BEFORE THE DISTRICT FORUM:KURNOOL

Present: P.V.Nageswara Rao , M.A., LL.M., President(FAC)

And

Smt. C.Preethi,  M.A.LL.B., Lady Member

And

Sri. M.Krishna Reddy, M.Sc.,M.Phil., Male Member

Thursday  the 10^th day of September, 2009

C.C. 206/08

Between:

S.Khaja Hussain,  S/o. M. Hussain Sab,

D.No. 87-90, Working as Agriculturist,  Sree Lakshmi Nagar,  Kurnool-518002.                             …  Complainant

                                 Versus

1.C.E.O-cum-Chairman, National Co-Operative Bank Limited ,

H.No.38-1, Upstairs, Minchin Bazar, Kurnool-518001.

2. The Manager, Tata Motors Finance Limited , B.V.Lesent Plaza,

H.No.20/3, Ground Floor, Near Srinivasa Talkies, Kallur Road,

Kurnool-518004.                                 ….Opposite parties   

                        This complaint is coming on this day for orders in the presence of Sri.Ch.Sudhakar Reddy,  Advocate, for the complainant , and Sri.D.Siva Shankar Reddy,  Advocate for opposite party No. 1 and Sri.G.S.Moorthy, Advocate for opposite party No. 2   and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri. M.Krishna Reddy , Male Member)

C. C.No.206/08

1.     Complaint filed under section 11 & 12  of the Consumer Protection Act 1986 seeking direction on opposite party 1 and 2  to repay Rs.66,000/- with interest which is misplaced , an amount of Rs.50,000/- for mental agony  and other reliefs as the forum  deems fit  and proper.  

2.     The brief facts of the complaint is as follows:-   The complainant S.Khaja Hussain, a resident of Kurnool is an agriculturist. He took loan from OP.No. 2  and  purchased  goods carrier auto bearing No. AP 21 X 6315 . He agreed to repay the loan amount in 35 monthly  installments  each installment  being Rs.8,250/- . He also  opened account  bearing No. 1435 in National Co-operative  Bank Limited , Kurnool  and issued post dated cheques of the said  bank in favour of opposite party No. 2. The complainant says  that he deposits  the monthly installments  in his  bank account of opposite party No. 1 and the opposite party No. 2 collects the said amount presenting the cheque  in the above bank. The complainant alleged that OP.No. 1 did not  send the amount  deposited every month with him to OP.No. 2 and OP.No. 2 has not taken  action on OP.No. 1 for his lapse.  The complainant submitted  that he paid Rs.1,00,080/- from 18-01-2007  to 22-01-2008  but OP.No. 2 in his account showed it as  Rs.57,750/- and issued a statement of his account intimating  him to pay the balance due with interest.  He also alleged that  OP.No. 1 and OP.No. 2  colluded with each other and made him to suffer loss  , hence deficiency  of service on OP.No. 1 and OP.No. 2 . Since the OP.No. 1 managed  the legal notice and OP.No. 2 did not respond to his legal notice  dated 22-02-2008  through he received it he was  constrained  to seek redressal from this forum .

3.     The complainant filed his sworn affidavit and documents  marked as ex.A1 to A7  in support of his case.

4.     The OP.No. 1 is the National Co-Operative Bank Limited , Kurnool represented by its CEO cum Chairman  and OP.No. 2 is the manager Tata Motors  Finance Limited , Kurnool , in pursuance  to the notice of this forum as to this case of complainant , appeared through their  counsels , contested the case and filed written version separately.

5.     The written version of OP.No. 1 denied all allegations  mentioned in the complaint and stated that it is not  maintainable  either in law or on facts. The OP.No. 1 submitted that 8 cheques issued by complainant  (SB A/c. 1435) bearing NOs . 004026 to 004031, 004061 004063 were cleared by him on presentation by OP.No.2 . He also stated that Rs.25,700/- remained as balance in his account. Hence there is no deficiency  of service  on his part. He also submitted  that the previous CEO cum Chairman  by name Syed Hussain Pasha @ Hasan Basha  and his brother mis-used the bank funds. A case was registered against him on 04-12-2007 in Crime No. 303/2007 U/S  409 IPC in II town PS-Kurnool . After wards the directors  met on 05-12-2007  at 5-00 P.M in the bank premises and elected S.A.N Gani as new Chairman in place of Syed Hussain Pasha. In the same meeting the chairman and the Directors  decided to give complaint  to DCO  , DR and police to initiate further action on Syed Hussain Pasha. The police  case is still under  the investigation of SHO – II Town P.S . Bank audit  under the control of DR  is also in progress. He also stated that as the complainant had not fulfilled the bank requirements it is prayed for the dismissal of case on him.

6.     To substantiate  his case the OP.No. 1 filed written arguments and documents marked  as Ex.B1 to B3.

7.     The OP.No. 2 in his written version  stated that the  complaint  is not maintainable and is liable to be dismissed as the complainant  is not consumer as defined by Sec. 2 (1) (d)  of the C.P.Act . The OP.No. 2 alleged that the complainant  had misguided  and mislead the forum  by presenting  distorted and incorrect version of facts in his written version. He alleged  that the complainant  availed a loan of Rs.2,11,000/- from him vide a loan cum hypothecation agreement bearing NO. 5000050745 on 20-01-2007 . He agreed  to repay the loan in 35 monthly installments  each installment  being Rs.8,250/- and the last installment  Rs.7,480/- . He denied the  regular payment of monthly installments of complainant through National Co-Operative Bank as he had  no knowledge of it, but the OP.No. 2 was receiving  the amount from the  bank by presenting the cheque . If the cheque was not cleared ,the OP.No. 2 was receiving  the cash directly from the complainant . The OP.No. 2 denied that he did not  colluded with OP.No. 1 and caused  loss  to the complainant.  He also alleged  that the complainant  was a chronic defaulter  and was not maintaining  sufficient  balance in his bank account to encash  the cheques  regularly , there by violated  the terms of repayment  of the loan. Further  OP.No. 1 and OP.No. 2 are two separte  independent  bodies and OP.No. 2  has no control over OP.No. 1 or vice –versa . The OP.No. 1 and OP.No. 2 are not related. Hence the question of taking any action on opposite party No. 1 by opposite party No. 2 did not arise. He also  submitted  that it was not  repayment ledger  that was given to  complainant , but it was  statement of his account. As per the statement of account of OP.No. 2 as on 16-01-2009 the complainant  paid Rs.1,22,192-00 and Rs.1,65,787 was outstanding  in his account. He averred  that he did not receive legal notice  and prayed this  forum to dismiss the complaint of the complainant with costs.

8.     The OP.No. 2 filed sworn affidavit  and no material papers in support of his case.

9.     The contention of the complainant is that he deposited Rs.10080/- with OP.No. 1 to repay the  loan installments  @ Rs.8,250/- per month  taken by him  for the purchase  of carrier auto AP 21 X 6315 .Out of this amount Rs.66,000/- was paid  by OP.No. 1 in favour of  the cheques issued  to OP.No. 2 towards monthly installments  to be paid to adjust the  loan  and  as on 22-01-2007  the balance in his account  should be  Rs.42,200/- ( Ex.A1) . The complainant  also alleged  that OP.No. 1 was at  fault for not sending the money deposited  with him  to OP.No. 2 as  adjustment of loan of complainant  and also OP.No. 2 for not taking any action  on OP.No. 1 for his  default. So there is  deficiency  on the part of  OP.No. 1 and OP.No. 2 and hence he is eligible  for compensation  claimed under different  heads.

10.    The contention of OP.No. 1 was he had cleared 8 cheques  of complainant presented to him and the balance in the complainant  account was Rs.25,730/- as on 21-05-2008 (Ex.B3) . He also  stated that the previous Bank Chairman Cum CEO  by name Syed Hussain Pasha @ Husan Basha and his brother  misused the bank  money for which  he was  removed  and a criminal case Cr.NO. 303/07 was filed against him in II – Town  P.S , Kurnool ( ExB1 & B2) . He also  submitted  that investigation  and bank audit  under the control  of the District Registrar is pending. Hence the OP.No. 1 submitted that the complainant  has no locus standy to file the complaint  and deserves  dismissal with cost.

11.    The contention  OP.No. 2 was that the  complainant took goods  carrier  auto AP 21 X 6315  form him under Hire purchase Ex.A2. A sum of Rs.2,11,000/- was sanctioned , which was agreed to repay  in 35 installments @ Rs.8,250/- per month . He was  not regular in paying installments as he was not  maintaining  the required balance  in the bank. Some times the installments were  paid in cash also . The total amount repayed by complainant was Rs.1,22,192=00 and Rs.1,64,787/-  was still outstanding . He also submitted  that OP.No. 1 and OP.No. 2 are two separate  and independent  bodies and OP.No.2 has no  control  over OP.No. 1 to  take action  incase of default . Hence he prayed for the dismissal of the case as there is no deficiency from his side.

12.    The totality of the complaint is that Ex.A1 and Ex.-B3 are not matching with each other . The complainant had not  produced  any evidence  to establish  a contract  between the complainant  and OP.No. 1 that OP.No. 1 agreeing to send monthly installments for the repayment of loan to OP.No. 2 on behalf of complainant .The complainant also not established the power of OP.No. 2 to take action  on OP.No.1 in case of default .  The proof that  OP.No. 1 colluded with OP.No. 2 was not  produced Departmental enquiry  and police investigation  are still pending against OP.No. 1. No where in the written version  of complainant , OP.No. 1 and OP.No. 2 it was  mentioned  that the vehicle was seized  by OP.No. 2 from complainant 

 13.   The Citation filed by OP.No.2 Revision Petition  No. 827 of 2006 of National Consumer Dispute Redressal Commission ,New Delhi  held that under a hire purchase  transaction the financier  does not  render any service with in the meaning  of  C.P.Act , 1986 . Thus the  petitioner who availed  finance from financier  is not a consumer . Here also the complainant who took auto on hire purchase is not a consumer.

14.    In the  result ,taking the above discussion  in to account  it is concluded that  the complainant failed to prove his case hence the complaint is dismissed without cost.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 10^th day of September, 2009.

       Sd/-                           Sd/-                          Sd/-

LADY MEMBER              PRESIDENT FAC)     MALE MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant :Nil             For the opposite parties :Nil

List of exhibits marked for the complainant:-

         List  of exhibits marked for the opposite parties:    

            Sd/-                                      Sd/-                              Sd/-

LADY MEMBER               PRESIDENT (FAC)      MALE MEMBER           

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

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Complainant and Opposite parties

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