KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.383/04 JUDGMENT DATED 1/6/2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER 1. The Managing Director, Maharashtra Apex Corporation Ltd. Regd. Office, Syndicate House, Manipal House, Manipal 576119, Karnataka. 2. The Branch Manager, -- APPELLANTS Maharashtra Apex Corporation Ltd., Kalpetta Branch, Kalpetta P.O, Main Road, Wayanad. (By Adv.G.S.Kalkura) Vs. Arakkal Kunheed, Arakkal House, Anjukunnu Post, -- RESPONDENT Wyanad. (Adv.N.Padmini) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is directed against the order dated 30th January 2004 passed by CDRF, Wayanad , Kalpetta in OP.No.104/01. The complaint therein was filed by the respondent herein against the appellants/opposite parties alleging deficiency in service on the part of the opposite parties in their failure to issue the clearance certificate and to release the blank cheque leafs and signed blank papers which were obtained by the opposite parties at the time of availing the lone by the complainant. The opposite parties entered appearance and denied the alleged deficiency in service. They contended that the complainant has not paid the entire amount due under the B1 higher purchase agreement and that a further sum of Rs.49789/40 is still due from the complainant as on 30.6.01. Thus, the opposite parties prayed for dismissal of the complaint. 2. Before the Forum below, the complainant was examined as PW1and A1 to A4 documents were marked on his side. A witness from the side of the opposite parties was examined as OPW1 and B1 to B7 were also marked on the side of the opposite parties. On the basis of the evidence on record, the Forum below passed the impugned order allowing the complaint in OP.104/01 and thereby directing the opposite parties to issue loan clearance certificate and also to release the blank cheque leafs, blank signed papers, land tax receipt and the original document of the landed property belonging to the complainant within one month from the date of receipt of copy of the impugned order. Aggrieved by the said order, the present appeal is filed by the opposite parties therein. 3. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned counsel for the appellants/opposite parties. The counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the Forum below had no jurisdiction to entertain the complaint in OP.104/01 and that the impugned order was passed without appreciating the evidence on record in its correct perspective. He vehemently argued for the position that the respondent/complainant defaulted payment of the instalments due under B1 higher purchase agreement and that the complainant was liable to pay interest at the rate of 3% per month on the defaulted amount and that a balance of Rs.49,789.40 was due to the opposite parties from the complainant, as on 30.6.01. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. 4. The points that arise for consideration are:- 1. Whether the CDRF, Wayanad, Kalpetta had the jurisdiction to entertain the complaint in OP.104/01? 2 Whether there was any deficiency in service on the part of the appellants/opposite parties as alleged by the respondent/ complainant? 3. Whether the Forum below can be justified in passing the impugned order allowing the complaint in OP.104/01? 5. POINTS 1 TO 3:- Execution of B1 higher purchase agreement dated 22nd August ‘96 is admitted by the respondent /complainant. B1 document is styled as higher purchase agreement. But, the Forum below was of the view that B1 is only a loan agreement entered into between the complainant and the opposite party Maharashtra Apex Corporation Ltd, for the purpose of availing loan for purchase of a tractor. The complainant as PW1 has deposed that he availed loan of Rs.2,30,000/- for purchasing a Mahindra Tractor and that the said loan was availed from the opposite party Maharashtra Apex Corporation Ltd. The fact that the opposite party Maharashtra Apex Corporation paid the consideration for the Mahindra Tractor is not disputed. It is also an admitted fact that the aforesaid payment of consideration was made by the opposite party Maharastra Apex Corporation on behalf of the respondent/complainant. It is also to be noted that the title to the said Mahindra Tractor is in the name of the respondent/complainant. It can be seen that the respondent/complainant is the absolute owner of the aforesaid Mahindra Tractor which he purchased by availing loan from the appellant/opposite party Maharashtra Apex Corporation. It is to be noted that in a higher purchase agreement the financier can only be the owner of the property. But in the present case on hand, the respondent/complainant is the owner of the Mahindra Tractor. The payment of consideration for the said tractor was also made by the appellant/Mahendra Apex Corporation on behalf of the respondent/complainant. It is also to be noted that the respondent/complainant had paid a sum of Rs.55,000/- towards the price of the tractor and its accessories. There is no acceptable evidence other than B1 higher purchase agreement to support the case of the appellants that they are the owners of the Mahindra Tractor. On the other hand, the facts, circumstances and the available evidence on record would show that the respondent/complainant is the absolute owner of the said tractor and that he is in possession and enjoyment of the same and that he purchased the said tractor with the financial assistance rendered by the appellant/opposite party Maharashtra Apex Corporation. Thus, it can very safely be concluded that B1 is only a document evidencing loan transaction entered into between the respondent/complainant and appellants/opposite parties. So, the Forum below had jurisdiction to entertain the complaint in OP.104/01 and that the dispute among the parties could be considered as a consumer dispute. 6. The appellants/opposite parties have got a case that there was an arbitration clause in B1 agreement and the aforesaid arbitration clause would oust the jurisdiction of Consumer Forums. It is the settled position that existence of arbitration clause in an agreement between the parties would not take away the jurisdiction of the agencies constituted under the Consumer Protection Act. Section 3 of the Consumer protection Act would make it clear that the provisions of the Consumer Protection Act are the additional remedies available to consumers and other provisions in any other law in force would not take away the provisions of the Consumer Protection Act, and that the said provisions are not in derogation of the provisions of any other law. Thus in all respects, it can be held that the complaint in OP.104/01 was maintainable and that the CDRF, Wayanad, Kalpetta was having the jurisdiction to entertain the aforesaid complaint in OP.104/01. 7. There is no dispute that the respondent/complainant availed loan from the appellants/opposite parties for purchase of a Mahendra Tractor. Ext.B3, B5 and B6 documents would show that the aforesaid Mahindra Tractor with the accessories purchased for a total consideration of Rs.2,80,444/-. Ext.A4 provisional receipt issued by the appellants/opposite parties would show that the respondent/complainant had remitted a sum of Rs.56,154/- on 21/8/96. The case of the appellants/opposite parties is that out of the said sum of Rs.56,154/- paid as initial margin money Rs.55,000/- has been taken as the amounts due under the loan transaction. Thus, the amount availed by the respondent/complainant by way of loan would come to Rs.2,24,444/-. The aforesaid amount of Rs.2,24,444/- would carry interest at the rate of 36% per annum. The total amount due to the appellants/opposite parties was calculated and the complainant agreed to repay the said amount in 54 monthly instalments with effect from 22.9.96 to 22.2.2001. Ext.A1 is the repayment schedule or chart. It would show that the complainant was bound to repay the loan amount with interest by way of 54 monthly instalments with effect from 22.9.96 up to 22.2.01. It is also an admitted fact that if any instalment is defaulted, then the defaulted amount will carry penal interest at the rate of 3% per month. 8. As per A1 repayment schedule the total amount covered by 54 instalments would come to Rs.4,20,250/-. Ext.A2 series are the receipts for payment of instalments. It would show that a total of Rs.4,22,000/- has been remitted by the respondent/complainant. A2 series of receipts would make it clear that the respondent/complainant being the loanee has committed default on many occasions in remitting the instalments. Thereby, the respondent/complainant was bound to pay penal interest at the rate of 3% per month on the defaulted amount. But the Forum below failed to take into consideration, the penal interest due on the defaulted amount. On the other hand, the Forum below was of the view that the respondent/complainant loanee need only pay the entire amount of Rs.4,20,250/- before the last date prescribed for payment of last instalment. The Forum below was of the view that the respondent /complainant (loanee) was only bound to pay the total amount of Rs.4,20,250/- before 22.2.01 irrespective of instalments defaulted by the loanee. But, the aforesaid proposition put forward by the Forum below based on the testimony of OPW1 cannot be accepted. The aforesaid proposition or opinion is against the agreement entered into between the parties regarding repayment of the amount as per A1 repayment schedule. So, the failure on the part of the Forum below to consider the liability of the respondent/complainant to pay penal interest on the overdue instalments can be considered as a serious omission. It is based on the aforesaid findings, the Forum below came to the conclusion that there was excess payment of Rs.1750/- by the respondent/complainant. The Forum below has also failed to consider B2 calculation statement produced and marked on the side of the opposite parties. The Forum below has also failed to consider the definite case of the opposite parties that a balance of Rs.49,789/40 was due from the complainant as on 30.6.01. The Forum below neglected to consider the liability of the respondent/complainant to pay penal interest or compensation at the rate of 3% per month on the overdue instalments and the definite contention of the opposite parties that the respondent/complainant has only repaid a total of Rs.3,99750/- towards the instalments and a further sum of Rs.22250/- towards overdue compensation. 9. The forgoing discussions and the findings thereon would make it clear that the Forum below has not properly calculated the amount due to the appellants/opposite parties from the respondent/complainant. The finding of the Forum below that no balance amount was due to the opposite party/Maharastra Apex Corporation from the complainant/ loanee cannot be accepted. The aforesaid finding was made without considering the terms of the agreement entered into between the parties to pay penal interest or compensation on the defaulted instalments. The documentary evidence on record would give an indication that balance amount was due from the respondent/complainant to the appellants/opposite parties. If that be so, the Forum below cannot be justified in allowing the complaint in OP.104/01 directing the opposite parties to issue loan clearance certificate and other documents. This is a fit case to be remitted back to the Forum below for fresh consideration and disposal. So, the impugned order dated 30th January 2004 passed by CDRF, Wayanad, Kalpetta in OP.104/01 is set aside and the matter is remitted back to the Forum blow for fresh consideration and disposal of the same on merits. These points are answered accordingly. In the result, the appeal is allowed. The impugned order passed by the Forum below is set aside and the matter is remitted back to the Forum below for fresh consideration and disposal of the same on merits. The parties will be at liberty to adduce further evidence in support of their respective pleadings. There will be no order as to costs. The parties are directed to appear before the Forum below on 7.7.2010. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
