Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.       The complainant  has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that  the complainant is a self employed person and is owner of truck bearing RC No.PB-02-AV-8635  and the entire family of the complainant is dependant upon the earning of the complainant on the basis of said truck. The aforesaid truck has been purchased and financed by the complainant from Opposite Party. Earlier, the said truck was in the name of Amrik Singh, but the same was lying with the Opposite Party  being financer and the Opposite Party  assured that the said truck is free from all kind of lien and on the assurance of the Opposite Party, the complainant purchased and financed the said truck from Opposite Party  for a sum of Rs.6,35,000/-. At the time of purchasing the said truck, the complainant paid Rs.1,35,000/- and Rs.44,000/- to the Opposite Party , but they issued the receipts of the same in the name of said Amrik Singh, in whose name the said truck was at that time, but however, the complainant is in possession of these original receipts dated 17.3.2012 and 28.5.2012 and the aforesaid amount was required to be deducted by the Opposite Party  from the loan account of the complainant, for which they had assured, but they did not deduct the said amount from the account of the complainant till date. Thereafter, the complainant remained paying the installments of the aforesaid truck to the Opposite Party  from time to time against proper receipts and has already paid Rs.7,00,380/- to the Opposite Party. The Opposite Party  had agreed that they shall charge simple interest @ 12% per annum over the loan account of the complainant, but now the Opposite Party  illegally and unlawfully, has started demanding Rs.7 lacs in one stroke from the complainant without assigning any kind of reason and detail of said demand.  Now the Opposite Party  is threatening the complainant that if the complainant not paid the entire amount, they will take the custody of the truck in question forcibly. The complainant requested the Opposite Party  not to take law into their own hands, but they are adamant on their illegal demand. They are not complying with the terms and conditions of the aforesaid finance and committing deficiency in service. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party  may kindly be restrained from taking the custody of the truck in question forcibly and illegally or in any manner whatsoever.

b)      Opposite Party  be directed to deduct the aforesaid amount of Rs.1,35,600/- and Rs.44,000/- from the account of the complainant.

c)       Opposite Party  may also be directed to charge simple interest only @ 12% per annum over the loan account of the complainant.

d)      Opposite Party  may kindly be directed to submit and provide the true statement of account of the loan account of the complainant alongwith full detail, loan documents, rate of interest, payment receipts and due amount.        

e)       A compensation and litigation expenses to the tune of Rs.50,000/- may also be awarded to the complainant.

f)       Any other relief to which the complainant is found entitled under the law and equity may also be awarded to him.

Hence, this complaint.

2.       Upon notice, Opposite Party  appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that the complainant approached the Opposite Party  for financial assistance for the purchase of truck, which was approved by the Opposite Party  vide Loan agreement AMRITO208200001 for the amount of Rs.6,35,000/- on 20.08.2012. At the time of availing said financial assistance executed Loan cum Hypothecation Agreement and agreed to pay back the said amount of Rs.6,35,000/- in 43 equal instalments alongwith interest to the tune of Rs.2,73,812/-. Said instalments were payable from 20.09.2012 till 20.03.2016. Accordingly on account of the said financial assistance the complainant purchased the   truck make TATA LPT TIRBO FBT which was registered with the transport authorities and as per the said agreement the same was hypothecated with Opposite Party. The complainant never maintained the financial discipline regarding all the finance facilities and never made the payments of the instalments to the Opposite Party  as per the schedule, but the payments were made by him as per his sweet will which will be evident from the account statement and several times committed default in the timely payment of instalments and several time requests had been made to the complainant to make the payment of the defaulting amount, but to no effect. The complainant was called upon several times to clear the outstanding  dues but the complainant utterly failed to comply with the terms and conditions of the agreement he had executed with the Opposite Party. As per the terms and conditions of the hypothecation agreement the complainant was liable to pay the instalments for the repayment of the loan amount as per the schedule. As per the terms and conditions of the said agreement, as default committed by the borrower, the Opposite Party  is within its right to repossess the vehicle in the event of default committed by the borrower.  Hence, there is no deficiency in service on the part of the Opposite Party. On merits, the Opposite Party  took almost same and similar pleas as taken by them in the preliminary objections.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C19  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Pawan Kumar Authorised attorney Ex.OP1 alongwith copy of agreement Ex.OP2 and copy of account statement Ex.OP3 and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that the complainant is a self employed person and is owner of truck bearing RC No.PB-02-AV-8635 and the entire family of the complainant is dependant upon the earning of the complainant on the basis of said truck. The aforesaid truck has been purchased and financed by the complainant from Opposite Party. Earlier, the said truck was in the name of Amrik Singh, but the same was lying with the Opposite Party  being financer and the Opposite Party  assured that the said truck is free from all kind of lien and on the assurance of the Opposite Party, the complainant purchased and financed the said truck from Opposite Party  for a sum of Rs.6,35,000/-. At the time of purchasing the said truck, the complainant paid Rs.1,35,000/- and Rs.44,000/- to the Opposite Party , but they issued the receipts of the same in the name of said Amrik Singh, in whose name the said truck was at that time, but however, the complainant is in possession of these original receipts dated 17.3.2012 and 28.5.2012 and the aforesaid amount was required to be deducted by the Opposite Party  from the loan account of the complainant, for which they had assured, but they did not deduct the said amount from the account of the complainant till date. Thereafter, the complainant remained paying the installments of the aforesaid truck to the Opposite Party  from time to time against proper receipts and has already paid Rs.7,00,380/- to the Opposite Party. The Opposite Party  had agreed that they shall charge simple interest @ 12% per annum over the loan account of the complainant, but now the Opposite Party  illegally and unlawfully, has started demanding Rs.7 lacs in one stroke from the complainant without assigning any kind of reason and detail of said demand.  Now the Opposite Party  is threatening the complainant that if the complainant not paid the entire amount, they will take the custody of the truck in question forcibly. The complainant requested the Opposite Party  not to take law into their own hands, but they are adamant on their illegal demand. They are not complying with the terms and conditions of the aforesaid finance and committing deficiency in service.

7.       On the other hand, ld.counsel for the Opposite Party  has repelled the aforesaid contentions of the ld.counsel for the complainant on the ground that the complainant approached the Opposite Party  for financial assistance for the purchase of truck, which was approved by the Opposite Party  vide Loan agreement AMRITO208200001 for the amount of Rs.6,35,000/- on 20.08.2012. At the time of availing said financial assistance executed Loan cum Hypothecation Agreement and agreed to pay back the said amount of Rs.6,35,000/- in 43 equal instalments alongwith interest to the tune of Rs.2,73,812/-. Said instalments were payable from 20.09.2012 till 20.03.2016. Accordingly on account of the said financial assistance the complainant purchased the   truck make TATA LPT TIRBO FBT which was registered with the transport authorities and as per the said agreement the same was hypothecated with Opposite Party. The complainant never maintained the financial discipline regarding all the finance facilities and never made the payments of the instalments to the Opposite Party  as per the schedule, but the payments were made by him as per his sweet will which will be evident from the account statement and several times committed default in the timely payment of instalments and several time requests had been made to the complainant to make the payment of the defaulting amount, but to no effect. The complainant was called upon several times to clear the outstanding  dues but the complainant utterly failed to comply with the terms and conditions of the agreement he had executed with the Opposite Party. As per the terms and conditions of the hypothecation agreement the complainant was liable to pay the instalments for the repayment of the loan amount as per the schedule. As per the terms and conditions of the said agreement, as default committed by the borrower, the Opposite Party  is within its right to repossess the vehicle in the event of default committed by the borrower. Perusal of the Loan cum hypothecation agreement Ex.OP2 shows that complainant Sukhdev Singh duly signed the aforesaid agreement in the presence of guarantor Satnam Singh and had agreed to  pay back the said amount of Rs.6,35,000/- in 43 equal instalments alongwith interest to the tune of Rs.2,73,812/-. Said instalments were payable from 20.09.2012 till 20.03.2016. Moreover, to prove his case, the complainant has not filed any affidavit of said guarantor Satnam Singh at the time of execution of the agreement that he never agreed to pay the said amount nor he executed any such agreement. But at this stage, the complainant can not wriggle out from his promise to make the payment of loan alongwith agreed rate of interest to the Opposite Party and in this way, the Opposite Party  is within its right to charge the amount from the complainant as per the agreement executed between the complainant and Opposite Party.  In clause No.1.6 of the said agreement, it is clearly mentioned that in the event of the borrower committing a default in the payment of sum due hereunder, whether by way of repayment of the outstanding balance of the said credit facilities or by way of payment of interest or any other payment due and payable by the borrower……….. the borrower shall, in respect of the outstanding amount and in respect of interest or other amount in default, pay, additional interest at the rate specified in the schedule III, from the date of default till the date of payment. In view of this, the Opposite Party is within its right to charge the outstanding from the complainant in view of the hypothecation agreement executed between the parties and this Forum is of the considered view that  there is no deficiency in service on the part of the Opposite Party.

8.       In view of the aforesaid facts and circumstances of the case, there is no merit in the complaint and the same is dismissed.   Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 17.08.2017.