BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 26th day of May, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.115/2008

Between

Complainant : K.S. Vijayan

Kanattu House,

Mundanmudy P.O.

Vannappuram.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. The Manager,

Athickal Automobiles,

Vengalloor,

Thodupuzha P.O.

(By Advs: P.M. Johny & P.A. Suhas)

2. The Manager,

Centurian Bank of Panjab Limited,

1st Floor, V.M.S. Towers,

Palarivattom, Kochin - 685025.

(By Adv: C.K. Babu)

3. The Manager,

Centurian Bank of Panjab Limited,

Thodupuzha P.O.

Thodupuzha.

(By Adv: C.K. Babu)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainant purchased a TVS motor cycle from 1st opposite party in November 2004. At the time of purchase, complainant paid Rs.10,000/- as cash and balance amount was paid by arranging loan from the 2nd opposite party through the 1st opposite party. The repayment of the loan was by 34 monthly installments of Rs.1,295/- each. The original documents of the vehicle such as the RC book, Insurance Certificate etc., were deposited at the 2nd opposite party through 1st opposite party. The spare key of the vehicle with 35 signed blank cheque leaves of the complainant were also deposited as security of the loan. Out of the 34 installments, 29 installments were received by the 2nd opposite party and the 5 cheque leaves were dishonoured. That 5 installments were deposited at the 3rd opposite parties office in the account number given by the 2nd opposite party, in the very next days. That was on 22/05/2006, on 12/07/2006, on 21/08/2007, 31/08/2007 and on 30/10/2007. The complainant cleared the entire loan amount as on 30/10/2007 and requested for the return of RC book, Insurance Certificates, spare key and the bounced 5 cheque leaves. Then the 2nd opposite party demanded two another installments, which is Rs.2,590/- and Rs.2,000/- for the cheque dishonour charge of the 5 cheque leaves. The complainant is not entitled to pay any amount to the opposite party and this petition is filed for getting back the original records and spare key of the vehicle kept at opposite part's office.

2. As per the written version of the 1st opposite party, it is admitted that the complainant booked a motor bike from the 1st opposite party on 16/11/2004 by making down payment of Rs.10,000/-. But he himself arranged the finance of the vehicle and the vehicle was delivered to him. The 1st opposite party has no relation or responsibility with regard to the transaction between the complainant and the other opposite parties. 1st opposite party never mediate or intervence in the loan transaction between the complainant and the 2nd opposite party. No staff of the 2nd opposite party is attached to the showroom of the 1st opposite party. The complainant un-necessarily dragged this opposite party in this complaint.

3. As per the written version of the 2nd opposite party, the complainant is not a consumer as per the Consumer protection Act and the dispute alleged is not a Consumer dispute. The complainant has committed default in payment of installments, additional finance charges and a sum of Rs.4,555/- is due as on 06/09/2008 and payable by the petitioner. The petition relates to settlement of accounts, as per agreement it is bound to be referred to an arbitrator. There is ouster of jurisdiction for this Honourable Forum to try this matter. 3rd opposite party is not the Branch office of 2nd opposite party. 3rd opposite party is exclusively a banking office,. It is true that the petitioner had availed a Vehicle loan of Rs.33,000/- on 25/11/2004 repayble in 35 equal monthly installment of Rs.1,295 each, commencing from 05/01/2005 and ending on 05/11/2007. The number of installments was not 34 as mentioned in the complaint. The complainant had given post dated cheques for all the 35 EMI's. It is not true that the 2nd opposite party had received tax, Insurance Certificate, and blank cheque from the petitioner. All together 6 post dated cheques were dishonoured. As per terms of the agreement, Rs.400/- per cheque is charged as cheque bounce charge. The above 5 defaulted installments were paid by the complainant as mentioned in the complaint, but without the cheque bounce charges. The 35th installment fell due on 05/11/2007. The cheque for this EMI was also dishonoured. This installment plus cheque bouncing charges for this EMI is also due. These amounts have not been paid by him. Therefore the following amounts are due from the borrower as on this date. Cheque bounce charges in respect of 6 installments at the rate of 400 per cheque Rs.2,400/-, 35th EMI Rs.1,295/-. Over due interest and penal interest for delayed payment upto 06/09/2008 Rs.855/-, Total Rs.4,550/-. These amount is due as per terms of the agreement. It is true that the petitioner has came to the 2nd opposite party. The details of the account were then explained to him. The averment in the complaint that Bank has withheld NOC and RC book illegally, is false. NOC was not issued for the reason that the account was not settled as stated above. Bank had sent notice claiming the amount. The amount of Rs.1,295/- claimed by the bank on 15/10/2007 was the EMI then fell due for payment and not the entire amount due. The complainant is entitled for NOC and RC book only after repayment of the entire due amount. The complainant is not entitled for any reliefs. Hence the complaint may be dismissed with costs.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. The evidence consists of the oral testimony of PW1 and Exts.P1 to P4 marked on the side of the complainant and Ext.R1 on the side of the opposite parties.

6. The POINT:- Complainant purchased a TVS motor bike from the 1st opposite party in the month of November 2004. Rs.10,000/- was paid on that day, balance amount was paid by the complainant by availing hire purchase loan from the 2nd opposite party. The original Registration Certificate, tax token, Insurance Certificate, Spare key of the vehicle were produced before the 2nd opposite party with 35 cheque leaves as security for loan. Complainant closed the entire loan amount, but the opposite party is not ready to return the documents of the vehicle. Complainant was examined as PW1. PW1 deposed that the loan repayment was through 34 monthly installments of Rs.1,295/- each. Out of that, 29 installments were paid by the complainant, Ext.P1 is the copy of the bank passbook showing the same. 5 cheque leaves were dishonoured when produced before the bank for collection. But they were duly paid by the complainant. Ext.P2(series) is the repayment receipt issued by the opposite party for the same. So the entire loan amount was closed. But when the complainant approached for the documents, the 3rd opposite party asked an amount of Rs.2,590/-, as two due installments, 2,000/- as cheque dishonoure charge, which the complainant is not entitled to give. The learned counsel for OP1 and OP2 cross examined the complainant, and also filed written version. 3rd opposite party is the branch Manager of the 2nd opposite party. No relief is claimed by the complainant against the 1st opposite party. As per opposite party, the repayment of the loan was by 35 monthly installments of Rs.1,295/- each, for that 35 cheque leaves were also produced by the complainant. Ext.R1 is the copy of the loan application form and all the details were written there. They have admitted that the complainant paid 34 installments, but one installment is pending as Rs.1,295/-. Rs.400/- each is charged as cheque bounce charge for 6 cheque leaves. Over due interest and penal interest is charged for delayed payment, which is Rs.855/-. So a total Rs.4,550/- is entitled by the 2nd opposite party from the complainant. The only dispute is that, about the number of installments. As per the complaint, the loan repayment was by 34 equal monthly installment of Rs.1,295/- each. But as per opposite party, it is 35. Ext.R1 is the copy of the loan application clearly shows that it is 35 monthly installments of Rs.1,295/- each. 35 cheque leaves were also issued by the complainant. But the complainant deposed that the loan application was not filled by the complainant, even though it is signed by him. So if any allegation of forgery committed by the opposite party, that should be proved or challenged by the complainant in proper way. Complainant admitted that he issued 35 cheque leaves to the 2nd opposite party, but the installments were 34. So we think that the version of the opposite party is believable than that of the complainant. But the opposite party has charged Rs.400/- each for cheque bounce charge. The complainant was promptly paying 29 installments, only 6 installment were due. The complainant himself paid the 5 installment to the opposite party's bank without delay after dishonour of cheques. So Rs.400/- charged against the complainant as cheque bounce charge which is very high and against natural justice. So Rs.100/- each can be calculated as the cheque bounce charge, which amounts to Rs.600/- for six cheques and it is not proper to calculate the due interest and penal interest again.

Hence the petition allowed. The OP2 and OP3 are directed to receive Rs.600/- as cheque bounce charges for six cheque leaves, one installment of the loan Rs.1,295/- from the complainant and return all the documents of the TVS motor bike to the complainant within one month of receipt of a copy of this order.

Pronounced in the Open Forum on this the 26th day of May, 2009.

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - K.S. Vijayan

On the side of Opposite Parties :

nil

Exhibits:

On the side of Complainant:

Ext.P1 series(1-10) - Copy of Pass Book stating the loan amount.

Ext.P2 series(5 Nos.) - Receipts for Rs,1,295/- on 22/05/06, 12/07/06, 21/08/07, 31/08/07

and on 30/10/07.

Ext.P3 - Copy of Demand Notice dated 15/10/2007.

Ext.P4 (a) - Acknowledgement Card

Ext.P4 (b) - Copy of Lawyer Notice dated 03/01/2008.

On the side of Opposite Parties :

Ext.R1 (3 pages) - Copy of the Loan application Form.