DATE OF FILING : 12.10.2017

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  1st  day of November, 2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

          SRI. BENNY. K. MEMBER

CC NO.215/2017

Between

Complainant       :    Anilraj, S/o. Somarajan,

Njarakkattu Puthenveedu House,

Kattappana P.O., Idukki.

(By Adv:  Sijimon K. Augustine)

And

Opposite Party                                          :    Magma Fincorp Ltd.,

Joint Towers, 

1st Floor, N.H. Bypass Road Junction,

Vyttila, Kochi – 19.

(By Adv:  Binu K. Thottumkal)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

The complainant availed a hire purchase loan for a total amount of Rs.8,75,106/- from the opposite party, on 26.6.2016, for purchasing a Tata – EX-70 model excavator and agreed to pay the said amount in 36 monthly instalments of Rs.33185/- each, starting from July, 2016.  The opposite party collected the 1st instalment as advance and only the balance amount only disbursed to the complainant.  Towards security of the repayment, opposite party obtained signatures of the complainant and his father as guarantor on various papers including printed, stamped and blank.  The complainant paid the instalments regularly without any delay.  Fact being so, part of the said excavator worth Rs.2 lakhs were stolen by somebody and as a result, the said excavator happened to be kept idle for a period of 3 months.  Due to this, complainant failed to remit instalments in time.  Presently 5 instalments are due.  As per the terms of the agreement, the loan will be mature on  9.6.2019.  Till now the complainant paid 9 instalments as per the agreement terms, out of which 3 instalments were paid through SIB Kattappana and remaining instalments are collected by Vishnu Mohan, who is the collection agent of the opposite party.  The complainant approached opposite party for granting some time in remitting 

(cont.....2)

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the loan due instalments, but the opposite party demanded to close the loan in lump sum and threatened the complainant they will take possession of the vehicle if the loan is not closed within one month.  As per the statement, opposite party demanded Rs.8,21,617/- as loan dues which is against the terms of the loan agreement which includes penal interest, foreclosure charges and other charges.  The complainant is ready to remit instalments as per the terms agreed.  But the opposite party refused to grant further time and threatened him that they will take possession of the excavator forcefully, if  the dues not cleared.  The complainant further contended that the opposite party has no  right to collect any amount more than the agreed amount as default charges or penal interest or any other charges in different heads.  On 18.9.2017, opposite party, through their staff compelled to sign on surrender forms and tried to possess the excavator illegally and they issued a statement for closing the loan transaction. 

 

The complainant is a consumer of the opposite party and the above mentioned act of the opposite party is deficiency in service and unfair trade practice.  Hence the complainant filed this petition for directing the opposite party to withdraw from forceful possession of the vehicle discussed above and also restrain the opposite party from realising default interest and other penal charges in the loan account and direct them to pay cost and compensation.

 

Upon notice, opposite party entered appearance and filed written version by admitting the loan transaction.  Opposite party further contended that as per the terms of agreement, complainant agreed to repay an amount of Rs.11,94,660/- in 36 instalments of Rs.33185/- starting from July 2016.  The complainant is not prompt in repaying the amount and there arose a dispute between the complainant and opposite party and it is admitted by the complainant.  In the event of such dispute, as per the agreement between the complainant and opposite party, it shall be referred to sole Arbitrator appointed by the opposite party and award of such arbitration will be binding to all parties to the agreement and the jurisdiction of such arbitration proceedings will be at Kolkatta.  In this circumstances, the complaint is not maintainable herein.  Opposite party further contended that the complainant availed hire purchase finance for

(cont.....3)

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the purchase of Tata EX-70 model excavator by a transaction between the complainant and this opposite party as commercial transaction for which also this Forum is having no jurisdiction to entertain the matter.  The complainant failed to remit monthly instalments.  The complainant failed to regularise the loan account as on this date.  Eventhough it is stated by the complainant that he is ready and willing to regularise the loan transaction, no positive step is initiated by the complainant till this date.  He has not even complied with the conditional order of this Forum in IA No.133/17 dated 12.10.2016, in the above case to pay  Rs.80,000/- to the loan account within one month from the date of order.   The  opposite party has not caused any irreparable loss and injury to the complainant and he is not entitled to get any compensation from the opposite party.  Opposite party has wide range of business and client all over India  and it has business reputation of decades and commands good  reputation in the filed of finance business.  Therefore the contra allegation that the opposite party had indulged in deficiency of service are unsustainable and against facts.

 

Evidence adduced by the complainant by way of documents.  Preclosure termination report produced by the complainant and is marked as Ext.P1.  No evidence adduced from the part of opposite party either orally or documentarily.  

 

Heard both sides.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :-   We have heard the counsels for both sides and have gone through records.  By perusing the records, the Forum convinced that it is an admitted fact that the complainant availed a loan of Rs.8,75,106/- from the opposite party bank and committed default in its repayment.  The averment in the complaint is that the complainant is ready and willing to pay the default instalments, if the opposite party waive default interest and other penal charges imposed on it.  As per the averments, it is seen that the complainant remitted only 9 instalments out of 36 instalments as per the loan agreement.  In their version, opposite party contended that since 

    (cont.....4)

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the complainant is willing to regularise the loan transaction, no positive step is initiated by the complainant till this date.  Under this circumstances, the Forum is of a considered view that, by admitting the version of complainant, the Forum directs the complainant to pay the default instalments with 12% interest from the date of default to the opposite party.  If complainant is ready to comply this order, the opposite party is directed to regularise the loan of the complainant and allow him to continue by remitting the balance instalments as per agreement.  

 

Hence the matter decided as such.  No order to cost or compensation.

 

Pronounced in the Open Forum on this the 1st day of November, 2018

 

         Sd/-

   SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

          SRI. BENNY. K., MEMBER  

APPENDIX

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1            -   Preclosure termination report.

On the side of the Opposite Party :

Nil.