By Sri. Mohamed Ismayil.C.V, Member
1. The complainant availed loan of Rs.3,50,000/- (Three lakh fifty thousand only) for the purpose of purchasing 2008 model Ford car bearing registration No.KL-26A-001 from the opposite parties. As per the terms and conditions of the loan, the complainant has to repay Rs.5,12,000/- (Rupees five lakh twelve thousand only) in 30 monthly instalments commencing from 29-10-2015 end with 29-03-2018. The first 20 instalments was of Rs.17,500/- (Rupees seventeen thousand and five hundred only) each month and remaining 10 monthly instalments comes to the tune of Rs.16,200/- (Rupees sixteen thousand and two hundred only) each. According to the complainant the first opposite party is the agent of the second opposite party. The complainant availed the said loan through the first opposite party and regularly remitted the instalments. The first opposite party issued temporary receipts for the same. Thereafter on receipt of the said payments from the first opposite party the second opposite issued original receipt for the said payment usually and it is used to taken two weeks time for completing the procedure. The complainant regularly paid the monthly instalments and the opposite party parties issued the receipts for the same . The wife of the complainant named Kadheeja also availed loan for purchasing another vehicle and complainant also making repayment for the same.
2. It is stated in the complaint that, on 02-01-2018 the complainant remitted Rs.35,000/- (Thirty five thousand only ) (17.500 x2) towards the payment of the monthly instalments of two vehicles to the first opposite party . After receiving the amount the first opposite party issued temporary receipts for the same. But later, the complainant did not receive the original receipts so far from the opposite parties for the payment made on 02-01-2018. On enquiry the complainant came to know that the first opposite party did not give the collected instalments to the second opposite party. So complainant lost faith in the opposite parties. The complainant told the opposite party that without getting original receipts for the payment made on 02-01-2018 he will not make further remittance of balance instalments.
3. It is stated by the complainant that the second opposite party asked to pay penal charges for the above said instalments. The complainant added that he was not liable to pay the same as the second opposite party was also vicariously liable for the act of the first opposite party. While so a letter dated 07-01-2020 was received by the complainant demanding to pay Rs.92,000/- (Ninety two thousand only) along with additional hire charges from the second opposite party. According to the complainant he was not liable to pay the amount as demanded by the opposite parties. The complainant suffered a lot of hardship, mental agony due to the act of the opposite parties. So the complainant approached the Commission for redressal of his grievances. The complainant prayed for directing the opposite parties to adjust the payment of Rs.17,500/- made on 02/01/2018 by the complainant towards the loan in his name and also to pay Rs.50,000/- as compensation for the hardship and mental agony suffered by the complainant due to the act of the opposite parties. The complainant also prayed to direct the opposite parties to issue a clearance letter to cancel the hypothecation endorsement from the registration certificate of the vehicle bearing registration No.KL – 26 A -001 after accepting the actual amount due and to pay Rs.10,000/- on account of the cost of this proceedings.
4. At the time of admission of the complaint, the complainant filed an Interim Application number 158/2020 in order to restrain the opposite parties from repossessing the vehicle illegally and forcefully or without due process of law. For the interest of justice the Commission allowed the above application and directed the opposite parties to restrain from repossessing the above numbered vehicle till the final disposal of the IA.
5. Notices issued to the opposite parties, but not turned up before the Commission. On 05/03/2021 the opposite parties appeared along with IA 71/2021 to set side exparte order and the same was allowed by the Commission. The second opposite party filed written version and the first opposite party filed a memo to adopt the same.
6. In the version it is stated that on 29-09-2015 a hire purchase agreement was executed between the complainant and the second opposite party to lent Rs.5,12,000/- to the complainant for purchasing a vehicle namely ford endeavour, 2008 model bearing registration No. KL- 26A -001. As per the hire purchase agreement, the complainant agreed and undertaken to repay the loan amount in 30 monthly instalments as per schedule B of the hire purchase agreement from 29-10-2015 onwards, of Rs.17500/- each per month for 20 months and remaining 10 instalments of Rs.16,200/- each. Then the entire loan amount shall be paid on or before 29-03-2018 commencing from 29-10-2015 and the instalment due for each month shall be on every 29th day of english calendar month till the completion of 30 instalments. One Kadeeja, who is the wife of the complainant stood as a guarantor for the loan amount. According to the opposite parties as per clause 14 and 19 of the hire purchase agreement the hirer/complainant liable to incur additional hiring charges @30% per annum in case of hirer makes any default in repayment of monthly instalments. It is added by the second opposite party that till the repayment of or discharge of entire loan amount by the hirer, the second opposite party continues to remain as owner of the above vehicle and the hirer is not entitled to sell , charge , pledge, assign etc, of the possession of the vehicle. The complainant is bound by terms and conditions of the hire purchase agreement. But it contended by the second opposite party that complainant miserably failed to comply with the terms in making payment of monthly instalments as per the binding clauses in the hire purchase agreement. It is stated that complainant was chronic defaulter in the repayment of loan instalments. According to the opposite party , complainant remitted instalment of March, 2016 on 04-04-2016 instead of 29-03-2016 and thereafter continuously defaulted upto 16-12-2016 i.e. for about 10 months the complainant remitted instalments belatedly at least by one week and maximum by 18 days. The loan instalment due for the month of December , 2016 and January 2017 were paid only on 06-02-2017, thereby default days exceeded more than 2 months and instalment for February , 2017 was paid on 14-03-2017, a delay of 16 days. The instalment of March 2017 was paid on 19-04-2017 after occurring delay of 21 days. After that payment the complainant never remitted loan instalments continuously for three months i.e. April 2017, May 2017 and June 2017. On 12-07-2017 complainant remitted one instalment due of Rs.17,500/- and later on 09-08-2017 he paid another instalment of Rs.17,500/-. After 2 months interval he remitted Rs.17,500/- on 25-11-2017. His payment of Rs.17,500/- made on 02-01-2018 had been credited on 21-12-2017 and later remittance was done on 14-02-2018 and 07-03-2018 respectively. So according to the second opposite party the remittance of loan instalments made by the complainant covered only up to September 2017 and last instalment paid on 07-03-2018 was pertaining to the instalment due of September, 2017. The complainant did not regularly remitted the loan instalments as per schedule B of the Hire Purchase Agreement and suppressing this material facts he approached the Commission and obtained an interim order restraining the opposite parties from re- possessing the vehicle till the disposal of IA No.158 of 2020. According to the opposite party, the act of complainant is a fraud played on the commission. The complainant approached this Commission with unclean hands, abused the process of law and contmpted the Commission. So the above said interim order liable to be vacated by imposing heavy cost. According to the opposite party once it is established that the order was obtained by a successful party, by practicing or playing fraud , it is vitiated and such an order cannot held to be legal and in consonance with law and it is an order non est in the eye of law.
7. It is stated in version that complainant also made remittance of instalments on 14-02-2018 and 07-03-2018 after the remittance made on 02-01-2018. So the statement of the complainant that he will not make remittance of balance instalments without getting original receipts of the payment made on 02-01-2018 was not correct. It is borne out by the records that the complainant had paid so far total of Rs.4,20000/- till 07-03-2018 out of the total due of Rs.5,12,000/-. Therefore the complainant is liable to pay the remaining loan instalments of total Rs.92,000/- along with additional charges @ 30% per annum for delayed and defaulted payments till the date of realisation . It is further contended that the opposite parties not denied the payment of Rs.35,000/- made 02-01-2018 towards the monthly instalments for two vehicles including the vehicle stands in the name of wife of the complainant, who filed a complaint as CC114/2020 before this Commission.
8. The complainant and the second opposite party filed affidavits and documents. On the side of the complainant documents marked as Ext. A1 to A4. Ext.A1 is the copy of the pass book issued by the second opposite party to the complainant .Ext. A2 (series) is the copy of original receipts and one temporary receipt issued by the first opposite party. Ext. A3 is the copy of the letter dated 07/01/2020 issued by the second opposite party to the complainant demanding to pay the balance amount. Ext. A4 is the copy of the amount statement issued by the second opposite party to the complainant. Opposite party filed documents and marked as Ext. B1 to B4. Ext. B1 is the copy of Hire Purchase agreement executed on 29/09/2015 between the complainant and the second opposite party. Ext. B2 (series) is the copy of receipts issued by second opposite party to the complainant. Ext. B3 is the copy of the Ledger Account statement of the remittance done by the complainant. Ext. B4 is the copy of the Memo of calculation.
9. Heard both sides. Perused affidavit and documents. The opposite party also filed notes of arguments. The following points arised for consideration.
- Whether there is deficiency in service on the part of the opposite parties
- Relief and cost?
10. Point No.1 &2
The case of the complainant is that, he availed a loan from the Second opposite party by executing Ext.B1 hire purchase agreement and he claimed as regularly paying the instalments. On 02/01/2018 the complainant remitted an amount Rs.35,000/- to the instalments of the loans availed by himself and his wife (Rs.17,500/- each). Though the first opposite party received the amount of Rs.3,5,000/- and issued only a temporary receipt . But the opposite party did not issued original receipt. According to the complainant he under stood that the first opposite party did not give the said amount to the second opposite party. So he lost faith in the opposite parties. The complainant informed the first opposite party that without getting original receipt from the second opposite party the balance instalments will not be remitted.
11. The perusal of complaint and the affidavit of the complainant is not revealing the total amount and the date on which the complainant remitted instalments towards the loan amount. But complainant produced copy of receipt of payment made by him. According to the opposite party , the complainant did not make payment regularly and he was a defaulter. 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. So it is stated by the opposite party, the remittance made on 02-01-2018 the same has been accounted on 21/12/2017. The opposite parties 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 date of the disputed non-reception of original receipt. The contention of the complainant that he abstained from remitting instalments due to non-issuance of original receipt is baseless. At the same time, considering the facts of the case, the Commission finds the submission of the opposite party is to be given due appreciation. It can be seen that the complainant has not initiated any steps on non-issuance of original receipt against the first opposite party for misappropriation of money. 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 complainant filed the present complaint before the Consumer Disputes Redressal Commission. Considering the averments and perusal of the affidavit of the complainant a direction to the opposite parties was given as not to seize the vehicle till the disposal of IA.No.158/2020. Ext. A2 series receipts itself shows that the complainant did not make remittance of loan instalments as per terms and conditions of Ext. B1 document. The content of Ext.B1 document is not disputed by the complainant. So it can be seen that complainant defaulter as per hire purchase agreement. Now from the documents and the averments in the affidavit it can be seen that there is substantial amount is due to the opposite party. 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 158/2020 also stands revoked and the complaint stands dismissed.
Dated this 16thday of June, 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A4
Ext.A1: is the copy of the pass book issued by the second opposite party to the
complainant
Ext.A2: is the copy of the original receipts and one temporary receipt issued by the
first opposite party.
Ext A3: Copy of the letter dated 07/01/2020 issued by the second opposite party to
the complainant demanding to pay Rs.92,000/-.
Ext A4: Copy of account statement issued by the second opposite party to the
complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B4
Ext.B1:Copy of Hire purchase agreement executed on 29/09/2015 between the complainant and the 2nd opposite party .
Ext.B2: (series) Copy of receipts issued by 2nd opposite party to the complainant.
Ext.B3: Copy of the Ledger Account statement of the remittance done by the
Complainant.
Ext.B4: Copy of the memo of calculation.
Mohandasan . K, President
PreethiSivaraman.C, Member
VPH Mohamed Ismayil.C.V, Member
