Tamil Nadu

North Chennai

261/2012

U.Jansi, - Complainant(s)

Versus

The Manager, Mahindra and Mahindra Finanace RV d, - Opp.Party(s)

M/s.Harris Alfred

06 Apr 2016

ORDER

                                                           Complaint presented on  :  04.12.2012

                                                                Order pronounced on  :  06.04.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :    MEMBER II

 

WEDNESDAY THE 06^th   DAY OF APRIL2016

 

C.C.NO.261/2012

 

 

1. U.Jansi,

W/O. John Kennedy,

No.45, S.S.V. Koil 3^rd Street,

Perambur,

Chennai – 11.

 

2.  M.John Kennedy,

S/O. S. Malarventhan,

No.45, S.S.V. Koil 3^rd Street,

Perambur,

Chennai – 11

 

                                                    .....Complainants

 

..Vs..

 

The Manager,

Mahindra and Mahindra Fin SRV Ltd.,

13/3, Plot.No.3666A, 19^th Street,

P.Block,

Anna Nagar West,

Chennai – 40.

	...Opposite Party

Date of complaint                                  : 06.12.2012

Counsel for Complainant                      :M/S Harris Alfred

Counsel for  Opposite Party                     :M/S Pass Associates

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant had purchased a Kun Hyundai I-10 Car through finance extended by the Opposite Party and the said vehicle was registered in the name   of the 1^st Complainant. The total cost of the car was Rs.4,28,000/-. The Complainants paid initial amount of Rs.1,28,000/- to purchase the car and the Opposite Party advanced a loan of Rs.3,00,000/- repayable in 60 monthly equal installments. The 2^ndComplainants maintained an account with  UCO Bank, Purasaiwakkam, Chennai-7 and he gave ECS mandate to pay the monthly installments.  The installment amount paid   on 20.07.2011 was not credited and status of the 3 cheques issued by the Complainant is not known. The Opposite Party expressed that the cheque would not be accepted and hence the Complainant could make cash payment directly to the  agents/Bill Collectors Mr.Prassana and Mr.Ramamurthy of the Opposite Party. The Bill Collectors are not regular in collecting the amounts. On 22.09.2012 the Bill Collectors Ramamurthy called the 2^nd Complainant over phone to pay 4 dues in two installments and he could make the 1^st payment by 22.09.2012. The  Bill Collectors  did not turn up for collection every month and he came to the resident of the Complainants and informed them that five dues  are pending including  for the month of October and insisted the 2^nd Complainant to bring the car with RC Book to the Opposite Party Manager. The Opposite Party seized the Car at their office. The second Complainant had contacted the Branch Manager Mr.Anbarasu on 12.10.2012 and Mr.Anbarasu insisted that the second Complainant should bring Rs.50,000/- with a 20 Rupees Stamp Paper and 10 cheque leaves. The Complainants were at loss to know why they were asked to comply with unwanted formalities when they were regularly paying the EMI’s. The Opposite Party had not issued any notice prior to the seizure of the vehicle and have violated the guidelines issued by the Hon’ble Supreme Court with regard to seizure of the hypothecated vehicle.  Though they expressed their willingness to pay  the remaining amount through regular EMI’s the Opposite Party refused to return the vehicle and the Opposite Party wanted the Complainants to pay the entire amount in cash in one installment. Many times the 2^nd Complainant contacted the Manager there is no response and hence the Complainants issued a legal notice dated 29.10.2012. The Opposite Party issued vexatious reply asking the Complainants to settle Rs.2,55,047/-. Hence the Complainant filed this Complaint for return of car with compensation for mental agony and with costs.

2.WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The Complainants and one Sanjay approached the Opposite Party seeking financial assistance in August 2010 for the purchase of a Car Viz., Hyundai I 10 on an assurance that the Complainants have sufficient earnings and potential to repay the loan together with finance charges without any delay or default. The Complainants represented that the 1^st Complainant is working in Central Drug Testing Laboratory, Government of India and that the 2^nd Complainant is a businessman.  Based on the representation and assurance of the Complainants, the Opposite Party and Complainants had entered into a loan agreement dated 17.08.2010 vide contract No.1275592.The said loan agreement was executed by the Opposite Party as “Lender”. The 1^st Complainant as “Borrower” and the 2^nd Complainant as “Co-borrower” and one Sanjay as “Guarantor”.  The cost of the vehicle was Rs.3,83,259/- . In pursuance of the said agreement, the Opposite Party had extended financial facility to the extent of Rs.3 Lakhs, which shall be repayable together with the agreed finance charges. The cost of the vehicle was Rs.3,83,259/-. The value of the agreement is Rs.4,2,600/-. The Complainants have agreed to repay the value of the agreement amount in 60  monthly installments at Rs.7,150/- per month commencing from 20.08.2010 ending  with 20.07.2015.In case of any delay or default, the Complainants had agreed to pay the additional finance charges at 3% per month on the sum default until its payment. The 1^st Complainant had given her Savings Bank Account No.01000100030236 from UCO Bank, Purasawalkam Branch. In case of any dishonour, the Opposite Party is entitled for the charges of Rs.500/- apart from the liability of additional finance charges. Under the agreement, the liability of the 2^nd Complainant is co-extensive with that of the 1^st Complainant as he has duly guaranteed for the due repayment of the sum due under the loan agreement. Consequent to the event of default, it is open to the Opposite Party to declare and demand all sums due under the loan agreement for the full term of the agreement including the foreclosure charges. In the event of further failure in making the payments within 7 days, the Opposite Party has a legal right under clause 12.1 in which the Opposite Party has a right to retake possession of the vehicle and sell the vehicle at public or private sale and adjust the sale proceeds towards the dues under the loan agreement and claim the balance even after adjusting the sale proceeds. The 1^st Complainant had paid the installments through ECS from August, 2010 to June, 2011 i.e., 11 monthly installments. However, thereafter the Complainants had committed delay and default in payment of installments. Default in payment of installments due to dishonouring of cheques attracts not only additional finance charges but also attract cheque returned a charge which has been categorically set out in the statement of accounts. After a particular period of time, i.e., since May, 2012, the Complainants had not made any payments. It is one of the norms of the Bank that they would not allow clearance through ECS in the event of three consecutive dishonour by their customers. Even according to the Complainants in paragraphs 5 & 6 of the Complaint they had not made any payment for the months of July, 2011, October, November and December, 2012. In spite of requests and reminders, the Complainants had made some payments intermittently without fulfilling the due compliance of the dues under the loan agreement and thereafter committed default. The Opposite Party had informed the Complainants that the non –payment would pave a way for them to invoke the agreed clauses under the loan agreement including retaking possession of the vehicle.  The Complainant having unable to pay the dues and future installments voluntarily surrendered the vehicle with the Opposite Party.  The Opposite Party  had sent a communication dated 23.11.2012 to both the Complainants informing them to settle the total due of Rs.2,55,047/-  as on that date within  7 days, failing which it was duly notified that the vehicle in reference would be sold in “ as is where is condition” without any further notice. The Complainants had failed either to settle the dues or to send any communication. In the meanwhile, the Opposite Party had obtained a report from the reputed values Viz., M/S A.Chandrasekar Reddy on 16.10.2012 who had valued the vehicle at Rs.1,80,000/-. In fact, at the time of repossession, the vehicle in reference had scratches on doors, all concerns and bumpers. It is pertinent to state that if the vehicle is kept idle after repossession the value of the vehicle would be deteriorated causing financial loss to both the Opposite Party and the Complainant. The Opposite Party had no other option but to bring the vehicle on open auction and that the vehicle was sold at the highest value of Rs.2,11,600/- on 14.02.2013.The Complainant is still liable to pay a sum of Rs.76,010/- as on 20.11.2013 and in order to recover the same the Opposite Party had initiated arbitration proceedings and the said  arbitration proceedings are pending.  As a counter blast to the arbitration proceedings, the Complainant has rushed to this Hon’ble Forum with false and misleading facts as if the Opposite Party has committed Deficiency in Service. The other averments made in the Complaint are denied and prays to dismiss the Complaint.

3. POINTS FOR CONSIDERATION:

          1.Whether there is deficiency in service on the part of the opposite party?

          2.Whether the complainant is entitled to any relief? If so to what relief?

4.POINT:1

          The admitted case of the both the parties are that the Complainant purchased a Kun Hyundai I-10  Car in the name of the 1^st Complainant and the Opposite Party financed a sum of Rs.3,00,000/- to purchase the said car as the 1^st  Complainant as borrower  and the  second Complainant as Co-borrower and  one Mr. Sanjay as  “Guarantor”  and the Complainants agreed to repay the loan amount in 60 monthly installments at the rate of Rs.7,150/- per month through ECS clearing from the 2^nd Complainant UCO Bank commencing from 20.08.2010.

          5. The admitted case of the Complainant is that they have to pay a sum of Rs.7,150 per month as EMI’s. The Complainants marked Ex.A3 statement of account of the Complainants of UCO Bank to prove the payment of EMI’s made.  As per the Ex.A3 statement the Complainant paid EMI’s up to 20.12.2011, further in the said statement it is mentioned on the dates against 20.01.2012, 20.02.2012, 21.05.2012 and 20.09.2012 ECS rejection charges were withdrawn from the Complainants account. In the said statement there is no proof that for the aforesaid dates the EMI’s were paid by the Complainant. However, the Opposite Party himself admitted in the written version that since May 2012 the Complainant had not made any payments towards the loan borrowed by them from the Opposite Party. The Complainants also have not filed any document to prove that since May 2012 they have paid EMI’s to the Opposite Party. Therefore, it is held that the Complainant committed default in payment of EMI’s from May 2012 onwards.

          6. As per Ex.B3 loan agreement clause 12.1the Opposite Party has power to sell the vehicle and  adjust with the outstanding loan amount,  if the borrowers failed to make the full payment within 7 days from the date of receipt of notice.  The Opposite Party issued Ex.B7 letter to the Complainants to settle the account by paying an outstanding of Rs.2,55,047/-. So also, Ex.B8 letter dated 20.12.2012 terminating the contract of agreement and requiring the Complainant to pay a sum of Rs.2,47,981/- and to settle the account. Even after such notice the Complainants have not come forward to settle the account. Thereafter the vehicle was sold under Ex.B10 for an amount of Rs.2,11,600/- as per Ex.B11. After adjusting the sale proceeds according to the Opposite Party as per Es.B12 the Complainants yet to pay an amount of Rs.76,010/- to the Opposite Party. Since the Complainants have not paid the EMI’s towards loan borrowed by them, the Opposite Party issued Ex.B8 re-call notice to the Complainants and thereafter sold the vehicle is in order.

          7. From the available evidence and documents the Complainants have not paid the EMI’s from May 2012 onwards, we hold that the Opposite Party has not committed any Deficiency in Service in selling the vehicle.

8.POINT:2

          Since the Opposite Party has not committed deficiency in service, the complainant is not entitled for any relief in this complaint and the complaint is liable to be dismissed.

          In the result the complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 06^th day of April  2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated NIL                     Xerox copy of the receipt of the vehicle

 

Ex.A2 dated NIL                     Xerox copy of the R.C.Book

 

Ex.A3 dated NIL                     Xerox copy of the Pass Book UCO Bank,

                                                Purasaiwakkam Branch

 

Ex.A4 dated NIL                     Xerox copy of the receipts issued by the Bill  

                                                Collector

 

Ex.A5 dated NIL                     Xerox copy of the Legal Notice issued dated  

                                               29.10.2012 with AD Card.

 

Ex.A6 dated NIL                     Xerox copy of the reply issued by the Opposite                     

                                               Party

 

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1 dated 10.12.2012                   Power of Attorney

Ex.B2 dated NIL                      Employment ID proof of the Complainant

Ex.B3 dated 17.08.2010            Loan Agreement

Ex.B4 dated  NIL                    Repayment Schedule

Ex.B5 dated 16.08.2010            Electronic Clearing Service

Ex.B6 dated NIL                      Statement of Accounts

Ex.B7 dated 23.11.2012                   Communication from the Opposite Party to the

                                                Complainant

Ex.B8 dated 20.12.2012                   Recall Notice

Ex.B9 dated 02.01.2013                   Arbitration reference notice

Ex.B10 dated 20.03.2013                 Vehicle Valuation Report

Ex.B11 dated 14.02.2013                 Sale Receipt

Ex.B12 dated 20.11.2013          Settlement Working Sheet

Ex.B13 dated 24.01.2013                 Arbitration Proceedings notice   

Ex.B14 dated 22.01.2013                 Arbitration Claim Petition                                                              

                                     

MEMBER – II                                                               PRESIDENT