KOTAK MAHINDRA PRIME LTD vs Sharda Gupta

THE limited grievance of the appellant against the impugned order dated 29th June, 2007, passed by the District Forum whereby the appellant has been directed to refund Rs. 61,000 to the respondent as excess amount received by it and Rs. 10,000 as compensation and Rs. 3,000 as cost of litigation is that the District Forum has not taken into consideration the amount in excess, if any, was charged by the dealer of the car to whom the appellant has directly disbursed the loan amount sanctioned for the purchase of the vehicle and therefore if at all there was any deficiency it was on the part of the dealer and not on the part of the appellant-Bank.

CASE of the respondent before the District Forum, in brief, was that she entered into a Hire Purchase Agreement with the appellant on 16. 5. 2002 for financing a new 2002 Model Santro car whose price was Rs. 3,50,000. The balance after down payment of Rs. 2,44,000 was financed but respondent taken by surprise when she shocked statement of account at which the respondent approached the appellant that how the amount of Rs. 2,98,054 has been shown as financed. Further one EMI has been taken unofficially initially against which neither any receipt was provided nor any credit has been given. The appellant in this manner charged Rs. 61,000 in excess, which was never refunded while the respondent has already been paid all the amounts to the appellant in September 2005. In its reply the appellant admitted that the respondent paid the margin money of Rs. 1,06,265 but the respondent procured the loan of Rs. 2,98,054 on the fraudulent misrepresentation that the loan was being availed in respect of a particular model value of Rs. 4,04,000 after procuring the loan purchased a car of lower category. The EMI of Rs. 7,000 was never made at the time of loan by the respondent. It was denied that the appellant had taken Rs. 61,000 in excess.

Even if we admit that there was a fraud played by the respondent for availing the loan amount is concerned, still the fact remains that the amount of Rs. 2,98,054 was directly disbursed by the appellant-Bank to the dealer of the car from whom the respondent had purchased the car after changing his mind and available of the car.

THE contention of the Counsel for the appellant that if at all there was excess amount charged from the respondent it was charged by the dealer and not by the appellant-Bank. There is no dispute that the appellant-Bank had directly disbursed Rs. 2,98,054 to the dealer by fixing 59 equated monthly instalments of Rs. 6,946 to be paid by the respondent. There is no dispute that the car purchased by the respondent was lower monetary value than the amount repaid by him to the appellant after raising the loan. In our view, the dealer is a necessary party and as such the appeal is allowed and impugned order is set aside and the matter is sent back to the District Forum for deciding it afresh after giving opportunity to the respondent to make the dealer as a necessary party so that the main dispute as to the charging of excess amount from the respondent may be determined in the right perspective.

PARTIES shall appear before the District Forum on 17. 10. 2008 for the aforesaid purpose. Appeal is allowed and disposed of in aforesaid terms. Fdr/bank Guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.

A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room. Appeal allowed.