THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C. 236/2015

Dated this the 22^nd day of September 2017

                     (Smt. Rose Jose, B.Sc, LLB.                         :  President)

                          Smt.Beena Joseph, M.A                         : Member

                          Sri. Joseph Mathew, MA, LLB              : Member   

ORDER

Present: Beena Joseph, Member:           

            The case of the complainant is that he had purchased KL- 57- D-4298

Vehicle from 2^nd opposite party by obtaining finance from 1^st opposite party.  While obtaining loan he had given 10 blank cheques and signed in some printed formats and blank paper as security to the loan. Thereafter petitioner remitted the entire loan amount and its interest and applied for cancellation of hypothecation and return of document which was declined by the opposite party and demanded more amount.  Later opposite party engaged Gundas and seized the vehicle.  Then the petitioner demanded for return of the vehicle which was not cared by the opposite parties.  So, petitioner issued Lawyer notice on 23.02.15, which was replied by the opposite party stating false allegations.  The act of the opposite party amounts to unfair trade practice and deficiency in service.  After seizing the vehicle by 1^st opposite party, they intimated the petitioner that they will sold the vehicle, which caused much mental agony to the petitioner.  So petitioner claims Rs.50,000/-towards compensation and return of the vehicle and documents.  Hence this complaint.

            In this matter, notice issued to both parties.  Which served upon them 1^st opposite party appeared and filed version.  2^nd opposite party has not filed any version.

            1^st opposite party filed version stating the following contentions, Petition is not maintainable.  Hence it is liable to be dismissed.  1^st opposite party submits that complainant herein obtained financial assistance for purchase of two wheeler from them as on 07.07.2011.  On the basis of the request of the petitione, 1^st opposite party sanctioned the loan as per the terms and conditions of the loan agreement. And sanctioned a loan of Rs.59,544/-.  The loan was sanctioned for 36 months with an EMI of Rs.1,654/-.  Complainant signed and executed the loan towards installment.  As per the agreement EMI has to be paid on or before 12^th of every month.  As per the agreement clause 14 delayed payments, the 1^st opposite party is entitled to recover the sum described in part ‘D’ of the schedule.  As per clause 21 petitioner is liable to pay penal interest fees and other expenses to the opposite party.  And they have got secured charge over the product.  As per clause 22 of agreement, a default shall be deemed to have been committed, if the borrower does not comply with its obligation and covenants contain in this agreement the borrower shall be entitled to dispossess the same and to adjust the proceeds against the borrowers outstanding.

            As per clause 34, opposite party referred the matter before sole arbitrator on 24.07.14 along with interim application for the custody of the vehicle, wherein notice was served on complainant and posted for appearance on 20.08.14.  But there was no appearance on the part of complainant, so the complainant set ex-parte.  As the matter in dispute was fully sub-judice before the sole arbitrator and interim order was pronounced on 24.07.14 for taking custody of the vehicle.  The office of 1^st opposite party has taken possession of the vehicle as surrender hence this Forum has no jurisdiction to try the present complainant.

            There are several decisions rendered by the Hon’ble Supreme Court regarding this aspect.  1^st opposite party is a non banking finance company registered under the Indian Companies act conducting business under the supervision of RBI, which is  having office at Pune.  The 1^st opposite party states that as on August 2013, the complainant was in due of Rs.9024/- towards installment along with overdue charge of Rs.4398/-.  So there is due of Rs.15,388/- towards future installments.  Several request and reminder were given to the complainant but there was no response from him to pay the outstanding dues.  So the entire loan was recalled vide notice dated 05.09.13.  Even then there was no remittance of outstanding dues or surrendering the product.  Thus the complainant violated the conditions of the agreement.  As on July 2014 the complainant was in due of Rs.25,312/- towards installments along with overdue charge Rs.13,473/- as per the account of the complainant.

            The vehicle was taken possession by the 1^st opposite party on 22.02.2015 as per the order of the arbitrator.  Then the complainant had approached the 1^st opposite party and consented for sale of the vehicle due to financial constrain with assurance that in case of any loss on sales then same shall be payable by the complainant.  So 1^st opposite party has withdrawn the arbitration proceedings.  And pre sale notice was served upon the complainant on 05.03.15.  The loan was expired on 12.07.14 at that time there was a default of Rs.49,495/-.  1^st opposite party submitting the statement of records dated 22.09.15 as annexure M.  1^st opposite party issued several request and notice to clear the dues or to hand over the possession of vehicle to the 1^st opposite party, but the complainant not shown any interest in claiming the dues or surrendering the product.  The vehicle was taken possession due to default on the part of complainant, which cannot be treated as a deficiency of service or unfair trade practice as the same is under the agreed terms and conditions of the agreement executed and signed by the complainant in favour of the 1^st opposite party.  After taking possession of the vehicle complainant had issued a lawyer notice dated 23.02.15 for which a reply was issued by the opposite party.  There after opposite party has issued a final reminder to the complainant to produce the cash receipts but the complainant has not complied the same.  There is no cause of action in filing the above complaint.  The complainant has not suffered any inconvenience and mental agony as alleged by him, so he is not entitled to get any compensation.  The hypothecated vehicle is a security to the loan as per the agreement.  Therefore opposite party prays for a dismissal.

            In this matter complainant filed chief affidavit, there was no documents on his side, the opposite party has not cross examined the complainant and there was no documents or evidence on the part of opposite party also.

Points to be considered.

1. Whether the petition is maintainable?
2. Is there any service deficiency or illegal trade practice adopted by opposite party?
3. If yes, what are the reliefs?

It is true that petitioner had obtained a hire purchase loan from 1^st opposite party for purchasing a Motor bike from 2^nd opposite party.  The EMI was Rs.1654/- per month for 36 months.  This is a clear case of contractual liability arising out of a hire purchase agreement.  So, all the aspects regarding the payment closure of account and seizer of the vehicle are governed by the hire purchase agreement.  The case of the complainant is that he had paid the entire dues towards 1^st opposite party and demanded the NOC and other documents.  But he could not produce any single documents showing or establishing that he had paid the loan amount of the vehicle.  So complainant could not establish his case before this forum. Hence it is clear that there is no consumer relationship existing before the complainant and opposite party.  The complainant could not produce evidence or documents regarding deficiency of service or illegal trade practice.  Hence there is no question of granting compensation regarding that aspect.  Hence we find that there is no merit in the above petition.  So the petition is liable to be dismissed.

      In the result the petition is dismissed without cost.     

Dated this 22^nd day of September 2017.

Date of filing: 29.04.2015.

                                      SD/-MEMBER                                   SD/-PRESIDENT                    SD/-MEMBER

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT