State Consumer Disputes Redressal Commission
M/S Hindustan Leyland Finance Ltd vs Sudhir Dattatry Kamalakar on 28 February, 2022
1 FA/565/2017
Date of filing :12.05.2017
Date of order :28.02.2022
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,MUMBAI, BENCH AT
AURANGABAD.
FIRST APPEAL NO. : 565 OF 2017
IN COMPLAINT CASE NO.: 736 OF 2016
DISTRICT CONSUMER FORUM : NANDED.
1. M/s Hinduja Leyland Finance Limited.
Having Regd. Office at 1, Sardar Patel road,
Guindy, Chennai.
2. M/s Hinduja Leyland Finance Ltd,.
Having branch office at shop No.11, 2nd floor,
Samman pressure, Railway station road, Nanded.
Through its power of Attorney holder,
Mr.Anil s/o Rangnath Patil, APPELLANT No.1&2
VERSUS
Sudhir s/o Dattatraya Kamlajkar,
R/o 1-5-2016, Ganesh Nagar, Nanded.
Tq. & Dist. Nanded. RESPONDENT
CORAM : Smt.S.T.Barne, Hon'ble Presiding Judicial
Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.M.D.Narwadkar for appellants,
Adv. D.N.Pawar for respondent.
JUDGMENT
(Delivered on 28/02/2022) 2 FA/565/2017 Per Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
1. The appellant, Hinduja Leyland Finance Limited, has preferred this appeal against judgement and order of District Consumer Forum Nanded in CC number 736/ 2016 decided on 28th March 2017.
2. The appellants are the opponents and the respondent is the complainant in original complaint, they are hereinafter referred as per their status in the complaint.
3. It is the case of complainant that he has raised loan from opponent no.1 finance company to purchase the vehicle of a Leyland company. He made down payment of Rs.3,50,000/- and paid Rs.20,000/- process fees to the opponent. The opponent Finance Company has issued DD of Rs.15,60,850/- on 18 February 2014 to the dealer. The opponent finance company has sanctioned the loan of Rs.12,00,000/- to the complainant on 11 February 2014. There upon the complainant got the delivery of the vehicle from Leyland company. It was agreed to make repayment of loan by monthly instalment of Rs. 37,400/- payable within 42 monthly instalments. The first instalment was received by the opponent finance company in the month of February 2015. The complainant paid first 7 instalments amounting to total Rs.2,61,000/-. Thereafter 6 tyres of his vehicle were damaged due to which he could not get the business. The 3 FA/565/2017 vehicle was lying idle, as the complainant could not purchase the tyres. It was agreed between complainant and opponent to make repayment of balance amount of instalment till August 2014. The complainant could not pay 4 to 5 instalments regularly for aforesaid reason. The opponent in the month of February 2015, all of sudden sent the notice and seized the vehicle without any prior intimation or notice to the complainant. The complaint thereupon approached the opponent and tried to make payment of Rs.1,05,000/- to the opponent. However, the opponent refused to accept the amount. Then in December 2015, the complainant visited the office of opponent to deposit the amount of Rs 3 lakhs. At that time he was told that he will be informed by the opponent to deposit Rs.5,00,000/- in the end of March 2015. The complaint was trying to deposit the amount. Then on 19th April 2016 the opponent sent one letter to the father of complainant thereby asking him to deposit Rs.6,13,702/- therefore the complaint immediately approached the opponent and made demand of documents, at that time he was informed that his vehicle was sold and the amount was adjusted to his loan account and further demanded the balance amount of Rs. 6,13,702/- from complainant. Thus, the opponents have adopted wrong approach and thereby committed deficiency in service. Then the complainant approached to Consumer Forum with the present complaint and sought relief of compensation for causing loss by selling the vehicle without prior intimation & compensation of 4 FA/565/2017 Rs.1,00,000/- towards mental agony and cost of proceeding.
4. The opponents gave appearance before District Consumer Forum and filed written statement. The copy of which is at page number 30 to 33. It is the contention of opponents that there is no deficiency in service on the part of opponents. The complainant has purchased the vehicle by raising Finance from opponent Finance Company. The complainant has purchased a vehicle for commercial purpose hence is not covering under definition of consumer, under Consumer Protection Act. As the complainant is defaulter in repayment of loan amount, the opponent is constrained to initiate arbitration proceeding against the complainant. The complainant has filed consumer complaint after the initiation of arbitration proceeding by the opponent. The complainant agreed the terms and conditions of loan. He is defaulter in repayment of loan amount. Hence. the opponents have right to seize the vehicle and sale the vehicle. All other allegations are denied by the opponents.
5. The District Forum after giving opportunity of hearing to the parties pleased to direct the opponents, to issue no dues certificate to the complainant. Being aggrieved by the said order of District Consumer Forum, the opponents finance co. has preferred this appeal on the following grounds.
5 FA/565/2017 That, the District Consumer Forum has not considered the documents on record. The opponent has issued notice to the complainant prior to the repossession of the vehicle, on 16.10.2014, 16.12.2014 and on 05.01.2015, by registered post A. D. The complainant acknowledged the said notices and on 31.10.14 gave assurance to deposit the amount. Hence, it is incorrect to say that no notice was received to complainant. The opponents also issued a notice to the complainant after repossession of the vehicle., on 2.5.15 and 1.6.2015 .The complainant did not respond to said notices and made no efforts to pay outstanding loan amount. Hence, the opponents have followed due procedure. The opponents also gave intimation to police station prior to the repossession of vehicle. The opponents as per arbitration clause referred the matter to arbitrator. The complainant has filed the consumer complaint after initiation of arbitration proceeding by the opponents. Hence, the consumer complaint is not maintainable. The District Consumer Forum passed the order in very casual manner. The Dist. Forum has wrongly added the amount of down payment in the loan amount and committed serious error in passing the order. The District Consumer Forum has also failed to consider the terms and condition of agreement and simply calculated the amount on the basis of number of instalments paid to the Finance Company. It is not considered that the complainant was defaulter in payment and therefore penal and additional charges were 6 FA/565/2017 added. The complainant was under obligation to pay the penal charges in case of default. The order of District Consumer Forum directing to issue no dues certificate needs to be set aside.
6. On the basis of rival pleadings of the parties and their submissions, following points arise for our determination. We have noted them along with our findings against it, accordingly for the reasons to follow.
Sr.No. Points Findings.
1. Whether there is deficiency No.
in service on the part of opponents?
2. Whether there requires interference Yes.
in the judgement and order of
District Consumer Forum?
3. What order? As per final order.
Reasoning
Points nos. 1 to 3.
7. The learned Advocate for opponent argued on the line of the grounds raised in appeal. He has also relied upon the documents consisting of agreement, schedules attached to it, the copies of notices issued to opponent prior to repossession of vehicle and the copies of notices issued before sale of the vehicle. The copies of postal receipts and acknowledgements are also produced on record. The statement of loan account, documents as to arbitration proceedings initiated by opponents. Those 7 FA/565/2017 documents are at page nos. 36 To. 120 of appeal compilation.
8. The ld. Adv. for opponent further argued that the complainant himself admitted that he has not paid instalment regularly and paid Rs. 2,61,000/- towards initial 7 instalments. He has not made payment thereafter. He though denied receipts of notices. He himself admitted that he approached the opponent and requested for time, to deposit the amount. Therefore, the documents and admission itself, shows that the complainant himself was at fault. The opponent has issued pre repossession notice as well as pre sale notice to complainant & also issued intimation prior to repossession of vehicle to police. Thus the opponents have adopted due procedure prior to seizure and sale of the vehicle. There is no deficiency in service on the part of opponent, is made out. The District Consumer Forum without considering terms of agreement, default of payment of EMI and irregularity of payment on the part of complainant and that the opponent is therefore entitled to charge penal interest and other charges, for procedure are not considered and passed order in casual manner.
9. The ld Adv for compliant supported the order of District Consumer Forum and argued that the complainant has paid 7 instalment with interest regularly. The opponent repossessed the vehicle in the 8 FA/565/2017 month of Feb. 2015 without prior notice. And in the month of May 2015 without intimation to complainant, the opponent sold the vehicle and received Rs. 9,25,000/- on selling the vehicle. Therefore, on adjusting the payment if Rs. 2,61,000/-by way of instalment Rs. 3,70,000 /- made by complainant towards down payment and Rs.9,25,000/- by way of sale of vehicle are if considered, the order directing no dues certificate is justifiable. Hence the complainant has prayed for dismissal of appeal.
10. On perusal of application of loan and agreement of loan between the parties it reveals that the loan of Rs.13,50,000/- is sanctioned on 11.2.2014, by the opponent at the rate of 6.6% interest. And over all interest amount is assessed to Rs. 3,67,740/-. Thus, total amount of loan amount with interest comes to Rs.17,17,740./-. And it is agreed to be paid in 46 instalment of Rs.42,742/- each. Considering the loan amount of Rs. 13-15 Lakh and down payment of Rs. 2,93,000/- the cost of assets i.e. of tipper is Rs. 16,43,000/-. The loan application is shown at page no. 39 of appeal compilation. This agreement is not disputed by the complainant. The terms are mentioned in the agreement and schedule at page no. 54 of agreement. Besides it there are terms and condition about other charges payable in case of default, such additional interest, in the agreement.
9 FA/565/2017
11. The opponents have produced loan statement at page no. 66. The copies of notices issued by opponent along with postal receipts and the admissions given in the pleading itself state that the complainant has paid first 3 instalments regularly i.e. for the month of Feb, March and April 2014 on or before 21st date of each month. Thus he committed first default in the month of May 2014. Then he paid said amount with interest on 7.6.2014. of Rs. 38200./-. Thereafter, he has not made payment in the month of July and August 2014. He paid amount of Rs.38,000/-on 5.9.2014, Rs.24,000/-on 01.10.2014, Rs.24,000/-on 7.11.2014, and Rs.40,000 /- on 09.12.2014 and adjusted the amount of Rs.9,25,000/- received by sell of the vehicle.
12. On the basis of aforesaid payment the complainant is claiming though he has made payment of first 7 instalments regularly. The statement itself speaks that there was first default in the month of May 2014, second and third default in the month of July and August 2014, then part instalment in the month of November and December 2014. Thereafter the complainant has committed default in the month of January and February 2012. Thus the complainant has committed more than 5 defaults and irregular payment for two instalments as mentioned above.
13. It reveals that the opponents have issued notice to complainant on 05.01.2015, on 12.02.2015, before 10 FA/565/2017 repossession of vehicle. There is acknowledgement of notice dt. 12.2.2015. The opponent then issued notice after possession and pre sale notice to complainant on 2.5.2015 and 1.6.2015. There are copies of postal receipts. Then the opponent have also issued notice on 23.4.16before initiating Arbitration proceeding. There are copies of notices issued by Arbitrator calling upon the parties to remain present on 24.6.2016. And then subsequent intimation of Arbitration award dt. 29.06.2016 with postal receipts.
14. The complainant has denied about receipt of intimation of Arbitration proceeding. And submitted that he got notice of execution of said award from District court, at the time he got knowledge.
15. Even if it is accepted that the arbitration proceeding was proceeded exparte, till there were notices of over dues, and calling upon the complainant to pay the dues of instalments and then notices prior to repossession of vehicle and pre sale notices calling upon the complainant to settle the dues. And the intimation of the value of the vehicle assessed by the bidders, and notice before transfer of the vehicle.
16. It seems that the complainant has admitted that when the vehicle was repossessed on 2nd Feb. 2015, he had been to deposit amount of Rs.1,00,000/-, but opponent refused to accept the amount. Then he has 11 FA/565/2017 mentioned about his subsequent visit to the office of opponent. But the opponent refused to accept the amount. However it reveals that after about one year of sale of vehicle and even after initiating arbitration proceeding by opponent in the month of April 2016, the complainant has not raised any grievance till filing of consumer complaint. There is also no correspondence produced by complainant. It appears that the complainant has initially committed first default in the month of May 2014, and then committed default in payment of EMI continuously from Oct.2014, till filing the consumer complaint on 6.5.2016. Though the complainant pleaded about his inability to make payment due to the damage of 6 tyres of vehicle and for want of money to purchase could not run the business and he requested the opponent for time to make payment. No such intimation is produced on record.
17. Of course it is not denied by the complainant that he has committed defaults & that, he was not regular in payment. He has not denied the statement of loan account. Which clearly speaking about the entries of payment made by complainant and sale proceeds of Rs.9,25,000/- adjusted against his loan amount dues. Even after sale of vehicle when the opponent made demand of arrears, the complainant has not disputed or raised any grievance about said demand of balance amount made by the opponent. It is also not demonstrated how the statement maintained by 12 FA/565/2017 opponents is wrong. On the contrary the opponent has brought on record the steps taken for recovery and the course adopted for the same.
18. Here, the complainant failed to establish any kind of deficiency in service on the part of opponents. In spite of producing the agreement, correspondence of notices and statement of account, the District forum failed to appreciate those documents and ignored the defaults made by complainant in payment of instalment though he has admitted the same. It is also not considered that since May 2014 the complainant was not regular in repayment. Therefore, as per terms and conditions of agreement the opponents are entitled to charge the additional interest, and the process fees and additional interest and charges on such delayed payment and steps taken from time to time for recovery if dues. It clearly reveals that after issuing several notices, pre repossession notice, and pre sale notice, and when instalment were over dues, the vehicle was repossessed and sold after giving opportunity to deposit the amount due. Thereafter, the steps are taken for initiating the arbitration proceedings. All other charges required for processing of the loan case, as per agreement can be charged, is also not considered.
19. The District forum while assessing the amount of payment made has also mentioned about the amount of down payment, which admittedly on depositing by 13 FA/565/2017 complainant, the finance company has issued the draft of loan amount, for purchase of the vehicle. It is specifically mentioned in the schedule I of the agreement the loan sanctioned the amount of interest and the total amount payable by 46 instalments. The initial payment amount (which is down payment) is mentioned separately. And not included in loan amount. Hence, the District forum ought not to have considered said amount as if deposited against loan amount. Admittedly on making said payment the complainant has got possession of the vehicle from dealer of Leyland company. .
20. It cannot be ignored that in the summary proceeding this commission has to decide the matter on the prima facie documents, supported by affidavit. The complainant, on receiving notice issued by opponent claiming balance amount of Rs.6,13,000/-, if at all being aggrieved or deceived, instead of approaching the appropriate authority, has filed consumer complaint, claiming no dues certificate.
21. Therefore, with the aforesaid discussion we are of the opinion that, the District forum failed to appreciate the documents and terms and conditions, and simply calculated the only amount payment made, and included the down payment made for purchase of vehicle, and self protection of vehicle and committed error in issuing direction, to opponent to issue no dues certificate. Also, when there is arbitration proceeding initiated already and 14 FA/565/2017 the District Consumer Forum is not justifiable in entertaining the consumer complaint. The District Consumer Forum also failed to consider that, the opponent has filed arbitration darkhast 324/2016 as per the arbitration award. Hence, there requires interference in the judgement and order of District Consumer Forum. We therefore answer the points accordingly and pass following order.
Order
1. The appeal is allowed with no order as to costs.
2. The judgment and order of District Consumer Forum decided on 29.3.2017, is hereby set aside, and the complaint is dismissed.
Mr.K.M.Lawande Smt.S.T.Barne, Member Presiding Judicial Member UNK