rs.60,000/- with interest as per the terms and conditions of the hire purchase agreement under Ex:B3. That it is established that the complainant is a defaulter and the opposite party is entitle to recover the amounts due from the complainant with interest in terms of hire purchase agreement under Ex:B3. The complainant being a defaulter is not entitled for the reliefs sought for and complaint is liable to be dismissed.

         In the result, complaint is dismissed. No Costs.

         Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 11^th day of May, 2018.

       Sd/-                                                                                                                        Sd/-

 Lady Member                                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: N. Sai Manoj Kumar (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: G. Balaji Chowdary (Chief Affidavit filed).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of Registration Certificate of vehicle AP03 AV 3009.
	Original Receipts (4 Numbers).
	Seizure Notice in Original. Dt: 12.08.2017.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Original copy of Loan application of complainant. Dt: 08.08.2011.
	Original copy of Promissory Note by complainant and Guarantors. Dt: 08.08.2011.
	Original copy of Hire Purchase Agreement. Dt: 08.08.2011.
	Office copy of Legal Notice. Dt: 26.04.2017.
	Acknowledgement of Grantor in Original.
	Return cover of complainant along with acknowledgement.
	Office copy of Final Notice issued by the complainant with postal receipt.  Dt: 02.09.2017.
	Return Cover along with Acknowledgement. Dt: 14.09.2017.
	Served copy of notice issued by complainant. Dt: 20.09.2017.
	Original copy of Statement of Account of the complainant. Dt: 08.08.2011.
	True copy of the loan ledger Extract.
	Bunch of Cash (Carbon Copy Print) Receipts with 7 in Number.

 

             Sd/-

                                                                                                             President

// TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:  1) The Complainant, 

                  2) The Opposite party.