Andhra Pradesh

Chittoor-II at triputi

CC/65/2015

Polugari Chengaiah, S/o. P.Chengalrayulu - Complainant(s)

Versus

A.Haribabu, Manager - Opp.Party(s)

G.Ramaiah Pillai

29 Jul 2016

ORDER

Filing Date: 22.12.2015

Order Date:29.07.2016

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

FRIDAY THE TWENTY NINTH DAY OF JULY, TWO THOUSAND AND SIXTEEN

 

 

 

C.C.No.65/2015

 

 

Between

 

Polugari Chengaiah,

S/o. P.Chengalrayalu,

Farmer,

D.No.7-17A, Karakambadi Village,

Renigunta Mandal,

Chittoor District.                                                                              … Complainant

 

 

 

And

 

 

A.Hari Babu,

Manager,

Cell No.9440276563,

Lakshmi Auto Finance at

D.No.19-9-51B, Kennedy Nagar,

Tirupati – 517 501.                                                                          …  Opposite party.

 

 

 

 

            This complaint coming on before us for final hearing on 15.07.16 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for complainant, and Sri.T.M.Chayapathy, counsel for opposite party, and having stood over till this day for consideration, this Forum makes the following:-

 

 

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Sections - 12 and 14 of C.P.Act 1986, by the complainant against the opposite party for the following reliefs 1) to direct the opposite party to deliver the vehicle i.e. tractor bearing No.AP-27-AC-4826 to the complainant on receiving the balance amount of Rs.52,250/-, 2) to direct the opposite party to pay Rs.2,00,000/- towards compensation for causing much inconvenience to the complainant and 3) to direct the opposite party to pay Rs.2,000/- towards costs of the litigation. 

            2.  The brief averments of the complaint are:-  that the complainant purchased a second hand tractor bearing No.AP-27-AC-4827 for Rs.3,00,000/- from its owner Dega Omkaram of Ayyavaripalle on 06.12.2012. For the purpose of purchasing the said tractor, complainant availed vehicle loan of Rs.1,50,000/- in the month of December 2012 from the opposite party, who has office at D.No.19-9-51B, Kennedy Nagar, Tirupati, and also at Sriram Nagar, Nidubrolu – 522 124, Guntur District. The complainant has to repay the said loan amount in 30 installments at the rate of Rs.7,250/- p.m., which comes to Rs.2,17,500/-, but the copy of hypothecation agreement was not given to the complainant. As per the oral instruction of the opposite party, complainant paid 11 installments i.e. 9 installments at Rs.7,250/-,     10^th installment he paid a sum of Rs.94,250/-, and on the 11^th installment he paid a sum of Rs.5,750/-. Thus totally he paid Rs.1,65,250/-. The complainant yet to pay Rs.52,250/- only on or before June 2015.

            3.  While so, on 07.05.2015, while the vehicle was parked at the premises of the house of the complainant, at about 6 p.m., two persons by name Suman and Prasad, representatives of the opposite party have seized the tractor without any prior intimation and taken away the same. On 01.06.2015 opposite party sent notice to complainant calling upon him to pay the loan amount within 10 days from the date of receipt of the said notice, else, tractor will be sold and the proceeds will be credited to the loan account of the complainant.

            4. Soon after receipt of the said notice, the complainant approached the opposite party and offered to pay the balance amount of Rs.52,250/-, but the opposite party refused to receive the same and thus deprived the rights of the complainant from using the tractor, and the opposite party has adopted deceptive method and caused much hardship and harassment to the complainant. On 28.11.2015 complainant got issued legal notice calling upon the opposite party to deliver back the tractor within     7 days after receipt of the notice to the complainant by receiving balance amount. Though the notice was received by the opposite party neither gave reply nor handedover the tractor. However, on 08.12.2015 the opposite party gave reply denying all the allegations and informing that redeliver of the tractor will be possible when the complainant discharged his liability for Rs.89,840/-. Thereafter, complainant gave rejoinder on 14.12.2015 stating that his liability is only Rs.52,250/-, for which opposite party refused. Hence the complaint.

            5.  The opposite party filed his written version denying parawise allegations in the complaint and further contended that the complainant availed loan of Rs.1,68,000/- and executed hypothecation agreement along with 4 guarantors at Nidubrolu on 24.11.2012. A copy of the hypothecation agreement also supplied to the complainant. As per the terms of the hypothecation agreement, the opposite party is at liberty to seize the vehicle from the custody of the complainant in the event of complainant’s failure in payment of any single installment. Complainant committed default in payment of the installments. As Manager of Lakshmi Auto Financiers, opposite party issued registered notice dt:01.06.2015 demanding the complainant to liquidate the entire debt within 10 days, failing which the tractor and trailer will be sold and the sale proceeds will be appropriate towards debt, but the complainant did not choose to give reply. That the complainant is fully aware of entire transactions with Lakshmi Auto Financiers, Nidibrolu, through this opposite party at Tirupati. Since the complainant committed default in remitting several installments, Lakshmi Auto Financiers validly exercised lean and seized the vehicle.

            6.  Complainant is liable to pay the total sum of Rs.89,840/- with interest and penalty as per the terms of the hypothecation agreement. Delivery of vehicle is possible only when the complainant liquidate the entire debt paid in a sum of Rs.89,840/- to Lakshmi Auto Financiers. That this Forum has no territorial jurisdiction. Complaint is not maintainable and prays the Forum to dismiss the complaint with costs.

            7.  In support of the complaint, complainant himself filed his evidence affidavit as P.W.1 and got marked Exs.A1 to A9. For the opposite party R.W.1 filed his evidence affidavit and no documents were marked on his behalf. Both the parties have filed their respective written arguments.

           

 

8.  Now the points for consideration are:-

            (i).  Whether the Consumer Forum at Tirupati has no territorial jurisdiction to

        entertain the complaint?

            (ii).  Whether the seizure of the tractor on 07.05.2015 is improper?

            (iii). Whether the complainant is entitled to the reliefs sought for?

            (iv).  To what relief?

            9.  Point No.(i):-  to answer this point, with regard to territorial jurisdiction of this Forum, to entertain the complaint, Section-11 of C.P.Act is to be referred:

 

 (2)  a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction – 

(a)  the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b)  any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside, or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part arises. 

            So, in this case, the opposite party maintaining office in Tirupati, which is within the jurisdiction of this Forum and it was admitted in the written version filed by the opposite party at Para.12, Lines 16 to 19, that complainant is fully aware of entire transaction with Lakshmi Auto Financiers, Nidubrolu, which was taken place through this opposite party at Tirupati, which is having its office at D.No.19-9-51B, Kennedy Nagar, Tirupati. The notice under Ex.A4, though shows that the opposite party as Manager, Lakshmi Auto Financiers, Sree Ram Nagar, Nidubrolu, Guntur District, the cover in which it was sent shows that the notice was dispatched in Tirupati itself, as such, these documents clearly establishes that this Forum has territorial jurisdiction to entertain this complaint. Accordingly, this point is answered.

            10.  Point No.(ii):-  to answer this point, we have to state that the vehicle was seized on 07.05.2015, while it was parked at the premises of the house of the complainant at Karakambadi village, by two persons namely Suman and Prasad, without any prior notice to the complainant. This was not denied by the opposite party, on the other hand, contended that the complainant committed default in payment of the installments, the Lakshmi Auto Financiers exercised its lean under rightly and legally seized the vehicle. The complainant making specific allegation that the said vehicle was seized without prior notice. The vehicle was seized on 07.05.2015. The notice under Ex.A4 got issued by the opposite party A.Hari Babu is dt:01.06.2015. It shows that this notice under Ex.A4 was given to the complainant after seizure of the vehicle. This notice is also prima facie shows the ill motive of the opposite party because this notice did not disclose What is the period of default? Which year that default was committed? For how many months the default was committed? and What is the amount due to be paid by the complainant as on the date of notice or as on the date of seizure of the vehicle?. The contents of the notice are hereby reproduced.

            “      

 

 

 

           

            A.Hari Babu, Manager, Cell: 9440277573, Lakshmi Auto Financiers, Sree Ram Nagar, Nidubrolu, Guntur District. This letter was dispatched in Tirupati, on 01.06.2015 and the same was delivered to the complainant. This letter does not disclose that the complainant committed any default in payment of installments. It discloses that the complainant has availed Rs.2,17,500/-. This notice under Ex.A4 did not disclose what is the actual loan amount availed by the complainant from the opposite party and where it was availed and what is the amount paid by the complainant as on the date of Ex.A4 and what is the remaining amount to be paid by the complainant. So, this notice under Ex.A4 appears to be ill motive. On perusal of the complaint, the complainant has paid the following amounts on the following dates 1) Rs.7,250/- on 31.12.2012, 2) Rs.7,250/- on 11.02.2013, 3) Rs.7,250/- on 04.03.2013, 4) Rs.7,250/- on 24.03.2013, 5) Rs.7,250/- on 27.04.2013, 6) Rs.7,250/- on 10.06.2013, 7) Rs.7,250/- on 01.07.2013, 8) Rs.7,250/- on 29.08.2013, 9) Rs.7,250/- on 02.10.2013, 10) Rs.94,250/- on 06.10.2014 and 11) Rs.5,750/- on 06.10.2014, totally he paid a sum of Rs.1,65,250/- as on 06.10.2014. The remaining amount is to be paid. The amount paid in a sum of Rs.1,65,250/- as on 06.10.2014 is equal to 23 months, which comes up to October 2014, as such it can be fairly stated that the complainant has paid installments one year in advance i.e. instead of keeping installments pending up to October 2014, those installments were paid by 06.10.2014 itself. So, remaining 17 installments are to be paid.

            11.  If the complainant committed default for the remaining total period of      17 installments, the opposite party is expected to inform the same to the complainant and demand him to pay the installments due, otherwise the tractor will be seized but no such intimation is given and all of a sudden on 07.05.2015 the tractor was seized. Seizure of the tractor thus taken place without prior intimation either in respect of default said to have been committed by the complainant or that the tractor will be seized in case of complainant fails to discharge the installments due. As such, there is deficiency in service on the part of the opposite party.

            12.  For the reasons best known, the opposite party did not file the copy of hypothecation agreement in this Forum, though the complainant specifically contending that the hypothecation agreement was not given to him. The opposite party did not file any scrap of paper in support of its case such as 1) hypothecation agreement entered into by both parties at Nidubrolu, 2) copy of the hypothecation agreement that was delivered to the complainant 3) payment receipts under Ex.A3 were passed on to the complainant at Nidubrolu or that the notice under Ex.A4 was issued at Nidubrolu, so that there exists Lakshmi Auto Financiers at Nidubrolu. But admittedly the opposite party A.Hari Babu, running the office at Tirupati. Hence, so called Lakshmi Auto Financiers, Nidubrolu, without filing any proof of existence its office at Nidubrolu, which amounts to unfair trade practice. The opposite party not only in his written version and evidence affidavit but also in written arguments clearly mentioned that opposite party is transacting entire transactions of Lakshmi Auto Financiers in Tirupati.

            13.  Thus, in view of the above detailed discussion, the seizure of the vehicle on 07.05.2015 without prior notice disclosing that there is default on the part of the complainant in payment of installments and demanding the amount due by specifying the amount actually due etc. is improper. Accordingly this point is answered.

            14. Point No.(iii):-  to answer this point, we have to state that as admitted by the opposite party entire transaction with Lakshmi Auto Financiers was taken place through the opposite party in Tirupati itself, as such it appears that the receipts under Ex.A3, which were already printed in the name of Lakshmi Auto Financiers were passed on by the opposite party to the complainant in Tirupati and not from Nidubrolu. Last three payments dt:02.10.2013, 06.10.2014 and 06.10.14 cannot be made at Nidubrolu, all the way by going to Nidubrolu. When the opposite party is staying in Tirupati and maintaining his office in the premises D.No.19-9-51B, Kennedy Nagar, Tirupati, how he could pass on receipts at Nidubrolu, when his admissions are clear that entire transactions with Lakshmi Autho Financiers through this opposite party at Tirupati. Therefore, it appears prima facie that the opposite party taking false versions. In the written version of opposite party, he denied entire allegations in the complaint including loan transaction and payment of installments, seizure of the vehicle etc. But at later paras again he admitted the loan transaction and payments etc. Nowhere in the written version or evidence affidavit and written arguments, specifically it was mentioned that the complainant has committed default for the specific period or months or number of installments and actual amount due to be paid for the alleged default period, and without any proper notice, the vehicle was seized on 07.05.2015 and later issued Ex.A4 notice on 01.06.2015. In view of these latches and lacunas on the part of the opposite party, the complainant has established that there is deficiency in service on the part of the opposite party and also there is unfair trade practice on the part of the opposite party. Therefore, the complainant is entitled for the reliefs against the opposite party. Accordingly, this point is answered.

            15. Point No.(iv):-  in view of our discussion on points 1 to 3, we are of the opinion that the complainant has established that the opposite party has committed unfair trade practice and also there is deficiency in service on the part of opposite party and the complainant therefore is entitle to the reliefs sought for, as such the complaint is to be allowed.

            In the result, complaint is allowed in part directing the opposite party to deliver the possession of the tractor bearing No.AP-27-AC-4826 with trailer to the complainant on receiving the balance amount of Rs.52,250/- (Rupees fifty two thousand and two hundred and fifty only) from the complainant, and complainant is also directed to pay the said amount of Rs.52,250/- to the opposite party and take delivery of the tractor with trailer from the opposite party. The opposite party is also directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the mental agony and inconvenience caused to the complainant, and also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The complainant and the opposite party further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, in case of failure on the part of the opposite party,  the compensation amount of Rs.25,000/- shall carry interest at 9% p.a. from the date of this order, till realization.           

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 29^th day of July, 2016.

 

       Sd/-                                                                                                                      Sd/-       

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

WITNESSES EXAMINED ON BEHALF OF COMPLAINANT/s

 

PW-1: P. Chengaiah (Chief Affidavit filed).

 

 

WITNESSES EXAMINED ON BEHALF OF OPPOSITE PARTY/s

 

RW-1: A. Hari Babu (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits	Description of Documents
Ex.A1.	Photo copy of ryotwari patta pass book for holding cultivable lands in favour of grand-father of the complainant.
2.	Photo copy of Certificate of Registration Form No.23. in respect of the vehicle in favour of the complainant by the Registering Authority at Tirupati as AP27AC4826 for the tractor and AC27AC4827 for the trailer. Dt: 06.12.2012.
3.	Bunch of 11 receipts in Original for payment of loan amount totaling to Rs.1,65,250/-. Dt: 31.12.2012 to 06.10.2014.
4.	Notice issued by the opposite party to pay the loan amount within 10 days else tractor will be sold, with postal cover. Dt: 01.06.2015.
5.	Office copy of legal notice to the opposite party by registered post. Dt: 28.11.2015.
6.	Undelivered registered letter to the opposite party at Guntur address. Dt: 04.12.2015.
7.	Reply from the opposite party for the legal notice dt: 28.11.2015. Reply Dt: 08.12.2015.
8.	Office copy of rejoinder to the opposite party by the complainant. Dt: 14.12.2015.
9.	Counter foil of Saptagiri Grameena Bank, Renigunta Branch for Rs.50,000/- paid into the credit of complainant P. Chengaiah. Dt: 27.10.2015.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

NIL

 

 

                                                                                                                     Sd/-                                                  

                                                                                                               President

          

              // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

                   Dist. Consumer Forum-II, Tirupati.

          

 

 Copies to:-    1.  The complainant.

                        2.  The opposite party.