Dharampal Sharma vs TATA MOTORS LTD

SH . Dharampal Sharma, the complainant/petitioner purchased two Tata 407 City Ride buses. He availed finance from the Tata Motors after executing a loan-cum-hypothecation agreement. He paid a sum of Rs. 1,58,354 from his own accord and the balance loan amount of Rs. 11,20,020 was to be repaid in 46 instalments. He was to pay a total instalment in the sum of Rs. 23,820 for the two buses every month.

THE case of the complainant is that his son was looking after the vehicles and he was regularly depositing the instalment and tax etc. in respect of both the buses. Thereafter, the son of the complainant was falsely caught in a criminal case. Again, due to financial constraints, he could not deposit the monthly instalments as per loan-cum-hypothecation agreement. The Counsel for the petitioner had no hesitation in admitting that the petitioner has been a defaulter. This is an admitted fact that the opposite party sent a legal notice dated 10.2.2007. To the said notice, the petitioner was called upon to pay the arrears or to return the vehicle and handover the possession of the said vehicle to the opposite party. The petitioner had acknowledged that notice by sending a reply through an Advocate which bore no date. In the said notice, it was mentioned that: "Due to some unavoidable circumstances my client was bound to keep the vehicle off the road. And in the mean time my client has received a notice from M/s. Law Nexus and Associates. Calling up to pay Rs. 48,040 as dues as on 30.10.2006. That my client is ready to pay the interest as per the Clause 4 of the Loan-cum-Hypothecation Agreement, towards delayed payments. Due to the financial crunches my client at present is not in a position to clear all the dues to be paid till date as such my client may be allowed to clear the delayed payments on instalment basis. " (Emphasis supplied)

IT is surprising to note that this notice does not bear any date. When this reply was sent and received is the fact which is shrouded in mystery. The position would have started to jell, had it mentioned the date of its sending.

AS the amount was not paid within stipulated time, therefore, the buses were repossessed by the opposite party. Subsequently, the same were sold to a third party. The complainant ultimately filed the complaint before the Consumer Forum with the following prayers: "(i) Direct the O.Ps to hand over the said two vehicles to the complainant or Rs. 6,76,587 including down payment with instalments, (ii) Award Rs. 1,00,000 (one lakh) towards compensation for financial, mental and physical torture, (iii) Award Rs. 10,000 (ten thousand) towards litigation expenses, (iv) Order to stay the further proceeding against the complainant in this regard; and (v) and such other relief(s) as the Hon ''ble Forum deems fit and proper in the ends of justice. "

The Consumer Forum dismissed the complaint. The District Forum accepted the complaint and directed the opposite party Nos. 1 and 2 to return the instalments, amount paid by the complainant. The OPs were also directed to pay a sum of Rs. 10,000 towards compensation including costs of the complaint within 30 days of despatch of the said order, failing which the said amounts were to carry interest at the rate of 9% p.a.

THE appeal was preferred by the opposite party. The appeal preferred by the opposite party was allowed. Aggrieved by that order, the complainant/petitioner has filed this revision petition.

WE have heard the Counsel for the petitioner. He has invited our attention towards para No. 4 of the loan-cum-hypothecation agreement which runs as follows: "The Borrower shall pay to Tata Motors the instalments and all other monies as and when becoming due and payable under this Loan Agreement, failing which, he shall pay to Tata Motors without demur ''delayed payment '' charges at 3% per month on such unpaid amounts till payment or realization. This liability of the Borrower to pay the ''delayed payment '' charges shall be without prejudice to any other rights and remedies available to Tata Motors. "

Learned Counsel for the petitioner contended that he was not given an opportunity of being heard. He explained that he sent the reply but the opposite parties did not respond.

INSTEAD of touching the heart of the problem, the learned Counsel for the petitioner just skirted it. It is not clear when the reply was sent to the notice issued by the petitioner. In case, it was sent after the vehicles were sold, the offer given in the letter was nothing more than an eye wash. It is surprising to note that the Advocate did not mention the date on his reply. The onus to prove all these facts was upon the complainant. He should have led evidence in this context before the lower Court. Above all, it should have complied with the requirements of the notice. He should have paid the arrears of loan immediately. The Counsel for the petitioner himself admitted that the petitioner waddled out of his commitments and did not pay the arrears of loan in time. After receipt of the notice, he should have immediately paid the amount. As per the agreement, he was not to be granted further time. The petitioner wants to ride on both the horses. On the one hand he does not want to pay instalments and on the other hand, he wants to have both the buses. The petition is meritless and therefore the same is hereby dismissed. Revision Petition dismissed.