By Sri. K. Gheevarghese, President:-

The complaint filed to get no objection certificate from financier for the cancellation of hire purchase endorsement from the registration certificate of the stage carriage along with cost and compensation from the Opposite Party.

2. The complaint in brief is as follows:- The Complainant is the R.C owner of the stage carriage No. KL 12B 1535 availing loan of Rs.6,30,000/- from the Opposite Party on 11.05.2011. The equated monthly installments were to be completed within the period of 5 years. Along with interest, the Complainant had to remit Rs.9,45,000/- including interest of Rs. 3,15,000/- on or before 11.05.2006.

3. The Complainant remitted Rs.9,45,250/- after 4 days from the cut of date of last payment that was on 11.05.2006 in effect the Complainant remitted Rs.250/- in excess. The demand of the Complainant for the issuance of No Objection Certificate required for the cancellation of hire purchase endorsement were not responded by the Opposite Party which lead to non renewal of permit by Regional Transport Officer. The Opposite Party demanded an additional amount of Rs.2,50,000/- for the issuance of the No Objection certificate. The Complainant was compelled to remit Rs.1,10,000/- to facilitate the operation of the vehicle on getting the renewal of permit at that time. There was an assurance from the Opposite Party that No Objection Certificate would be sent to the Complainant from the head office. The adamant attitude of the Opposite Party made the Complainant to keep vehicle off the road which also caused heavy loss to the Complainant. The Complainant sent a letter to the Opposite Party instead therein sending No Objection Certificate put a claim that Rs.2,57,167/- are yet to be paid by the Complainant on 13.10.2008. The Complainant had remitted Rs.1,10,000/- in excess of the required amount that to be paid. The loss of the Complainant for not plying the vehicle for a period of 240 days cause a loss of Rs.7,20,000/- and Complainant had also the loss of remitting tax Rs.92,000/- during the period when the vehicle was not plied.

4. There may be an order directing the Opposite Party to :-

1. Issue No Objection Certificate for the cancellation of hire purchase endorsement and to direct the 2^nd Opposite Party in case of any failure on the part of the 1^st Opposite Party to issue the No Objection Certificate to cancel hire purchase endorsement.

2. The Complainant is also to be compensated with Rs.12,22,000/- along with interest towards the loss incurred in the deal.

5. The Opposite Parties filed version. The sum up of the version filed by the 1^st Opposite Party is as follows:- The complaint and the dispute raised do not come under the purview of the Consumer Protection Act. The Complainant has entered into an agreement with the 1^st Opposite Party the financier in which it is categorically admitted by the Complainant that if any dispute or differences arises in between the Complainant and 1^st Opposite Party, it is to be decided in the way of arbitration settlement. The Complainant has not paid the instalments strictly relying to the terms and conditions of agreement. The averments in the agreement specifies additional inerest liable to be levied for the defaulted instalments. The Complainant has not paid the entire due amount, the payment as the last and final settlement amount as claimed of Rs.1,10,000/- was not received as a full and final settlement amount. The statement account of the Complainant also shows that on 27.2.2009 Rs.2,57,167.93 is the amount due from the Complainant. The Complainant is not entitled for no objection certificate for the purpose of canceling the hire purchase endorsement only when the amount in due is remitted. The 1^st Opposite Party had taken into account the assurance of the Complainant when Rs.1,10,000/- was given and as such the no objection certificate for the renewal of the permit was given and a case under section 138 against the Complainant was also withdrawn. The complaint is also barred by resjudicate. The subject matter was in issue in Civil Court No. O.S.160/06 later it was challenged in CMA 20/07 in the District Court, Kalpetta It also became an issue in writ petition filed before the Hon'ble High Court in WP(C) 32426/06 the relief sought are of one and the same.

6. The 1^st Opposite Party is not bound by any responsibility for the issuance of no objection certificate. The complainant has not cleared his liability instead pertaining the amount in the due. The Complainant approached the Forum with the same relief which were considered as an issue in the Hon'ble High Court and Civil Court. The allegation of the Complainant is false and imaginary. More over allegation of the Complainant that the vehicle could not be plied in the absence of no objection certificate is absolutely false. The pleadings of the complaint also reveals that the Complainant filed is time barred. The allegation in the complaint are unsustainable and not based on reasons. The complaint is to be dismissed with cost.

7. The 2^nd Opposite Party filed version in short is as follows:- The vehicle No.KL 12/B 1535 which is registered in the name of Sri. Shibu O.U and that is hypothecated with M/S Sriram Investment, Sreepadam Building Cherootty Road, Calicut. The cancellation of hire purchase endorsement is to be in pursuance of form 35 duly signed by the agreement parties, registered owner and financier. In the case of this complainant form 35 is not received in the office for the cancellation of hire purchase agreement.

8. Points in consideration are:-

1. Whether the complaint is maintainable?

2. Is there any deficiency in service on the part of the Opposite Parties?

3. Relief and cost.

9. Point No.1:- The evidence in this case consists of proof affidavit of the Complainant, Exts.A1 to A13 and B1 to B6 are the documents produced. The oral testimony of the Complainant and witness are also tendered in this case.

10. Opposite Party contented that as averred in the clause of the agreement Ext.B1 if any dispute or differences it is to be referred to arbitrator. The Forum is having no jurisdiction to adjudicate the complaint. It is the settled position that the Consumer Forum is having jurisdiction to entertain the complaint though it is avered in the agreement made in between the financier and the hirer. The point No.1 is found accordingly.

11. Point No.2:- The complaint was dismissed earlier dated 27.02.2010 and went on appeal there in remanded back by the order of Hon'ble Consumer Disputes Redressal Commission vide appeal No.262/2010. The Complainant's case is that the contract carriage No. KL 12/B 1535 was financed by the Opposite Party of Rs.6,30,000/- and the Complainant remitted 9,45,000/- on 15.5.2006 towards the closing of the liability. Apart from that Rs.1,10,000/- was also remitted in addition even after the excess payment. The Opposite Party has not given the no objection certificate which is necessitated for the renewal of permit. In Ext.B1 agreement it is mentioned the liability of the financier and the Complainant. The Complainant's contention is that the liability on his part was closed by payment of Rs.9,45,000/- which was on 15.5.2006. According to him it is in excess beyond instalments scheduled. There is no disparity or any differences with the quantum of the amount remitted according to the Opposite Party. The remittance of equated monthly instalments were not in due date. The delayed payment of the instalments are to be compensated with additional interest that is to be remitted by the Complainant. The Complainant has not produced the receipts of payments to evidence if the remittance were in time. In this case no receipts were produced it is also admitted that the Complainant remitted Rs.9,45,000/- on 15.5.2006 and in order to get the renewal of permit by the 2^nd Opposite Party on their demand, the Complainant remitted an additional amount of Rs.1,10,000/- to the financier. The Complainant has also filed suit in Sub Court, Sulthan Bathery No. OS 160/2006, thereafter filed a petition in the Court of District Judge, Kalpetta No.CMA 20/07 for the renewal of permit. The Complainant has also filed writ petition (Civil No. 3242/06) in the Hon'ble High Court of Kerala praying for an order of the Hon'ble High Court for the permit renewal it was also dismissed. In the oral testimony of the Complainant it is admitted that the Opposite Party has given the receipts for the instalments remitted it is averred in clause 25 of Ext.B1 which reads as follows:-

“In the event of the Lessee committing default in the payment of the lease rentals

of the equipment or other sums due and payable hereunder on the due dates, it

shall, in addition to and expressly without prejudice to being liable to other

consequences flowing from such default, pay to the lessor compensation at the

rate of 06% thereof per annum from the date respective dates of default until

the date(s) of payment in full”.

12. The Complainant also admitted that if any deferred payment resulted it is to be compensated as per the terms of agreement and it is 30% penal interest for the defaulted payment for the period commencing from the date of default till payment. The Complainant did not furnish the payment chart for the calculation of the amount how much it comes as the penal charges for the deferred payment. The other contention of the Complainant is that due to the non issuance of the no objection certificate stage carriage could not be plied for which the financier is responsible as submitted by the Complainant Rs.1,10,000/- was given as an additional amount and at that time the Opposite Party had given no objection certificate for the renewal of the permit. The contention of the Complainant that Rs.1,10,000/- was given as full and final settlement but no documents is produced by the Complainant to support that contention. On perusal of the entire documents and from the oral testimony of the Complainant it is seen that the liability of the Complainant is not closed for the defaulted instalments additional amount to be paid agreed by the terms of agreement. There is no deficiency in service on the part of the Opposite parties and the point No.2 is found accordingly.

13. Point No3:- The detail discussion of point No.3 is not necessary, in this juncture.

In the result the complaint is dismissed, no order as to cost.

Pronounced in open Forum on this the day of 7^th January 2011.

Date of filing:03.01.2009.

PRESIDENT: Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. Shibu O.U. Complainant.

PW2. Shiju. Agriculture

Witness for the Opposite Party:

Nil.

Exhibits for the Complainant:

A1. Copy of Letter. dt:20.11.2006.

A2. Copy of Permit in respect of a Contract Carriage. dt:07.12.2001.

A3. Attested copy of Contract Carriage Permit. dt:03.08.2007.

A4 series. Copy of Letter. dt:05.10.2008.

A5. Copy of Letter . dt:13.10.2008.

A6. Copy of Proceedings of the Regional Transport Officer, Wayanad.

A7. Letter.

A8. Copy of Order. dt:16.11.2006.

A9. Order (WP(C) NO.32426 of 2006 I) dt:06.12.2006.

A10. Copy of Order (Original Suit No.160/2006). dt:20.12.2006.

A11. Copy of Order (Civil Miscellaneous Appeal No.20/07) dt:25.10.2007.

A12. Judgment (M.V.A.A No.53/2007). dt:27.02.2007.

A13 series (37 in numbers) Invoice.

Exhibits for the Opposite Party:

B1. Agreement

B2. Copy of complaint.

B3. Copy of C.M.A 20/07. dt:12.03.2007.

B4. Copy of Judgment (WP(C) No.32426 of 2006) dt:08.01.2007.

B5. Copy of Affidavit. dt:22.01.2007.

B6. Copy of Order (Civil Miscellaneous Appeal No.20/07) dt:25.10.2007.