By Sri. Mohammed Musthafa Koothradan, Member

1. Brief of the complaint is that the complainant is a driver for his and his families livelihood he decided to purchase a Bajaj Re DSL Mega goods Auto from K.V.R. Automobiles at Nilambur. The opposite party offered a loan to the complainant and signed blank agreement form, stamp paper and five cheque leaves. The loan amount was Rs.1,00,000/- (Rupees one lakhs only) and it sanctioned on 24-11-2005. The balance amount of the vehicle was paid by the complainant and purchase a Bajaj Re DSL Mega Passenger Auto. The number of said vehicle was KL10 X 1448. According to the terms and conditions of the hire purchase agreement the loan must repay within three years, (ie., 36 instalments). The total cost of the vehicle was Rs.1,40,000/-(Rupees One lakhs, forty thousand only). The complainant paid 20 instalments. Due tot he illness the complainant defaulted three instalments. The total repay of these 20 instalments was Rs.72,234/- (Rupees Seventy two thousand two hundred and thirty four only). When the complainant ask more time for the balance payment, the opposite party came with some persons and forcefully taken the vehicle from the complainant. Without giving any notice or intimation opposite party seized the vehicle on 06-6-2007. Due to the fear the complainant keep mum against the illegal act of opposite party. When the complainant approached the opposite party with the dues amount, but opposite party said the vehicle sold in an auction on 24-3-2008. The action price was Rs.26,000/-. The complainant has liable to pay the balance amount Rs.40,500/- to opposite party. Then the opposite party sent a notice to the complainant. According to the complainant the notice date was 09-1-2008, But it was sent on 12-3-2008 and the complainant received it on 22-3-2008. In this notice opposite party states all further action about the vehicle. But on 17-3-2008 opposite party sent a notice to the complainant as per the notice the auction amount was Rs.26,000/- and the balance amount was Rs.40,500/-. The complainant received this letter on 24-5-2008. Then opposite party submitted complainant's cheque in a bank and sent a legal notice to complainant on 24-5-2008. So complainant prays for Rs.1,22,234/- and Rs.50,000/- as compensation with costs.

2. After receiving the notice the opposite party appeared before the Forum and filed detailed version. In the version opposite party challenged the jurisdiction of the complaint, complaint is a false one, it filed after receiving the clearance notice from opposite party and complaint was made attempt to escape from the payment of actual dues. The opposite party has no practice to receive post dated, cheques, opposite party collect tax receipts as guarantee. So the averments in the complaint that the opposite party collected 5 blank cheques and bank agreement forms from the complainant is not correct. The complainant was very well aware of the mode of payment. As per the terms and conditions of the loan agreement the opposite party give a loan of Rs.1,00,000/- to the complainant. The loan was repay with 36 instalments, Rs.4,180/- for the first 24 months and Rs.3,432/- for remaining 12 months. In default of payments in EMI the complainant was liable to pay 2.5% per mensum as over due interest. The complainant availed this facility on 24-11-2005 and the first instalment was 24-12-2005. The very first instalments itself was defaulted. The complainant never paid instalments in time. So the opposite party liable to charge over due interest and other miscellaneous charges.

3. The averment in the complaint that the complainant paid 20 intalments is incorrect and only 19 instalments were paid. The last date of payment was 02-7-2007. Then the complainant surrendered the vehicle on 30-11-2007 and issued a surrender certificate. After paper publication in Mathrubhoomi daily the vehicle was auctioned on 17-01-2008. The bidder purchased the vehicle for an amount of Rs.26,000/-. All these things with balance amount are intimated to the complainant. Opposite party did not collect signed 5 blank cheques and blank forms. The complainant lodged the complaint after expiry of more than two years, hence the complaint filed after the limitation period. The averment in the complaint that the opposite party seized the vehicle on 06-6-2007 was totally incorrect. The opposite party did not sent a letter on 12-3-2008, but a letter issued on 24-3-2008 stating all details of the further proceedings, sale of the vehicle and balance payment. Then complainant made a visit in the office of opposite party at Nilambur and verified the facts. After detailed discussion between the parties, the matter was settled for an amount of Rs.44,266/-. On 24-5-2008 the complainant issued a cheque for these amount to the opposite party. It shows that there was no deficiency of service on the part of the opposite party. In these circumstances it is most humbly prayed that the Hon'ble Forum may be pleased to dismiss the complaint with costs.

4. Both sides evidence adduced in the forms of affidavit and documents. Ext.A1 to A8 marked on the side of complainant and Ext.B1 to B7 marked on the side of opposite party.

5. Following points are considered in this matter.

a) Whether any deficiency of service or untrade practice on the side of opposite party.

b) If so what is the order and costs?

6. Point (a):-

Opposite party sanctioned a loan of Rs.1,00,000/- to the complainant on 24-11-2005 for a duration of three years ie., 36 instalments. The interest of the loan was 12.1%. So the interest for three years were Rs.36,304/-. According to the agreement the value of the vehicle was Rs.1,17,990/- and the down payment was Rs.17,990/-. According to the complainant the value of the vehicle was Rs.1,40,000/-. But there was no documents to prove this contention. So the complainant purchased the vehicle No.KL10 X 1448 Bajaj Re DISAL Mega goods Auto with price of Rs.1,17,990/- and he paid Rs.17,990/- as ready cash. Then complainant paid Rs.72,234/- for 19 instalments and the last payment made on 02-7-2007. That means upto 02-7-2007 there was no much dues for the payment. Thereafter the complainant did not paid to the loan. According to the Ext.B4 documents the vehicle was surrendered on 30-11-2007 that means four and half months after the last payment. Eventhough the surrender letter is not admitted by the complainant, the complainant did not taken any steps for release the vehicle upto 28-3-2008. But before 28-3-2008 the opposite party had taken all steps for sell the vehicle by auction. As per Ext.B5 opposite party made a paper publication for sale on 16-01-2008, Ext.B6 shows the valuation of the vehicle bu the date of valuation is 14-2-2008 that means after the sale on 17-01-2008 and there was no valuation at the time of surrender the vehicle. Ext.B7 shows that opposite party had sent a letter to the complainant stating to release the vehicle within seven days. Opposite party had taken all steps before the legal notice of the complainant. The complainant did not produce a single document to deny all these things. The complainant sent a legal notice to opposite party on 28-3-2008 and replied it. So there is dispute arise only the rate of auction price. The auction price was Rs.26,000/-. Whether a vehicle, 2005 model Bajaj Re DISAL Mega goods Auto, had price of Rs.26,000/- at the time of auction. Either the complainant nor the opposite party taken any steps to prove the market value of vehicle on 17-01-2008. Now the opposite party had got Rs.1,04,426/- for his loan as payment including the auction price of the vehicle. Opposite party claims Rs.40,500/- as balance amount of the loan. Opposite party has no right to demand these much amount. Opposite party can calculate the interest upto 17-01-2008 on the day the auction was conducted. When calculating the interest upto 17-01-2008 it will be two years and two months. The interest rate was 12.1%. The flat rate interest for 2 years and two months at the rate of 12.1% is Rs.26,200/-. So the loan amount Rs.1,00,000/- + the interest upto 17-01-2008 is Rs.1,26,200/-. Out of these amount Rs.1,04,426/- had received by the opposite party. So the balance amount is Rs.21,774/-. The opposite party's other contention like time bar and jurisdiction etc., are cannot accept in this matter.

7. Point (b):-

The complainant is liable to pay Rs.21,774/- to opposite party. These amount is the interest upto 17-01-2008, it is not for the principal amount. So the opposite party have no right to calculate further interest for the amount.

8. In the result we partly allow the complaint and the complainant pay Rs.21,774/-(Rupees Twenty one thousand, seven hundred and seventy four only) to opposite party within 30 days of receipt of the order copy. After receiving the amount opposite party give back all documents collected from the complainant. No order as to costs.

Dated this 15th day of September, 2010.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A8

Ext.A1 : HP/Lease instalment payment book given by opposite party to complainant.

Ext.A2(series) : Receipts (18 Nos.) from opposite party to complainant.

Ext.A3 : Job card from 27-01-2006 to 28-9-2006

Ext.A4(series) : Cash bills (19 Nos.) from K.V.R. Automobiles, Nilambur to complainant.

Ext.A5 : Invoice from K.V.R. Automobiles, Nilambur to complainant.

Ext.A6 : Registered with A/D reply notice dated, 22-3-2008 by opposite party's counsel to complainant's counsel.

Ext.A7 : Photo copy of the registered with A/D lawyer notice dated, 28-3-2008 by complainant's counsel to opposite party's counsel

Ext.A8 : Lawyer notice dated, 25-6-2008 by opposite party's counsel to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B7

Ext.B1 : Extract from the minutes of the Board of Directors of opposite party held on 08-5-2008

Ext.B2 : Vehicle loan-cum-hypothecation agreement dated, 24-11-2005 between complainant and opposite party.

Ext.B3 : Hypo debtor account dated. 08-1-2010 of complainant given by opposite party.

Ext.B4 : Carbon copy of the surrender letter dated, 30-11-2007 from complainant to opposite party.

Ext.B5 : Paper publication in Mathrubhoomi daily dated, 16-01-2008.

Ext.B6 : Valuation report dated, 14-2-2008 by Insurance Surveyor.

Ext.B7 : Carbon copy of the notice dated, 09-01-2008 from opposite party to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER