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2009 DIGILAW 861 (HP)

Mahindra & Mahindra Finance Service Ltd. v. Ram Kumar Verma

2009-10-12

ARUN KUMAR GOEL, CHANDER SHEKHAR SHARMA, SAROJ SHARMA

body2009
ORDER Mr. Chandder Shekhar Sharma, Member - This appeal is directed against the order of District Forum, Kangra at Dharamshala, in Consumer Complaint No. 253/ 2005, dated 14.5.2007 whereby the complaint of the respondent No. 1 was partly allowed and appellants alongwith respondent No. 2 were jointly and severally directed to refund the excess amount received from him. Calculations have been ordered to be made in a manner that they will not charge any interest from the respondent No. 1 on the loan amount w.e.f. 8.2.2005 when he made the payment of out standing amount in lump-sum. Needful was to be done within 30 days from the receipt of copy of the order. Appellants were further directed to issue NOC and other documents to the respondent No.1. 2. Facts of the case as they emerge from the record are, that the respondent is running a school, at VPO Rehan on the persuasion of the respondent No.2 who is agent of the appellants. This respondent (i.e. No.2) agreed to get finance for the bus that was purchased from its showroom at Jacch, Tehsil Nurpur in the sum of Rs. 3,11,000/ -. This was to be repaid with Rs. 1,04,480/ - as finance charges. Total amount was to be repaid between 1.4.2003 upto 1.2.2007 in monthly instalments of Rs. 8,840/-. As per further averments made in the complaint agreed interest payable by respondent No. 1 on the financed amount was @ 8% and deduction @ 4% was to be given if the amount was paid prior to the fixed period. 3. Further averment in the complaint are, that respondent in order to save that the liability of interest etc. after paying 22 instalments of Rs. 8840/- per month ,paid in lump-sum Rs. 2,03,000/- on 8.2.2005 to the 'appellants No. 1 & 2 through appellant No.3. In these 'circumstances against Rs.18,000/- on account of interest including reduced interest as aforesaid Rs. 52,240/- was charged by the appellants from him. In this manner - excess amount of Rs. 34,240/- was charged by the appellants. When he requested the appellant No.3 to refund this excess amount, but they did not refund the same to him. Even after service of legal notice on behalf of the respondent No.1, needful was not done. 52,240/- was charged by the appellants from him. In this manner - excess amount of Rs. 34,240/- was charged by the appellants. When he requested the appellant No.3 to refund this excess amount, but they did not refund the same to him. Even after service of legal notice on behalf of the respondent No.1, needful was not done. As such alleging deficiency of service on the part of the appellants complaint was filed under Section 12 of the Consumer Protection Act, 1986 seeking directions against the appellants and respondent No. 1 for the refund of Rs.34,240 / - the excess amount received by them alongwith NOC and sum of Rs.5,000 itowards mental pain and Rs.3000/- being cost of litigation. 4. Appellants filed their version while contesting the complaint, and pleaded that as per agreement no rebate of interest @ 4% was -promised by them and respondent No.2, as alleged on the complaint. Respondent No.1 is bound to adhere to the agreement clauses dated 1.4.2003. It was also pleaded that rate of interest was agreed @ 8.4% flat rate and not at Rs. 8%. Further plea of the appellants was that though the respondent No.1 had paid Rs.2,03,000/ - but he did not close his account because he was regular defaulter and he had made defaults in many instalments on which he is liable to pay additional financial charges. Respondent No.2, who was OP No.4 in the complaint has filed separate reply wherein it was pleaded, that it has no concern with the vehicle and it is not liable to pay any expenses to the respondent No.1 and it has also denied that respondent purchased the vehicle from its showroom. 5. Respondent has also filed rejoinder wherein he had reiterated the stand taken in the complaint. 6. Brief resume of evidence led by appellants, respondent No.1 and respondent No.2 is, that appellants in support of their case have filed affidavit of Jitender Gautam, Branch Manager, Mahindra Finance, and also placed reliance upon various documents viz. loan agreement Annexure P-1 and various letters Annexure P2, P2(a) to P2(b) and pre-closure termination working statement Annexure P-3, notice Annexure P-IV and reply to the notice Annexure P-V. 7. We have heard learned counsel for the respondents and have also gone through the record carefully. 8. loan agreement Annexure P-1 and various letters Annexure P2, P2(a) to P2(b) and pre-closure termination working statement Annexure P-3, notice Annexure P-IV and reply to the notice Annexure P-V. 7. We have heard learned counsel for the respondents and have also gone through the record carefully. 8. In the present case when this case was taken up for hearing at Dharamshala then none appeared for the appellants. Mr. Ravi Puri, Advocate appeared for respondent No.1 and Mr. Ratish Sharma, Advocate appeared for respondent. No.2 Main grounds taken in the appeal by the appellants in this appeal are that the findings of District Forum below are totally wrong false and based on surmises and conjectures and the District Forum below has failed to take into consideration the terms and conditions of the loan agreement dated 1.4.2003. Since this matter relates to accounts, as such proper remedy available with the respondent No.1 is to approach to the Civil Court, as such the finding of the District Forum below qua issuance of NOC and to refund the excess amount received from the respondent No.1 are not legally sustainable and they prayed for setting aside those. 9. Mr. Ravi Puri, learned counsel for the respondent No. 1 supported the order of the District Forum below and argued that since outstanding amount of Rs. 2,03,000 was prematurely made on 8.2.2005 much before the due date, as such the appellants could not charge any interest thereafter, and they are bound to issue NOC in favour of the respondent. Thus according to Mr. Puri this is a clear cu t case of deficiency of service on the part of the appellants and respondent No.2. 10. Mr. Ratish Sharma, learned counsel for respondent No. 2 argued that the finding of the District Forum below holding his client jointly and severally liable to refund the excess amount is not legally sustainable since vehicle was not financed by his client, No appeal has been filed by his client. This show that he is not aggrieved from the findings recorded against it by the District Forum below, while holding it jointly and severally liable with the appellants as per impugned order. 11. This show that he is not aggrieved from the findings recorded against it by the District Forum below, while holding it jointly and severally liable with the appellants as per impugned order. 11. After hearing the learned counsel for the parties, as well as after going through the record, we are convinced that the order of the District Forum below does not suffer from any infirmity as it suffers from no infirmity as it suffers from no infirmity. Case of the appellants in their reply was that as per agreement Annexure P-1 interest chargeable was 8.4% and not 8%, but from the perusal of the agreement Annexure P-1, it revealed that it does not pertain to the respondent No. 1 since it is signed by one Kushal Kumar and most of the columns in it are blank. As such this plea of the appellants cannot be accepted as there is no cogent and convincing evidence placed on record by them to prove that the interest chargeable was @ 8.4% from the respondent No. 1 at flat rate. 12. In the present case this fact is also clearly evident from the reply to the notice sent by the appellants, that respondent had entered into some agreement and in pursuance to it, he paid Rs. 2,03,000/- in lump-sum to settle the outstanding balance. Thus the payment of Rs. 2,03,000/- towards future instalments from 8.2.2005 on wards, and the appellants were required to adjust it in the loan account and not to charge any intertie from 8.2.2005 onwards. Because the appellants had not adjusted the amount paid in excess by the respondent, as such there was great deficiency of service on the part of appellants, besides their having indulged into unfair trade practice by not issuing the no objection certificate. As such the District Forum .below had rightly directed the appellants, as well as respondent No.2 to refund the excess amount after making calculations of interest @8% as also for the issuance of NOC and other documents in favour of respondent No.1, and in case nothing is payable by the respondent to the appellants. 13. No other point was urged. In view of the aforesaid discussion we find' no reasons to interfere with the order passed by District Forum Kangra, at Dharamshala in Consumer Complaint No. 253/2005, dated 14.5.2007 and the same is upheld, leaving the parties to bear their own costs. M.R.B.