DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.543 of 29-11-2010 Decided on 11-04-2011
Subhash Chander Gaba, aged about 50 years, Proprietor of M/s Electronics World, Main Road, First Floor, Street No.4, Jain Nagri, Abohar, Distt. Ferozepur. .......Complainant
Versus Tata Motors Finance Limited, FCO 133, Opp. Alankar Cinema, Goniana Road, Bathidna, through its Prop./Partner/Manager/Director. ......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Sh.Amarjeet Paul, Member. Present:- For the Complainant: Sh.Ravi Kant Bhardwaj, counsel for the complainant. For Opposite parties: Sh.Pardeep Sharma, counsel for opposite party. ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as 'Act'). The brief facts of the complaint are that the complainant had purchase one Tata ACE, bearing Model No.2006, bearing Engine No.555270, Chassis No.54286 with the financial assistance of the opposite party for which the opposite party obtained the signature of the complainant on various blank printed forms without explaining the terms and conditions of the same to the complainant. The vehicle was got registered vide registration No.PB-05M-9714 and the vehicle in question was duly hypothecated with the opposite party. The loan amount was to be repaid by the complainant in monthly installments as per the repayment schedule mentioned in the loan agreement. The complainant had already paid the total amount of the loan to the opposite party alongwith upto date interest as per the repayment schedule and nothing remained due against him. Despite of payment of the total amount of loan with interest against the aforesaid vehicle, the opposite party did not issue requisite Form No.35 and clearance certificate regarding the clearance of the loan amount by the complainant which are required for removal of hypothecation of the charge of the opposite party over the abovesaid vehicle of the complainant. The complainant repeatedly requested the opposite party to do the needful. The complainant had called CIBL Consumer Credit Information Report pertaining to the aforesaid vehicle loan account which also clearly shows that nothing remained due against the complainant pertaining to the aforesaid vehicle of the complainant but the opposite party had not issued Form No.35 and No Due Certificate/clearance certificate in favour of the complainant. The complainant also got served a legal notice dated 23.01.2010 upon the opposite party through Sh.Neeraj Kumar Kukkhar, Advocate, Abohar. The opposite party has not given proper reply to the said notice and two days back, the opposite party flatly refused to accede to the requests of the complainant. Hence, the complainant has filed this complaint. 2. The opposite party has filed its written statement and pleaded that in order to secure the amount of loan advanced to a customer, an agreement was executed between the parties and has taken the support by the precedent laid down by the Hon'ble National Commission in case titled Karnataka State Financial Corporation Vs. Mrs. Sheela S.Kotecha, R.P.No.488 of 2005, decided on 16.09.2009 that “When there has been a contract between the parties that being a bilateral action, both parties are bound by the terms and conditions as stipulated therein.” and has taken further support by the law laid down by the Hon'ble Supreme Court in case titled Bharti Knitting Company Vs. DHL Worldwide Express Courier (1996) 4 SCC 704 wherein it the Lordship held that the complainant signed the contract documents, he is bound by its terms and conditions. The opposite party has taken the preliminary objection that the complainant is not a consumer in the present case as he has purchased the vehicle for commercial purpose and further pleaded that the complainant has not pleaded that the vehicle has been purchased for self employment. As per clause 23 of the agreement executed between the parties provides that all disputes arising out of loan agreement shall be settled by arbitration to be held at Mumbai. As per clause 24 of the agreement states that “Subject to the provisions of clause 23, any suit, petition, reference or other filing permited or required to be made pursuant to the Arbitration and Conciliation Act 1996 in respect of the matters arising out in this agreement. The opposite party has denied the fact that the complainant has been paying the installments regularly and submits the computerized statement of account which clearly shows defaults committed by the complainant in payment of EMI's, the liability to pay interest, bankers charges on account of bouncing of cheques of the complainant and liability of the complainant to pay other charges as agreed upon by the loan agreement. The opposite party had agreed to provide the loan of Rs.2,10,000/- and accordingly, the loan agreement No.5000027362 dated 28.11.2006 was entered into between the parties. The term of the agreement was for a period of 23 months and the complainant had agreed to repay the loan amount alongwith Rs.24,360/- towards finance charges, total contract value of Rs.2,34,360/- is to be paid in equated monthly installment. The opposite party has never taken the signature of the complainant on any blank forms. A computerized statement of account gives the details of the outstanding due amount of Rs.11,436/-. From the statement, it is revealed that the complainant has committed default in the month of January 2008 to April 2008 and as such, the opposite party is legally entitled to recover non-payment of monthly installments and delay in paying the monthly installments. The complainant had not paid the monthly installments in time as such, the complainant is neither entitled for NOC nor entitled for the cancellation of hypothecation till the entire dues are to be cleared. It can be seen from the statement that the complainant had not paid over due charges as stated above. The opposite parties in para no.3 of the additional pleas have stated that the clause No.7 of the agreement provides – method of appropriation, which provides that “Unless otherwise agreed to or decided by the lender any payment due and payable under this Loan Agreement and when received by the Lender shall be appropriated towards the dues in the following order vis: (a) Cost, Charges, expenses and other monies. (b) Interest on cost, charges expenses and other monies. (c) Delayed Payment Charges, if any. (d) Interest Payable in terms of this Loan Agreement, and (e) Repayment of installment of principal amount as due and payable under this Loan Agreement. 3. Parties have led their evidence in support of their respective pleadings. 4. Arguments heard. Record alongwith written submissions submitted by the parties perused. 5. The main allegation of the complainant in the present complaint is that he has taken loan against his vehicle Tata ACE, bearing registration No.PB-05M-9714 from the opposite party. The complainant had already paid total amount of loan to the opposite party alongwith upto date interest as per the repayment schedule and nothing remained due against him. Despite the total payment of the loan amount with interest, the opposite party has failed to issue requisite Form No.35 and clearance certificate regarding the clearance of the loan amount paid by the complainant which are required for the removal of hypothecation of the charge of the opposite party over the abovesaid vehicle of the complainant. The complainant also got served a legal notice dated 23.01.2010 but the opposite party has given a vague reply to the said notice. 6. The opposite party has taken objections that the agreement was executed between the parties and both the parties are bound by terms and conditions of the siad agreement; the opposite party has taken preliminary objections that the complainant is not a consumer as he has purchased the vehicle for commercial purpose. On merit, the opposite party has submitted that as per clause 23 of the agreement executed between the parties, all disputes arising out of loan agreement shall be settled by arbitration. The opposite party has further submitted that the complainant has not been paying the installments regularly and submitted the computerized statement of account to show defaults committed by the complainant in payment of EMI's, the liability to pay interest, bankers charges on account of bouncing of cheques of the complainant and liability of the complainant to pay other charges as agreed upon by the loan agreement. The opposite party has disbursed the amount of Rs.2,10,000/- on 28.11.2006 vide loan agreement No.5000027362 and the terms and conditions was for the period of 23 months and the complainant had agreed to repay the loan amount alongwith Rs.24,360/- towards finance charges, total contract value of Rs.2,34,360/- was to be paid by the complainant in equal monthly installments. The opposite party has denied that it has never taken the signature of the complainant on any blank forms. A computerized statement of account shows that there is outstanding due amount of Rs.11,436/- towards the complainant and in this statement, the complainant has shown to be defaulter in the month of January 2008 to April 2008. The complainant has not paid the monthly installments in time, as such, the complainant is neither entitled for NOC nor entitled for the cancellation of hypothecation till the entire dues are to be cleared. The opposite party has further submitted that the clause No.7 of the agreement which is reproduced as under :- “Method of appropriation, which provides that unless otherwise agreed to or decided by the lender any payment due and payable under this Loan Agreement and when received by the Lender shall be appropriated towards the dues in the following order vis: (a) Cost, Charges, expenses and other monies. (b) Interest on cost, charges expenses and other monies. (c) Delayed Payment Charges, if any. (d) Interest Payable in terms of this Loan Agreement, and (e) Repayment of installment of principal amount as due and payable under this Loan Agreement.” 7. The opposite party has taken legal objection that the complainant is plying the vehicle for commercial purpose. The opposite party has failed to produce any documentary evidence to prove that the complainant has been using the vehicle for commercial purpose, the onus to prove lies on the party who alleges it. The second objection taken by the opposite party that any dispute regarding the loan agreement would be settled by arbitration. The remedy under the Consumer Protection Act is an additional remedy, not in derogation of any other law as provided under Section 3 of the 'Act'. Thus, this Forum has the jurisdiction to try and adjudicate the present complaint. 8. The learned counsel for the opposite party has suffered a statement before this Forum dated 08.04.2011 that :- “Under the instructions of my client, an amount of Rs.11,436/- is still pending against the complainant. If, the complainant deposits Rs.5,000/- with the opposite party then the opposite party will issue No Due Certificate against loan A/c bearing No.5000027362 to the complainant as full and final settlement of the loan account.” According to this statement, the opposite party is ready to issue No Due Certificate against the loan if the complainant deposited Rs.5,000/- out of Rs.11,436/-. 9. The learned counsel for the complainant has suffered separate statement dated 11.04.2011 declining the offer of the opposite party which is reproduced as below :- “Loan agreement amount is Rs.2,34,360/-. Ex.C-3 and Ex.R-6, Ex.C-4 and Ex.R-9 are same. Ex.R-9 shows that complainant has already paid Rs.2,35,160/- which are exceed amount from the actual loan amount. So, under the instructions of the complainant, I refused to accept the offer of the opposite party made on 08.04.2011.” 10. A perusal of record shows that vide Ex.C-3 dated 14.12.2009, over due amount of Rs.3,600/-, outstanding expenses towards the complainant were Rs.1,050/- and current over due Rs.4,650/-. Further the statement dated 14.12.2009 issued at 14:05:37 shows that the total balance was of Rs.2,44,032/- and the complainant had paid Rs.2,35,160/-. A account statement dated 23.12.2010 issued at 16:44:17 vide Ex.R-5 shows that the total balance amount towards the complainant is 11,871/-. Ex.R-9 shows that the balance of Rs.11,436/- is due towards the complainant on account of over due charges and penal interest. The opposite party has never sent any notice to the complainant that any amount is standing towards him. The opposite party has admitted that no installment is pending, the complainant had paid all the installment. 11. Although, the complainant had paid all the installments, yet has failed to deposit the over due charges which he has agreed upon with the opposite party vide agreement dated 28.11.2006. The opposite party is ready to take the payment of Rs.5,000/- from the complainant as per their statement dated 08.04.2011. It has been proved on filed that the over due charges and penal interest for the late payment of the installment is due towards the complainant. Therefore, this complaint is partly accepted with Rs.2,000/- as cost and compensation. The complainant is directed to pay Rs.5,000/- to the opposite party within 20 days from the date of receipt of copy of this order and the opposite party will issue No Due Certificate and Form No.35 to the complainant within next 25 days. Compliance of this order as a whole be done within 45 days from the date of receipt of copy of this order. 12. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced in open Forum 11-04-2011 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member | 
