DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Complaint Case No : 651 OF 2010

Date  of  Institution  :   07.10.2010

Date   of   Decision  :   10.10.2011

Surinder Singh Bhardwaj, r/o H.No.1014/2, Sector 30-B, Chandigarh.

                                                                                    ---Complainant

V E R S U S

1]       The Branch Manager, Berkeley Automobiles Limited (authorized Maruti Dealer), Plot No. 24, Industrial Area, Phase-I, Chandigarh.

2]       The Mahindra & Mahindra Finance Service Ltd.,, SCO No.3, 1^st Floor, Madhya Marg, Sector 26-D, Chandigarh.

---Opposite Parties

BEFORE:            SH.LAKSHMAN SHARMA                      PRESIDENT

                        SMT. MADHU MUTNEJA                    MEMBER

                        SH.JASWINDER SINGH SIDHU              MEMBER

Argued By:            Complainant in person.

Sh.Kapil Khanna, Advocate for the OP No.1.

Sh.G.S. Ahluwalia, Advocate for the OP No.2.

PER MADHU MUTNEJA, MEMBER

1]             Factually speaking, the Complainant had purchased a Maruti car from OP No.1 in 2007. The Complainant had made payment of `30,000/- from his own pocket and the remaining amount was financed by OP No.2, through OP No.1. The Complainant had paid eight (08) monthly installments of `5900/- against the loan. A music system worth `35000/- was also installed later in the said vehicle by the Complainant.

                The Complainant has alleged that when he was out of the country for business, OP No.2 sent their recovery agents to his residence and took away the vehicle, without the consent of his family members.  On his return to India, he went to the authorized office of OP No.2, to question them about taking the said car from his residence, without his consent. As the Complainant was ready to make the remaining payment, the OP No.2 assured him that the vehicle would be returned.

                The Complainant has alleged that the OP No.2 subsequently refused to return the vehicle and also filed complaint under Section 138 of the Negotiable Instruments Act, 1881, against him. He has received a notice from the Court of Sh. Amit Sharma, JMIC, Chandigarh for the same. The Complainant has submitted that he has never refused to make payment to the OPs and is even now ready to make balance payment, but it seems that the OPs are not interested in returning the vehicle, which according to him amounts to unfair trade practice.  The Complainant has even sent a legal notice dated 21.09.2010 to the OPs, which has not yet been replied.

                The Complainant has thus, filed the instant complaint claiming damages for deficiency in service, along with interest and cost of litigation. 

2]             After admission of the complaint, notices were sent to the OPs.

                OP No.1 in reply has submitted that no cause of action has accrued against them. The loan was taken by the Complainant from OP No.2 and the vehicle has also been impounded by OP No.2. OP No.1 has further contended that they had no role in either granting the loan, default or recovery of loan or even impounding of the vehicle. Hence, denying all allegations of the Complainant, OP No.1 has prayed for dismissal of the complaint.

                OP No.2 in reply has submitted that the Complainant had taken a loan of `1,66,400/- from them for purchase of a Maruti car in the year 2007. As the Complainant had stopped repayment of loan after paying only a few installments, the loan account became irregular and hence, a non-performing asset. OP No.2 has further submitted that they had repeatedly contacted the Complainant, requesting him to regularize the loan, but the Complainant had shown his inability to repay the outstanding amount. He, hence, voluntarily surrendered the car to OP No.2, with liberty to sell the said car.  After surrender of the vehicle, OP No.2 had once again requested the Complainant to deposit the arrears and take back the vehicle.

                OP No.2 has submitted that when the Complainant failed to pay  the amount, they were restrained to sell the vehicle on 04.06.2009 for a sum of `1,10,000/-.  After adjustment of the sale proceeds, a shortfall of `91,690/- still remained. A demand notice dated 22.06.2009 was sent to the Complainant for making the payment of the same.  The Complainant issued a cheque for the aforesaid amount, in favour of OP No.2. However, the cheque, when presented, was dishonoured, with the remarks “insufficient funds”. Consequently, OP No.2 filed complaint u/s 138 of the Negotiable Instruments Act, against the Complainant, which is pending before the court of Mr. Amit Sharma, JMIC, Chandigarh. OP No.2 has denied all other allegations made by the Complainant. They have submitted that it is the Complainant himself, who is a defaulter. He has himself surrendered the car, which has since been sold.   

                The Complainant himself is responsible for the conditions he finds himself in and is not entitled to any damages claimed by him. OP No.2, therefore, prayed for dismissal of the complaint.

                OP No.2 has attached a copy of the loan agreement dated 27.06.2007, entered into between the Complainant and OP No.2, besides detailed statement of account related to the Complainant.

3]             Parties led evidence in support of their contentions.

4]             We have heard the complainant in person and ld. Counsel for OPs.

5]             It is evident that the Complainant, after taking a loan from the OP No.2 @3% p.m., has found himself in a precarious position and unable to pay the outstanding dues.  He has only made payment of the first initial eight (08) installments. As the interest on the principal amount, as well as interest on the unpaid amount was mounting, the vehicle has been taken by OP No.2 and sold in the market. The Complainant has alleged that the vehicle was taken away in his absence; whereas, the OPs have replied that the vehicle was surrendered by the Complainant himself.  Annexure R/3 placed on record is a letter of surrender of vehicle from the Complainant to the OP. In this letter, the Complainant has shown inability to make payment and has requested the OP No.2 to dispose off the vehicle in the market.  He has agreed to make payment of the shortfall. The OP No.2 has sold the vehicle for `1,10,000/-.

6]             A perusal of the loan account of the Complainant maintained by the OP No.2 shows the amount advanced, as well as realized, future receivables, interest and penalties/excess charges levied. 

7]             It can be seen that the Complainant has made only eight (08) payments. As per statement placed on record by the OP No.2, at the time of arguments, the amount outstanding (future receivables) on the date of surrender of vehicle i.e. 25.03.2009 was `1,39,320/-, besides the principal and interest due, this amount also includes parking charges, penalties and other relevant charges. The car was sold for `1,10,000/-. On 03.06.2009, a balance due amount of `91,690/- has been shown.

8]             At the time of arguments, OPs were called to explain how they had arrived at this figure of `91,690/-. It seemed that various excess charges have been levied by the OP No.2 on the unsuspecting Borrower (Complainant), by taking the plea of “dues as per agreement”. The OPs then placed on record a calculation detail, which has been placed at Annexure R-7. This calculation also includes the Principal Interest Break-Up Report. As per this calculation, the amount realizable against the Complainant, besides all other charges, have been mentioned.  On perusal of this document, we find that the OPs have claimed:-

The amount calculated above is far less than the outstanding of `91,690/- claimed earlier, and a cheque for which was received by the OPs from the Complainant. This cheque has bounced. 

9]             The other outstanding amounts mentioned in the Statement relates to AFC and Parking Charges. This amount relates to the time, when the vehicle was in the possession of the OPs and hence, after re-possessing, their own asset.  The parking charges for which should not be the liability of the Complainant. Hence, the OPs will waive off the parking charges of `8,875/- being claimed from the Complainant. In the document placed on record, the amount of AFC has been written as `9,517/ in one column and `12,795/- in the final calculation. It seems that the OP is not sure about this amount.  The OPs should waive off this amount altogether. We do not feel that such calculations can be a part of the agreement between the parties.

10]            The outstanding EMIs, as per their calculation is `53,500/- and the outstanding principal amount is `1,22,520/-.  No date has been mentioned against these amounts by the OPs. We feel that the OPs should have claimed only this amount from the Complainant, along with CRA charges of `4,000/-.

11]            As per the table given in Para 8 above, the amount payable by the Complainant, after making the adjustments, explained above, will be `70,120/-. Accordingly, the Complainant should pay `70,120/- to the OP No.2 and on receipt of which, the OP No.2 will issue a no dues certificate to the Complainant, within 30 days of receipt of payment. The complaint is disposed of accordingly. Parties to bear their own costs.

                Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

10.10.2011                                                                                         Sd/-

                                                           (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER 

Sd/-

(JASWINDER SINGH SIDHU)