By. Sri. Jose. V. Thannikode, President:

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get release of the seized vehicle and to pay cost and compensation due to the unfair trade practice by the opposite parties.

2. Brief of the complaint:- The complainant is the registered owner of Tipper Lorry bearing registration No. KL12 H 9841. At the time of purchase of the said vehicle, the complainant had availed a vehicle loan from the 1^st opposite party through the 2^nd opposite party. The loan amount was Rs.12,30,250/- to be repaid to the first opposite party in 59 equal installments at the rate of Rs.35,000/- with interest. The repayment was scheduled from 01.06.2013 to 01.04.2018. The complainant had already paid an amount of installments towards the loan amount. Certain installments were paid belated and certain installments were due. However, the complainant is ready and bound to make full settlement of the dues on or before 01.04.2018 which is the crucial date for settlement of the loan amount. In the mean while, the first opposite party has forcibly taken the vehicle to their custody on 20.12.2014 without giving any notice or intimation to the complainant on the allegation that the complainant had failed to make payment of the installments. The complainant purchased the vehicle by availing loan from the opposite parties for earning his bread by plying the vehicle on hire. The opposite parties have unauthorisedly and ignoring the natural justice, seized the vehicle without issuing any notice or intimation about the seizure and without giving a reasonable and fair opportunity to the complainant to pay the outstanding dues. The act on the opposite parties are gross violation of natural justice and amounts to unfair trade practice. The complainant is put to mental stress and strain and many financial commitments and his source of income has been lost on account of the illegal seizure of the vehicle by the opposite party. The opposite party can at the most claim default interest or penal interest from the complainant in case of any default in payment of installments, if they are legally entitled for that, and the opposite parties could not be justified in seizing the vehicle without notice to the complainant. Over and above the period of final settlement of the loan amount is prescribed by the opposite parties on before 01-04-2018 and the complainant is ready to make good off the defaulted installments with interest. The complainant is a consumer as defined in the Act.

3. Hence prayed for an Order directing the opposite parties to release the vehicle owned by the complainant and seized by the opposite parties to the complainant and provide time to the complainant to pay the dues outstanding with interest before the date of final settlement of the loan prescribed and also to pay a compensation for the sum of Rs.10,000/- to the complainant towards the loss, mental stress and strain along with the cost of this proceedings, in the interest of justice.

4. Notices were served to opposite parties and they appeared and filed version stating that these opposite parties deny the entire averments made in the complaint except those which are admitted hereunder. The complainant is not entitled for any of the claims made in the complaint. The complainant has come before this forum suppressing material facts and is not entitled for any reliefs prayed for. It is admitted that one Mr. Denny. P. K. had entered into a loan cum hypothecation agreement with the 1^st opposite party for the purchase of a tipper lorry bearing registration No. KL-12-H-9841. As per the terms of the agreement the complainant had to repay the amount financed with interest in 59 monthly installments starting from 01.06.2013 to 01.04.2018 comprising of initially 35 monthly installments of Rs.35,000/- each and there after 24 monthly installments of Rs.21,056/-. He never paid Rs.3,74,000/- as alleged in the complaint. We never financed a vehicle to a person named Denny. P. J. as mentioned in the complaint. The transaction is a commercial transaction thus the complainant is not a consumer. The complainant was a chronic defaulter of many monthly installments and he has to pay the installment amount on due date in 2^nd party office without default. As the complainant defaulted installments this opposite parties gave sufficient time to him to clear the due amount and the same is also informed via registered notice. But he never turned up to clear the due amount, thus as per the provisions of the agreement the 1st opposite party was constrained to determine the agreement and the matter was referred for arbitration to the sole arbitrator invoking the arbitration clause. Due notices of all these proceedings were served on the complainant and the allegation to the contra are made just for the purpose of this complaint.

5. Pending Arbitration proceedings as per its order dated 31.10.2014 in Arbitration Petition No.6714/2014. The Honorable High court of Judicature at Madras appointed an advocate commissioner to take re-possession of the vehicle if required with necessary police assistance. After due notice to the party the vehicle was re-possessed by the Advocate commissioner on 20.12.2014 with the assistance of Ambalavayal Police. The complainant refused to receive notice from the advocate commissioner but he was present till the completion of entire repossession procedure. As on now the Arbitration proceedings are completed and as per the award dated 17.04.2015 these opposite parties are entitled to recover an amount of Rs.13,03,203/- from the complainant with interest at the rate of 18% per annum 20.11.2014 till date of realization along with cost of the proceedings. More over the opposite parties are also directed to sell the vehicle as per procedure and the sale consideration to be adjusted in the award amount. Thus the allegations in the complaint are false and hence denied. It is submitted that in view of the provisions for arbitration provided for in the agreement, this complaint itself will not lie and disputes arising out of the agreement if any will have to be resolved by arbitration alone. Further the jurisdiction to resolve any dispute arising out of loan agreement had been mutually and exclusively conferred upon the courts in Chennai by the contracting parties. And as such, this forum has no jurisdiction to entertain any complaint like in the nature of the present one. The reliefs sought in complaint are not allowable. The complainant is aware about the pending of the arbitration proceedings and sec. 9 seizure petition before high court of Madras and by suppressing this facts he filed a complaint like this. Thus the complainant approached this Honorable court without clean hands. The petitioner under the guise of this complaint cannot stop the opposite party from enforcing the Arbitral award already passed by selling the repossessed vehicle and other methods under due process of law. Hence prayed to dismiss the complaint.

6. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A3 documents were marked. Ext.A1 is the RC of the disputed vehicle, where the opposite party's Hypothecation endorsed. Ext.A2 is the Statement of Account given by the opposite party to the complainant, wherein the total repayment of Rs.3,74,220/- is seen paid by the complainant till 31.10.2014. Ext.A3 series 1 to 12 are the Receipts for the payment for Rs.3,12,220/-. Opposite party also filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 to B5 were marked. Ext.B1 is the Notarized copy of Hypothecation Agreement dated 30.04.2013. Ext.B2 is the certified copy of section 9 seizure closing order passed by Honorable High Court of Madras dated 07.01.2015. Ext.B3 is the certified copy of Arbitration Award dated 17.04.2015. Ext.B4 series and B5 series are the copy of the due demand notice dated 21.07.2014 with postal receipts and Acknowledgment and copy of demand notice dated 07.10.2014 with postal receipts and Acknowledgment card.

7. On perusal of complaint, version and documents the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

8. Point No.1:- The opposite party has financed Rs.12,30,250/- to the complainant on 30.04.2013 and it was agreed to repay the loan amount + flat interest of Rs.5,00,094/-, total Rs.17,30,344/- within 01.04.2018 with equal 35 installments of Rs.35,000/- each and 24 installments of Rs.21,056/- each. The complainant repaid Rs.3,74,220/- till 31.10.2014 and the remaining installments were not collected by the opposite parties demanding the over due charges with installments and seized the vehicle on 20.12.2014. So the complainant could not make the future repayments.

9. Since the opposite parties has already charged interest for the whole period for the whole amount and put it in installments and later demanding additional finance charge and not accepting the installments without additional finance charge is a deficiency of service and unfair trade practice from the side of opposite parties. Hence the Point No.1 is found accordingly.

10. Point No.2:- Since the Point No.1 is found against the opposite party, opposite party is liable to release the vehicle to the complainant on receiving the installments amount till today and also liable to pay cost and compensation and the complainant is liable to pay the remaining installments to the opposite party till today. The Point No.2 is decided accordingly.

In the result, the complaint is partly allowed and the opposite parties are jointly and severally directed to release the vehicle to the complainant on payment of Rs.7,10,780/- (ie 31x35,000= 10,85,000-3,74,220) to the opposite party within one month from the date of receipt of this Order and the complainant is also directed to repay the remaining installments to the opposite party within the prescribed period mentioned in the payment chart. The opposite party is also directed to pay Rs.2,000/- (Rupees Two Thousand) as compensation and Rs.1,000/- (Rupees One Thousand) as cost of the proceedings to the complainant for their deficiency of service.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 6^th day of January 2016.

Date of Filing:31.03.2015.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Denny. P. K. Complainant.

Witness for the Opposite Parties:-

OPW1. Rajiv Kumar. Legal Manager, Cholamandalam Investment and

Finance Limited, Calicut.

Exhibits for the complainant:

A1. Copy of Registration Certificate.

A2. Statement of Account.

A3(Series). Receipts (12 Nos).

Exhibits for the opposite parties:-

B1. Notarized copy of Hypothecation Agreement.

B2. Certified copy of section 9 seizure closing order passed by Honorable High Court of Madras dated 07.01.2015.

B3. Certified copy of Arbitration Award. Dt:17.04.2015.

B4(Series). Due Demand Notice, Postal Cover and Acknowledgment Card.

B5(Series). Copy of Demand Notice, Postal Receipts and Acknowledgment Card.

Sd/-

PRESIDENT, CDRF, WAYANAD.

a/-