DATE OF FILING : 19.11.2009

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 28th day of June, 2010

Present:­

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.219/2009

Between

Complainant : Muthubrahmayya S/o Shanmugham,

Kolunthoor House,

Pooppara P.O,

Udumbanchola Taluk,

Idukki District.

(By Adv: V.M.Joymon)

And

Opposite Parties : 1. C.M.Benny,

Branch Manager,

S.M.L Finance Limited,

Munnar Road,

Adimali.

2. Saju Joseph,

Branch Manager,

S.M.L Finance Limited,

26/437, Toll Junction,

Pukkattupadi Road,

Edappally, Cochin – 24.

(By Adv: Naiju Raveendranath)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant purchased an Ape Pickup autorikshaw by availing loan from the opposite party, finance company on 15.01.2005. The cost of the vehicle was Rs.1,37,000/-. Complainant paid 40,000/- rupees in that amount and the balance Rs.97,000/- was availed as loan from the SML Finance Company, Adimali Branch and the guarantor for the loan was his wife. At the time of availing the loan, complainant and his wife issued 2 cheque leaves each signed by them without writing any amount, which is of Union Bank of India, Adimali Branch. The opposite party introduced them to open an account at the said bank. After that the business of the complainant was became failure and so the complainant sold out the vehicle to one Mr.K.Maideen, S/o Kasipsahib, Jameela Manzil, Pooppara, Adimali on 21.06.2006. An agreement was created between the said Maideen and the complainant stating that further payment of the loan amount will be done by the said Maideen. But the person who purchased the vehicle never paid the loan EMI and the matter was informed to the complainant by the opposite parties. The opposite parties also informed the complainant that if the vehicle surrenders to the opposite party they would close the account of the complainant's loan. As per the assurance of the opposite party, the vehicle was surrendered to the opposite party on 5.11.2007 by the complainant and receipt was given by the opposite party for the same. At that time, the opposite party assured that no further proceedings will be done against the complainant in respect of the vehicle. But a summons was received on 12.10.2009 from the Judicial First Class Magistrate Court, Aluva as ST No.6604/08, in which the complainant and his wife are the accused, in the case filed by the opposite party under Section 138 of the Negotiable Instruments Act. Complainant paid the vehicle loan promptly for 11 months for an EMI of Rs.3,496/- and when the loan amount became due, the vehicle was surrendered to the opposite party as per the assurance of the opposite party that they would not take any further proceedings against the complainant. But the opposite party filed a case against the complainant and his wife by forging the cheque leaves given to the opposite party at the time of availing the loan. So the petition is filed for getting back the cheque leaves given as security to the opposite parties and also for compensation.

2. As per the written version filed by the opposite parties, it is admitted that the vehicle was surrendered to the opposite party by the complainant. But at the time of surrendering the vehicle, the complainant specifically told that he will pay off the entire debt due to the opposite parties, after which only he will take back the vehicle and that the vehicle is to be kept with the opposite parties till then. The allegation that when the vehicle was submitted before the Ist opposite party, the complainant was assured that no case will be filed in respect of the vehicle is false. The complainant issued a cheque in discharge of his liability towards arrears as quantified and existed then totalling Rs.41,952/- at the time of issuing the cheque. The cheque issued supported by valid consideration due from the complainant to the opposite parties. When such amount is in arrears from the complainant, the opposite parties have never undertaken to return the issued cheque or cheque leaves to the opposite parties. The petition is only to take illegal advantage of the provisions of the Consumer Protection Act. The entire matter is pending consideration before the Judicial First Class Magistrate Court, Aluva and hence the complainant is seeking to subvert the system of administration of justice by misleading this Forum. The entire allegations of the case especially regarding the issuance of blank cheque etc, are made only as an attempt for creating evidence in favour of the complainant to be used in the judicial proceedings before the Judicial First Class Magistrate Court, Aluva. Further the complaint is not maintainable before this Forum because the relief sought is beyond the jurisdiction of this Forum which can be passed by this Forum as provided under Subsection 1(a) to (i) of Section 14 of the Consumer Protection Act. The complainant and the opposite parties have jointly agreed in writing vide agreement to refer any  dispute if any, which the complainant has against the opposite parties, before the sole Arbitrator appointed vide the agreement itself. So the petition is liable to be dismissed.
 

3. The point or 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 ?
 

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P4 marked on the side of the complainant. No oral evidence adduced by the opposite parties and Ext.R1 marked on their side.
 

5. The POINT :- The petition is filed for directing the opposite parties to return the cheque leaves produced by the complainant and his wife at the time of availing the vehicle loan from the opposite party. The complainant is examined as PW1. PW1 purchased an Ape pickup autorikshaw bearing Reg.No.KL-6D/330 on 15.01.2005 by the financial assistance of the opposite party for Rs.97,000/-. At the time of purchase of the vehicle, complainant paid Rs.40,000/- directly as the amount of the vehicle. The wife of the complainant was the guarantor of the vehicle loan and 2 number of signed cheque leaves of PW1 and his wife issued from the Union Bank of India, Adimali Branch were given as security to the opposite party at the time of availing the loan without writing the amount. The vehicle was sold out to one Mr.K.Maideen on 21.06.2006 with an agreement to repay the loan amount, further by the purchased person. Ext.P3 is the sale agreement created by them. But it was not done by the said Maideen. It was intimated by the opposite party on 15.10.2006 and also assured that if the vehicle surrendered before the opposite party further liability of the vehicle will be closed. Thus PW1 surrendered the vehicle on 5.11.2007. Ext.P1 is the receipt given by the Ist opposite party at the time of surrendering the vehicle. But the opposite party filed a criminal case against PW1 and his wife as ST.6604/08 before the Judicial First Class Magistrate Court, Aluva under Section 138 of Negotiable Instruments Act, eventhough the complainant paid 11 instalments of the loan of the vehicle as Rs.3,496/-. Ext.P2(series) are the copy of the summons issued from the Judicial First Class Magistrate Court, Aluva. Ext.P4 is the copy of the letter issued by the opposite party to appear before the Arbitration. On cross examination of the learned counsel for the opposite party, PW1 deposed that he is engaged in the business of root sale of fish by using an M80 vehicle. The vehicle was purchased for doing the same business. But the business was in failure, the vehicle was sold out to another person. The vehicle was purchased by the said Maideen for an amount of Rs.1,23,000/-. The complainant used the vehicle for 9 months and it was sold on 21.06.2006. In that amount Rs.97,000/- was to be paid by the said Maideen to the opposite party. Again PW1 agreed that he sold out the vehicle after the use of 15 months. The person who purchased the vehicle never paid any amount to the opposite party, finance company. PW1 deposed that the vehicle was surrendered on 5.11.2007 after 3 years of the purchase of the vehicle and the value of the vehicle will decrease after 3 years. Copy of the hire purchase agreement is marked as Ext.R1. PW1 also admitted that the cheque leaves were issued to the opposite party by the complainant at the opposite party's office and they were not given as security. He also admitted that this case is filed in order to escape from the criminal case filed against him before the Judicial First Class Magistrate Court, Aluva.

It is admitted by the complainant that he sold out the vehicle to one Mr.K.Maideen after 15 months of the purchase of the vehicle for an amount of Rs.1,23,000/-. As per Ext.P3 agreement, the said Maideen should pay Rs.97,000/- to the opposite party finance company. But nothing was paid by the said person and so the vehicle was surrendered to the opposite party after 3 years of the purchase of the vehicle. It is also admitted that the value will also diminish after 3 years. There is no document produced by the complainant to show that the opposite party assured that the entire liability of the vehicle will be closed at the time of surrendering the vehicle. In Ext.P1 letter issued by the opposite party, never states any conditions as per PW1. As per the complainant, he had paid 11 instalments to the opposite party finance company but no receipts produced by the complainant to show the same. It is also admitted by PW1 that this case is filed in order to escape from the 138 case filed against the complainant and his wife at Judicial First Class Magistrate Court, Aluva. So we think that the vehicle was purchased by the complainant for the root sale of fish as he was doing. But it was a failure so that it was sold to another person and the person who purchased the vehicle have not paid any amount and so the vehicle was surrendered after 3 years of the purchase. No receipt produced by the complainant to show that he promptly paid the loan instalments to the opposite party. It is also admitted by the complainant that he never issued any cheque leaves as guarantee to the opposite party. So there is no deficiency is seen from the part of the opposite parties.

Hence the petition dismissed. No cost is ordered against the complainant.
 

Pronounced in the Open Forum on this the 28th day of June, 2010

Sd/-

SRI. LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT. SHEELA JACOB(MEMBER)

Sd/-

SMT. BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Muthubrahmayya

On the side of Opposite Parties :

Nil

Exhibits:

On the side of Complainant:

Ext.P1 - Receipt dated 5.11.2007 given by the Ist opposite party

Ext.P2 (series) - Summons issued from the Judicial First Class Magistrate Court, Aluva(2 Nos)

Ext.P3 - Vehicle Sale Agreement dated 21.06.2006

Ext.P4 - Photocopy of 2^nd opposite party's letter dated 25.03.2008 to the complainant for arbitration

On the side of Opposite Parties :

Ext.R1 - Photocopy of Hire Purchase Agreement