By. Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an Order directing the opposite parties not to confiscate the machine No.07037261 Telcon Tata Hitachi EX 17-HYDRAULIC EXCAVATOR from the possession of the complainant till the disposal of the case and directing the opposite parties to furnish remaining exact amount and to pay Rs.1,00,000/- as compensation and cost of the proceedings.

2. Brief of the complaint:- The complainant availed Rs.22,40,000/- as loan over his vehicle from opposite parties. It was agreed that the repayment schedule of Rs.39,395/- for the 1^st month and Rs.32,000/- for the 2^nd month, for 3^rd to 18^th months a sum of Rs.85,000/- and Rs.70,000/- for the 19^th to 34 months and Rs.21,000/- for the 35^th to 46^th months and Rs.20,128/- for the 27^th month. The last installment date is July 2015. Accordingly, the total amount including interest, tax and all other processing charge would come Rs.28,40,600/-. The complainant has been regularly paying the amount to opposite parties as per chart furnished. While paying regularly the opposite parties demanded additional interest of Rs.36% saying that there is a liquidated damages and for which additional interest is liable to be paid. It is against agreement. Thereafter the opposite parties did not accept any payment from the complainant. Then the opposite parties threatened the complainant to seize the vehicle. On 12.09.2014, the opposite party's men tried to seize the vehicle but failed. The amount remains unpaid is very low and up to July 2015, the complainant legally have right to pay the installments. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notices were issued to opposite parties and they appeared before the Forum and filed version. In the version, opposite parties admitted the availing of loan and repayment as per chart as stated by the complainant. There was no regular payment from the side of complainant and complainant is a chronic defaulter intentionally. The opposite parties issued demand notice to regularize the payments and also loan recall letter dated 04.02.2013. So the complainant have to repay the entire loan amount to the opposite parties. No exorbitant amount is claimed by the opposite party from the complainant. The complainant never approached opposite party to pay any amount thereafter. The loan became NPA, the opposite parties initiated Arbitration proceedings against the complainant as per loan agreement and the Arbitration case number is DK/ARB-257/2014. But the complainant did not appear and section 9 proceeding is initiated. At that time, to escape from the Arbitration proceedings, the complainant filed this complaint before the Forum. There is no deficiency of service from the part of opposite parties.

4. On perusal of complaint, version and documents the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service and unfair trade practice from the

part of opposite party?

2. Relief and cost.

5. Point No.1:- The complainant filed proof affidavit and he is examined as PW1 and documents were marked as Ext.A1 to A3. The opposite party did not adduce oral evidence but produced document is marked as Ext.B1 with objection. As per Ext.B1 statement of Account and as per the admission of opposite parties, the complainant remitted 30 installments. As per Ext.A3 series, ie the Bank Statement produced by the complainant with regard to the payments and other receipts issued by opposite parties, the total amount paid by the complainant towards installments is Rs.24,49,635/-. The total repayment amount is Rs.28,23,523/-. Out of this, the complainant already paid Rs.24,49,635/-. The balance amount to be paid towards loan repayment is Rs.3,73,888/- only. The last date of payment is July 2015. While the complainant making payments, the opposite party admittedly tried to seize the vehicle and the complainant filed this complainant on 19.09.2014 before the Forum. The opposite parties already fixed flat rate interest over the loan amount and fixed the installments in 47 months including interest. Since the last date of payment is July 2015, the complainant gets time up to July 2015 to clear the loan amount fully. But the complainant not paid the entire loan amount since the case is pending before the Forum. But the complainant not taken any steps to deposit the balance loan amount before the Forum. Hence the complainant is liable to pay 12% interest from July 2015 to the balance loan amount till payment. Regarding Arbitration case, the opposite party not filed maintainability application before the Forum to challenge the maintainability of the case till the disposal of the case. But opposite party filed I.A.427/2014 to refer the matter to Arbitration. This Honorable Forum found that I.A.427/2014 is not maintainable and I.A.427/2014 is dismissed wide separate order. The opposite parties not produced any Order from Appellate court against the Order. Hence by analyzing the entire evidences and documents, the Forum found that claiming exorbitant amount from the complainant towards balance installment payments and overdue interest and non-acceptance of balance installments amounts from the complainant amounts to deficiency of service from the part of opposite parties. Point No.1 is found accordingly.

6. Point No.2:- Since the Point No.1 is found in favour of complainant, he is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the opposite parties are directed to receive Rs.3,73,888/- (Rupees Three Lakh Seventy Three Thousand Eight Hundred and Eighty Eight) from the complainant towards balance installment payments with 12% interest from July 2015 till payment. The complainant is directed to pay the above amount with interest from July 2015 till payment within one month from the date of receipt of this Order. The opposite parties are directed to issue NOC on receipt of the above amounts as stated above from the complainant immediately on receipt of the amount. The opposite parties are also directed to pay Rs.3,000/- (Rupees Three Thousand) as compensation and Rs.2,000/- (Rupees Two Thousand) as cost of the proceedings. Both parties shall comply the Order within 30 days from the date of receipt of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 14^th day of September 2015.

Date of Filing:19.09.2014.

PRESIDENT :Sd/-

MEMBER :Sd/- MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Salve. Complainant.

Witness for the Opposite Parties:-

Nil.

Exhibits for the complainant:

A1. Delivery note. Dt:28.07.2011.

A2. Repayment Schedule Chart.

A3(1). Loan Receipt. Dt:04.07.2014.

A3(2). Receipt. Dt:22.05.2013.

A3(3). Loan Receipt. Dt:21.04.2014.

A3(4). Loan Receipt. Dt:04.02.2014.

A3(5). Loan Receipt. Dt:05.03.2014.

A3(6). Temporary Receipt. Dt:23.03.2013.

A3(7). Temporary Receipt. Dt:10.04.2013.

A3(8). Temporary Receipt. Dt:28.06.2013.

A3(9). Temporary Receipt. Dt:28.12.2012.

A3(10). Temporary Receipt. Dt:30.12.2013.

A3(11). Temporary Receipt. Dt:20.11.2013.

A3(12). Receipt.

A3(13). Receipt. Dt:13.02.2013.

A3(14). Statement of Account.

Exhibits for the opposite parties:-

B1. Statement of Account.

Sd/-

PRESIDENT, CDRF, WAYANAD.

a/-