BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 11th day of July 2018
Filed on : 03-10-2017
PRESENT:
Shri. Cherian K. Kuriakose, President.
Smt. Beena Kumari V.K. Member.
CC.No.392/2017
Between
Vijayan, : Complainant
S/o. Bhaskara Pillai, (By Adv. Rajiv Nambisan)
Eriyattu house,
H. No. 6/122, Koduvazhanga,
Alangad, Ernakulam.
And
1. The Branch Manager, : Opposite parties
M/s. Cholamangalam (By Adv. Philip T. Varghese,
Investment and Finance T.D. Road, Ernakulam, Cochin-
Co. Ltd., Thekkekara 682 011)
Commercial Centre, 2nd floor,
Main road, Padivattom,
Ernakulam-682 024.
2. M/s. Cholamandalam
Investment and Finance
Co. Ltd., Dare House Complex,
Parry house, 2nd floor, No. 2,
NSC Bose Road, Parrys,
Chennai-600 001.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
2. The complainant who is the registered owner of two tipper lorries,
had availed two loans from the 2nd opposite party, M/s. Cholamandalam Investment and Finance Company Ltd., after executing necessary agreement in the office of the 1st opposite party and per the terms and conditions of the Hypothication agreement, the complainant was to repay the entire amount on or before 01-07-2016. The complainant had repaid the entire loan amount with interest to the 1st opposite party’s office before the stipulated date 01-07-2016. No amount is pending as due to the opposite parties from the complainant. All the loan liabilities were settled by the complainant without any failure. However, when the complainant had requested, the 1st opposite party for a no-objection certificate to clear the hypothication entered in the registration certificate, the opposite party refused to give the NOC stating that he will not issue the NOC because the 2nd opposite party had instructed him, not to issue the NOC to the complainant on the ground that the complainant was a guarantor to another person who had defaulted the payment of arrears. According to the complainant the act of the opposite parties in not issuing NOC to the complainant is a deficiency in service and unfair trade practice. The complainant therefore seeks a direction to be given to the opposite party to issue the NOC in respect of the two tipper lorries against which there are arrears. The complainant seeks costs of the proceedings also from the opposite parties.
3. Notice was issued to the opposite parties, who appeared and resisted the complaint by filing a version contending, inter-alia, that the complainant is the defaulter and he is not entitled to get any of the prayers in the complaint and it is requested that the complaint may not be allowed in his favour.
4. The evidence in this case consists of Exbts. A1 and A2 documents on the side of the complainant and Exbts. B1 to B5 documents on the side of the opposite parties
5. Following issues were settled for consideration
i. Whether the complainant had proved that there was any
deficiency in service on the part of the opposite parties?
ii. Reliefs and costs
6. Issue No. i. The complainant while filing the complaint, produced only two documents along with the complaint. They were marked as Exbts. A1 and A2 documents in this case. Exbt. A1, lawyer notice 07-07-2017 issued to the opposite party demanding the issuance of NOC in respect of the two vehicles belong to the complainant. The opposite party on receipt of the legal notice issued a reply to the complainant as per Exbt. A2, wherein it is inter-alia stated that the complainant was bound by the terms of the agreement and prompt repayment was a pre-condition to the loan facility, which was accepted by the complainant at the time of applying and availing the loan facility. At the time of applying and availing the loan the complainant had agreed to stand as a guarantor. Therefore, the authority concerned were unable to issue a NOC for the post loan account. Though, the complainant did not take any steps to produce the loan documents, the opposite party had produced the loan agreement and marked it as Exbt. B3. According to the opposite party, as per the terms and conditions of Exbt. B3 to which the complainant is a party, the non-payment by the principal debtor in that loan account would title the complainant as a defaulter. In Exbt. B3 loan agreement clause 10 w states that if “the borrower as guarantor commits any default under any other agreement with the company in which the borrower or guarantor is either himself a borrower /guarantor” would be deemed as an event of default. In clause 11 ( C ) (ii) of the terms and conditions of the loan also the companies’ rights are defined to the effect that the guarantor can not absolved from the liability if the principle debtor does not make the payment. The complainant was a 2nd opposite party in Arbitration Case No. D1703/15, wherein the son of the complainant was the principal defaulter and the complainant was the guarantor. The award was passed against the complainant holding that the liability of the guarantors is co-extensive with that of the borrower of Rs. 5,64,028/-. The complainant had suppressed the existence of the arbitration case while filing the complaint and he did not approach the Forum with clean hands . The claim of the complainant to get NOC in respect of the two vehicles allegedly in the name of the complainant is found to be not allowable as the complainant had agreed and admitted that he is as a defaulter in another transaction with the opposite party. In the above circumstance, we do not find any consumer dispute in the proved facts of the case. Issue is found against the complainant.
Issue No. ii. Having found issue No. i. against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 11th July 2018
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : True copy of lawyer notice
dt. 07-07-2017
A2 : Letter dt. 25-07-2017
Opposite party's exhibits: :
Exbt. B1 : Statement dt. 24-05-2018
B2 : Copy of award dt. 04-01-2018
B3 : Copy of application form
B4 : Copy of Application form
B5 : Copy of application form
Copy of order despatched on :
By post : By Hand:
