BEFORE THE DISTRICT CONSUMER FORUM  (Under Consumer Protection Act, 1986)  MEDAK AT SANGAREDDY.
 

 PRESENT: Sri Y. Aravinda Reddy, Spl Judge for SCs & STs (POA)                 Act cum – V Addl. Dist. & Sessions Judge / FAC President

               Smt. Meena Ramanathan, B.Com., Lady Member

Friday, the 27^th day of July, 2012

                    CC.NO.73 of 2011

Between:

Hasnabad Hanamaiah S/o Late Bichappa,

Age: 40 yrs, Occ: Teacher,

Presently R/o H.No.8-133/1, J.P.Colony Road No.2,

Patancheru, Medak District.

Earlier R/o H.No.5-103, J.P.Colony, Patancheru.

                                                                                                  … complainant.

          And

Branch Manager,

M/s Sri Ram City Union Finance Ltd.,

Sangareddy branch,

Medak District at Sangareddy.

                                                                                                   … Opposite party.

This case came up for final hearing before us on 26.06.2012 in the presence of Sri M. Narsimlu, Advocate for complainant and Sri Ch. Bhoopathi, Advocate for Opposite party, and heard the arguments of opposite party, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:

O R D E R

(Per Se Smt. Meena Ramanathan, Member)

 1.            This complaint is filed under section 12 of Consumer Protection Act, 1986. The complainant alleging that he is working as a teacher at Vaddepally village of Hantoora Mandal, Medak District, he purchased a Hero Honda spender Plus vehicle bearing No.AP 23J 4434 dated 07.4.2006 from opposite party i.e., Sri Venkenna Motors Pvt.Ltd., The complainant obtained the vehicle loan with respect of the said vehicle vide agreement No.NRTWSNGO600708 dated 28.03.2006 from the opposite party. At the time of agreement the opposite parties obtained 10 cheques bearing Nos.234541 to 234550  for the sum of Rs.2,500/- i.e. repayment of loan in 10 installments. That the opposite party stated to have presented 10 cheques and encashed the value from 16.05.2006 to 15.2.2007. Thereafter they issued “No objection letter” (NOC) for the month of May, 2007 with respect to vehicle bearing registration No.AP 23J 4434 chasis No.06C16C30634. Hence conforming that the loan against the said vehicle was fully paid and they have no objection in removing the lien endorsement on the certificate of the registration and insurance cover policy. The opposite party also furnished “FORM – 35”, the termination of agreement of Hire-purchase, and accordingly the hypothecation of the above vehicle was released on 28.05.2007.

               It is further alleged that the opposite party sent him a telephone message on 21.10.2011 and seizure notice dated 18.11.2011 informing him, that he is liable to pay an amount of Rs.5,000/- towards the loan account excluding the ODC, BC and other charges as on 30^th September. In the seizure notice, he was informed that he had not paid from 07.1.2007 to 07.02.2007 @ Rs.2,500/- per month and total amount of Rs.10,976/- was due from him. Moreover the said amount should be paid within 7 days failing which the opposite party would proceed with the seizure procedure. The complainant was shocked on the seizure notice. Hence the complaint with the prayer to direct the opposite party to withdraw the SMS dated 21.10.2011 and seizure notice dated 18.11.2011 and also further direct to pay the compensation amount of Rs.50,000/- to the complainant.

2.                The opposite party filed their counter admitting having sanctioned a loan of Rs.25,000/- to the complainant on 28.03.2006 and also admitted the execution of agreement and hypothecation of the vehicle and further admitted receiving the 10 cheques. They further admitted sending the SMS and seizure notice to the complainant but denied furnishing NOC and FORM 35 and stated that it was obtained by fraudulent means. As per their statement of accounts, the 1^st installment cheque bearing No.234541 dated 07.5.2006 and the third cheque No.234543 dated 07.07.2006 were dishonored because of insufficient funds and it was also reflected in their accounts. Hence the complainant is liable to pay Rs.5,000/- towards installment and Rs.100/- towards cheque return charges and further to pay Rs.6,315/- towards over due charges as on 18.11.2011 thus totally to a sum of Rs.10,976/-. Instead of paying the said amount the complainant fraudulently obtained the NOC AND FORM 35 and terminated the hypothecation endorsement too. Believing the entries in the pass book the concerned authority furnished the NOC and “FORM 35”  to the complainant. There is no deficiency of service on their part and the complainant is liable to pay Rs.11,415/- as per the statement of accounts filed. Hence it is prayed the hon’ble forum may dismiss the complainant by directing the complainant to pay Rs.11,415/- to the opposite party and they in turn are ready to withdraw the SMS in the larger interest of justice and equity.

3.                 Complainant let evidence in the form of his affidavit reiterating the facts stated in his complaint and exhibited Exs. A1 to A6. Where as opposite party filed the affidavit and exhibited document Ex. B1. Complainant filed written arguments and further alleged that the claim of the opposite party is time barred. Opposite party filed a memo to treat their counter as written arguments.

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

Point:

5.                There is no dispute with regard to advancing the loan, purchase of motor cycle by the complainant and furnishing of 10 cheques to the opposite party. The only dispute is that the complainant had not paid 2 installments as the cheques bearing No.234541 dated 07.5.2006 and the third cheque No.234543 dated 07.07.2006 were dishonored because of insufficient funds. To prove the same, the opposite party filed the statement of accounts which is marked as Ex.B.1. Except this document, nothing is brought on record from the side of the opposite party. There is nothing else to substantiate their claim. Ex.B.1 document is nothing but the statement generated by the opposite party.

                   To disprove the claim of the opposite party and substantiate his claim, the complainant filed the original pass book which is marked as Ex.A3. A perusal of Ex.A3 shows that the cheque bearing No.234541 was encashed on 16.5.2006 and the cheque bearing No.234543 was encashed on 24.7.2006. Admittedly, the above two cheques bearing the date 7.5.2006 and 7.7.2006 as per the contention of the opposite party. Ex.A3 shows that there was balance of Rs.8,535/- in the account of the complainant, thus the question of dishonor of the cheque does not arise at all.

                   The best evidence available at the hands of the opposite party was to file the original cheques which were dishonored, but they failed to do so. Moreover the opposite party could recourse to invoke the proceedings U/S 138 of Negotiable Instruments Act with respect to dishonor of the cheques, but they did not do so. No reasons are assigned by the opposite party as to why they chose not to initiate proceedings U/S 138 of Negotiable Instruments Act.  Merely stating that the complainant owes them money does not confer any right on them unless and until they prove the same with proper evidence. Without proper record and evidence the opposite party have no right to claim the amount from the complainant. Opposite party had ample opportunity to approach the bank of the complainant and obtain the statement of accounts, so as to prove their bonafide, but did not do so.

                   Ex.B.1 is a self generated document where as Ex.A.3 is the bank pass book issued by a statutory body and definitely carries more credentials in terms of evidence. Without any substantial evidence the opposite party claim is illegal.

                   As per the complainant the loan was repaid in the year 2007 and the opposite party furnished the “No Objection” letter and “FORM -35”  in the month of May, 2007 and the present dispute arose for the first time when the opposite party sent a SMS on 21.10.2011 and  on 18.11.2011, when the seizure notice was sent. Therefore from the date of issuing the No Objection letter to the date of sending the SMS and seizure notice, the period of limitation is over. Hence, as the complainant stated, the claim of the opposite party is time barred. In view of above discussion we answer the issue in the favour of the complainant and against the opposite party.

                   By sending the SMS and seizure notice the opposite party has harassed the complainant which provoked him to file the present complaint and seek redressal.

6.                Hence in the result we allow the complaint of the complainant and declare the demand of opposite party for Rs.11,415/- or any sum there of in respect of the loan account of the complainant as illegal and further direct the opposite party to pay a compensation of Rs.5,000/- for the torture and harassment meted out towards the complainant, further to pay costs of Rs.2,000/-. Time for compliance: One month.

                        Typed to dictation, corrected and pronounced by us in the open forum this  27^th  day of July, 2012.

                                        Sd/-                                                   Sd/-                   

 FAC PRESIDENT                                LADY MEMBER          

WITNESS EXAMINED

For the complainant:                                            For the opposite parties:-

-NIL-                                                                               -NIL-

DOCUMENTS MARKED

For the complainant:                                            For the opposite party:-

                                 Sd/-                                                            Sd/-