By Smt. Saji Mathew, Member:-

The gist of the case is as follows:- The Complainant had obtained a loan for his Hero Honda Glamour Bike, R.C No. KL 12C 3092 from the 1^st and 2^nd Opposite Parties. The 2^nd Opposite Party had issued a chart through 1^st Opposite Party to the Complainant. The termination date of loan agreement is on 01.01.2009. As per the loan agreement the Complainant had to pay 36 instalments of Rs.1,603/- each. The Complainant paid Rs.44,972/- towards monthly instalments within the agreement period. Then the Complainant approached Opposite Parties to close the loan. But then Opposite Parties demanded Rs.36,228/- as overdue interest. The Opposite Parties were not ready to accept the balance instalments and close the loan. On 29.07.2009 the Opposite Parties re-possesssed the vehicle from the Complainant by using force. On 08.09.2009, the Opposite Parties sent a registered pre-sale notice to the Complainant. The Complaint got it only on 03.10.2009. The Complainant immediately contacted the Opposite Parties, but they have sold the vehicle to a 3^rd party.

2. The Opposite Parties are legally bound to accept the balance amount of Rs.12,886/- and to return the vehicle and issue loan clearance certificate to the complainant. The complainant is ready to deposit the entire amount before the Forum. The complainant therefore prays for an order directing the Opposite Party to receive Rs.12,886/- and return the bike with loan clearance certificate or to pay the value of the vehicle with cost and compensation of Rs.20,000/-.

3. The Opposite Parties filed their version and stated that the loan termination date was 07.12.2008, not 1.1.2009. The Complainant has not paid Rs.44,972/- towards the monthly instalments within the agreement period. Instead of repeated requests by the Opposite Parties the Complainant failed to remit the balance amount. The Opposite Parties abstained from initiating any legal proceedings against the Complainant considering the excuses of the Complainant. Then the Complainant voluntarily surrendered the vehicle as the vehicle was not in a good condition and there was no chance to fetch good price. The Opposite Parties kept the vehicle till 05.01.2009 and the Complainant had requested not to sell the vehicle as he wanted to raise the fund and release the vehicle. The Complainant failed to keep his promise and the Opposite Parties were forced to sell the vehicle to avoid the diminishing of sale value. The Opposite Parties have sent a pre-sale notice to the Complainant which was accepted by him on 03.10.2009. The Complainant has filed the complaint knowing that the vehicle was sold. As per terms of agreement, the Opposite Parties have the right to sell the property and recover the balance amount. So, there is no deficiency in service on the part of the Opposite Party and the complaint is to be dismissed.

4. The Complainant has filed proof affidavit and documents were marked as Exts .A1 series and A2 series on the side of the Complainant. The Opposite Parties filed proof affidavit, no documents were marked on the side of the Opposite Parties.

5. The matters to be decided are:-

1. Whether there is any deficiency in service on the part of the Opposite parties?

2. Whether the Complainant is entitled for any relief?

6. Point No.1:- Here, the Complainant has stated that the loan termination date is 1.1.2009. But as per the version of the Opposite Parties, the loan termination date is 07.12.2008. No chart or agreement is produced to show the loan termination date. However, the pre-sale notice is dated 08.09.2009 ie, several months after the termination of loan period. The Complainant admitted that he has not remitted the entire loan amount because the Opposite Parties demanded exorbitant amount Rs.36,228/-. As per complaint, the due amount is only Rs.12,886/-. No chart or agreement is produced by the parties. No statement of account is produced by the Opposite Parties to show the due amount. However Ext.A2 series the pre-sale notice clearly shows that the vehicle is re-possessed by the Opposite Parties. The vehicle is not surrendered by the Complainant as it is stated by the Opposite Parties. No legal proceedings are seen taken against the Complainant. As per ruling of Hon'ble National Commission in Chattisgarh Rajya Awas Sangh Ltd. Vs. Baskar Vasant Naolckar and Another, the financier can re-possess the vehicle if the agreement permits the financier to take possession of the financed vehicle. Here no agreement is produced to show such a clause which empowers the financier to take possession of the vehicle in case of default in the payment of instalments. The Opposite Parties have admitted that the vehicle is sold by them. Even though a considerable amount was paid by the Complainant, he has lost the vehicle. The Opposite Parties have not informed the Complainant about the price at which the vehicle was sold. They have not repaid the Complainant the excess amount after deducting the due amount which is obviously less than the price of the vehicle. So, the point No.1 is found against the Opposite Party.

7. Point No.2:- The Complainant state that he has remitted Rs.44,972/- and Rs.12,886/- is yet to be paid at the time of re-possession of vehicle. Ext.A1 series shows payment of more than Rs.50,000/-. The Opposite Parties have not filed any statement of accounts. The Complainant has used the vehicle for more than three years. He also has availed the due amount till this day. But considering that he has made a payment of the major portion of the loan amount, he is entitled to get a compensation.

Therefore, the complaint is partly allowed and the Opposite Parties are directed to pay the Complainant a compensation of Rs.10,000/- (Rupees Ten thousand only) within 30 days of the receipt of this order. The Opposite Parties are also directed to pay interest on the above said amount at the rate of 10% per annum from the date of this order till payment.

Pronounced in open Forum on this the day of 30^th April 2010.

PRESIDENT: Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

A P P E N D I X

Witnesses for the Complainant:

Nil.

Witnesses for the Opposite Parties:

Nil.

Exhibits for the Complainant:

A1 series Receipt.

(11 in numbers)

A2 series. Pre-Sale Notice and Cover. dt:8.9.2009.

(2 in numbers)

Exhibit for the Opposite Party:

Nil.