By Sri. MOHANDASAN K, PRESIDENT
The complaint in short is as follows:-
1. The complainant had purchased a vehicle Ashoka Leyland 117 HGV from the first opposite party and which was financed by the second opposite party. As per terms of Hire Purchase Agreement, the tenure for repayment was from 18/04/2018 to 10/02/2021 i.e, 35 months and the financed amount was 11,00,000/- rupees. But, due to financial crisis of three instalments were not able to remit and thus the complainant approached opposite party on 02/04/2019 and at that time the first opposite party sought signatures from the complainant on various documents and the complainant due to circumstances compelled to put signature in the documents. At that time the opposite party said to the complainant that the vehicle loan has been renewed and as per new documents the complainant is liable to remit Rs.30,000/- in each month on or before 5th of the month up to 05/11/2023. Accordingly the complainant is to remit Rs.30,000/- for 12 months and Rs. 28,500/- for 47 instalments. Ultimately as last instalments he was directed to pay Rs. 15,111/- and thus the opposite party issued a letter to the complainant. The complainant submit that he was not aware of English and the letter issued by the opposite party was in English language and their by the complainant approached his friend and thereby he could understand that the opposite party did not account the earlier payment of Rs.4,00,000/- . But added an additional amount of Rs.10, 55,000/- as loan in to the account of complainant. The complainant learnt that the attempt of the opposite party was cheating the complainant. The complainant alleges, the opposite parties misled the complainant and thereby renewed the loan account which amounts unfair trade practice. The complainant submit that, he approached the opposite parties for a relax period of 6 months but the opposite parties without considering the same misled the complainant and thereby manipulated the documents.
2. The complainant submits that, the opposite party seized the vehicle forcefully on 14/10/2019. The vehicle was availed fitness certificate on 27/08/2019 and he had spent Rs.21,000/- for painting of the vehicle, Rs.48,600/- towards new tyres, Rs. 9000/- towards fitness certificate and thereby he had spent nearly Rs.75,000/- on the vehicle. Now the complainant is not able to pay instalment amount. The vehicle was idle for the maintenance work nearly 2 months. But unfortunately after completing the maintenance work and availing fitness certificate, the opposite parties had taken away the vehicle without any legal authority. Hence the complainant prayed for the cancellation of second loan agreement and to retain the earlier loan account. The complainant was defaulted only three instalments of the first loan transaction and the complainant is required to remit the loan in case of the opposite party release the vehicle in favour of the complainant. Hence the complainant prays for the release of the vehicle and also pray for detaining the opposite parties from interfering the use of vehicle by the complainant. The complainant also prays for direction to the opposite party not to realise any amount as loan or interest thereon. The complainant further prayed for the compensation of Rs.60,000/- for the illegal custody of the vehicle. The complainant prayed cancellation of the agreement TRURT904020001 and to retain the agreement TRUR 0804060002. The complainant also prayed for compensation of Rs. 5,00,000/- and cost of Rs.50,000/- from the opposite parties.
3. On admission of the complaint notice was issued to the opposite parties and the opposite parties are entered appearance and filed version.
4. The opposite parties denied the entire allegation and averment in the complaint. It is submitted that the complainant has no authority to file the complaint and he is not a consumer under the Consumer Protection Act. The transaction is admittedly a commercial transaction and the relation between the complainant and opposite parties are that a debtor and creditor and the complaint is to be dismissed in limine.
5. The opposite parties submitted that, the complainant had availed a loan and executed loan cum hypothecation agreement with a specific Arbitration clause therein. The arbitration proceeding initiated against the complainant and his guarantor in accordance with the law. Hence the Forum have no jurisdiction to entertain the complaint. The copies of loan cum hypothecation agreement was also given to the complainant. The complainant was aware of the Arbitration clause in the agreement and therefore the complainant has to approach the Hon’ble District Court under provisions of the Arbitration and Conciliation Act for the adjudication of the disputes if any. The finance facility availed was agreed to be paid in instalments as set out in the loan cum hypothecation agreement dated 02/04/2019. In case of default penal interest has to be paid @ 36% per annum on a monthly basis compounded on monthly rest. The complaint is very well aware of the terms. While availing the finance facility. The complainant had not paid amount has agreed. The statement of accounts was given as and when demanded by the complainant. But no payment maid as agreed. Now the complainant approached the Forum to escape from there payment.
6. The opposite parties denied the averments that, the complainant is a person with driving license to handle heavy vehicles etc. The complainant availed financial facility from the opposite parties after understanding all the terms and conditions and now the attempt is to escape from the liabilities. The submission of the complainant that he had signed the agreements and other documents without understanding the terms and conditions as he was not fluent in English etc are baseless. The payment made by complainant towards the refinance facility availed would be clear on perusing the documents, accounts, and the requests specifically made by him to the company on 02/04/2019. The complainant is not an illiterate, aged or otherwise in capacitated person who can be dominated by the opposite parties in any manner and therefore his plea that he has signed the loan agreement and other documents without understanding the contents of documents will not stand for a moment. The complainant is lying intentionally to escape from the liability to pay the amount towards due. The allegation that the opposite parties had colluded and renewed, re-charted or converted the loan to a fresh loan on 02/04/2019 is an absolute false hood and denied by the opposite parties. The fact that, the loan was rescheduled/renewed on the specific request of the complainant by virtue of the letter dated 02/04/2019. The request of the complainant was considered on humanitarian ground to enable the complainant to pay the instalments without default. Now the attempt of the complainant is use the same as a weapon to escape from the liability. Hence the submission of the opposite party is that, the complainant approached the Forum without clean hands and so he is not eligible for any relief as prayed in the complaint. The complainant suppressed the material facts from the notice of Forum and that would leads to passing an order of arrest against the Branch Manager of the opposite parties.
7. The opposite parties submitted that the vehicle in question that is KL-55R-7664 was taken possession by virtue of the orders of Hon’ble District Court, Manjeri in OP No.309/2019, by which an Advocate Commissioner was appointed while executing the order passed by the Hon’ble Arbitrator under Section 17 of Arbitration and Conciliation Act in OP No. 55/2019 before the Sole Arbitrator Mr. P.V. Suresh. The arbitration proceedings were initiated as per the mutual agreement bearing there is an arbitration clause to resolve the dispute by arbitration. Accordingly after due notice arbitration proceedings were initiated and the vehicle was repossessed in accordance with law. The complainant is well aware of the arbitration proceedings and also about the orders of Hon’ble District Court, ought have approached the Hon’ble District court either by way of appeal or otherwise under Section 9 of Arbitration and Conciliation Act. Instead of proceedings under due process of law the complainant had initiated a parallel proceeding before the Forum that to keeping the Forum in dark about the proceedings pending before the arbitrator and the Hon’ble District and Sessions Court, Manjeri. Hence the opposite parties allege that the complainant approached the Hon’ble Forum in a dishonest manner and he is not entitled for any relief. It is submitted that, if the complainant was honest he would have disclosed the pendency of arbitration proceedings against him and also the manner in which the vehicle was repossessed by the Advocate commissioner appointed by the Honourable District Court under due process of law. There is no absolutely justification for initiating a parallel proceeding before the Hon’ble Forum instead of taking the manner before the appellate Forum as per the Arbitration and Conciliation Act.
8. The opposite parties submitted that, they are entitled compensation from the complainant for the loss, inconvenience and miseries suffered by them as contemplated under the Consumer Protection Act. The complainant is not entitled to get any relief from the Forum since the Forum has no jurisdiction to entertain the complaint in view of the arbitration proceedings pending against the complaint. The complainant is an intentional defaulter, is not entitled for any relief without discharging the amount due and payable to the opposite parties. The opposite parties submitted that the complaint is prima facie itself is not maintainable and is liable to dismiss in limine. The company not made a party in the compliant and soon that score also the complaint is liable to be dismissed.
9. The opposite parties submitted that, the Forum be pleased to verify whether the interim order passed has been communicated to the opposite parties as directed before executing the order. It is submitted that no copy of the order served on the opposite parties and it is injustice to make an attempt to execute an order without serving a copy of the order to the concerned parties. The attempt of the complainant was to curtail the right of opposite parties without hearing the opposite parties which is highly objectionable and illegal. The allegation that the opposite parties showered the filthy language and abused the legal system etc are incorrect.
10. Hence, the submission of the opposite parties are that the complainant himself admitted as a defaulter as per the agreement. The attempt of the complainant is to justify his default which is not sustainable either morally or legally. Hence the complainant is not entitled for any relief as prayed in the complaint and the complaint is liable to be dismissed with cost.
11. In this complaint, this complainant was filed through Adv. Harikumar Menon on 22/10/2019. Subsequently he endorsed no instruction from the side of complainant. Subsequently on 15/09/2023 Adv. Anwar Sadique .T.T filed Vakkalath for the complainant. Thereafter the case was called on 25/09/2023 and thereafter on 12/10/2023. But no steps were taken from the side of complainant. On perusal of the proceedings it seems documents Ext. A1 to A7 marked. But it is found that the complainant has not filed affidavit in lieu of evidence. It is also noted that after reporting no instruction by the counsel for complainant on 16/09/2021, notice was issued to complainant, but the complainant did not turn up. Subsequently repeated notice and one Adv. Rouf from Tirur represented the complainant and the Commission directed the complainant to appear in person. But the complainant did not appear in person. On a belated stage the present counsel Mr. Anwar Sadique filed vakkalath. At the same time the opposite parties filed proof affidavit on 10/11/2022 along with documents. The documents on the side of opposite party marked as Ext. B1 to B6. Ext. B1 is copy of order by the District Court, Manjeri in IA 1497/2019 in AOP 309/2019 which is dated 27/09/2019. Ext.B2 is copy of order from the Hon’ble High Court of Kerala in the matter of OP (C) No.2768 of 2019 dated 30/10/2019. Ext.B3 is copy of report of Advocate Commissioner Mr.Jishnu Kottekode in IA No.97/2019 in OP (Arbitration) No.309/2019 dated 04/11/2019. Ext. B4 is a copy of “Kacheett” dated 14/10/2019 issued in favour of Shri ram Transport Finance Company Limited. Ext. B5 is a copy of Arbitration Award in A OP No. 55/2019 dated 01/10/2021. Ext. B6 is copy of Statement of Accounts for the period ending 26/06/2023 in respect of loan account of vehicle no. KL 55 R 7664.
12. In this complaint, the complainant approached the Commission on 22/10/2019 seeking an order in respect of a vehicle bearing registration no. KL 55 R 7664 which is financed by the opposite parties. But during filing this complaint, the matter was under consideration of Arbitrator and subsequently there was an order to seize the vehicle by the District Court, Manjeri. Accordingly vehicle was also seized. Meanwhile the complainant sought an order from this Commission in IA 50/2019 and in IA 61/2019. As a result of the proceedings in these applications the opposite parties approached before the Hon’ble High Court of Kerala and sought the Ext. B2 order. Thereafter the complainant endorsed the IA 61/2019 as not pressed. It is also relevant to note that Ext. B1 is the copy of the order in IA 1497/2019 in AOP No.309/2019 dated 27/09/2019. So it is relevant to note that the complainant got order in IA 61/2019 in his favour from this Commission on 25/10/2019. Hence there is suppression of material facts from the Commission by the complainant. In fact the complainant tried to misled this Commission and thereby made attempt to get an order in his favour, which is not at all acceptable at any rate.
13. In this complaint, the complainant has not filed affidavit as part of evidence, which is contemplated under the Consumer Protection Act. As per Section 38 (C) a complaint is to be decided on merits if the complainant fails to appear on the date of hearing. Section 38 (6) it is stated that every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record. In this complaint the complainant failed to appear in person despite repeated notices. Moreover the complainant failed to file affidavit in chief in lieu of evidence. Moreover the opposite parties filed affidavit and documents to establish the case of the opposite parties. The Commission finds there is sufficient reason to uphold the contention of the opposite parties in this complaint. Hence considering the entire facts and evidence available before the Commission the complaint stands dismissed. Though the opposite party pressed for the cost we direct parties to suffer the cost.
The complaint stands dismissed.
Dated this 30thday of November, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Nil
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B6
Ext. B1 : Copy of order by the District Court, Manjeri in IA 1497/2019 in AOP
309/2019 which is dated 27/09/2019.
Ext. B2 : Copy of order from the Hon’ble High Court of Kerala in the matter of OP (C )
No.2768 of 2019 dated 30/10/2019.
Ext. B3 : Copy of report of Advocate Commissioner Mr.Jishnu Kottekode in IA
No.97/2019 in OP (Arbitration) No.309/2019 dated 04/11/2019.
Ext. B4: Copy of “Kacheett” dated 14/10/2019 issued in favour of Shri ram Transport
Finance Company Limited.
Ext. B5 : Copy of Arbitration Award in AOP No. 55/2019 dated 01/10/2021.
Ext. B6 : Copy of Statement of Accounts for the period ending 26/06/2023 in respect
of loan account of vehicle No. KL 55 R 7664.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
