DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.122 of 05-05-2017

Decided on 22-02-2018

Nirmal Singh aged about 43 years S/o Gurdas Singh R/o House No.690, St.No.7, Dashmesh Colony, Malout, Tehsil Malout, District Sri Muktsar Sahib.

........Complainant

Versus

1.Kotak Mahindera Prime Ltd., SCF 25, Model Town, Phase-2 Bathinda, District Bathinda-PIN-151001, through its Branch Head.

2.Kotak Mahindera Prime Ltd. having office at 1st Floor, Middas Corporate Park Opposite Bus Stand, Jallandhar, through its Collection Manager Gulshan Dhamija .

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Smt.Sukhwinder Kaur Member

Present:-

For the complainant: Sh.Lachhman Kumar, Advocate.

For opposite parties: Sh.Gurinder Singh, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Nirmal Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Kotak Mahindera Prime Ltd. and Other (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that he obtained loans on the vehicles make Mitsubishi Pajero Sports bearing registration No.PB-3OL-6767 and Skoda rapid bearing registration No.PB-30K-4949 from Kotak Mahindera Prime Ltd. B.O Bathinda having loan accounts Nos.CF8671587 dated 30.11.2012 and CF11273786 dated 17.2.2015. As such, he was regularly paying the EMIs to opposite parties after sanctioning of the loan amount. Thereafter due to some financial crisis, he was unable to repay the balance loan amount. On 27.7.2016, the complainant submitted one surrender letter to opposite parties as per the loan agreement and opposite parties accepted the same on the same day and in the acceptance letter, they assured the complainant that they will withdraw all the legal cases pending U/s 138 of Negotiable Instrument Act in competent courts of law relating to the loan amount. Opposite parties also assured the complainant that they will not file any recovery case of outstanding amount after sale of vehicles and they will inform him before selling this vehicle.

3. It is further mentioned that as per acceptance letter, it is the duty of opposite parties to resale the old vehicle as the financed vehicle has been handed over to them by the complainant vide inventory duly signed by opposite party No.2.

4. It is further alleged that despite assurances given by opposite parties regarding sale of old vehicle and issuance of NOC regarding both the loan accounts, they have not complied with the conditions given in the acceptance letter dated 27.7.2016. In this way, opposite parties have cheated and defrauded the complainant. Their act and conduct falls under the definition of unfair trade practice prescribed under 'Act'.

5. It is also alleged that opposite parties have intentionally seized the old vehicle of the complainant against the settled conditions, terms and conditions of the loan agreement till date. The complainant has not received any notice from opposite parties regarding sale of old vehicle in the open market through auction. Opposite parties despite taking possession of the old vehicle on 27.7.2016, have not sold out the old vehicles. Due to this, the loan account of the complainant has not been cleared.

6. It is also claimed that in the loan account No.CF8671587, the complainant continuously paid the EMIs till 1.9.2015 and in loan account No.CF11273786, he paid EMIs till 5.9.2015. After amount of the sold old vehicles, no any amount is outstanding against the complainant from the total financed amount of Rs.16 lakhs and Rs.11,24,784/- respectively and from top up loan, last EMI of Rs.49,000/- has been paid on 5.9.2015.

7. It is also alleged that the complainant many times requested opposite parties to satisfy his claim, but opposite parties after delaying the matter under lame pretexts, have finally refused to accede to his requests. The complainant has claimed compensation to the tune of Rs.50,000/- for mental tension and agony etc. and Rs.10,000/- as litigation expenses. Hence, this complaint.

8. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite parties have raised the legal objections that the complaint is not maintainable against them. The complainant has no locus-standi or cause-of-action to file the complaint. He did not approach to this Forum with clean hands. He has not disclosed the true facts to this Forum. Opposite parties have also revealed that the complainant took the financial assistance from opposite party No.1 of Rs.16 lakhs for purchase of Mistubishi Pajero on 30.11.2012 vide agreement No.8671587; Rs.11,25,784/- for purchase of Mistubishi Pajero on 17.2.2015 vide agreement No.11273786 and Rs.6,80,267/- for purchase of Skoda Rapid on 31.8.2014 vide agreement No.10734471. He agreed to repay monthly installments, but after short period of interval, he himself showed his inability to repay the loan installments and surrender the vehicle to opposite parties. After taking the possession of the vehicles, opposite parties issued pre-sale notice and after sale post-sale notice to the complainant. In these notices, amount due after sale of vehicles mentioned as Rs.8,73,430/- vide agreement Nos.8671587 and 1273786 and Rs.4,16,698/- vide agreement No.10734471. In the surrender letter, the complainant himself admitted that he shall pay the balance outstanding amount after sale of vehicles in the tenure of between 18 to 36 months. He did not comply with the terms and condition of the surrender letter and file the false complaint against opposite parties without disclosing the true facts to this Forum. Lastly, the complaint is false, frivolous and vexatious. As such, it is liable to be dismissed with special cost.

9. On merits, it is admitted that the complainant took the loan facility of Rs.16 lakhs for purchase of Mistubishi on 30.11.2012 vide agreement No.8671587 and agreed to repay 59 monthly installments of Rs.37,210/-; second loan of Rs.11,25,784/- for purchase of Mistubishi Pajero on 17.2.2015 vide agreement No.11273786 and agreed to repay 30 monthly installments of Rs.49,000/- and third loan of Rs.6,80,267/- for purchase of Skoda Rapid on 31.8.2014 vide agreement No.10734471 and agreed to repay 40 monthly installments of Rs.19,630/-.

10. It is further revealed that the complainant surrendered his vehicles after see the arbitrator's order U/s 17 of Arbitration and Conciliation Act. He has failed to pay the regular installments in time. Opposite parties got the interim order from the Arbitrator U/s 17 of Arbitration and Conciliation Act. In compliance of Arbitrator's order, the complainant himself surrendered the vehicles to opposite parties. All the cases of 138 N.I.A have been withdrawn by opposite parties. All other averments of the complainant are denied. Opposite parties have reiterated their stand as taken in the legal objections and detailed above. In the end, they have prayed for dismissal of complaint.

11. Parties were asked to produce the evidence.

12. In support of his claim, the complainant has tendered into evidence his affidavit dated 5.5.2017, (Ex.C1); photocopies of inventory, (Ex.C2 and Ex.C3); photocopy of receiver order, (Ex.C4); photocopies of letters, (Ex.C5 to ExC9); photocopies of account statements, (Ex.C10 to Ex.C12); photocopy of legal notice, (Ex.C13); postal receipts, (Ex.C14 and Ex.C15) and closed the evidence.

13. To rebut the claim of the complainant, opposite parties have tendered into evidence affidavit of Vivek Vashisht dated 2.11.2017, (Ex.OP1/1); photocopies of account statement, (Ex.OP1/2 to Ex.OP1/4); photocopies of pre-sale notice, (Ex.OP1/5 and Ex.OP1/8); photocopies of postal receipts, (Ex.OP1/6 to Ex.OP1/7, Ex.OP1/9, Ex.OP1/10 and Ex.OP1/12); photocopy of post-sale notice, (Ex.OP1/11); photocopies of post-sale notice with receipt, (Ex.OP1/13 and Ex.OP1/14); photocopy of case detail list, (Ex.OP1/15); photocopy of reply to legal notice, (Ex.OP1/16); postal receipt, (Ex.OP1/17) and submitted written arguments.

14. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for opposite parties.

15. Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above.

16. We have given careful consideration to these rival submissions.

17. Some facts are admitted by the complainant himself. He has admitted regarding availing of loan. He has admitted that due to financial crises, he was unable to repay the loan. He has also admitted that he surrendered the vehicles for sale vide surrender letter and opposite parties accepted the surrender by executing surrender letter.

18. The version of the complainant is that he surrendered the vehicles to discharge his total outstanding liability whereas version of opposite parties is that amount after sale of vehicles was to be adjusted against the loan and remaining outstanding amount was to be paid by the complainant.

19. Since the execution of surrender letter and acceptance letter are not denied by both the parties, as such, controversy is to be decided on the basis of contents of letter. The complainant himself has placed on record copy of surrender letter, (Ex.C6). The conditions incorporated under the letter are as under:-

    “i) Kotak Mahindra Prime Limited will withdraw the legal case U/s 138;

    ii) Kotak Mahindra Prime Limited will not file recovery suit for the outstanding amount after sale of vehicles;

    iii) Kotak Mahindra Prime Limited will inform him before selling the abovesaid vehicles.

    iv) I also insure that I shall pay the balance outstanding amount after sale of vehicle in the tenure of between 18 to 36 months.”

    The above conditions show that there is nothing to show that all the outstanding loan was cleared by surrender of vehicles. It is rather mentioned that Kotak Mahindra Prime Limited will inform him in written before selling the vehicles and he shall pay outstanding amount. In case, the vehicles were surrendered in discharge of total liability, then the complainant was having no reason to receive pre-sale notice. He was also not to ensure payment of remaining outstanding amount after sale. He has also placed on record acceptance letter vide which opposite parties have accepted the vehicles surrendered by the complainant. The same four conditions are mentioned in the acceptance letter also.

20. Opposite parties were to withdraw the cases U/s 138 of NIA. Admittedly, they have withdrawn the cases. They were required to issue pre-sale notice. Copy of pre-sale notice with postal receipts are produced as Ex.OP1/5 to Ex.OP1/7 and Ex.OP1/8 to Ex.OP1/10 qua both the vehicles. It proves that opposite parties have discharged their obligation of issuing pre-sale notice also. They have produced account statement to prove that amounts received as sale consideration of vehicles have been credited to the account of the complainant. The complainant has not disputed the account statement.

21. The complainant has claimed no objection certificate from opposite parties, but he has failed to prove that all the outstanding amount has been settled by surrendering the vehicles. In these circumstances, he cannot allege any deficiency in service and unfair trade practice on the part of opposite parties.

22. For the reasons recorded above, the complaint is without merits and it stands dismissed without any order as to cost.

23. The complaint could not be decided within the statutory period due to heavy pendency of cases.

24. Copy of order be sent to the parties concerned free of cost. As there is shortage of postal stamps, parties can also collect the copy of order personally/through counsel against receipt. File be consigned to the record room.

    Announced:-

    22-02-2018

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member

     

     

    (Sukhwinder Kaur)

    Member