Form-73 APPEAL TO BE FILED BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION

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Gregory Long
5 years ago
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1 Form-73 APPEAL TO BE FILED BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION BEFORE THE HON BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT Appellant -Vs- Respondent Appeal under section 19 read with section 21 of the Consumer Protection Act, 1986 against the order dated passed by the District Consumer Disputes Redressal Forum at. The Appellant most respectfully submits 1. That the present appeal under section 19 read with section 21 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) is being filed against the order dated passed by the District Court Forum at. Copy of the impugned order dated is annexed hereto. 2. That the brief facts of the case appellant is as follows: That the Appellant is a commercial financing company registered under the Companies Act, 1956 having its registered office at..and one of its branches at. The business of company includes extending finance facility for the purchase of Commercial Vehicles, Cars, Two wheelers and Machineries. The company is owned by the public at large and the funds are mobilised from the Public by way of Shares and fixed Deposits besides the company also borrows funds from other financial institutions which again is public money. The Respondent approached the appellant with a request to grant loan to him for the purpose of purchasing a new/used vehicle during. The appellant considered the proposal of the respondent and agreed to extend finance facility to him for purchasing the said vehicle and subsequently entered into a Loan Agreement dt. with him. As per the Loan Agreement, the Appellant is the Lender and the Respondent is the borrower and the vehicle is hypothecated and offered as security to the company. The respondent will become the absolute owner of the vehicle purchased by him under the above said loan agreement only upon the completion of the loan agreement period and on payment of all the installment amounts covering the entire period of loan and due compliance of all the terms and conditions of the Agreement. In case of any default committed by the borrower in making payment of instalment monies on their specified due dates as per the Second Schedule of the loan agreement or if he commits breach of any other material terms and conditions of the Loan Agreement, then the Appellant is empowered to take possession of the vehicle into its custody as per clause of the Agreement. Any of the following situations :

2 The Respondent averment is that the quality of the vehicle is very poor hence it is not suitable for operation and has also incurred huge loss on account of frequent repairs. The Appellant begs to state that the vehicle in question was selected by the Respondent as per his choice and the Appellant has financed for the purchase of the same based on the request of the Respondent. As per clause of the Loan Agreement, the Appellant is in no way responsible for the quality, warranty and suitability of the vehicle. Hence the Appellant is not responsible for the quality of the product. The Respondent s second averment is that the repossession of the vehicle by the Appellant amounts to unfair trade practice. The Appellant begs to state that as per clause of the Loan Agreement, the Appellant is empowered to take possession of the vehicle in case of default in payment of loan installments. The Appellant further submits that the Respondent has continuously defaulted payment of installment monies and inspite of repeated follow up letters and reminders he failed and neglected to pay the dues. The Respondent has to pay a sum of Rs as of besides additional finance charges for the delay in making payments as agreed in the agreement. The Appellant has repossessed the Vehicle only as a last resort after its genuine efforts to collect the dues from the Respondent became futile. The right of repossession is vested with the company being the financier of the asset/vehicle which is time and again affirmed by various courts in India including the Supreme Court. The relevant judgments are as follows 1 Nirenjan prakash and another Vs Mannilal Dwivedi (AIR 1984, All 432)=(ILR 1996) 2 Pooranmal Vs Sadhu ram 1965 ALL 3 Damodhar Valley Corporation Vs State of Bihar (AIR 1961 SC 440) The Respondent has stated that the Appellant has charged additional finance charges at the rate of 36% per annum. The Appellant submits that they borrow funds from the public by way of fixed deposits and also from the companys and financial institutions and deploy the same in the business of financing and to the small and medium operators who are engaged in the transport business. In case the borrower does not pay the instalment monies properly, even then the company has to pay interest to the companys and the depositors. If the instalment monies are promptly paid the same will be deployed again in the business of financing so that it will earn interest/income which can be used for further deployment and mobilization of deposits. The company loses the said opportunity of earning certain potential customers and also suffers loss of money when the borrower defaults in paying the instalment monies. The additional finance charge is calculated based on the interest payment made to the companys and to the depositors and also taking into account the opportunity cost lost on account of the default in payment. The additional finance charges at the rate of is agreed to by the Respondent (borrower) at the time of entering into Loan Agreement and which is as per the practice /norms adopted by the industry. The Respondent has further stated that the Appellant has not furnished the statement of accounts and agreement copy to the Respondent. The Appellant strongly deny this averment, as a copy of the Loan Agreement was already given to the Respondent at the time of execution of the agreement / after execution of the agreement and also statement of accounts was given to him as and when demanded by him. The Respondent has stated that he is entitled for rebate for prompt payment as he has paid the dues on time. The Appellant strongly deny this statement since there is no provision for rebate in the agreement and the Respondent has always defaulted in payment of loan installments on due dates, and hence the claim of rebate is not maintainable. The Respondent has stated that he has paid all the dues and inspite of that the Appellant has not issued the letter of termination of the contract. The Appellant strongly deny this averment, as the Respondent has defaulted in paying the instalment monies and as of date, a sum of Rs. is due and payable by the Respondent to the Appellant. Hence the Respondent is not entitled for getting the termination paper of his contract. That the Respondent herein thereafter filed a complaint before the DCDRF, against this Appellant claiming damages for not releasing the documents in his favour when he has not cleared all his dues under the agreement. This Appellant begs to submit that the allegations made by the Complainant was false and he has not paid the instalment dues and he was in arrears of Rs. /- being the SOA amount and he is also liable to pay a sum of Rs. /- being the amount calculated at the rate of 36% as penal charges for the delay in making the payment of instalment dues on their respective dates. The said submission made by this Appellant before the D.C.D.R.F, was not accepted by it and the forum has passed the impugned order (challenged under this appeal) against this

3 Appellant directing this Appellant to pay the respondent herein compensation of Rs.20000/- and also further directed to release all those documents in the custody of the Appellant to the Complainant.

4 That in the aforesaid complaint, the Respondent herein deliberately misled the District Forum by stating that he has paid a sum of Rs. and that only a sum of Rs. remains to be paid by the Respondent to the Appellant Company. The Respondent has totally failed to mention about the Additional Finance Charges and also the various other heads under which money was payable by the Respondent to the Appellant Company. The matter is a dispute on settlement of accounts and it cannot be adjudicated by the consumer forum and has to be decided by a civil court. It is also to be noted that as per Clause 23 of the Loan Agreement, any difference or dispute arising between the parties with regard to the loan transaction should be referred to a Sole Arbitrator to be appointed by the company namely the Appellant herein. Hence the matter should be referred only to Arbitration. The impugned order is not sustainable in law as it has been without the application of judicial mind and without considering the averments and the evidence placed before it by this Appellant. Being aggrieved by the said order dated, the Appellant herein is filing the present appeal on the following amongst other grounds: GROUNDS: The District Forum has failed to appreciate the true facts and circumstances of the case of the Appellant who was the defendant in the suit and which has led to a grave miscarriage of Justice. A. The District Forum has failed to appreciate the true nature of loan transaction, the documents and the grounds of reply placed on record by the Appellant herein before it. B. The District Forum has failed to appreciate that suit and the connected applications filed by the Respondent are not maintainable since there is provision for arbitration in the agreement entered between the parties. The District Forum ought to have dismissed/stayed the complaint in accordance with the provisions of Section 8 of Arbitration and Conciliation Act, C. The District Forum has erred in coming to the conclusion that the calculation of interest is nothing but only to fleece the Respondent of his earnings. The District Forum has came to this conclusion without even considering or going into the terms and conditions of the Loan Agreement dated entered into between the Appellant herein and the Respondent herein. D. The District Forum erred in coming to the conclusion that the repossession of the vehicle by the Appellant company showed the dishonest intention of the company. E. The District Forum erred in concluding that a strict interpretation of the Loan Agreement cannot be committed in a welfare democratic State and requires to be seriously condemned. However, this would indicate that any person entering into a Loan Agreement after reading and understanding all the terms and conditions and after availing the facility would be at liberty to rescind the agreement at will and not return the money taking recourse to the fact that this is a welfare democratic State and any attempt by the company to get its money back would be seriously condemned. F. The District Forum erred in coming to the conclusion that the repossession of the Vehicle is illegal when there are innumerable no of judgments by the various courts including the Supreme Court as indicated supra that in a Loan Agreement the finance company is at liberty to take steps for repossession of the Vehicle. G. The impugned order has been passed without due appreciation of pleadings and clearly indicates bias against the Appellant and has completely ignored the fact that the respondent herein (complainant ) has approached the District Forum with unclean hands. H. The language of the impugned order clearly shows that the District Forum has sat with a predetermined mind and therefore a proper and fair hearing was not granted to the Appellant herein by the District Forum.

5 I. There is an error apparent on the face of the record as the District Forum has erred while considering the installment amount paid by the Respondent and the interest calculated thereon. J. The District Forum has failed to appreciate that the Respondent in the garb of the consumer complaint is trying to evade his responsibilities towards the Appellant herein under the terms and conditions of the Loan Agreement especially Clause. K. The order passed by the District Forum is unduly harsh and punitive and as the it has wrongly understood the real facts and circumstances of the above case, the order passed by it has to be set aside by this Hon ble State Commission. L. The District Forum has erred in holding that the Respondent was entitled to damages at the rate of Rs. per day, especially when nothing had been brought on record as evidence to indicate the loss caused to the Respondent. The District Forum has awarded the amount on the basis of mere averments without ascertaining the real position. M. In case the impugned order is not set aside, grave and irreparable loss and injustice would be caused to the Appellant herein. In view of the above mentioned facts and circumstances, it is humbly prayed that this Honourable State Commission may be pleased to: 1. Set aside the impugned order dated, passed by the District Forum at. 2. In the meantime, stay the operation of the impugned order dated. 3. Pass any other order in the interest of Justice. Dated at Chennai on this the day of

Form-38. APPLICATION FOR GARNISHEE ORDER ( under Sec 9 of ARBITRATION AND CONCILATION ACT, 1996) ASSET CONFISCATED

Form-38. APPLICATION FOR GARNISHEE ORDER ( under Sec 9 of ARBITRATION AND CONCILATION ACT, 1996) ASSET CONFISCATED Form-38 APPLICATION FOR GARNISHEE ORDER ( under Sec 9 of ARBITRATION AND CONCILATION ACT, 1996) ASSET CONFISCATED BEFORE THE HON BLE DISTRICT COUR / HIGH COURT AT I.A.NO. / O.A. No.. / 20. IN THE MATTER