Consumer Complaint No. 91 of 2016

Date of filing: 15.6.2016                                                               Date of disposal: 16.6.2017

Complainant:               Tapas Ghosh, S/o. Late Jiban Krishna Ghosh, resident of Muchipara, PO. & Dist: Burdwan, PIN – 713 103.

-V E R S U S-

Opposite Party:    1.     Sundaram Finance Burdwan, Burdwan Branch, Represented by its Branch Manager, having its office at H/No. 39/37a, G. T. Road, Parbirhata, PO, PS. & Dist: Burdwan, PIN – 713 101.

2.      Sundaram Finance Ltd., represented by its Managing Director, having its office at 21, Patullo Road, Chennai – 699 992.

Present:      Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:           Ld. Advocate, Suvro Chakraborty.

Appeared for the Opposite Party (s):  Ld. Advocate, Mosihur Rahaman Mallick.

J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the Ops as the Ops without providing him the copy of the loan agreement and statement account in respect of loan amount, came at his residence to repossess the vehicle through an unscrupulous manner.

The brief fact of the case of the complainant is that he purchased a private car for his personal use in the year 2013 and for that purchase he obtained financial help from the Ops to the tune of Rs. 8, 00,000=00. The Ops sanctioned the said amount along with some terms and conditions stating that the entire loan amount along with interest have to be paid by 46 equal monthly installments and for this reason the installment amount was scheduled as Rs. 22,000=00 for 46 installments and Rs. 9,570=00 as last installment. The loan amount was sanctioned on 29.12.2012 by issuing a letter by the Ops. From the date of purchase of the vehicle and taking loan the complainant used to pay due EMI to the Ops on regular basis but subsequently due to his financial stringencies he failed to pay some EMI to the Ops. Therefore the complainant paid some amount on several occasions. Those amounts were paid on mutual consent which was made by and between the complainant and the Op at Burdwan.  The EMI which was paid by the complainant towards repayment, against such repayment the Ops did not issue any money receipt, but the amount paid on mutual consent, the Ops issued receipts in favour of the complainant. On several occasion the complainant requested the Ops to provide him the statement of accounts as he did not know the actual amount which he shall have to pay to regularize his loan account. On 07.10.2015 at the time of mutual settlement the complainant wrote a letter to the office of the OP at Burdwan. At that time the OP-1 assured the complainant that statement of account will be sent to the complainant through post after adjusting the amount paid by him to the tune of Rs. 2, 64,000=00. Since then the Ops did neither provide any statement account to the complainant nor pay any heed to his requests. Moreover, the Ops did not provide any photocopy of the agreement to him. All on a sudden on 09.5.2016 when the complainant was not in his residence some unknown persons entered into his premises without taking any permission. When the mother and wife of the complainant wanted to know about their identity then the said persons replied that they are the agent of the Ops. The said persons used slang language stating that they will repossess the vehicle of the complainant in case of failure of making payment of the balance loan amount along with interest. After returning home the complainant intimated the said fact to the Police Station, Burdwan but as the Police authority refused to take any complaint then he sent the complaint to the S.P., Burdwan through registered post with A/D after servicing a copy to the I.C., Burdwan P.S. on 11.5.2016. The complainant has stated that the manner in which the Ops tried to repossess the vehicle is an illegal. As his grievance have not been redressed by the Ops, finding no other alternative he has approached before this ld. Forum by filing this complaint praying for direction upon the Ops to provide the copy of loan agreement and account statement, to provide installments of the remaining balance amount with lower rate of interest, to pay a sum of Rs. 50,000=00 towards compensation for mental pain, agony and harassment and litigation cost of Rs. 20,000=00.

            The petition of complaint has been contested by the OPs by filing conjoint written version contending that this complaint is not maintainable before this Forum as the complainant has approached before the Local Police Authority lodged a complaint against these Ops.  The Ops have further stated that the averments as made out by the complainant in the petition of complaint is out and out false statement, on which reliance cannot be placed.  According to the OPs this complaint is liable to be dismissed with cost.

            Along with the petition of complaint the complainant has filed several papers and documents/documentary evidence in support of his contention.

            On the date of final argument none was present on behalf of the complainant and no step was taken on his behalf.  It is evident from the record that on the first occasion on 03.02.2017 was fixed for argument and on that date the complainant filed an adjournment petition stating the reason therein, on 07.3.2017 complainant took adjournment and on 12.4.2017 both parties took adjournment.  In this manner due to inaction of the complainant the argument was delayed.  Though on the date of argument i.e. on 13.6.2017 the complainant was not present but as the complainant has filed evidence on his behalf, we took up the hearing of the complaint in absence of the complainant and in presence of the Ld. Counsel for the OPs on merit.

We have carefully perused the petition of complaint along with papers and documents as submitted by the complainant and the contesting Ops and heard argument at length from the ld. Counsel for the Ops. It is seen by us that there are some admitted facts in the case in hand i.e. the complainant purchased a vehicle in the year 2013 after taking financial assistance from the Ops to the tune of Rs. 8,00,000=00, it was scheduled that the entire loan amount along with interest should be paid by 47 monthly installments, out of which the complainant have to pay 46 installments for an amount of Rs. 22,000=00 each and Rs. 9,570=00 towards the last installment, the loan was sanctioned by the Ops on 29.12.2012, the sanction letter was issued by the Ops in favour of the complainant, the complainant primarily used to pay due EMI to the Ops on regular basis, due to financial stringency the complainant failed to pay some EMI to the Ops, after skipping some installments the complainant started to pay due EMI subsequently, no copy of the loan agreement was provided to by the Ops to the complainant, no statement of bank account regarding loan amount was provided to the complainant by the Ops though sought for, on 07.10.2015 the complainant wrote a letter to the Ops stating that he was inclined to pay due EMI to the Ops within December 2015, in that letter it was mentioned by him that on 09.10.2015 he was ready to pay five EMI for Rs. 22,000=00 each in cash and for Rs. 12,000=00 in cash within 13.10.2015, he was interested to pay five EMI for Rs. 22,000=00 each in cash on 10.11.2015 and two EMI for Rs. 22,000=00 each on 10.12.2015, it was also stated by him that he tried to settle the loan account within the month of January 2016, in this regard the complainant sought for co-operation from the Ops, the said letter was received by the Ops by putting their seal and signature and the date was 07.10.2015, the Ops did not take any step in that regard, on 09.5.2016 some unscrupulous persons went to the house of the complainant to repossess the said vehicle in an illegal manner on the ground that the complainant has failed to make payment of the due EMI as per loan agreement, the complainant went to lodge a complaint to the local Police Station, the Police Authority refused to take any complaint, so the complainant being compelled sent the complaint to the S.P. through registered post with A/D, a copy was given to the I.C., Burdwan P.S. on 11.5.2016. The allegation of the complainant is that though he sought for the loan agreement, terms and the condition of the loan agreement, the statement of his loan account from the Ops, but the Ops did not produce the same before him and without providing the same the Ops tried to repossess his vehicle in an illegal manner. As the grievance of the complainant have not been redressed by the Ops, hence this complaint.

We have noticed that admittedly the complainant sought for the above-mentioned documents from the Ops but the Ops did not provide the same and after filing this complaint and at the stage of argument of this complaint the Ops filed those documents before this ld. Forum without providing a copy to the complainant. It is true that after taking financial assistance from a financial company for purchasing any goods/items it is the duty of the borrower to make repayment of the loan amount as per the terms and the conditions of the loan agreement in which both parties put their signatures. As the copy of the loan agreement was not provided to the complainant and moreover the same is not forthcoming before us on the part of the Ops, we are not in a position to draw a conclusion that what was the rate of interest of the said loan amount as sanctioned by the Ops. It is mentioned earlier that due to non-payment of some EMI towards the loan account the personnel of the Ops attempt to repossess the hypothecated vehicle of the complainant and went at the residence of the complainant for the said purpose on 09.5.2016. It is well settled that until and unless due loan amount is paid by the complainant/borrower in case of loan account and hypothecation agreement the real owner of the said vehicle is the financier company, not the borrower. But it is also true without furnishing he required document to the complainant and keeping him dark in respect of the terms and conditions of the agreement, statement of account the Ops are not entitled to take any step to repossess the hypothecated vehicle. In the case in hand it was the duty of the complainant to make repayment of the loan amount towards EMI as per schedule to the Ops on regular basis, as the complainant has deviated and failed to pay the due EMI of the loan amount the Ops went to repossess the vehicle. Thought he complainant is the owner of the vehicle but at this juncture the real owner of the vehicle is the Ops and hence they are entitled to repossess the vehicle in case of failure to make repayment of the loan amount to the Ops subject to compliance of all the formalities on behalf of them. But in the instant case it is seen by us that the Ops have failed to discharge their entire liability but took step to repossess the vehicle, which cannot be encouraged in the eye of law. The Ops have provided the statement of account in respect of the loan amount before this ld. Forum. The complainant is at liberty to take the same from the office of this ld. Forum as per law for future compliance. As it is proved and admitted by the complainant that due to some reason he could not make repayment some EMI towards the loan account to the Ops, hence the step as taken by the Ops to repossess the vehicle cannot be termed as deficiency in service on their part. As it is a consumer complainant, complainant has to prove prima facie that he has discharged his entire liability, but the action of the Ops suffer from deficiency in service, then only consumer complaint can be allowed but in the instant complaint as the complainant has admitted that he could not repay due EMI within due period to the Ops, hence the allegation as levelled against the Ops in respect of deficiency in service does not stand.

Going by the foregoing discussion, hence it is

O r d e r e d

that the Consumer Complaint being No. 91/2016 is hereby dismissed on contest without any cost.

            Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

                   (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                      President       

                                                                                                                          DCDRF, Burdwan

                  (Silpi Majumder)                                                    

                          Member                                                                    

                  DCDRF, Burdwan

                                                           (Pankaj Kumar Sinha)                          (Silpi Majumder)

                                                                        Member                                                  Member    

                                                                 DCDRF, Burdwan                               DCDRF, Burdwan