DATE OF FILING : 30.3.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 29th day of June, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDHU SOMAN MEMBER
C.C No.81/2011
Between
Complainant : C.J. Jose, S/o Joseph,
2/346, Block No.1089,
Ramakalmedu P.O.,
Idukki District .
(By Adv: Sijimon K. Augustine) And
Opposite Party : The Branch Manager,
S.M.L. Finance Ltd.,
S.M.L. Building,
Vellayamkudi P.O.,
Kattappana, Idukki District.
(By Adv: Gem Korason)
O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
The complainant purchased a new Ape vehicle from the opposite party after remitting Rs.25,000/- by cash in June 2009. It was registered as KL.37-7084. The price of the said vehicle was Rs.1,45,000/- and the complainant availed loan facility for the balance of Rs.1,20,000/- from the opposite party. For the security of the loan, the opposite party obtained signatures of the complainant and his wife on various papers including printed, stamped, blank and also collected one cheque book of the Thookkupalam Service Co-operative Bank. The complainant agreed to repay the loan amount in 40 monthly instalments of Rs.5,086/- each. At the time of availing the loan, the complainant was asked to entrust original R.C. Book and duplicate key of the vehicle to the opposite party. The complainant produced all these documents as per the opposite party. The complainant was repaying the instalments promptly upto 14 instalments. The opposite party collected Rs.12,200/- as over due and other charges for the 14 instalments. Due to the illness of his wife, the complainant failed to remit the balance instalments in time and the complainant approached the opposite party on January 2011, with the two instalments out of four instalments. The opposite party demanded Rs.5,000/- more than the instalment amount, and the complainant is not amicable for the same. On the night of 23.2.2011, gundas of the opposite party seized the vehicle and on the early morning of the very next day, the complainant lodged a complaint before the Nedumkandam Police Station and on enquiry by S.I of Police, the opposite party admitted that the vehicle was in the custody of them. It was agreed to return the vehicle to the complainant on payment of four instalments. When the complainant approached the opposite party for the payment of amount, the opposite party demanded Rs.25,000/- in addition to the instalment amount as seizer charge. So the complainant is not able to pay the same. On 28.2.2011, a lawyer's notice was sent by the opposite party stating that the vehicle along with the original documents were surrendered by the complainant and the opposite party is constrained to put in auction for the recovery of the
(cont......2)
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amount due to the opposite party. Out of 40 instalments, the complainant already paid 14 instalments and only 6 instalments was due to the opposite party, the complainant is ready to remit
the same if exhorbitant rate of default interest is avoided. The opposite party has no right to put the vehicle in auction and retain the same in their custody. So this petition is filed for restraining the opposite party from sale of the vehicle in auction and also for getting the vehicle with compensation.
2. As per the written version filed by the opposite party, the loan availed by the complainant is Rs.1,28,500/- which was to be repaid in 40 monthly instalments of Rs.5,086/- each. The opposite party never obtained the signatures of the complainant and his wife on various papers printed, stamped, and blank and never collected any cheque leaves from the complainant. The documents executed by the complainant is with full knowledge and the same is legally enforceable and having valid consideration. The complainant was always making default and irregular in repaying the instalment amount and remitted 14 instalments even only after repeated demand from the opposite party. The opposite party never demanded Rs.5,000/- from the complainant. The opposite party never forcibly seized the vehicle from the custody of the complainant. The complainant approached the opposite party and had wilfully surrendered the vehicle and entrusted documents with the opposite party as he was not able to remit the instalments and dues to the opposite party. The complainant himself gave the consent for selling the vehicle in public auction. There is no due of instalments from the complainant in the loan account. The opposite party has got every right to get the due instalments along with default interest as per the agreement between the complainant and the opposite party. Since the complainant has made default in repaying the instalments and had surrendered the vehicle, the opposite party has got every right to reimburse the amount after selling
the vehicle. The complaint will not come under the jurisdiction of this Forum. The agreement between the complainant and the opposite party clearly points out the arbitration clause in page 6 clause 33 and as per the agreement, if any dispute arises between the parties, the dispute should be referred to the arbitrator. There is no dispute with respect of the service and the dispute is with respect of the monetary transaction and so the complaint is not at all maintainable and may be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to?
4 . The evidence consists of oral testimony of PW1 and Exts. P1 to P4(series) marked on the side of the complainant.
5. The POINT :- The complainant produced evidence as PW1. At the time of producing evidence, the opposite party was absent and made exparte. As per PW1, he has purchased an Ape vehicle by paying an amount of Rs.25,000/-. The total price of the vehicle was Rs.1,45,000/- and a loan facility of Rs.1,20,000/- was arranged from the opposite party. At the time of availing the loan, the opposite parties obtained the signatures of the complainant and his wife in various papers including printed, stamped, blank and also collected one cheque book of the Thookkupalam Service Co-operative Bank. The repayment of the loan was in 40 monthly instalments with an EMI of Rs.5,086/- each. Ext.P1 is the copy of the pass book issued by the opposite party for repayment of loan and the complainant has repaid 14 instalments to the opposite party. Due to the illness of the wife of the complainant, he was not able to repay the instalments in time and so while 4 instalments of the loan became due, the opposite party demanded an exaggerated amount and he was not able to pay the same. So the opposite party forcibly seized the vehicle with gundas on 23.2.2011. So a
(cont.....3)
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complaint was filed by the complainant before the Nedumkandam Police and copy of the same is marked as Ext.P2. A lawyer's notice was issued after the same by the opposite party stating that the
vehicle and its documents were surrendered to the opposite party in order to sell in auction, and also demanded Rs.25,430/- from the complainant and Ext.P3 is the copy of the same. The opposite party admitted before the Nedunkandam Police that the vehicle was seized and they were ready to return the vehicle after paying 4 instalments and when the complainant approached the opposite party for paying the amount, the opposite party demanded Rs.25,000/- as seizure charge and other expenses other than the loan instalments. The complainant has already paid 14 instalments and Ext.P4(series) are the pay-in-slip issued by the opposite party for payment which are in 11 numbers.
As per the written version of the opposite party, it is admitted that the complainant availed a loan from the opposite party, but the loan amount was Rs.1,28,500/- and the repayment was of 40 monthly instalments of Rs.5,086/- and it is also admitted that the complainant paid 14 instalments to the opposite party. But after that the complainant was not able to pay the instalments and the instalments became due. So he approached the opposite party and the vehicle was surrendered to the opposite party for resale of the vehicle in order to close the loan of the complainant. Now the loan account of the complainant is due for 9 instalments and the opposite party has got every right to get the due instalments along with default interest as per the agreement between the complainant and opposite party. The opposite party never seized the vehicle forcibly from the custody of the complainant and they never demanded hike amount from the complainant.
So we think that it is admitted by the opposite party that the complainant paid 14 instalments and Ext.P1 also shows the same. As per the opposite party, the complainant paid all these instalments with delay and they have to get default interest for the same and it is also evident from Ext.P1 that the instalments paid by the complainant are delayed. Now the only dispute is that, what is the amount entitled by the opposite party for delivering the vehicle to the complainant. If the vehicle was not seized by the opposite party, there is no question of seizure charge and other expenses. The opposite party never produced evidence to show that the opposite party can collect default interest or penal interest for the due instalments or the opposite party never produced any circular from the Government or the RBI to state that the opposite party can avail a fixed rate of interest from the complainant. Here the complainant who is an auto driver, made dues for the instalments only because of the illness of his wife. He has already paid 14 instalments and it is already admitted by the opposite party and it is a gross unfair trade practice from the part of the opposite party to charge hike interest from the complainant. So what is the balance due, is to be calculated. As per the complainant, he has already paid an amount of Rs.12,200/- as over due for 14 instalments. So we think that the complainant should pay 12% interest per annum for the balance due instalments from the date of due. The opposite party can charge Rs.200/- for cheque bounce charge if any cheque has been dishonoured after the 14th instalment. The opposite party should return the vehicle to the complainant after the payment of the due instalments.
Another point arised in the written version of the opposite party, the matter is not maintainable before this Forum because the agreement between the complainant and the opposite party clearly points out the arbitration clause in page 6 clause 33 and as per the agreement if any dispute arises between the parties, the dispute should be referred to the arbitrator. But no such an agreement has been produced by the opposite party in this case. So that the contention is not at all sustainable.
(cont.....4)
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Hence the petition allowed. The opposite party is directed to settle the vehicle loan of the complainant with 12% interest per annum for the due instalments from the date of due. The opposite party is also directed to return the vehicle to the complainant within 7 days of receipt of due instalments of the loan of the vehicle bearing registration No.KL.37-7084 Ape Autorikshaw.
Pronounced in the Open Forum on this the 29th day of June, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
Sd/-
SMT. BINDHU SOMAN (MEMBER)
APPENDIX
Depositions :
On the side of the Complainant :
PW1 - C.J. Jose.
On the side of the Opposite Party :
Nil.
Exhibits :
On the side of the Complainant :
Ext.P1 - Copy of the pass book issued by the opposite party.
Ext.P2 - Copy of the complaint filed by the complainant before the Nedumkandam
Police Station, dated 24.2.2011.
Ext.P3 - Copy of the lawyer's notice issued by the opposite party dated 28.2.2011.
Ext.P4(series) - Copy of the pay-in-slip issued by the opposite party - 11 numbers.
On the side of the Opposite Party :
Nil.
