IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 28th day of May, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C. No. 110/2013 (Filed on 20.08.2013)
Between:
C.R. Gopinathan Nair,
Chakkalayil Veedu,
Mookkannoor,
Kaithakodi P.O.,
Pin – 689 614.,
Pathanamthitta District. … Complainant.
(By Adv. Thomas Puthenveedan)
And:
- HDFC Bank Ltd.,
Mather Square (Ground Floor),
Opp. North Railway Station,
Ernakulam North – 682 018.
(By Adv. V. Sathish Kumar)
- Shrachi Securities Ltd.,
Padinjarekara Building,
Baker Junction,
Kottayam – 686 001.
- Shrachi Infrastructure Finance Ltd.,
Padinjarekara Building,
Baker Junction,
Kottayam – 686 001.
- Magma Shrachi Finance Ltd.,
Padinjarekara Building,
Baker Junction,
Kottayam – 686 001.
- Magma Finance Crop Ltd.,
Regd. Office, Magma House,
24, Park Street,
Kolkata – 700 016.
- HDFC Bank Ltd.,
Aban Arcade,
Pathanamthitta – 689 645. … Opposite parties.
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Brief facts of this complaint is as follows: The complainant had purchased a 2004 model MGV Eicher 10.90E truck by availing hire purchase facility of Rs. 5,90,000 from opposite parties 1 and 6 through the opposite parties 2 to 5. The period of higher purchase is 48 months with Rs. 15,035 as EMI which started from 22.10.2004 till 22.09.2008. The total amount to be paid by the complainant as per hire purchase agreement is Rs. 7,21,680. The complainant had paid a total amount of Rs.7,57,048 including penal interest etc. for the defaults in the payment and thereby the complainant had paid the entire amount as per the terms and conditions of the hire purchase agreement. Subsequent to the said payment, complainant requested the first opposite party to issue the non-liability certificate for denotifying the endorsement in the R.C. book regarding the hire purchase of the first opposite party. But they have not issued the non-liability certificate on some or other reasons. So the complainant issued a legal notice on 20.10.2008 to the first opposite party who received the same, but there was no reply from the first opposite party. While so on 27.09.2011, complainant had received a registered letter from the Legal Department of 5th opposite party demanding Rs.2,96,496 as the dues in connection with the aforesaid hire purchase transaction. Since the complainant had paid the entire dues entitled to the first opposite party and an excess amount of Rs. 35,368, none of the opposite parties have no right to demand any amount. At the same time, opposite parties also threatened the complainant to surrender the vehicle otherwise they will forcefully seize the vehicle. The above said acts of the opposite parties are illegal and non-return of the non-liability certificate is a clear deficiency in service. This caused financial loss and mental agony to the complainant. So the opposite parties are liable to issue the non-liability certificate and to return Rs. 35,368, the excess amount collected by the opposite parties. Hence this complaint for an order directing the opposite parties to issue the non-liability certificate and for the return of Rs. 35,368, the excess amount collected by them with 12% interest along with compensation of Rs. 10,000 and cost of Rs. 5,000.
3. In this case, all opposite parties except first opposite party are exparte.
4. The first opposite party filed their version with the following main contentions: According to the first opposite party, this complaint is bad for mis-joinder of necessary parties and is barred by limitation and the complainant is not a consumer as per the Consumer Protection Act and this Forum has no territorial jurisdiction to entertain this complaint. Though the answering opposite parties admitted the lending of Rs. 5,90,000 to the complainant and the EMI of Rs. 15,035, they denied the complainant’s claim of his payment of Rs. 7,57,048 including the penal interest etc. as they are not aware of the same. According to the first opposite party, the whole business including that of this complainant had been transferred by them to Magma Shrachi Finance Ltd., which are opposite parties 2 to 5 as per the deed of assignment dated 10.05.2008 and hence the whole business had been transferred to the said company and the said transfer has also been intimated to the complainant. Therefore, the non-liability certificate has to be issued by the opposite parties 2 to 4 and this opposite party is not entitled to give the non-liability certificate. Further, this opposite party is not conversant with the dues and liabilities of the complainant with opposite parties 2 to 5 and hence they are not liable to compensate the complainant for the deficiency in service alleged in the complaint by the complainant. The first opposite party has not collected any amount in excess to the actual dues till the transfer of the business to the opposite parties 2 to 4. Since the complainant is a defaulter, this complaint cannot be allowed. With the above contentions, first opposite party prays for the dismissal of the complaint against them.
5. On the basis of the pleadings of the parties, the following points are raised for consideration:
- Whether the complaint is maintainable before this Forum?
- Whether the complainant is entitled to get any relief as prayed for in the complaint?
- Reliefs and Costs?
6. The evidence of this complaint consists of the oral deposition of PW1 and DW1 and Exts. A1 to A6 and B1. After closure of evidence, both sides were heard.
7. Point No.1: The first opposite party challenged the maintainability of this complaint alleging mis-joinder of necessary parties, limitation, territorial jurisdiction and with an allegation that the complainant is not a consumer as per the definition of the Consumer Protection Act as the vehicle in question had been purchased for commercial purpose. In view of the above preliminary objections, we have gone through the available materials on record and found the following facts. As per the pleadings in the complaint, the complainant is in receipt of a demand notice dated 27.09.2011 from the 5th opposite party which arose the cause of action to the complainant and this complaint is filed on 20.08.2013 which is within 2 years from 27.09.2011. In the complaint, it is seen that the HDFC and their branch at Pathanamthitta and Magma Fin Corp. Ltd. are included in the party array. Further, there is a specific pleading in the complaint to the effect that the vehicle in question was purchased by the complainant for his livelihood. In the above circumstances and in the absence of any evidence from the side of the first opposite party for substantiating their preliminary objections, this Forum found that the preliminary objections raised by the first opposite party is not sustainable and hence this complaint is maintainable before this Forum.
8. Point Nos. 2 & 3: The complainant’s allegation is that he had paid the entire amount entitled to the first opposite party in connection with the hire purchase agreement in question. Even after the said payment, first opposite party failed to issue the non-liability certificate for cancelling the hire purchase endorsement made in the R.C. book and at the same time 5th opposite party issued a registered notice demanding an amount of Rs. 2,96,496 from the complainant as his dues in connection with the hire purchase transaction with a threatening of seizing the vehicle in question forcefully, if the dues are not cleared. The non-issuance of the non-liability certificate and the demand of money is a deficiency in service and is an illegal act. Therefore, the opposite parties are liable to the complainant and the complainant prays for allowing this complaint.
9. In order to prove the case of the complainant, complainant filed a proof affidavit in lieu of his chief examination along with 6 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A6. Ext. A1 is the copy of the R.C. book of the vehicle in question. Ext. A2 is the hire purchase sanction order dated 04.10.2004 issued by the first opposite party. Ext. A3 is the repayment schedule dated 04.10.2004 issued by the first opposite party. Ext. A4 is the statement of account dated 03.010.2008 issued by the first opposite party in the name of the complainant showing the receipts and payments in connection with the hire purchase agreement. Ext. A5 is the copy of the legal notice dated 18.10.2008 issued by the complaint to the first opposite party. Ext. A5(a) is the postal acknowledgment card of Ext. A5. Ext. A6 is the registered demand notice for Rs. 2,96,496-27 dated 27.09.2011 issued by Magma Fin Corp Ltd. in the name of the complainant.
10. On the other hand, the contention of the first opposite party is that the whole business of the first opposite party including the loan transaction of the complainant had been transferred to opposite parties 2 to 5 as per the deed of assignment of assets dated 10.05.2008 and the whole of business had been transferred to the said company and the first opposite party is unaware of the payments of the complainant from 10.05.2008 onwards. This transfer was also intimated to the complainant. Therefore, the first opposite party is not in a position to issue a non-dues certificate and it has to be issued by opposite parties 2 to 4. Further, the first opposite party is not aware of the dues and liabilities of the complainant with opposite parties 2 to 5. As per the deed of assignment referred above, opposite parties 2 to 4 are the creditors of the complainant from 10.05.2008. Further, at the time of the said assignment, the dues of the complainant with the first opposite party was cleared by opposite parties 2 to 4 for and on behalf of the complainant and the complainant’s entire dues are entitled by opposite parties 2 to 4 and the complainant is liable to pay his dues to opposite parties 2 to 4. Since the transaction between the complainant and the first opposite party was transferred to opposite parties 2 to 4, the complainant is liable to pay his dues from 10.05.2008 to opposite parties 2 to 4. In the circumstances, opposite parties 2 to 4 are the competent parties to issue the non-dues certificate etc. to the complainant, if the complainant satisfies opposite parties 2 to 4 that he had no dues in the above said transaction. Therefore, they argued that they are not liable to the complainant or the complainant is not entitled to get any of the reliefs prayed for in the complaint against first opposite party.
11. In order to prove the case of the first opposite party, the Deputy Manager (Legal) of the first opposite party adduced oral testimony as DW1. DW1 also produced a document which is marked as Ext. B1. Ext. B1 is the deed of assignment of assets dated 10.05.2008 executed between the HDFC Bank Ltd. and Magma Fin Corp Ltd.
12. On the basis of the contentions and arguments of the parties, we have perused the available materials on record and found that the complainant and the first opposite party had a vehicle loan transaction. According to the complainant, he had cleared his entire dues to the first opposite party. But they have not issued the non-dues certificate. But according to the first opposite party, the complainant’s loan transaction was assigned to opposite parties 2 to 4 vide an assignment deed executed between them on 10.05.2008 and hence the first opposite party had no connection with the complainant’s loan transaction and hence they are not liable to the complainant in any way. But the complainant’s specific case is that he had cleared his entire dues on 10.05.2008 by paying Rs.1,43,520-69 as per Ext. A4 which is the statement of accounts of the complainant’s loan transaction issued by the first opposite party. But the argument of the first opposite party is that the above said payment is not made by the complainant whereas the said payment was made by opposite parties 2 to 4 as per the terms and conditions of Ext. B1 assignment deed executed between HDFC Bank and Magma Fin Corp Ltd. and hence the complainant’s liability is still existing and the complainant is liable to pay the said amount and other charges to Magma Fin Corp Ltd. i.e. opposite parties 2 to 4. But opposite parties 2 to 4 are exparte. As opposite parties 2 to 4 have not appeared or raised a contention supporting the contention of the first opposite party that the remaining dues of the complainant is entitled by them as per the assignment deed between the first opposite party and opposite parties 2 to 4, we cannot go with the contention of the first opposite party. Further, there is no evidence to show that the last payment of Rs. 1,43,520-69 dated 26.05.2008 seen in Ext. A4 is made by opposite parties 2 to 4. So we are constrained to accept the contention of the complainant that he had cleared the entire dues on 26.05.2008 by paying the balance amount of Rs. 1,43,520-69 to the first opposite party and as such it is clear that the complainant had cleared his dues and no dues is outstanding. In the circumstances, the complainant is entitled to get the non-dues certificate. Then comes a question who is bound to issue the non-dues certificate to the complainant? According to the complainant, first opposite party is bound to issue the certificate. But according to the first opposite party, as per the assignment deed between the first opposite party and opposite parties 2 to 4, opposite parties 2 to 4 are bound to issue the non-dues certificate by relying Ext. B1 assignment deed for substantiating their contention. But on a perusal of Ext. B1 assignment deed, it is seen that the said deed was executed between the first opposite party and opposite parties 2 to 4. As such, the complainant is a stranger to Ext. B1 assignment deed. First opposite party also failed to prove that they have properly communicated the said assignment to the complainant and the said assignment deed is binding to the complainant. In the circumstances, the legal relationship between the complainant and the first opposite party as per the hire purchase agreement cannot be said extinguished. Further, the first opposite party had no claim that the complainant is liable to pay any amount to the first opposite party in the transaction between the complainant and the first opposite party which means that the complainant had no liability to the first opposite party. In the above said circumstances, we found that the complainant had cleared his entire dues and the first opposite party is liable to issue the non-dues certificate to the complainant. The non-issuance of the non-dues certificate by the first opposite party cannot be justified and the said act of the first opposite party is a clear deficiency in service and hence this complaint is allowable.
13. However, the complainant has not proved his claim for the refund of Rs. 35,368 as prayed for in the complaint and hence the said prayer is disallowed.
14. In the result, this complaint is partly allowed, thereby the first opposite party is directed to issue the non-dues certificate along with a compensation of Rs. 5,000 (Rupees Five thousand only) and cost of Rs. 2,500 (Rupees Two thousand five hundred only) to the complainant within 20 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount ordered herein above with 10% interest per annum from today till the realization of the whole amount.
15. In the event of non-issuance of the non-dues certificate by the first opposite party within the stipulated time, the complainant is allowed to approach the concerned RTO authority with this order for making necessary endorsement in the R.C. book of the complainant’s vehicle in respect of the hire purchase in question and in that event, the concerned RTO authority is directed to make necessary endorsements in the R.C. book to the effect that the hire purchase is cancelled by treating this order as the non-dues certificate issued by the first opposite party.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 28th day of May, 2014.
(Sd/-)
Jacob Stephen
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : C.R. Gopinathan Nair.
Exhibits marked on the side of the complainant:
A1 : Copy of the R.C. book of the complainant’s vehicle.
A2 : Hire purchase sanction order dated 04.10.2004 issued by the first
opposite party.
A3 : Repayment schedule dated 04.10.2004 issued by the first
opposite party.
A4 : Statement of account dated 03.010.2008 issued by the first
opposite party in the name of the complainant
A5 : Copy of the legal notice dated 18.10.2008 issued by the
complaint to the first opposite party.
A5(a) : Postal acknowledgment card of Ext. A5.
A6 : Registered demand notice for Rs. 2,96,496.27 dated 27.09.2011
issued by Magma Fincorp Ltd. in the name of the complainant.
Witness examined on the side of the opposite parties:
DW1 : Niran Viswanath.
Exhibits marked on the side of the opposite parties:
B1 : Deed of assignment of assets dated 10.05.2008 executed between
the HDFC Bank Ltd. and Magma Fin Corp Ltd.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) C.R. Gopinathan Nair, Chakkalayil Veedu, Mookkannoor,
Kaithakodi P.O., Pin – 689 614., Pathanamthitta District. (2) HDFC Bank Ltd., Mather Square (Ground Floor),
Opp. North Railway Station, Ernakulam North – 682 018.
(3) Shrachi Securities Ltd., Padinjarekara Building, Baker Junction,
Kottayam – 686 001.
(4) Shrachi Infrastructure Finance Ltd., Padinjarekara Building,
Baker Junction, Kottayam – 686 001.
(5) Magma Shrachi Finance Ltd., Padinjarekara Building,
Baker Junction, Kottayam – 686 001.
(6) Magma Finance Crop Ltd., Regd. Office, Magma House,
24, Park Street, Kolkata – 700 016.
(7) HDFC Bank Ltd., Aban Arcade, Pathanamthitta – 689 645.
(8) The Stock File.
