Karnataka

Chitradurga

CC/117/2016

Mansur Ahamedh S/o Dadapeer - Complainant(s)

Versus

Incharge Officer/Manager,Sriram Transport Finance Co Ltd., - Opp.Party(s)

Sri.K.Thippeswamy

03 Jun 2017

ORDER

COMPLAINT FILED ON:07/12/2016

DISPOSED ON:03/06/2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 117/2016

 

DATED: 3^rd JUNE 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                          B.A., LL.B.,   

……COMPLAINANT/S	Mansur Ahmmed,S/o Dadapeer, Age: 28 Years, Upparigenahalli, Holalkere Taluk, Chitradurga.   (Rep by Sri.Zulfikar, Advocate)
V/S
…..OPPOSITE PARTIES	1. Incharge Officer/Manager, Sri Rama Transport Finance Co.Ltd., 4th Block, Vanigothra Complex, B.D.Road, Chitradurga.   2. Incharge Officer/Managing Director, Sri Rama Transport Finance Co.Ltd., III Floor, Mookambika Complex, No.4, Ladi Deshika Road, Mylapur, Chennai-600004.   (Rep by Sri.Ananthakumar S. Habib, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to issue loan clearance certificate in respect of loan agreement No.CHNNG0305270002 and to pay Rs.75,000/- towards loss of income, Rs.15,000/- towards repair of vehicle and Rs.25,000/- towards mental agony and deficiency of service and such other reliefs.

2.      The brief facts of the case of the above complainant are that, he is the owner in possession of Mahindra GENIO vehicle bearing Reg.No.KA-13 A 8704.  The same has been purchased from Mahindra GENIO by borrowing a loan of Rs.2,21,333/- from OP vide loan agreement No.CHNNG0305270002.  As per the terms of the agreement the complainant has to pay a sum of Rs.2,89,021/- including interest to the OP.   OP has provided for 30 installments.  The first installment was commencing from 05.07.2013.  The complainant has to pay monthly installment on or before 5^th of every month.  After purchase, the complainant has paid entire loan with interest as follows:

1. Rs.13,104/- vide receipt No.CHITD1307050034 dated 05.07.2013

2. Rs.11,871/- vide receipt No.CHITD1308050025 dated 05.08.2013

3. Rs.11,871- vide receipt No.CHITD1309030009 dated 03.09.2013

4. Rs.11,871/- vide receipt No.CHITD1310050025 dated 05.10.2013

5. Rs.12,000/- vide receipt No.CHITD1311050011 dated 05.11.2013

6. Rs.1,19,000/- vide receipt No.CHITD1312050054 dated 05.12.2013

7. Rs.12,000/- vide receipt No.CHLLK1410100008 dated 10.10.2014

8. Rs.12,000/- vide receipt No.MCHITD141113013 dated 13.11.2014

9. Rs.12,000/- vide receipt No.MCHITD141206018 dated 06.12.2014

10. Rs.12,000/- vide receipt No.MCHITD150106013 dated 06.01.2015

11. Rs.12,000/- vide receipt No.CHITD1502040022 dated 04.02.2015

12. Rs.12,000/- vide receipt No.CHITD1503050051 dated 05.03.2015

13. Rs.12,000/- vide receipt No.CHITD1504060052 dated 06.04.2015

14. Rs.12,000/- vide receipt No.CHITD1505050060 dated 05.05.2015

15. Rs.13,310/- vide receipt No.MCHITD150807010 dated 07.08.2015

 

The complainant paid the installments of RS.2,89,027/- instead of Rs.2,89,021/- and made excess payment of Rs.6/-.  The complainant has cleared the entire loan amount with interest.  After clearance of loan, the complainant approached the OPs for issuance of clearance certificate for cancellation of hypothecation.  The OPs assured the complainant to issue the clearance certificate but, they dragon the matter.  Inspite of issuance of clearance certificate, the OP has issued notice dated 03.08.2016 to the complainant demanding to pay the installments.  It is surprise and shock to the complainant and replied through his counsel on 13.08.2016 stating the averments stated above.  Again on 27.09.2016, the OP No.1 has issued the same demand notice to the complainant and also got issued notice through their counsel by stating the averments.  The conduct of the OPs put the complainant in fear that any amount, they will seize the above said vehicle, for that the complainant has not played the vehicle from 05.08.2016 till today and sustained a loss of income of Rs.75,000/- and Rs.15,000/- for repairs as it is kept in idle for a long period.  Though the loan is cleared the OP has issued recovery notice to the complainant. Due to deficiency of service on the part of OP, the complainant is suffering from severe mental agony for that, the OPs are liable to pay Rs.25,000/-.  Hence, this complaint.  The cause action for the complaint arose on 07.08.2015 when the complainant demanded the OPs to issue loan clearance certificate and subsequently on 03.08.2016, 27.09.2016 and on 23.11.2016 when the OPs got issued notices/payment of installments, which is within the jurisdiction of this Forum.  Therefore, the complainant respectfully prayed before this Forum to allow his complaint with cost. 

3.      On service of notice, OPs appeared through Sri. Anantkumar. S. Habib, Advocate and filed version denying the allegations made in the complaint.  It is further stated that, the OPs are a non-banking public limited financial institutions engaged in the commercial vehicle finance business.  The complainant has borrowed loan from the OP No.1 to purchase 2011 model Mahendra GENIO Light Goods Vehicle bearing Reg.No.KA-13 A 8704 having yellow board under the guarantor ship of one Mr. Babjhon by jointly executing loan cum hypothecation agreement in favour of OP No.1.  In view of availment of loan from OP No.1, financial institution the complainant is a borrower of OP No.1.  Therefore, borrower is not a consumer within the meaning of Sec.2(1)(d) of C.P. Act.  Therefore, the complaint filed by the complainant is not at all maintainable before this Forum.  It is further submitted that, the loan availed by the complainant is a commercial vehicle loan.  Therefore, commercial user of the vehicle is not a consumer.  It is further submitted that, the complainant has not paid the installments regularly as per loan repayment schedule III of the agreement.  The complainant has also agreed and undertaken to pay ODC at the rate of 36% p.a towards delayed payment of monthly installments.  It is further submitted that, as per the loan repayment schedule annexed to the agreement, EMI was due on 05.07.2013 and last EMI was payable on 05.12.2015 regularly every month without break.  Para 3 of the complaint clearly indicates that, the complainant has not paid installments regularly on repayment dates and committed default.  On 03.08.2016, 27.09.2016 and vide arbitration notice dated 23.11.2016 calling upon the complainants to pay Rs.3,00,822/- as on 22.11.2016.  The OP No.1 has filed an Arbitration case No.278/2016 before the Arbitrary Tribunal and obtained permission to reposes the vehicle with the help of jurisdictional police.  After that, the complainant has chosen to file this false case against the OP.  It is further submitted that, the total due payable by the complainant to the OP No.1 financial institution was Rs.3,09,847-10 as on 04.01.2017.  Until and unless entire dues are paid the complainant is not entitled for cancellation of HP or loan clearance certificate.  It is made clear that, disputes relates to accounts between parties must be relegated before the Civil Court and this Forum has no jurisdiction to entertain this complaint.  The entire contents of para 4 of the complaint are all false.  There is no cause of action for this complaint and the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  There is no deficiency of service on the part of OPs and prayed for dismissal of the complaint.               

4.      Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-21 were got marked. On behalf of OPs, one Sri.Praveer Shetty, the Asst. Credit Manager has examined as DW-1 by filing the affidavit evidence and Ex.B-1 to B-8 documents have been got marked.  

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that:

 

(1)  Whether the complainant proves that the OPs have committed deficiency of service in not giving clearance certification or cancellation of HP and entitled for the reliefs as prayed for in the complaint?

              (2) What order?

          7.      Our findings on the above points are as follows:-

          Point No.1:- Affirmative.

          Point No.2:- As per final order.

REASONS

8.      It is not in dispute that, the complainant is the owner in possession of Mahindra GENIO vehicle bearing Reg.No.KA-13 A 8704 purchased from Mahindra GENIO by borrowing a loan of Rs.2,21,333/- from OP vide loan agreement No.CHNNG0305270002 agreeing to repay the loan of Rs.2,89,021/- including interest to the OP in 30 installments within 5^th of every month.  The first installment was commencing from 05.07.2013.  The complainant has paid entire loan with interest i.e, Rs.13,104/- vide receipt No.CHITD1307050034 dated 05.07.2013, Rs.11,871/- vide receipt No.CHITD1308050025 dated 05.08.2013, Rs.11,871- vide receipt No.CHITD1309030009 dated 03.09.2013, Rs.11,871/- vide receipt No.CHITD1310050025 dated 05.10.2013, Rs.12,000/- vide receipt No.CHITD1311050011 dated 05.11.2013, Rs.1,19,000/- vide receipt No.CHITD1312050054 dated 05.12.2013,  Rs.12,000/- vide receipt No.CHLLK1410100008 dated 10.10.2014, Rs.12,000/- vide receipt No.MCHITD141113013 dated 13.11.2014, Rs.12,000/- vide receipt No.MCHITD141206018 dated 06.12.2014,  Rs.12,000/- vide receipt No.MCHITD150106013 dated 06.01.2015,  Rs.12,000/- vide receipt No.CHITD1502040022 dated 04.02.2015, Rs.12,000/- vide receipt No.CHITD1503050051 dated 05.03.2015,  Rs.12,000/- vide receipt No.CHITD1504060052 dated 06.04.2015,  Rs.12,000/- vide receipt No.CHITD1505050060 dated 05.05.2015 and Rs.13,310/- vide receipt No.MCHITD150807010 dated 07.08.2015 i.e, Rs.2,89,027/- instead of Rs.2,89,021/- and made excess payment of Rs.6/-.   After clearance of entire loan, the complainant approached the OPs for issuance of clearance certificate for cancellation of hypothecation.  OPs assured the complainant to issue the clearance certificate but, it went in vain.  Inspite of issuance of clearance certificate, the OP has issued notice dated 03.08.2016 to the complainant demanding to pay the installments.  The same has been replied through his counsel on 13.08.2016.  Again on 27.09.2016, the OP No.1 has issued the same demand notice to the complainant and also got issued notice through their counsel.  The conduct of the OPs put the complainant in fear that any amount, they will seize the above said vehicle, for that the complainant has not played the vehicle from 05.08.2016 till today and sustained a loss of income of Rs.75,000/- and Rs.15,000/- for repairs as it is kept in idle for a long period.  Though the loan is cleared the OP has issued recovery notice to the complainant. Due to deficiency of service on the part of OP, the complainant is suffering from severe mental agony for that, the OPs are liable to pay Rs.25,000/-. 

9.      In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and relied on the documents like Original loan sanction letter dated 03.06.2013 shows that, the complainant has obtained loan from the OP marked as Ex.A-1, notice dated 03.08.2016 issued by the OP to the complainant demanding to pay loan amount marked as Ex.A-2, reply notice dated 13.08.2016 issued by the advocate for complainant to the OPs with postal receipt marked as Ex.A-3, notice dated 27.09.2016 issued by the OPs to the complainant demanding to pay loan amount marked as Ex. A-4, Office copy of the legal notice dated 23.11.2016 issued by the OP advocate to the complainant and his surety marked as Ex.A-5,  receipts for having received loan installments dated 05.07.2013, 05.08.2013, 03.09.2013, 05.10.2013, 05.11.2013, 05.12.2013, 10.10.2014, 13.11.2014, 06.12.2014, 06.01.2015, 04.02.2015, 05.03.2015, 06.04.2015, 05.05.2015, 07.08.2015 marked as Ex.A-6 to Ex.A-21, clearly shows that, the complainant has paid entire loan amount obtained by him from OPs.    

10.    On the other hand, it is argued by the OPs that, the OPs are a non-banking public limited financial institutions engaged in the commercial vehicle finance business.  The complainant has borrowed loan from the OP No.1 to purchase Mahendra GENIO 2011 model Light Goods Vehicle bearing Reg.No.KA-13 A 8704 having yellow board under the guarantor ship of one Mr. Babjhon by jointly executing loan cum hypothecation agreement in favour of OP No.1.  Therefore, borrower is not a consumer within the meaning of Sec.2(1)(d) of C.P. Act and the complaint filed by the complainant is not at all maintainable before this Forum.  The loan availed by the complainant is a commercial vehicle loan and the complainant has not paid the installments regularly as per loan repayment schedule III of the agreement.  The complainant has also agreed and undertaken to pay ODC at the rate of 36% p.a towards delayed payment of monthly installments.  As per the loan repayment schedule annexed to the agreement, EMI was due on 05.07.2013 and last EMI was payable on 05.12.2015 regularly every month without break.  The complainant has not paid installments regularly on repayment dates and committed default.  On 03.08.2016, 27.09.2016 and vide arbitration notice dated 23.11.2016 calling upon the complainants to pay Rs.3,00,822/- as on 22.11.2016.  The OP No.1 has filed an Arbitration case No.278/2016 before the Arbitrary Tribunal and obtained permission to reposes the vehicle with the help of jurisdictional police.  After that, the complainant has chosen to file this false case against the OP.  The total due payable by the complainant to the OP No.1 financial institution was Rs.3,09,847-10 as on 04.01.2017.  Until and unless entire dues are paid the complainant is not entitled for cancellation of HP or loan clearance certificate. 

 11.   In support of its contention, the OPs have filed affidavit evidence of its Asst. Credit Manager examined as DW-1 and reiterated the contents of version and relied on the documents like copy of letter dated 28.12.2013 marked as Ex.B-1, copies of photos of the damaged vehicle marked as Ex.B-2, loan  cum hypothecation agreement marked as Ex.B-3, legal notice dated 23.11.2016 issued by the advocate for OPs to the complainant and his surety demanding loan marked as Ex.B-4, Speed Post receipts marked as Ex.B-5, Order dated 07.12.2016 passed by the Sole Arbitrator, Tumkur in Case No.278/2016 marked as Ex.    B-6, Statement of accounts in respect of loan for vehicle bearing Reg. No.KA-13 A-8704 marked as Ex.B-7 and copy of the power of attorney executed by Srirama Transport Finance Company Ltd., by its Managing Director Mr. R. Sridhar in favour of Mr. Praveer S. Shetty marked as Ex.a-8.

12.   On hearing the rival contentions of both the parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out that, as per Ex.A-6 to Ex.A-21, the loan paid receipts it clearly shows that, the complainant has paid entire loan amount to the OPs.  When the complainant has paid entire amount to the OPs, it is the duty of the OPs to give clearance certification and cancellation of hypothecation letter to the complainant.  But, the OPs have demanded the amount from the complainant, contending that, the complainant has not paid entire loan amount, it is not correct.  The OPs have produced Ex.B-1 and stated that, the complainant has given a letter to them and in this letter the complainant has not paid Rs.1,19,000/- on 05.12.2013 saying that by oversight it was mentioned as Rs.1,19,000/- instead of Rs.19,000/-, it is not correct.  According to the OPs, the complainant has paid the amount of Rs.1,19,000/- on 05.12.2013 but, the letter was taken from the complainant on 28.12.2013, how it is possible.  No one can come forward to give this type of letter.  The OPs have stated in their version by oversight or computer mistake it was mentioned as Rs.1,19,000/-.  Why the OPs have kept mum for more than 20 days.  Usually, in a finance corporations, the accounts updated every day.  So, when the parties approached before the finance corporations, usually the corporations took signatures in a blank papers.  The Ex.B-1 also created document by the OPs.  As per Ex.A-12, the complainant has paid Rs.1,19,000/- but, the OPs never stated anywhere in their version stating that, the complainant has paid only Rs.19,000/- on that day.  So, it clearly shows that, the complainant has paid Rs.1,19,000/- on that day and the OPs have relied 10 decisions.  According to the said decisions, the complainant is not a consumer in a commercial transaction.  But, in the case on hand, it is different from the decisions given by the OPs.  The case of the complainant is with regard to issue of clearance loan certificate and hypothecation.  The decisions given by the OPs are different of the case on hand.   Therefore, we come to the conclusion that, the OP No.1 has committed a deficiency of service and unfair trade practice.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            13.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of C.P Act 1986 is partly allowed.

It is ordered that, the OPs are hereby directed to give loan clearance certificate with hypothecation cancellation letter in respect of vehicle bearing Reg.No.KA-13 A-8704 under loan Agreement No.CHNNG0305270002 to the complainant. 

Further the OPs are hereby directed pay Rs.50,000/- towards loss of income, Rs.10,000/- towards repair charges, Rs.10,000/- towards mental agony in total Rs.70,000/-   along with interest at the rate of 9% p.a from the date of filing of the complaint till realization. 

It is further ordered that, the OPs are hereby directed to pay Rs.5,000/- towards costs of this proceeding.  

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

 

 (This order is made with the consent of Member after the correction of the draft on 03/06/2017 and it is pronounced in the open Court after our signatures)

           

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri. Asst. Credit Manager of OPs by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Original loan sanction letter dated 03.06.2013
02	Ex-A-2:-	Notice dated 03.08.2016 issued by the OP
03	Ex-A-3:-	Reply notice dated 13.08.2016 issued by the advocate for complainant to the OPs
04	Ex-A-4:-	Notice dated 27.09.2016 issued by the OPs to the complainant
05	Ex-A-5:	Office copy of the legal notice dated 23.11.2016 issued by the OP advocate to the complainant
06	Ex-A-6 to 21:-	Receipts for having received loan installments

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Copy of letter dated 28.12.2013
02	Ex-B-2:-	Copies of photos of the damaged vehicle
03	Ex-B-3:-	Loan  cum hypothecation agreement
04	Ex.A-4:-	Legal notice dated 23.11.2016 issued by the advocate for OPs to the complainant and his surety
05	Ex.B-5:-	Speed Post receipts
06	Ex.B-6:-	Order dated 07.12.2016 passed by the Sole Arbitrator, Tumkur in Case No.278/2016
07	Ex.B-7:-	Statement of accounts in respect of loan for vehicle bearing Reg. No.KA-13 A-8704
08	Ex.B-8:-	Copy of the power of attorney

 

 

 

MEMBER                                                            PRESIDENT

Rhr**