BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::
KADAPA YSR DISTRICT
PRESENT SMT. K. SIREESHA, B.L., PRESIDENT FAC
SRI M.V.R. SHARMA, MEMBER.
Thursday, 30th July 2014
CONSUMER COMPLAINT No. 49/ 2013
B. Venkata Rami Reddy, S/o Chinna Tirupal Reddy,
aged 44 years, Hindu, Cultivation, D.No. 21/94-A,
Gandhi Road, Jammalamadugu Town and Mandal,
Kadapa District. ….. Complainant.
Vs.
1. G. Nagaraju, S/o Kuppa Reddy, aged 50 years,
Hindu, Cultivation, Kotturu Village, KVB Puram,
Chittoor District.
2. Indus Ind Bank Ltd., Rep. by its
General Manager, 89, G.N. Chetti Road,
T.Nagar, Chennai.
3. Indus Ind Bank Ltd., Rep. by its
Manager, Y.S. Nagar, Near Teja Oil Filling Station,
Kadapa, YSR District. ….. Respondents.
This complaint coming on this day for final hearing on 08-07-2014 in the presence of Sri G. Trivikram Singh, Advocate for complainant and Sri T. Ramalingeswar Raju, Advocate for R1 and Sri S. Nagi Reddy, Advocate for R2 & R3 and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per Smt. K. Sireesha, President FAC),
1. Complaint filed under section 12 of C.P. Act 1986.
2. The brief facts of the complaint are as follows:- The complainant is originally resident of Navabpeta village, Mylavaram Mandal, Kadapa District but at present residing in D.No. 21/94-A, Gandhi Road, Jammalamadugu town and Mandal, Kadapa District.
3. It is submitted that the R1, is also doing cultivation and is resident of Kottur village, KVB puram, Chittoor. The R2 is the Manager, Indus Ind Bank Ltd., 89, Chetti Road, T.Nagar, Chennai and the R3 is branch office of R2 in which the complainant made transactions with it. The R1 purchased the JCB by availing finance from the R2 bank. The documents relating to the purchase of JCB by the R1 have been pledged with R2 for the finance facility.
4. The R1 paid installments regularly to the R2 up to 24-4-2009 with accrued interest. On 24-4-2009 itself, the R1 deposed off the JCB bearing No. AP 03 AB : 6318 for Rs. 14,48,800/- to the complainant through sale agreement by receiving an amount of Rs. 4,00,000/- from the complainant. In the sale agreement executed by the R1, the R2 retained the all documents relating to the above JCB and agreed that the complainant should pay rest of the sale agreement amount to the R2 at Rs. 45,600/- by way of installment and the total extent of the installments are 23. It was also agreed in the sale agreement that the documents relating to the JCB are to be mutated in the name of the complainant after completion of the last installment. The R1 also executed documents expressing his willingness to transfer the vehicle in the name of complainant. In the agreement it was also agreed, if there are nay cases pending earlier to the purchase of the complainant against the JCB, the R1 is only responsible. By 7-2-2011, the complainant paid the entire sale agreement amount by way the installment amount with accrued interest to the R2 through R3 and thereby discharged the whole amount due to the R2. The calculation chit issued by the R2 discloses that an amount ofRs. 492/- was paid more than the actual amount due to the R2. Thereafter, the complainant demanded the respondents for the return of the documents relating to the purchase of the above JCB and also demanded for the issue of no due certificate from the R2. The R2 on demands made by the complainant asked the complainant to come after some time. The complainant further paid Rs. 60,000/- to R2 through R3 by way of cheque on 23-6-2011.
5. It is submit that the complainant contacted with the R3 for return of documents and on its advice on 7-6-2011 the complainant had been to Chennai and demanded the no due certificate documents relating to the JCB. Instead of returning the above documents, the R2 surprisingly demanded the complainant to pay an amount of Rs. 1,64,969/- even though, the complainant is not at all due any amount to the R2. On that, the R2 gave troubles to the complainant for several times without complying the conditions of the agreement and thereby made the complainant to incur a loss of Rs. 2,00,000/-. The complainant also issued a legal notice to R1a nd R2 through registered post on 29-10-2012. Having received the notice both R1 and R2 have even failed to give any reply. The served acknowledgements along with the office copy and registered receipts are filed herewith along with complaint. The negligent attitude of the R2 caused mental agony to the complainant. As such the respondents are liable to pay compensation to the complainant and also are liable to return the documents relating to the JCB along with no due certificate and also liable to pay the loss amount of Rs. 2,00,000/- to the complainant.
6. The cause of action arose on 23-6-2011 when the complainant made last payment amount to the R2 through the R3 at Kadapa and when the complainant demanded for return of vehicle documents of JCB bearing No. AP 03 AB : 6318 when the respondents failed to return documents and also failed to issue no due certificate and when the complainant got issued a legal notice dt. 29-10-2012 to the R1 and R2 and when the respondents even failed to give reply within the jurisdiction of Hon’ble forum, Kadapa. A fee of Rs. 200/- is paid by way of I.P.O.
7. It is therefore, prayed that the Hon’ble forum may be pleased to allow the complaint and pass orders in favour of the complainant, directing the respondents (a) to return the all original documents pertaining to finance cleared JCB bearing No. AP 03 Ab : 6318 and also to issue no due certificate, (b) to payRs. 2,00,000/- loss sustained by the complainant, (c) to pay Rs. 1,00,000/- towards compensation for mental agony and physical strain and mental and (d) to payRs. 4,000/- towards the costs of the complaint.
8. The R1 filed a counter that the petition is unjust and not maintainable either in law or on facts.
9. The petitioner is put to strict proof of all the complaint allegations which are not expressly admitted herein by this respondent.
10. It is true that the R1 is doing cultivation and residing at Kothuru village, K.V.V. puram of Chittoor District. It is true that R1q purchased JCB bearing No. AP 03 AB : by availing finance from R2. It is true that the document relating to the above said JCB have been pledged with R2 for the finance facility.
11. It is true that the R1 paid the installments regularly to the R2 up to 24-4-2009 with accrued interest. It is also true that on 24-4-2009 the R1 disposed of the above said JCB for Rs. 14,48,800/- to the complainant through sale agreement, by receiving Rs. 4,00,000/- from the complainant. Under the sale agreement dt. 24-4-2009 it is agreed that the complainant should pay the balance of installments to the R2. It is also agreed under the said agreement that the name of the complainant has to be mutated in the documents relating to the JCB after the completion of the installments. This respondent do not know whether the complainant has paid entire installments amount by 7-2-2011 to the R2 and the complainant is put to strict proof of the same. The further allegations in para – 3 of the complaint do not know this respondent and the complainant is put to strict proof the same.
12. Further allegation that the complainant contacted with the R3 for return of documents and on its advice on 7-6-2011, the complainant had been to Chennai and demanded the no due certificate documents relating to the JCB and that instead of return the documents, R2 surprisingly demanded the complainant to pay an amount of Rs. 1,64,969/- even though, the complainant is not all due any amount to R2 and that the R2 gave troubles to the complainant for several times without complying the conditions of the agreement and thereby made the complainant to incur a loss of Rs. 2,00,000/- are does not know to this respondent and the complainant is put to strict proof of the same. It is true the legal is received by this respondent. When this respondent questioned the complainant said back is only a formal notice and need not gave reply. Hence, this respondent has not given any reply. The allegations that the negligent attitude of the R2 caused mental agony to the complainant, do not know to this respondent.
13. The respondent submits that as per the terms and conditions of the said sale agreement dt. 24-4-2009 the complainant has to pay the entire balance installments and this respondent has nothing to do with the balance of installments amount. After payment of entire balance of installments amount, this respondent has agreed to register the said JCB vehicle in favour of the complainant or person of his choice with his expenses. This respondent further submit that the complainant has issued a cheque bearing No. 034368 for Rs. 15,000/-, dt. 29-12-2009 drawn on Axis Bank, Proddatur in favour of this respondent towards part payment of the advance amount. But the said cheque was dishonoured on 18-01-2010 as the complainant promised to repay the said amount this respondent did not file complaint U/s 138 of N.I. Act against him. The Xerox copy of the said cheque and the Bank return memo dt. 18-01-2010 are herewith filed. As seen from the contents of the complaint, there is no negligence act on the part of this respondent. Since all the original documents relating to the JCB vehicle are with the R2 and R2 this respondent cannot registered the said JCB vehicle in favour of the complainant. As seen from the complaint this respondent is only a formal party and no relief is claimed against him. There is no cause of action for the complaint against this respondent and hence, this respondent is not liable to pay any amount to the complaint.
14. It is therefore, prayed that the Hon’ble court may be pleased to dismiss the complaint against this respondent in the interest of justice.
15. Counter of O.P.2 and O.P.3 at the outset the O.P.2 submits that the present complaint is not maintainable before this Hon’ble forum against them, since the complainant is neither the borrower nor has entered any written agreement with opposite party. Hence, it will not come under the purview of the C.P. Act the complainant is not a consumer as per the C.P. Ct on the sole ground the complaint may be dismissed with limine.
16. The O.P.2 submitted that the O.P. herein had approached them for financial assistance to purchase a new JCB machine for his hiring out. The Opposite party executives had explained all the terms and conditions of the loan to the complainant and he had agreed and signed loan agreement under contract No. TRAA07646, dt. 8-3-2007. The transaction between the O.P.1 and O.P.2 is purely a commercial transaction between a lender and debtor which never comes under the C.P. Act and O.P.2 is not rendering any service to the O.P.1 or to the complainant. The present complainant no way connected in the loan transaction either as borrower or as co-borrower, hence the present case is not maintainable before the Hon’ble forum.
17. The complainant approached and availed loan for a sum of Rs. 16,50,000/- towards a new JCB backhoe loader machine for hiring out of the machine. A loan agreement was entered between the O.P.1 and O.P.2 under loan agreement No. TRAA07646, dt. 8-3-2007 and as per the terms of the loan agreement the loan amount long with interest of Rs. 4,95,000/- are repayable in 48 monthly installments commencing from 7-4-2007. The installments are repayable on every 7th of the English calendar month commencing from 7-4-2007 till 7-2-2011. The machine was registered with concern RTO office with O.P.2 endorsement in the registration office.
18. The O.P.2 submit that the alleged transaction of sale taken place between the O.P.1 and the complainant is no way related to the O.P. 2 since such transaction is void as per the terms of the loan agreement between the O.P.1 & O.P.2. In the loan agreement the O.P.1 has clearly agreed in clause 8.0 in sub clause g it clearly agreed by as follows.
g. not to sell, lease, transfer, create charge, hypothecate or create encumbrance of any nature whatsoever or surrender or otherwise however part with possession of the Asset, in any manner whatsoever with the consent in writing of the lender. Any direct or indirect transfer of the asset would be deemed to be criminal breach of trust and a case of cheating, entitling the lender to file pursue FIR or criminal complaint against the borrower.
19. Therefore, the alleged sale agreement is not binding on the O.P.2 and the machine is still in the name of O.P.1 with the endorsement of the O.P.2. Hence, the alleged sale transaction between the complainant and the O.P.1 is no binding the O.P.2 and they are not bound by it. When machine or a property is purchased by a person must verify the title of it and after clear all the encumbrance entered into sale agreement whatsoever. Till the encumbrance is cleared any payment made towards the loan would be accounted in the loan as “on account of “, in this case also the payments were made by the complainant towards the account of O.P.1. anyone make the payment in a bank in another person account, simply because of making the payment he cannot become the account holder or demand the right over the account. In the present case all the payment were made on the account of O.P.1 by the complainant.
20. The O.P.2 submits that the complainant not aware of the loan agreement terms merely filed the complaint demanding NOC based on the statement of account which shows a negative balance but still the delayed interest to the paid by the O.P.1 towards loan and on payment of the delayed interest he only can demanded the NOC form the O.P.2. As per the terms of agreement the O.P.1 never paid the installment on the due dates as agreement by him. The statement of account would reveal that the O.P.1 never paid the installment on dues date which resulted in delayed interest to the tune of Rs. 1,02,371/- to be paid by him. The last and final installment was over on 7-2-2011 and the last part payment was received by the O.P.2 was on 21-6-2011. Hence, without fulfilling the loan terms by the O.P.1 the O.P.2 not in position to issue NOC to the O.P.1. even if the settlement amount is remitted by the complaint on behalf of the O.P.1 to the O.P.2 they will issue necessary NOC letter to the original borrower i.e. O.P. 1 not to the complainant.
21. The O.P.2 submits that the complainant was very much aware of the same and he wantonly filed the present complaint with a motive to get illegal gain from this O.P. He can demand the NOC and other machine related papers from O.P.1 but not against the O.P.2 & O.P.2. They are not bound by any alleged transaction between them. The complainant approached the forum not with clean hands concealing many facts, on the sole ground the complaint to be dismissed with limini other grounds apart.
22. The opposite party submit that there is no written agreement between the complainant and O.P.2 & O.P.3. Hence, he cannot seek any remedy against them in a court or forum. The present complaint is also lack of jurisdiction, merit to entertain in a consumer forum which liable to be dismissed with cost. There is no cause of action arose at Kadapa or any other place in the consumer forum.
23. As state earlier the complainant had approached with an intention to get an illegal gain and the opposite party is not liable to issued NOC to the complainant, not liable to pay any loss to the tune of Rs. 2,00,000/- and not liable to pay any compensation to the tune of Rs. 1,00,000/- and cost. Hence, opposite party prays that the complaint may be dismissed with cots.
24. The O.P.2 reserves it right to file to additional counter if any required. Therefore, opposite parties most humbly prays that the Hon’ble forum be pleased to dismiss the complaint with costs.
25. On the basis of the above pleadings the following points are settled for determination.
i. Whether the complainant is eligible for compensation as prayed by the complainant?
ii. Whether there is negligence or deficiency of service on the part of the Respondents?
iii. To what relief?
26. On behalf of the complainant Ex. A1 to A6 were marked.
27. Point Nos. 1 & 2. As seen from the averments of the complaint, counters and exhibits filed by the complainant. It is true that the R1 had purchased JCB bearing No. AP 03 AB : 6318 by availing finance from R2 and the documents which is relating JCB bearing No. AP 03 AB : 6318 had pledged with R2 for finance facility. The complainant is no way connected with R2 and R3. Ex. A1 which is the agreement between the complainant and the R1 is not a registered document. It will not support the case of the complainant. As per Ex. A3 it is the account of R1 but not the complainant. Ex. A1 is not a registered document, it will not be an authenticated document to support the case of the complainant. The complainant had no authorization to question the respondents 2 & 3 about no due certificate and return of JCB documents. He is not the real owner of the JCB bearing No. AP 03 AB : 6318 . There is no dues to R2, the documents were kept with the respondents. If really the owner cleared the installments amount due to the respondents 2 & 3 automatically they will return the documents pertaining to the JCB and they will issue no due certificate. Here the complainant had no authentication to file this complaint as he is real owner of the JCB. As seen from exhibits filed by the complainant there is no evidence to the complainant to prove his case. If the complainant had to file any case, he should file case against R1 only as he is concerned with R1 only. He had no authority to file the case against R2 & R3. There is no transaction between the complainant and R2 and R3. It is very clear that the complainant approached consumer forum to get unlawful gain. There is no written agreement between the complainant and R2 and R3. As seen from the above averments there is no negligence of deficiency of service on the part of the respondents 2 & 3. At the same time the complainant is not eligible for any compensation as prayed by him.
28. Point No. 3 In the result, the complaint is dismissed without costs
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the 30th July 2014
MEMBER PRESIDENT FAC
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant NIL For Respondents : NIL
Exhibits marked for Complainant : -
Ex. A1 Original vehicle sale agreement dt. 24-4-2009 executed by R1 in
favour of complainant.
Ex. A2 P/c of registration certificate of JCB bearing No. AP 03 : 6318
Ex. A3 Statement of account issued by R3 to the complainant.
Ex. A4 Statement of account bearing No. 524010100041265 pertaining to
complainant issued by his banker i.e. Axis bank, Proddatur, YSR Dist.
Ex. A5 Legal notice dt. 29-10-2012 issued by the complainant to the R1 & R2.
Ex. A6 Postal receipts 2 in number and postal ack. cards 2 in number
Exhibits marked for Respondents: - NIL
MEMBER PRESIDENT FAC
Copy to :-
1. Sri G. Trivikram Singh, Advocate for complainant.
2. Sri T. Ramalingeswar Raju, Advocate for R1.
3. Sri S. Nagi Reddy, Advocate for R2 & R3.
B.V.P.
