3

financial charges (processing fee) and remaining was towards initial payment. The

complainant did not pay Rs. 10,500/- towards down payment. The respondents had

no knowledge that the agent of the R1 got opened S.B. Account in the name of the

complainant in Head Post Office, Kadapa and took cheuqe book in the name of the

complainant. It was not correct that the agent of R1 obtained 24 cheques for

Rs. 1,440/- each instead of 20 cheques without informing the complainant. It was

not correct that the complainant did not observe the number of cheques in cheque

book. The complainant had to prove that he was remitting cash in Head Post office to

satisfy the cheques sent by the R1. It was not correct that 5 to 7 persons of the R1

came to the complainant on 29-10-2008 around 8.30 p.m stating that they were

recovery squad from R2 and took away the two wheeler high handedly. The vehicle

was seized on 30-10-2008 but not on 29-10-2008. It was not correct that the staff of

R2 expressed that the complainant had to pay due of Rs. 24,600/-. The complainant

signed on the proceedings at the time of seizure of the vehicle on 30-10-2008. The

complainant availed a loan of Rs. 27,975/- and executed hypothecation loan

agreement. The complainant availed Rs. 27,975/- on 8-8-2006 repayable with

interest @ 11.75% which was equivalent to Rs. 6,571/- and the total amount was

Rs. 34,560/-. It was payable in 24 monthly instalments @ Rs. 1,440/- p.m. The first

instalment was commenced on 7-9-2006 and the last instalment was on 7-8-2008.

About 10 cheques out of 24 cheques were honoured for Rs. 23,040/-. The remaining

8 cheques were dishonoured for Rs. 11,520/-. Thus the balance due amount was

Rs. 11,520/- towards 8 installments. The complainant was liable to pay Rs. 200/-

towards cheque return charges. The complainant agreed to pay 2.5% p.m on the

outstanding instalments. 8 Cheques were presented by the complainant were

dishonoured and hence, the complainant was liable to pay 2.5% p.m on the

outstanding insalments. The complainant was a chronic defaulter. The vehicle was

seized on 30-10-2008 and so he was liable to pay Rs. 5/- per day for parking charges

up to 23-5-2009 i.e. Rs. 1025/-. The complainant had to bind on the conditions laid

4

in the hypothecation agreement. There was no deficiency of service on the part of the

respondents. Thus the complaint may be dismissed with costs. Hypothecation was

not a statutory creation. Under hypothecation, charge had been created. In view of

hypothecation the goods hypothecated should be taken into possession. Thus the

complainant had to approach Civil Court of law for his rights under mercantile

agreement. The District Forum, Kadapa had no correct jurisdiction.

4. On the basis of the above pleadings the following points are settled for

determination.

i. Whether there is any negligence and deficiency of service on the

part of the respondents?

ii. Whether the complainant is entitled to the relief as prayed for?

iii. To what relief?

5. On behalf of the complainant Ex. A1 to A8 were examined and on behalf

of the respondents Ex. B1 to B6 were marked. No written arguments have been filed

by either party.

6. Point No. 1 & 2 The complainant purchased one Yamaha Crux two

wheeler on 8-8-2006 for Rs. 37,300/- financed by R1 and paid Rs. 10,500/- towards

down payment and agreed to pay Rs. 1,440/- each by way of cheques and gave 24

cheques to the agent of R1 and requested him to withdraw Rs. 1,440/- each by way

of cheque and pay to the R1. The account was opened in head Post office, Kadapa.

By September 2008, the complainant paid Rs. 23,040/- by way of 16 cheques of

Rs. 1,440/- each. It was informed to R1. The complainant represented that he had

to pay only the amount under four cheques i.e. total 20 cheques of Rs. 1,440/- each

instead of 24 cheques. But R1 demanded Rs. 24,600/- towards finance due. In

complaint para – 4 and p a r a – 5 and in prayer Column under para – 9 the

complainant admitted that he had to pay balance amount of Rs. 11,520/- towards

final settlement under 8 cheques of Rs. 1,440/- each. So the total recovery was

5

under 24 cheques as alleged by the respondent but not 20 cheques as stated by the

complainant. While so on 29-10-2008 some people named as recovery squad from

R2 came to the complainant and high handedly took away the two wheeler bearing

registration No. AP 04 L : 3231. The respondents contended that it was not taken

into possession high handedly but it was with the consent of the complainant by way

of consent letter under Ex. B5, dt. 21-10-2008. The vehicle was seized on

30-10-2008 by way of letter obtained from the complainant under Ex. B6. Ex. B5

and B6 were Xerox copies of consent letter and seizure letter. At the time of

purchase the R1 took a pro-note for Rs. 27,975/- with interest @ 11.75%. The Xerox

copy of pro-note dt. 8-8-2006 was Ex. B3. Ex. B2 was Xerox copy of loan cum

hypothecation agreement executed by the complainant in which also the cost of the

vehicle was shown as Rs. 27,975/- and monthly installments were 24 payable by way

of cheques for Rs. 1,440/- each commenced with first insalment on 7-9-2006 and

last instalment was on 7-8-2008. The Xerox copy of loan cum hypothecation

agreement was Ex. B2, which was also singed by the complainant.

7. The respondents filed Ex. B1 a Xerox copy of ledger account extract. The

complainant filed Ex. A1 delivery certificate of the two wheeler. Ex. A2 is the copy of

account extract issued by head Post office, Kadapa for S.B. Account of the

complainant. Ex. A6 was Xerox copy of postal saving pass book. Ex. A3 was office

copy of registered notice. Ex. A4 was postal receipt and Ex. A5 was postal

acknowledgement.

8. The respondents claimed Rs. 20,465-40Ps as on 23-5-2009 as due

amount from the complainant under heads payable cheques of 8 X 1,440/- =

Rs. 11,520/-, Cheque return charges Rs. 200/- each = Rs. 1600/-, additional

finance charges @ 2.5% p.m = Rs. 6,320-40Ps, parking charges @ Rs. 5/- per day

from 30-10-2008 to 23-5-2009 of Rs. 1,025/-. In view of Ex. B5 & B6 the

respondents took possession of the vehicle by way of seizure with consent of the

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complainant. More over the complainant was in due of the loan availed from R1 i.e.

Rs. 11,520/-. The same was admitted by the respondents in their counter. In

complaint the complainant filed the complaint directing the respondents to receive

Rs. 11,520/- from him and deliver the vehicle. The complainant would have

deposited the said amount at the time of filing of the complaint to prove his bonafides

in the forum. But he did not do so. He would have at least sent the said amount by

way of D.D. to the respondents before filing of the complaint and it was also not

done. The respondents did not file any letter from the Head Post Office, Kadapa that

8 cheques were dishonoured with sufficient reasons. Therefore, the respondents are

not entitled for Rs. 200/- per cheque as cheque return charges totaling Rs. 1,600/-.

When the vehicle was seized in view of hypothecation the financier would become the

owner of the vehicle and hence, there was no scope to pay any parking charges by

loan borrower to the financier who would became the owner until all the instalments

were repaid. The claiming of parking charges would not arise. The owner of the

vehicle would keep the vehicle in his parking place of the house and hence to whom

the owner would pay the parking charges. It is the question?. Therefore, payment of

parking charges would not arise. Since the respondents failed to prove that the

cheques were dishonoured, there was no scope to them to claim 2.5% as additional

finance charges per month. The respondents had no scope to claim all these charges

by way of counter without paying any court fee in a separate complaint. As the

complainant admitted to pay Rs. 11,520/- it was his duty to deposit the amount as

discussed earlier. The respondents had not issued any notice to the complainant to

pay Rs. 11,520/- and take back the vehicle. The financier would generally reject to

receive the amount in lupsum from the borrower, with a view to get some unlawful

gain. When the complainant approached the respondents to receive the amount they

rejected. Thus there is deficiency of service on the part of the respondents. Hence,

the points are answered accordingly.

7

9. Point No. 3 In the result, the complaint is allowed, directing the

complainant to pay Rs. 11,520/- (Rupees Eleven Thousand five hundred and twenty

only) by way of D.D within 30 days from the date of receipt of this order to the

respondents who are directed to deliver the vehicle to the complainant after taking

acknowledgement, immediately on receipt of the D.D from him. The complainant is

not entitled to any compensation and costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced

by us in the open forum, this the 29

MEMBER PRESIDENT

APPENDIX OF EVIDENCE

Witnesses examined.

For Complainant NIL For Respondent : NIL

Exhibits marked for Complainant : -

Ex. A1 Delivery certificate issued by Yamaha Janatha Automotives,

dt. 8-8-2006.

Ex. A2 Copy of ledger of S.A. Kahleel Ahamed.

Ex. A3 X/c of legal notice dt. 13-2-2009 from complainant’s advocate to

respondents.

Ex. A4 Regd. Post slip Nos. 2996 to 2998.

Ex. A5 Two postal acknowledgement cards.

Ex. A6 X/c of S.B. Passbook issued in favour of S.A. Kahleel Ahamed.

Ex. A7 X/c of Discharge summary issued by Vijaya Health Center.

Ex. A8 X/c of Registration certificated issued by RTA, Kadapa.

Exhibits marked for Respondents: -

Ex. B1 Copy of history sub-ledger issued by R1.

Ex. B2 X/c of loan cum Hypothecation agreement, dt. 8-8-2006.

Ex. B3 X/c of demand promissory note.

Ex. B4 X/c of receipt in bank form.

Ex. B5 X/c of consent letter, dt. 21-10-2008.

Ex. B6 X/c of seizure letter dt. 30-10-2008.

MEMBER PRESIDENT

Copy to :-

1) Sri G. Trivikram Singh, Advocate.

3) Sri M. Sudhakar Babjee, Advocae.

1) Copy was made ready on :

2) Copy was dispatched on :

3) Copy of delivered to parties :

B.V.P. - - -