SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This complaint is filed by the complainant for realization of amounts, compensation and costs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> The complainant has purchased a Pickup vas APE from M/s. Vahini Automobiles Ltd., Kollam availing credit facility from the opp.party executing a loan agreement. As per the terms of the Loan Agreement, the amount was to be repaid in 36 instalments at the rate of Rs.3,975/- per month. The complainant issued 36 cheque leaves of the Indian Overseas Bank, The District Co-operation Bank, Kollam and Federal Bank, Kollam After the purchase of vehicle, the vehicle was registered in the name of the complainant. The R.C. Book was kept by the opp.party and the endorsement of loan was made in the R.C. book. The complainant was remitting the amount by taking DD in favour of the opp.party in their Chennai Office. The 3 instalments were remitted by way of DD on 3.6.2005, 29.6.2005 and 8.8.2005. But the opp.parties did not issue acknowledgement. Therefore the complainant declined to remit the remaining instalments though he had sufficient funds in his bank account. On 25.11.2006 the opp.parties have seized the vehicle without any knowledge of the complainant. When the complainant approached the opp.party at Kollam they have demanded to remit the sum of Rs.13,000/- towards three arrear instalments. Even though the complainant has remitted this amount also the opp.parties did not release the possession of the vehicle. The opp.parties have no right to seize the vehicle. Hence the complaint.<br /> <br /> The opp.parties filed version contending, interealia that the complaint is not maintainable either in law or on facts. The loan amount availed by the complainant was to be paid in 36 instalments commencing on 1.4.2005 and a total sum of Rs.1,34,325/- is to be paid. The complainant made the opp.party to believe that the cheques given by the complainant towards repayment of the loan amount would be honoured when presented for encashment. But the cheque when presented were dishonoured and returned with the endorsement ‘account closed.’ After purchase of the vehicle from M/s Vahini Autos who is the dealer the same was registered in the name of the complainant and original R.C. Book was kept as security for the loan amount by the 2nd opp.party. Since the complainant committed default in the repayment of instalments, the company exercising the stipulation in the loan agreement re possessed the vehicle on 20.11.2005. Thereafter the complainant in order to avoid legal action sent Rs.3,975/- in June 2005 and Rs.4,215/- in August 2005 directly to the company’s Head office at Chennai. A sum of Rs.22,271/- was outstanding due as on November 2005. After repossessing the vehicle the complainant approached the opp. party on 11.1.2006 and has a remitted Rs.13,000/- on that day for which proper receipt was issued. The complainant also undertook to remit the monthly instalments to the 2nd opp.party. The balance amount was agreed to be paid within 2 weeks. Thereafter without making payment of the money as agreed filed this complaint. Hence the opp.parties prays to dismiss the complaint <br /> <br /> The points that would arise for consideration:<br /> 1. Whether there is deficiency in service on the part of the opp.parties<br /> 2. Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined Ext. P1 to P5 are marked. <br /> For the opp.parties DW.1 is examined. Ext. D1 to D5 are marked.<br /> <br /> POINTS:<br /> <br /> As a matter of fact, the availing of loan and the execution of Ext. D1 loan agreement is admitted. Ext. D1 shows that it is a loan agreement. The repayment schedule in Ext.P2 produced by the complainant shows that theloan amount is to be paid in 36 monthly instalments the 1st instalment being Rs.1000/- and the remaining instalments @ Rs.3795/-. It is further shows that the complainant has issued cheques for payment of 3rd instalments onwards of three different banks. Ext.P3 series is three pay in slips of Indian Overseas Bank for having paid Rs.3795/- on 29.6.2005, Rs.3812/- on 3.6.2005 and Rs.4312/- on 8.8.2005 and according to the complainant these amounts are paid to the opp.party by way of Demand drafts towards payment of instalments as per Ext.D1. The case of the complainant is that since the opp.party did not issue receipts for having received the above Demand Drafts he did not make further payments, Ext P3 series shows that the payments as per the same are belated. It is not clarified as to why the complainant paid these amounts directly and not remitted in the bank concerned to be encashed as per the cheques issued.<br /> <br /> The case of the opp.party is that as per the schedule of repayment the 2nd instalment was due for payment on 1.5.2005 and cheque bearing No.839335 issued by the complainant to the opp.party towards payment of this instalment when presented for encashment was dishonoured and returned with the endorsement account closed. The cheque for payment of 3rd instalment bearing No.839336 dt. 1.6.2005 was also dishonoured and returned with the endorsement account closed. When the opp.party reminded the complainant of their intention of taking legal action certain amounts were send directly to the opp.party’s head office at Chennai. As on November 2005 a sum of Rs.22271/- was due from the complainant and so after complying with all legal formalities the vehicle was repossessed by the opp.party on 20.11.2005<br /> <br /> The contention of the learned counsel for the complainant is that the forcible seizure of the vehicle by the opp.party amounts to unfair trade practice and deficiency in service and in support of his contention he was relied on the decision reported in 2003 [3] KLT 397,2007 [3] KLT 923 and 2007 [4] KLT 402. In all the above decisions it has been held that in a loan agreement for financing of goods on hypothecated basis the creditor cannot forcibly repossess the hypothecated item without intervention of court. It is an admitted fact that the vehicle herein was repossessed by the opp.party without the intervention of court. The contention of opp.party that as per stipulation in Ext.D1 they have every right to repossess the vehicle is unsustainable in the light of the above decisions. In the decisions referred to above it has been held that such a stipulation is void. Therefore, we are of the view that the seizure of the vehicle by the opp.party on 20.11.2005 amount to unfair trade practice and deficiency in service.<br /> A perusal of the records produced by both sides would clearly show that the complainant is a defaultor. The opp.party has every right to repossess the vehicle and realize the loan amount by resorting to procedures laid down by law.<br /> The contention of the complainant is that he had paid Rs.20475/- as advance and Rs.24885/- being the instalments so far paid to the opp.parties.The sum of Rs.20475/- was paid to the dealer and not to the opp.party and so the complainant is not entitled to get back the same from the opp.party. <br /> Regarding the amount Rs.24885/- the amount actually paid by the complainant to the opp.party, he is entitled to get back the same if not the matter is settled otherwise. The complainant is also entitled to get compensation and costs. Point found accordingly.<br /> <br /> In the result the complaint is allowed directing the opp.party to pay the complainant a sum of Rs.24885/- with interest @ 12% per annum from 20.11.2005 and Rs.10,000/- towards compensation and costs. The order is to be complied with within one month from the date of this of order.<br /> Dated this the 22nd day of September, 2008<br /> <br /> <br /> <br /> I N D E X<br /> List of witnesses for the complainant<br /> PW.1. – Sudheendran<br /> List of documents for the complainant<br /> P1. – Receipt of Vahini Autos<br /> P2. – Loan agreement<br /> P3. – D.D. Receipt<br /> P4. – Copy of Telegram<br /> P5. – Receipt of the opp.party<br /> List of witnesses for the opp.party<br /> DW.1. – Binu.M<br /> List of documents for the opp.party<br /> D1. – Loan agreement<br /> D2. – Statement of account<br /> D3. – Copy of letter dt. 8.11.2005<br /> D4. – Copy of authorization<br /> D5. - Customer Statement of Account as on 1.12.2005<br />