D.o.O:30/6/2017

                      IN THE CONSUMER DISPUTES REDRESSAL FORUM IDDUKKI

                                                                CC.NO.251/15

                                            Dated this, the 30^th   day of June 2017

PRESENT:

SRI.S.GOPAKUMAR : PRESIDENT

SRI.BENNY.K.            : MEMBER

Asokan.K.P,  Kandathinkarayil  House,

Manakkadu PO. Thodupuzha                                                                 : Complainant

(Adv.P.S.Biju)

1. The Manager,  Kattappana Motors India Pvt.Ltd

Mundackal  Po  Thodupuzha   .

( Adv.Gem Korason)                       

       2     The  Manager, IndusInd  Bank                                                          : Opposite parties

               Represented by its Branch Manager, Vengalloor

               Branch, Thodupuzha.

(Adv. T.G.Ragesh)

                                                                                        ORDER

SRI.BENNY.K.            : MEMBER

      The case of the complainant in brief . The 1^st  opposite party promised to arrange   vehicle loan from SBI at the rate of 6%  for a period of 5 years  equal installments.  On 18/3/2013 complainant had purchased the auto bearing Reg.No. KL 38C 6670 from the Ist opposite party  on cash payment of Rs.23,000/- and for balance consideration of Rs.1,60,000/-  as loan . The 1^st opposite party  obtained  signature from the complainant on a printed paper and convinced the complainant that they will avail the loan from SBI.  Further the 1^st  opposite party obtained 5 blank signed cheques leaves  as security.  From the next month onwards the complainant remitted Rs.5710/- to Ist opposite party’s  office at Thodupuzha.  After one year the 1^st opposite party directed to remit the loan instalment at the 2^nd opposite party’s office at Thodupuzha. Then only the complaint understood that the loan was arranged not from the SBI, but from  the  2^nd opposite party .  When the complainant enquired the matter with 1^st opposite party, he told that the rate of interest and other conditions are same as stated in the advertisement.  Believing the words, the complainant had remitted Rs.1,71,315/- as on 30/7/2015.  As per the terms of the contract the complainant has to remit  only 28 instalments till 30/7/15.  The 2^nd opposite party has charged excess interest and other hidden charges from the complainant. 2^nd opposite party issued a notice demanding overdue charges of Rs.20846/- from  the  complaint. The complainant several times approached the 2^nd opposite party  and requested to remove the  loan account from  NPA schedule and to reduce the excess amount calculated towards the over dues.  At that time opposite party threatened that they will  proceed against the  complainant by  using the blank signed  cheques leaves given to Ist opposite party as security.  The act of the  opposite parties amount to  deficiency in service  and unfair trade practice and hence the complainant is entitled to get compensation for mental agony.

2.  In written version , opposite parties  admitted that they are engaged in the business of sale of vehicle.  The 1^st opposite party did not arrange any loan for the complainant.  1^st opposite party did not receive any payment from the complainant towards the loan.  The complainant in order to escape from the liability with the 2^nd opposite party and for delaying the payment of loan had a approached this forum with unclean hands by suppressing the real facts.  There is no cause of action  against this 1^st opposite party.

3.  As per the written version of 2^nd opposite party states that the complainant is trying to challenge the proceedings initiated by the opposite party bank under SARFAESI Act.  The loan cum hypothecation  guarantee agreement dated 18/3/2013 duly executed between  the complainant and 2^nd opposite party bank consists of an Arbitration clause.  The complainant has obtained the vehicle loan from  opposite party bank on 8/3/2013 by executing a loan agreement  No. as ESM00671G .  The complainant availed Rs.1,60,000/- for purchase of Mahindra Alfa passenger Auto rickshaw bearing Reg.No. KL 38 C 6670.  He had agreed to repay the same with interest of Rs.89152 and insurance charge of Rs.12000/- in total Rs.261152/- in total 48 instalments, payable on or before 18^th day of every month.  The rate of interest was fixed  as 13.93% flat rate of interest.  2^nd opposite party never collected excess interest and hidden chares from the complainant.  Complainant is gross defaulter and did not  remit the instalment in time, hence this 2^nd opposite party was constrained to classify this account as NPA and issued demand notice to the  complainant  requesting him to pay the instalments in order to avoid repossession of the vehicle.  But the complainant  never  cared to pay.  Hence opposite party proceed with recovery  proceedings before CJM Court at Thodupuzha by filing  a petition  under section 14 of the SARFAESI Act.  According to  the order of the  court the vehicle was repossessed by the opposite party bank with the assistance of Advocate Commissioner.

4.    The point for consideration is whether there  is  any deficiency in service on the part of opposite party and if so  for what  relief  the complainant is entitled to ?

5.   The complainant is examined as  PW1 and  Exts.P1and P2 marked on  the side of the  complainant.

6.  The Point :  The 1^st opposite party advertised to arrange vehicle loan from  SBI at the rate of 6% for a period  of 5 years equal instalments Ext.P1 marked.  On On 18/3/2013 complainant had purchased the auto bearing Reg.No. KL 38C 6670 from the Ist opposite party  by cash payment of Rs.23000/- and for balance consideration of Rs.160,000/-  as loan . The 1^st opposite party  convinced  the complainant that they will avail the loan from SBI and 1^st  opposite party obtained 5 blank signed cheques leaves  as security. Complainant remitted Rs.5710/- at 1^st st opposite party’s  office at Thodupuzha.  After one year of the payment,  the 1^st opposite party directed to remit the loan instalment at the 2^nd opposite party’s office at Thodupuzha. Then only the complainant come to know that the  loan was arranged not from the SBI, but from  the  2^nd opposite party .    As per the terms of the  agreement the complainant has to remit  only 28 instalments till 30/7/15.  The 2^nd opposite party has charged excess interest and other hidden charges from the complainant. 2^nd opposite party issued a notice demanding overdue charges of Rs.20846.  Opposite parties threatened that they will  proceed against the  complainant by  using the blank signed  cheques leaves given to the  Ist opposite party as security.  The act of the  opposite parties amount to  deficiency in service  and unfair trade practice .

7. In written version filed by  1^st  opposite party  admits that they are only  engaged in the business of sale of  the vehicle and not arranged  any loan for the complainant  not received any payment from the complainant .    As per the written version filed by the  2^nd opposite party states that the complainant is trying to challenge the proceedings initiated by the opposite party bank under SARFAESI Act.  The loan cum hypothecation  guarantee agreement dated 18/3/2013 duly executed between  the complainant and 2^nd opposite party bank consists of an Arbitration clause.     The complainant availed Rs.1,60,000/- for purchase of Mahindra Alfa passenger Auto rickshaw bearing Reg.No. KL 38 C 6670 and he had agreed to repay  with interest of Rs.89152 and insurance charge of Rs.12000/- in total Rs.261152/- in  48 monthly instalments.  The rate of interest was fixed  as 13.93% flat rate .  2^nd opposite party never collected excess interest or  hidden chares.  Complainant is a  gross  defaulter and did not  remit the instalment in specified  time, hence his account  classify  as NPA and issued notice to the  complainant  to pay the instalments,  in order to avoid repossession of the vehicle.    According to  the order of the CJM court the vehicle was repossessed by the    2^nd  opposite party bank with the assistance of an Advocate Commissioner.  The complainant has never challenged the SARFAESI Act proceedings in this matter  he only claimed compensation for unfair trade practice done by the 1^st opposite party

8.  The complainant is attracted by the  advertisement of  1^st opposite party , he applied for  the loan.  It is  very clear from the  Ext.P1 document promised  to arrange vehicle loan from SBI at the rate of 6%  for a period of 5 years  equal  instalments.  The complainant never claimed any relief from the 2^nd opposite party bank.  From the evidence it is very clear that  1^st opposite party clearly cheated the complainant by  promised to arrange loan from  SBI at the rate of 6%  for a period of 5 years equal instalments, and arranged loan from  2^nd opposite party bank and obtain  loan agreement signed without revealing the actual facts offering 6%  of interest, and  charged 13.5% is a  clear deficiency in service and unfair trade practice.

    Hence the  petition  partly allowed. The 1^st opposite party is directed to pay Rs.10,000/- to the complainant within 30 days from the date of receipt of copy of this order.  Failing which the amount  shall carry interest at 12% from the  date of default till realization.

Pronounced in the open forum  on this  30^th  day of June 2017

                                                                                                            Sd/

                                                                                    SRI.BENNY.K             :MEMBER                                                                                                    

                                                                                                               Sd/

                                                                                     SRI.S.GOPAKUMAR : PRESIDENT

      Exts.

P1-advertisement

P2-statement of account

PW1-Asokan.K.P- Complainant                                                                                

 eva