Kerala

Idukki

CC/124/2016

Willson Pauli - Complainant(s)

Versus

The Manager Toyota Finance Services - Opp.Party(s)

Adv.K M Sanu

31 Oct 2019

ORDER

DATE OF FILING : 13.4.2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of October, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.124/2016

Between

Complainant : Winson Paul,

Varikkattu House,

Chilavu P.O., Alakkodu, Thodupuzha.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. The Manager,

Toyota Financial Service India Ltd.,

Nettoor P.O.,

Kochi.

2. The Manager,

Toyota Financial Services India Ltd.,

Centropolis, 1^st Floor, 5^th Cross,

Langford Road, Shanthi Nagar,

Bangalore – 560 025.

(Both by Adv: Pearson S. Fernandez)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

Complainant availed a vehicle loan of Rs.4,68,000/- from 2^nd opposite party and purchased a Toyota Ettios Liva Diesel car from 1^st opposite party, in the month of January 2013. The repayment of loan amount was agreed as Rs.10,195/- per month for 60 months. While the complainant remitting the loan instalments regularly, in the year 2015, he failed to remit the loan instalment of 2 months. Eventhough at the time of availing the loan, 2^nd opposite party informed him that, if the complainant failed to remit more than 3 EMIs, they will initiate recovery steps. Opposite party initiated recovery proceedings against the complainant by way of arbitration case and also tried to take possession of the said vehicle from the custody of the complainant.

 

Complainant further averred that, opposite party realised one EMI in advance and moreover, they are imposing over due charges and other charges in

(cont.....2)

- 2 -

the loan account. When the complainant received notice from the 2^nd opposite party, he approached them and informed his willingness for remitting the overdue instalments and he remitted Rs.10,195/- on 8.2.2016. Evenafter the remittance of instalments, opposite party continued their process. As per the loan statement issued by the opposite party, the pending dues along with over due charges is Rs.26,230/-. In their statement future instalment amount is shown as Rs.2,34,485/-. But in the arbitration petition, opposite parties demanded Rs.2,79,022/-.

 

Complainant further contended that opposite parties obtained an interim order in an arbitration proceedings conducted in Delhi and issued a notice to the complainant stating that the arbitration case will be considered on 19.3.2016. At the same time, opposite party initiated recovery proceedings on the basis of an arbitration interim order dated 6.2.2016. Complainant further contended that he is having every right to continue his loan till 20.2.2018 and opposite party is having no right to close the loan before the termination period unilaterally. Moreover, obtaining interim order from an arbitration court, situated very far away, without giving proper notice is against the principles of natural justice and it is against the ethics of finance business and is a gross deficiency in service and unfair trade practice. Opposite party having no legal right to impose huge amount by way of penal charges and opposite parties are trying to realise the whole loan amount in lump sum from the complainant, two years before actual closing date, in order to make double enrichment. Opposite parties are trying to repossess the vehicle from the custody of the complainant having market value of more than 5 lakhs by way of illegal means. Under this circumstances, complainant approached the Forum and filed this complaint for allowing reliefs such as to direct the 1^st opposite party to re-schedule the vehicle loan by avoiding the overdue and other penal charges and further direct the 1^st opposite party to pay compensation and cost for the unfair trade practice.

 

Upon notice, 2^nd opposite party entered appearance and filed detailed reply version admitting the vehicle loan details. Opposite party further contended that, there is no such office of the 2^nd opposite party at Nettoor and the complainant wilfully added the 1^st opposite party only to confuse the Forum. The address shown as that of the opposite party at Nettoor is a showroom, which is run by a franchise of the Toyota vehicle.

 

2^nd opposite party further contended that being a registered NBFC, all the interest and other charges are that is permitted and approved by the RBI and for that reason there is no unfair trade practice as alleged. In this case, complainant

(cont.....3)

- 3 -

wilfully defaulted to pay five numbers of EMI as on 20.5.2016. The complainant is well aware of the arbitration clause in the loan agreement executed by him with opposite party. As on 31.1.2016, complainant failed to pay more than 2 EMIs. Moreover, this 2^nd opposite party received information from their sources that the complainant was malafidely intending to dispose off or transfer the hypothecated vehicle. Hence this opposite party had to initiate arbitration proceedings against the complainant and obtained an order dated 6.2.2016, passed by Additional District Judge, appointing the opposite party as a receiver to get custody of the vehicle in question. The complainant filed this petition only after the receipt of the order of the arbitration by concealing the same and approached the Forum, with a distorted and incorrect version and thereby attempted to misguide the Forum. Above all, till date the complainant has not complied the condition imposed by the Forum in the interim order in IA 84/2016 in the above case. Hence this order has become infructuous too and hence the complaint is only to be dismissed with cost of this opposite party.

 

Evidence adduced by the complainant by way of proof affidavit and documents such as copy of RC Book, copy of loan account statement, receipt, arbitration notice dated 27.2.2016, demand notice dated 23.1.2016, notice issued by 2^nd opposite party, receipt dated 24.6.2016, receipt dated 3.8.2016 are marked as Exts.P1 to P8 respectively.

 

From the defence side, order issued by the arbitrator, loan agreement and loan account statement are produced along with the reply version.

 

Heard both sides.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite party and if so, for what relief the complainant is entitled to ?

 

The POINT :- We have heard the counsels for both the parties and had gone through the records. It is an admitted fact that the complainant availed a vehicle loan of Rs.4,68,000/- from 2^nd opposite party bank in the month of January 2013 agreed to repay it with interest in 60 instalments @ Rs.10,195/- per month. While remitting the instalments regularly, he committed some defaults in payment of 2 instalments. Immediately after the default of payment, opposite party initiated arbitration proceedings in a far away place, Delhi and obtained an interim order from the arbitrator for repossessing the vehicle.

 

(cont.....4)

- 4 -

The learned counsel for the complainant argued that the arbitration notice issued by the complainant stating that its hearing was on 19.3.2016 at the same time opposite party obtained interim order from the arbitrator on 6.2.2016. The learned counsel further argued that conducting arbitration proceedings in a far away place which is not easily reachable to the clients as well as initiating arbitration proceedings in a default of only 2 instalments and trying to repossess the vehicle having more than Rs.5 lakhs market price is a clear instance of unfair trade practice and deficiency in service. The counsel further submitted that immediately after the receipt of notice, complainant approached 2^nd opposite party and informed his willingness to remit the defaulted instalments, but the opposite party denied to receive the amount and demanded full loan amount as lumpsum along with illegal overdue charges and penal interest. On the other hand the learned counsel for the opposite party submitted that at the time of executing the loan agreement, the complainant is well aware of the loan conditions. He failed to remit 5 instalments and that is why the opposite party initiated arbitration proceedings. By concealing all these facts, complainant approached the Forum with unclean hands. The counsel further argued that the opposite party has got reliable information from their sources that the complainant is malafidely intending to dispose off / sell / transfer the vehicle in issue, which was purchased with the financial assistance of 2^nd opposite party. Hence the 2^nd opposite party had to initiate arbitration proceedings. Counsel further argued that 2^nd opposite party is a non-banking finance company duly registered under RBI that all the interest and other charges levied upon the 2^nd opposite party's customers are that is permitted and approved by the RBI. Hence there is no question of any deficiency in service and unfair trade practice has arisen.

 

On perusing the contentions of the complainant and reply version and on going through the evidences, the Forum found that the opposite party initiated arbitration proceedings and obtained interim order from the arbitrator for repossessing the vehicle only on the reason that the complainant is going to sell or transfer the vehicle. This version of the opposite party cannot be believable or admissible because opposite party is well aware that, the vehicle records having the financial noting cannot be transferred without closing the financial liability upon the vehicle. It is also an admitted fact that complainant is not a chronic defaulter, moreover, he admitted that the is ready to remit the defaulted instalments with normal default penalty. But opposite party is demanding the loan amount in lump sum. The Exts.P7 and P8 shows that after obtaining an interim order from this Forum, opposite party remitted 7 EMIs to the loan account. On going through the records, it is seen that the loan termination is

(cont.....5)

- 5 -

February 2018 and the opposite party is duty bound to reschedule it by receiving the defaulted instalments along with its normal penalty.

 

Eventhough 2^nd opposite party filed a lengthy reply version, no evidence is adduced to corroborate their contention.

 

Hence on the basis of above discussion, Forum is of a considered view that the evidence produced by the complainant is sufficient to establish the deficiency in service on the part of the opposite party.

 

Hence the complaint allowed. 2^nd opposite party is directed to reschedule the loan account in question by charging 12% simple interest alone in defaulted instalments and issue a statement of account to the complainant, within 30 days of receipt of a copy of this order.

 

Pronounced in the Open Forum on this the 31^st day of October, 2019

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P., MEMBER

 

 

APPENDIX

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - copy of RC Book,

Ext.P2 - copy of loan account statement,

Ext.P3 - receipt,

Ext.P4 - arbitration notice dated 27.2.2016,

Ext.P5 - demand notice dated 23.1.2016,

Ext.P6 - notice issued by 2^nd opposite party,

Ext.P7 - receipt dated 24.6.2016,

Ext.P8 - receipt dated 3.8.2016

On the side of the Opposite Party :

Nil. Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT