KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 158/2010
JUDGMENT DATED 21.1.2011
PRESENT:-
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
M/s. Shriram Transport Finance Company Ltd.,
2nd Floor, Land Mark Centre,
Opp. New Busstand, Kasargod.
( Represented by its Power of Attorney Holder,
K. Rajan)
.
(Rep. by Adv. Sri. B. Jayasankar)
Vs
RESPONDENT
Surendran M.,Mundikoth House,
Orie P.O.,Kaithakkad,
Via Chervathur, Kazargode.
(Rep. by Adv. Sri. M. Rahul & Smt. Sreeja Vijayan)
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Kasargod in C.C. No. 140/06 dated 17.2.2010. The appellant is the opposite party and respondent is the complainant in the above O.P. and the appellant preferred this appeal under the order passed by the Forum below which directed the opposite party to settle the loan of the complainant by collecting Rs. 4,08,400/- with over due charges @ 15% per annum from 20.1.2009 till date of payment. On receipt of the said payment opposite parties shall issue H.P. termination letter and non objection certificate in respect of the vehicle bearing the registration number KL 13/F 2156 to the complainant failing which on production of receipt evidencing the payment of aforesaid amount and application by the complainant, directions will be issued to the concerned registration authority to cancel the H.P. endorsement favoring the opposite party. Time for complaince is 12 months from the date of receipt of the copy of the order.
In short, the complainant is the R.C. owner of the vehicle and he availed a loan of Rs. 4,00,000/- from the opposite party and agreed to pay the same with interest in 48 installments as per the agreement dated 20.11.2005 and its payment schedule. At that time the opposite party was known as Sree Ram investment Ltd. The same was a company subsequently amalgamated with the opposite party with effect from 25.11.2005. The complainant defaulted the monthly payments and there were dues and over dues, financial charges after the above said amalgamation. When the appellant/opposite parties insisted for the arrears of the defaulted payments the complainant/respondent requested for extending the payment installments with interest thereon considering the new status of the company and also in consideration of the plight of the complainant, the opposite party /company agreed for the request. Eventually as requested by the complainant and as agreed by the opposite party/company, a fresh agreement was executed on 1.1.2006 on mutual terms whereby the amount due to the opposite party as on date and its interest were shown in the new agreement and to allow the complainant to remit the same in 52 installments. Thus a new agreement came in to force on 1.1.2006.
The opposite party admitted the loan availed by the complainant. But they contented that the complainant executed the first loan agreement and the new replaced agreement on two occasions due to the amalgamation of the company. It is admitted that the complainant has remitted 14 installments as on 7.10.2006 which are marked as Ext. A1 series and out of the said 14 receipts which were pertaining to the old loan agreement and the remaining 4 receipts are seen credited to the loan account No. KSR 75167. As per the Ext. A4 series it also shows that the installments paid towards the new loan account. Before filing of the complaint, the complainant was aware of the fact of execution of the new agreement. On that scope the new agreement executed on request of interest of the complainant cannot affect the claims of the opposite party/company. The complaint is bound by the terms of the agreement bearing number KSR 75167 dated 1.1.2006 and also contented that the complainant never approached the opposite party/company to close the loan; before the due date as per the Clause 10(2) of the Agreement dated 1.1.2006 option is available to the opposite party/company to agree repayment upon such terms and conditions. There is no deficiency in any manner committed by the opposite party and alleged that the attempt of the complainant is only to protract payment to cause irreparable injury, loss, damage and other hardships to the opposite party.
The Forum below taken the evidence adduced by the complainant as Ext. A1 to A6 and the oral testimony of the complaint/Pw1 respectively. There is no evidence adduced by the opposite party except Ext. B1 documents. The Forum below raised 3 points and answered one by one and found that as per Ext. A1 documents(receipts) the complainant has remitted Rs. 2,26,600/- towards the monthly installments. The complainant is therefore liable to pay balance amount Rs. 6,35,000 - 2,26,600 = 4,84,000/- to the opposite party. The tenure of agreement according to the complaint is over in January 2009. Therefore the complainant is liable to pay the overdue interest also for the said amount from January, 2009 to till the date of the payment. But overdue interest is @ 36,000/- in unconscionable. In the result, the Forum below allowed the complaint.
On this day this appeal came before this Commission for final hearing. The counsels appeared and argued their respective cases. The Counsel for the appellant submitted that the order passed by the Forum below is not legally sustainable. The Forum below has unnecessarily considered the rate of interest departed from the agreed rate of interest as per the terms of agreement and the Counsel submitted that the lower Forum has not given reasonable opportunity to the appellant/company to pursue its contention and claims. The lower Forum, considering the pre closure charges as per Ext. B1 not entitled to the appellant is correct. The said interest is liable to be disposed to the depositors in time.
Even though they; are not a party in the amalgamation of the company, the appellant/opposite party is the financer and the H.P. was endorsed in the R.C. Book, they took coercive steps to take the vehicle from the lawful possession of the complainant. The complainant approached the Forum below that 13(III) B application; The Forum below passed an interim order and restrained the opposite party from taking the vehicle from the lawful possession of the complainant. No steps have been taken by the opposite party to review this application. This Commission heard in detail and perused the entire evidence available in the case and shown that the complainant approached the Forum below for a minimum relief and not for a permanent remedy. He did not adduce sufficient evidence to show that the opposite party conducted deficiency of service and unfair trade practice. The opposite parties also submitted that the Forum below did not give sufficient opportunity to them to adduce their evidence. We are seeing that there is no statement of account produced by either the complainant or the opposite party before the Forum below. The complainant produced the payment receipt which clearly indicates that he is a chronic defaulter of the payment. He has approached the Forum below in such a situation as to restrain the opposite party from the possible seizure of the vehicle from their custody. A question of law arises whether the subsequent agreement is applicable to the complainant or not even the complainant denied the signature? The Counsel for the appellant submitted that they wanted opportunity to adduce evidence from their part and prayed for remanding the case to the Forum below.
We this Commission think that the Forum below passed the impugned order with available evidence from both sides. We think it is the fit case to remand back to the Forum below as per the prayer of the appellant.
In the result, this appeal is allowed and set aside the order of the Forum below and remanded back this case for the Forum below for fresh disposal after giving proper opportunities to both sides for adducing their evidence. Both parties are directed to appear before the Forum below after the receipt of the notice from the Forum below.
The office is directed to send back the LCR immediately to the Forum below. Both parties are directed to suffer their respective cost.
The points of the appeal answered one by one accordingly.
M.K. ABDULLA SONA : MEMBER
M.V.VISWANATHAN : JUDICIAL MEMBER
ST
