Ld. Advocate(s)
For Complainant: Subhrajit Sen
For OP/OPs :Suman Kumar Mukhopadhyay
Date of filing of the case :28.11.2022
Date of Disposal of the case :20.02.2024
Final Order / Judgment dtd.20.02.2024
The concise fact of the case of the complainant is that the complainant purchased one Omni Bus of TATA Motors bearing no.WB51A0789
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which was financed by the OP Shriram Transport Finance Company Ltd on 01.06.2010 for his livelihood from Bhandari Automobile Sarat Bose Road Kolkata being Pro-forma OP No.4. The amount of finance was Rs.9,00,000/-. A hypothecation cum loan agreement was executed between the complainant Mukta Ranjan Dutta and the OP finance company on 08.08.2017. As per the agreement the loan was agreed to be paid by 59 instalment and the last instalment date was 10.07.2022 with the rate of monthly instalment is Rs.20,964/-. The complainant paid 51 instalments through bank and 8 instalments through cash. After full payment of instalment the complainant approached to the OP No.1 to issue “no objection certificate” but they refused . The complainant received a letter on 18.08.2022 from the OP No.1 with an intimation that Rs.1,32,038.41 plus O.D is outstanding against the said vehicle. The complainant replied to the said letter on 23.08.2022 claiming issuance of NOC from OP NO.1. During the moratorium period Hon’ble Supreme Court suspended interest on loan upto 2 crore. After several requests the OP issued NOC on payment of Rs.65,000/- on 29.08.2022 which is illegal and malpractice by the OP. So, the present case is filed. The cause of action arose on 08.08.2017 and on subsequent dates till the filing of this case. The complainant , therefore, prayed for an award for a direction to OP to refund of Rs.65,000/- with interests, Rs.2,00,000/- towards mental pain and agony and harassment and litigation cost of Rs.30,000/-.
The OP contested the case by filing W/V wherein they denied each and every allegation of the complainant. The OP No.1 Branch Manager Shriram Transport Finance Company Ltd. Challenged the case as not maintainable . The positive defence case of OP NO.1 in brief is that the complainant approached to the OP No.1 as a financial organization for loan of his vehicle Omni Bus of TATA Motors bearing no.WB51A 0789. After verifying the condition of the vehicle the OP No.1 granted loan of Rs.8,00,000/- on 08.08.2017 and thereafter, two loan each of Rs.50,000/- on 25.06.2018 and 14.05.2019, with a total of Rs.9,00,000/-. The loan of Rs.8,00,000/- had an interest of Rs.5,16,768/- which is to be paid by 63 instalment and the loan of Rs.50,000/- each interest of which is Rs.7,258/- and Rs.8,498/- which is to be paid with 12 and 13 months respectively. Initially the complainant paid the loan amount regularly without break but since July, 2022 he was under misconception that he had paid the full amount along with interest and relief of moratorium but the complainant never approached for any moratorium to the OP as a result of which the interest are not to be deducted. Against the notice of the complainant the OP replied to the notice claiming Rs.1,36,746/-. Thereafter, having received the notice complaint came to the OP No.1 Branch for negotiation and thereafter, the said amount was reduced to Rs.65,000/- instead of Rs.1,36,746/- which the
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complainant agreed. The complainant paid the said amount and the OP issued NOC to the complainant. In the meantime the complainant lodged a complaint to the RBI falsely. So, the complainant has filed this case falsely. The OP No.1 claimed that the case to be dismissed with cost.
In order to adjudicate the case on the basis of pleading of the parties the Commission considers it expedient to ascertain the following points.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
Both the parties challenged the case as not maintainable yet in course of argument no specific point is raised by the Defence Counsel as to why the case is not maintainable or under which provision it is barred by law . It is admitted position that the complainant purchased one TATA Motors Omnibus from the OPs as financer. So, the relation between the complainant and the OPs are considered as purchaser and seller.
Both the parties reside within the territorial jurisdiction of this
Commission and the relief claimed also comes within the pecuniary jurisdiction of this Commission. So, there is nothing within the four corners of the case record to hold that the case is not maintainable.
Accordingly, point no.1 is answered in favour of the complainant.
Point No.2&3.
Both the points are very closely interlinked with each other and as such these points are taken up together for brevity and convenience of discussion.
It is the specific case of the complainant that he purchased one TATA Motors Omnibus bearing registration no.WB51A/0789 with the financial Assistance of the OP No.1,2&3. The complainant further
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claimed that the loan amount had to be repaid in 59 instalment with the deadline of last instalment on 10.07.2022 and the rate of instalment is Rs.20,964/-.
On the contrary the OP claimed that the number of instalment was 63 and the total amount of loan is Rs.9,00,000/-.
The complainant in order to substantiate the case proved some documents. Annexure-1 is the hypothecation cum loan agreement. The said loan agreement also includes schedule one forming part of the loan agreement wherein the amount of loan is fixed for Rs.8,00,000/- duly signed by borrower and the OP financer.
The OP could not file any document to disprove the said documentary evidence of the complainant wherein number of instalment is evident that it was fixed for 59 instalments.
The complainant further proved schedule-2 forming part of the loan agreement which also depicts that the number of instalment as per monthly instalment schedule is 59 at the rate of Rs.20,964 cash duly signed by both the complainant and the authorised signatory of OP.
The statement of account for the period ending on 30.08.2022 also reveals that the complainant deposited different instalments from 10.09.2017 to the tune of Rs.20,964/- upto 10.07.2022.
The termination of HP endorsement document dated 15.09.2022 stand also proved on behalf of the complainant. But the further claim of the OP for Rs.1,36,746/- towards interest is the bone of contention which appears from the claim raised by the OP in respect of which a letter of Advocate was issued to the complainant.
The complainant further claimed that despite repayment of loan the OP did not issue NOC.
Against the said misdemeanour of the OP the complainant lodged complaint to the RBI.
The complainant further proved the specific direction of the Hon’ble Supreme Court towards moratorium during the Covid-19 period .
As per the order of the Hon’ble Apex Court there should be no compound interest , interest on interest or penal interest on the borrowers as per the moratorium scheme extended by the RBI vide notification dated 27.03.2020 during 1st March to 31st August, 2020 due to the Covid, 19 Pandemic.
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So, there is an embargo upon the OP to charge interest during the Covid, 19 period.
It further appears from the cross-examination of OP against the question “as to whether the company received the entire agreement amount from the complainant, to which the OP answered ‘yes’.
The OP was further asked to when the NOC was issued to which the OP answered that OP No.1 issued NOC on 29.08.2022 after getting written agreement by the complainant.
The aforesaid question answer actually goes in favour of the complainant.
The complainant answered against the interrogatories put by the OP against the question as to whether the complainant paid interest of the loan given on 25.06.2018 and 14.05.2019 to which the complainant answered as Rs.7,260/- and Rs.6,630/- respectively. The complainant further answered against the question as to what is the total amount of instalment of the loan as per the agreement to which he stated as Rs.8,00,000/-.
It is also evident from the reply to the question by the complainant against the interrogatories by the OP that notice is not required for availing moratorium during the 2020 as it was subject to automatic coverage.
The interrogatories also discloses that the complainant answered that he paid Rs.65,000/- to the OP in their office on 29.08.2022.
Thus having assessed the entire evidence in the case record and the observation made hereinabove it stands well established that the OP has charged interest during the period which was not approved by the concerned authority.
The evidence assessed hereinabove leads this Commission to hold that the OP acted in a manner which tantamounts to unfair trade practice for which the complainant is entitled to get the relief prayed for.
Consequently, Point No.2&3 are answered in affirmative and decided in favour of the complainant.
Consequently, the case succeeds on contest with cost.
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Hence,
It is
Ordered
that the complaint case no.CC/111/2022 be and the same is allowed on contest against OP No.1,2 and 3 and dismissed against Pro-forma OP No.4 with cost of Rs.10,000/- (Rupees ten thousand). The complainant Mukta Ranjan Dutta do get an award for a sum of Rs.65,000/- (Rupees sixty five thousand) against the OP No.1,2 &3 with interest @8% p.a, Rs.10,000/- (Rupees ten thousand) towards harassment and mental agony and Rs.10,000/- (Rupees ten thousand) towards litigation cost. The OP No.1,2 &3 are directed to pay Rs.95,000/- (Rupees ninety five thousand) jointly and severally to the complainant with interest, @8% p.a within 30 days from the date of final order failing which the entire award money shall carry an interest @8% p.a from the date of final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
