Tamil Nadu

North Chennai

CC/227/2018

V.Sivakumar - Complainant(s)

Versus

The Manager, kotak Mahindra Pvt.Ltd - Opp.Party(s)

K.V.Ramesh

03 Dec 2021

ORDER

 

                                                                     Complaint presented on : 25.11.2009

                                                                Date of disposal            : 03.12.2021

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.                    : PRESIDENT

                        THIRU. S. BALASUBRAMANIAN, M.A., M.L.          : MEMBER

 

C.C. No.227/2018

 

DATED THIS FRIDAY THE 03^rd  DAY OF DECEMBER         2021

                                

1.V.Sivakumar,

2. Tmt. S.Sarala,

New No.72 MPS Street,

Tiruttani – 631 209.

                                                                                               …..Complainant

 ..Vs..

The Manager,

M/s. Kotak Mahindra P.Ltd.,

“Ceebros Centre’

No.45 Montieth Road,

Egmore: Chennai – 600 008.

.....Opposite Party

Counsel for Complainant                   : K.V.Ramesh

Counsel for  opposite party                  : M/s.Anand, Abdul & Vinodh Associates

 

ORDER

 

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay Rs.15,00,000/- as compensation for mental tension, agony etc., and loss of reputation suffered by the complainant due to the deficiency in service of opposite parties and costs of this complaint.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No. 81/2010.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble  S.C.D.R.C. and taken on file as C.C. No.227/2018.

1.THE COMPLAINT IN BRIEF:

          The complainants availed Car Loan  vide Agreement No.CF 3866793 from opposite party for purchase of Toyota Qualis (No.TN.09 AC 5700). The Finance amount shown is Rs.514,486/- fixing EMI as 15,759/- from 01.06.2007. The opposite party collected Rs.21,486/- on 30.04.2007 itself and Rs.2,775/- as processing charges. The complainant had been remitting EMIs regularly, and in case of cheques which could not be honoured on 1^st day of  relevant month the opposite party deposited the cheques collected in advance, got them bounced to show as if the complainants were irregular. The complainant thus paid amounts till 30.03.2009 due on 01.04.2009. Meanwhile for EMI of Rs.15,759/-  due on 04.01.2009, the opposite party issued notice dated 04.04.2009 informing of return of cheque and called upon complainants to pay this amount and also an alleged sum of Rs.47,277/- but demanding to pay Rs.81,855/-. The opposite party furnished Statements of Accounts dated 13.04.2009 showing that complainants still own Rs.5,96,340/-, Capital outstanding being Rs.3,19,059.46. The claim of the above said amount is usurious and tantamount to violation of Interests Act and also amounts to cheating the complainants and blackmailing them. The opposite party suddenly came with police people to the complainants place and seized the vehicle on 11.04.2009 with the aid of police threat in a most illegal manner. The manner in which the vehicle was seized, was totally illegal.  The  opposite party has obtained the order from Hon’ble High Court, by committing fraud upon to obtain order to seize the vehicle. Without justifying that a necessity had arisen to invoke the Arbitration Clause, opposite party cannot seek to seize the vehicle. The opposite party has thus caused great disrespect upon the court and had committed grave contempt by making false and untrue allegations before high Court. The opposite party is not furnishing proper Statement of Accounts. But surprisingly opposite party issued pre-dated notice dated 05.03.2009 alleging that the Loan Agreement was foreclosed. Hence seizure of complainant’s vehicle is unjustified unlawful, illegal, and is criminal offence. Thus on all aspect opposite party has committed grave illegalities and has committed fraud upon Hon’ble High Court, Madras  furnishing false statements to obtain on order. The opposite party’s above action shows deficiency in its services opposite party has been collecting amounts from the complainants through collecting Agents and also directly by opposite party, but opposite party has not accounted for the same properly. Due to opposite party’s such deficiency in service, the complainant’s have suffered mental agony, tension and loss of reputation. The opposite party is liable to compensate the same and the complainants value the same at Rs.25 lakhs. Hence this complaint.

2.WRITTENVERSION FILED BY THE OPPOSITE PARTY IN BRIEF:

          The present complaint is not maintainable before this Hon’ble Forum as the entire   allegation  made by the complainant in the complaint are against seizure of the vehicle “through advocate Commissioner” by bringing the police causing dis-reputation to him. The appointment of advocate commissioner by the Hon’ble High Court, Madras on an application made by the opposite party herein is strictly along the line as agreed between the parties to the loan agreement.  If the complainant had any grievance on appointment of advocate commissioner or bringing the police to his residence, he ought to have approached the court where the matter was pending and not this Hon’ble Forum for deficiency. Moreover, the complainant himself had admitted initiation of Arbitration, before whom also he has not chosen to appear and contest the matter. The complainant during March-April 2007, approached the opposite party with a request to extend finance facility as he intended to purchase a Toyata Qaualis vehicle from the dealer chosen by him. The request of the complainant was acceded to by the opposite party favourably and a sum of Rs.5,14,486/- was extended as finance, pursuant to which a loan agreement namely CF3866793 dated 30.04.2007 came to have been executed between the complainant and the opposite party. As per the terms of the loan agreement, the complainant is liable to pay a sum of Rs.7,56,432/- in a period of 48 months commencing from 01.05.2007 and ending by 01.05.2011. Towards availment  of the said loan, the complainant also provided the vehicle, mentioned above, as security and to evidence the same, apart from execution of the loan agreement, also got the Hypothecation, Endorsement marked in the Registration Certificate of the vehicle. The complainant has to pay EMIs on 1^st of every month. However, the complainant has been highly irregular in repayment of the monthly installments. The complainant’s banker has started dishonouring the EMIs since 4^th installment, which fell due on 01.09.2007  and against 26 times where the opposite party presented the cheques provided by the complainant, 23 times the complainant’s banker namely State Bank of Hyderabad, State Bank of India, Indian  Bank & Indus Ind Bank have dishonoured the cheques for the reason “Insufficient Funds”. As of March, 2009, a sum of Rs.78,795/- dis due and payable by the complainant which translates to 5 EMIs against 22 EMIs. In veiw of the default under the loan agreement, the opposite party filed A.No.1312/2009 on the file of the Hon’ble High Court of Judicature at Madras for appointment of Advocate Commissioner to seize the vehicle and hand it over the same to the opposite party. In and by its order dated 31.03.2009, Hon’ble High Court, Madras appointed one Mr.Francis Cedric D’Cruz, advocate, No.19, Law Chambers, High Court Buildings, Chennai – 600 104, as advocate commissioner by allowing the application of the opposite party The complainant  paid only one EMI with still 17 EMIs overdue. Being an intentional defaulter and was holding the vehicle in his illegal possession without paying the EMIs to the opposite party, the complainant has no right authority or even prerogative to advise what steps needs to be  followed by the opposite party. The complainant himself admitted on many occasions in the instant complaint about his alleged fault, which alone is sufficient enough for dismissal of the complaint. It is not the opposite  party who caused disreputation to the complainant by making the opposite party to run from pillar to coast for collection of monthly EMIs for seizure of the vehicle through legal order, it is the opposite party which has suffered huge mental agony, tension and loss of reputation, apart from cost. The complainant is thus liable to compensate the opposite party for the amount mentioned by him in his complaint.   

3. POINTS FOR CONSIDERATION:

1.Whether there is deficiency in service  and part of the opposite party?

2. Whether the complainant is entitled for compensation and cost?

3. To what other relief, the complainant is entitled?

4. POINT NO :1& 2

          The complainant availed car loan from the opposite party for purchase of Toyota Qualis Car bearing Registration (No.TN.09 AC 5700).  The opposite party granted loan of Rs.5,14,486/-  in the year 2007 and  the same is to be repayable at the rate of Rs.15,759/- per month. Commencing from 01.06.2007.  The complainant has not paid the EMI regularly to the opposite party. Therefore the opposite party filed  a case before the original side of the Hon’ble High Court in A.No.1312/2009. The Hon’ble High Court 0n 31.09.2009 appointed Mr.Francis Cedric D Cruz  advocate as Commissioner to seize the vehicle bearing registration No.TN09AC5700/  The commissioner seized the above said Toyota Qualis Car and handed over the vehicle to the opposite party, as per the direction of the Hon’ble High Court. The order passed by the Hon’ble High Court Madras in A.No.1312/2009 dated 31.03.2009 is marked as Ex.A3. There is no violation of the order passed by the Hon’ble High Court by the opposite party. The complainant alleged in the complaint that the opposite party has obtained order from the  Hon’ble High Court  by committing fraud upon the court. The complainant further alleged the seizure of the complainant’s vehicle is unlawful illegal and opposite party has committed fraud upon Hon’ble High Court. by furnishing false statement to obtain an order. The above allegation of the complainant is unsustainable because the opposite party filed a case before Hon’ble High Court and obtained order for seizure of complainant vehicle legally. If at all the complainant committed fraud upon the Hon’ble High Court then, the complainant can approach the  Hon’ble High Court for legal remedy. On the other hand the complainant approached this commission stating that the opposite party committed deficiency in service.

          05. The complainant availed loan of Rs.5,14,486/- for purchase of Toyota Qualis Car bearing registration No.TN09AC5700 from the opposite party in the year 2007. The complainant also executed an agreement to the opposite party to pay the loan amount at the rate of 21,486/- per month from 30.04.2007. But the complainant has not repaid the monthly installments as per the terms of the agreement. The complainant has to pay a total sum of Rs.7,56,432/-  in a period of 48 months commencing from 01.05.2007 and ending by 01.05.2011. The said vehicle also hypothecated  with the opposite party. The complainant has not paid the monthly installments regularly. The cheque issued by the complainant in favour of the opposite party also dishonored on the reason insufficient fund. The complainant also not filed any document to show that he paid the monthly installments to the opposite party regularly. Since the complainant committed default in payment of EMI, the opposite party filed A.No.1312/2009 before the Hon’ble High Court and obtained an order for seizure of vehicle through an advocate commissioner. The opposite party legally ubtained the order from the Hon’ble High Court.  Further the opposite party taken possession of the vehicle legally. The complainant violated the terms and conditions mentioned in the agreement. The opposite party taken action as per the terms and conditions mentioned in the agreement and after obtaining order from the Hon’ble High Court. Hence there is no deficiency in service on the part of the opposite party and complainant is not entitled for compensation in cost.

06. POINT No:3

          In the result, this complaint is dismissed. No costs.

Dictated  by the President to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 3^rd  day of December 2021.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 02.08.2007          The pass book of the petitioner prove their payment made through On Line.

 

Ex.A2 dated 30.09.2007          The payment was made by  complainant/petitioner

               To 30.09.2009          for which the respondent given the receipt(No.15)

 

Ex.A3 dated 31.03.2009          The Hon’ble High Court passed ex-parte order in favour of the respondent

 

Ex.A4 dated 31.03.2009          Telegram issued against the petitioner/complainant by the advocate commissioner

 

Ex.A5 dated 13.04.2009          Statement of account issued in favour of the petitioner/complainant by the respondent

 

Ex.A6 dated 05.03.2009          Legal Notice issued by the respondent counsel

 

Ex.A7 dated 06.04.2009          The respondent issued the notice to the petitioner/complainant

 

Ex.A8 dated 16.04.2009          Legal notice issued by the respondent/counsel to complainant/petitioner

 

Ex.A9 dated 18.05.2009          Legal notice issued by the complainant counsel to respondent

 

Ex.A10 dated 24.07.2009        Reply notice issued by the Respondent counsel to complainant counsel

 

Ex.A11 dated NIL                   Counter filed by the complainant before the Arbitrator

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:

 

                                          …. NIL…

 

 

 

MEMBER – I                                                               PRESIDENT