Karnataka

Kolar

CC/42/2022

Shivanna - Complainant(s)

Versus

The Manager, M/s.Shri Ram Trasnport Finance Co Ltd - Opp.Party(s)

21 Feb 2023

ORDER

Date of Filing: 14/09/2022

Date of Order: 21/02/2023

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE

PREMISES,KOLAR – 563 101.

 

Dated: 21^st DAY OF FEBRUARY 2023

SRI.SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT.SAVITHA AIRANI,B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO :: 42 OF 2022

Sri. Shivanna,

S/o. Channigarayappa,

Aged About 62 Years,

R/at: Thoradi Village,

Kasaba Hobli, Mulbagal Taluk.

(Rep. by Sri. Manjunatha, Advocate)                          ….  Complainant.

 

- V/s -

1) The Manager,

M/s. Shriram Transport Finance

Company Limited, Head Office

At 1^st Floor B-Wing, Shiv Chambers,

Sector-11 CBD, Belapury,

Navi Mumbai-400614.

(Ex-parte)

 

2) The Branch Manager,

M/s. Shriram Transport Finance

Company Limited, Dr. Ambedkar

Circle, M.C. Road, Mulbagal.

(Rep. by Sri. Ravichandra.R, Advocate)                   …. Opposite Parties.

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

01.   The complainant has filed this complaint Under Section 35 of the Consumer Protection Act 2019 against the OP Nos.1 & 2 alleging deficiency in service and pray to direct the OPs to issue Loan Clearance Certificate with NOC to the complainant by receiving balance loan amount of Rs.25,150/- including accrued interest and to pay a sum of Rs.50,000/- towards damages in the interest of justice and equity.

2)  The brief facts of the complaint petition is that, the complainant is the owner of the Lorry HGV multi AXLE bearing registration No. AP-26-TA-257 and OPs are the financiers.  It is stated that, the complainant in order to purchase the above said Lorry and he had borrowed loan of Rs.5,00,000/- from the OPs finance company by executing necessary loan papers and hypothecation agreement in favour of the OPs on 24.02.2020.  It is stated that, as per the terms and conditions of loan agreement, that the complainant agreed to repay the loan amount with interest in 24 Equal Monthly Installments and the EMI commenced from 05.04.2020.  That the complainant further states that, he is very regular in repayment of the loan up to 26.02.2022 and had repaid the total amount of Rs.7,30,669/- through online payment to the OPs and he is having due only Rs.25,150/-, but the OPs are demanding excess amount of Rs.2,71,165/- for issuance of No Objection Certificate and clearance of loan. It is stated that, the Government of India has declared moratorium facility during the period from 01.03.2020 up to 31.05.2020 due to Covid-19 pandemic, the said moratorium was for payment of all installments falling due between 01.03.2020 and 31.05.2020 and further extended another three months falling due from 01.06.2020 to 31.08.2020.  Further stated that, there is a direction from the Reserve Bank of India for all public sector, Government undertaking banks and also financial institutions registered under the Indian Companies Act 1956 including OPs to grant a moratorium for the above said period for payment of installments (including principal interest, bullet repayment EMI) also permitted in respect of term loan and the government offered to waive tax and customs payment.  It is stated that, in spite of huge loss of transport business during Covid-19 pandemic and stoppage of said lorry, but the complainant has paid the EMI to the OPs, but the OPs are acting contrary to the terms and conditions of loan and demanding excess payment towards the said loan.  It is stated that, the complainant got issued the legal notice to the OP on 02.03.2022 by appraising the above facts and requested to provide six months easy installments to repay the remaining principal loan amount with accrued interest, but the OP given the untenable reply on 26.03.2022 stating that, the total hire purchase value of vehicle is Rs.6,26,676/- and finance charges of Rs.1,26,676/- and hence alleged that the said charges are hidden charges for which the complainant had never agreed while executing loan papers and thereon stated that, the act of OPs amounts to deficiency in service.  Hence this complaint.

 

03.   On issuance of notice from this Commission, though notice was duly served on OP No.1 but the OP No.1 did not choose to appear before this Commission to answer the claim of the complainant and accordingly OP No.1 placed as ex-parte.  However the OP No.2 appeared through its counsel and despite sufficient opportunity OP No.2 failed to file its version, under the circumstances version of OP No.2 is taken as not filed. 

04.   In order to prove the case of the complainant, the complainant has filed his affidavit evidence.  Further non filing of the version, the question of filing of affidavit evidence by the OP No.2 will not arise. 

05.   On the basis of the available pleadings on record the following points will arise for our consideration:-

(1) Whether the complainant has proved that the OPs are claiming excessive interest on the borrowed loan amount and it amounts to deficiency in service on the part of OP Nos.1 & 2?

(2) Whether the complainant is entitled for the relief as sought for in the complaint?

(3) What Order?

06.   Heard arguments of both the parties and the complainant also filed his written arguments.

07.   Our answer to the above points are:-

             POINTS (1) & (2):-     Are in the Negative

             POINT No.(3):-        As per the final order

                                           for the following :-

5299419885.  

08.   POINT NOs.(1) & (2):- These points are taken up together for common discussion, for brevity and for the sake of convenience and to avoid repetition of facts.

 

09.   On perusal of the evidence placed on record, it is not in dispute that, the complainant in order to purchase the Lorry HGV multi AXLE bearing registration No. AP-26-TA-257 had obtained the loan amount of Rs.5,00,000/- from the OPs finance company.  It is also not in dispute that the complainant at the time of obtaining the loan executed all the necessary loan documents by hypothecating his vehicle in favour of the OPs.

 

10.   The crux of the matter is that, the only allegation of the complainant is that, the OPs acting contrary to the terms and conditions of the Loan and demanding excessive interest.  In order to prove the case of the complainant the complainant has filed his affidavit evidence along with 05 documents.  It is also not in dispute that the complainant had agreed to repay the loan amount with interest in 24 installments.  On careful perusal of the hypothecation – cum – loan agreement produced by the complainant so also the OP it discloses the terms and conditions incorporated in the agreement at inner page No.3 sub-clause (e) it reads thus “without prejudice to any other rights and remedies which the Lender may have under this Agreement and/or under the prevalent law, in the event of any delay by the Borrower in any payment to the Lender under this Agreement, the Lender shall be entitled to charge an delayed payment interest at the rate of 3% per month for every Rs.100/- of the amount in arrears, whether of Loan, interest or any other charges payable herein.  The aforementioned delayed payment interest would not affect the obligation of strict compliance with repayment schedule, it being an essential condition for the grant of Loan.”  It is worth to note that, either the complaint petition or in the affidavit evidence complainant did showed the dates of repayment of loan EMIs through online in order to show that, he has paid the EMIs well in time. 

 

11.   On perusal of the cross-examination of the complainant wherein which it is admitted that, the 01^st installment commences from 05.04.2020 and complainant has to pay 05^th of every month and the monthly installments is fixed for Rs.26,112/-.  However the complainant failed to produce any document to show that, he has paid the installments on 5^th of every month regularly.  It is also admitted in the cross-examination that, the vehicle was insured and the insurance amount paid by the OP to an extent of Rs.57,175/- and for which also it attracts interest, whereas the complainant did not whispered anything about the payment of premium by the OPs.  It is also admitted that, Rs.7,827/- interest for 12 months installments towards insurance premium amount and also levied interest Rs.7,199/- for renewal of the 1^st policy in addition to loan amount with interest.  It is clearly admitted that, in addition to the loan amount of Rs.5,00,000/- OP No.2 financed towards insurance premium to an extent of Rs.1,26,676/- and the complainant had totally borrowed the loan amount of Rs.6,26,676/- out of which Rs.5,00,000/- towards loan amount and Rs.1,26,676/- towards insurance premium amount and the EMIs fixed for the above said amount.  Complainant also admitted that he had agreed to pay the entire amount of Rs.6,26,676/- within 24 EMIs as agreed.  Further the complainant deposed in the cross-examination he has not remembered the exact day when he was paid the 1^st installment, however he deposed that, he had paid Rs.20,000/- and due to pandemic lockdown he was unable to pay the regular EMIs.  Further admitted that, he has not paid the consecutive 03 EMIs at the beginning itself.  Further admitted that, up to 05.12.2021 he has not paid the full EMIs as agreed under the agreement.  It is worth to note that, as per the terms of the agreement as stated supra “the Lender shall be entitled to charge an delayed payment interest at the rate of 3% per month for every Rs.100/- of the amount in arrears” and hence the complainant is bound by the terms and conditions of the agreement and rightly the complainant has admitted in the cross-examination that, he has not whispered anything about the due of Rs.2,71,165/- as on 14.08.2022 in his complaint or in the affidavit evidence, but only stated OPs are demanding Rs.2,71,165/- an excess payment, but as per the clear acceptance in the loan agreement complainant has to pay interest at the rate of 3% per month for every Rs.100/- of the amount in arrears. 

 

12.   However we are also aware of the fact that due to pandemic the Government of India declared lockdown from March-2020 to 31.05.2020 and 01.06.2020 to 31.08.2020 and hence complainant is claiming benefit of moratorium period.  Under the circumstances we deem it just and proper to direct the OPs for the above 06 months pandemic period no penal interest at the rate of 3% per month can be levied/charged and also not to charge interest at the rate of 22% and 36% per annum compoundable at monthly rest, however OPs are entitled for recover the principal amount with agreed rate of interest at the rate of 22% per annum excluding the period of above six months. 

 

13.   It is worth to note that, one who seeks equity and he should do equity and it is the burden on the complainant to prove deficiency in service on the part of the OPs.  However though OPs failed to file the version, but the judgment is not automatic and it is the duty of the complainant to prove his case by placing cogent evidence, but the complainant failed to discharge his burden.  Under the circumstances we reached to conclusion that, the complainant is failed to prove the deficiency in service on the part of the OPs and hence he is not entitled for the relief sought for in the complaint and accordingly we answered Point Nos.1 & 2 are in the Negative.

14.   POINT NO.3:-  In view of our finding on Point Nos.1 & 2 and the discussions made thereon, we proceed to pass the following:-

ORDER

01.   The complaint is dismissed.  No order as to costs.

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 21^st DAY OF FEBRUARY 2023)

 

 

 

 

   LADY MEMBER                            PRESIDENT