By Sri. K. Gheevarghese, President:

The complaint filed against the Opposite Parties under Section 12 of the Consumer Protection Act 1986.

2. The complaint in brief is as follows:- The complainant is the Secretary of Haritha Swasraya Sangam at Kallumukku. The complainant is the legal holder of the vehicle No. KL 12 B 5501 a stage carrier, the vehicle was given a loan of Rs.6,00,000/- by the 1^st Opposite Party through the 2^nd Opposite Party after completion of the formalities and on deposit of Rs.60,000/-. The complainants sangam spend Rs.2,50,000/- for the body building works and the vehicle was in passenger service between Sulthan Bathery-Thottamoola-Kallumukku. The monthly installments liable to be paid by the complainant was remitted without any failure in the earlier occasions and in total Rs.4,75,498/- was the payments by the complainant. Subsequently some of the installments became due, in the meantime Opposite Parties tried to seize the vehicle. The complainant filed suit to restrain the Opposite Parties from seizing the vehicle in the Munsiff Court Sulthan Bathery and it was dismissed on merit.

3. The representatives of the Sangam contacted the Opposite Party on 26-03-2010 with an undertaking that the sufficient sureties would be given for the release of the vehicle and it was on 26-03-2010. The complainant was ready to remit the loan due to get back the vehicle already seized by the Opposite Parties. Illegal seizure of the vehicle resulted heavy loss for the complainants Sangam. The request of the Complainants Sangam to give back the vehicle was not responded and towards the end on 26-03-2010 the 1^st Opposite Party was given an application with an undertaking to give sufficient sureties for the balance amount. The cause of action of the complaint arouse on 30-11-2007 and the vehicle was seized and subsequently the 2^nd Opposite Party obtained an application for one time settlement of the account on 26-03-2010. There may be an order directing Opposite Parties to settle the loan account of the complainant as per law and towards the compensation Rs.1,00,000/- to be paid along with cost.

4. The Opposite Parties filed Version:- According to 1^st Opposite Party they have executed an agreement with 2^nd Opposite Party for providing finance for the purchase of new heavy commercial vehicles like Trucks and Buses. The relationship of the 1^st and 2^nd Opposite Parties are well avered

in the agreement. The 2^nd Opposite Party is the guarantor of monthly installments and they are responsible for collecting the outstanding dues and installments. The default of loanee in installments payments are to be patched up by 2^nd Opposite Party even if the borrower has failed to make payments. The 2^nd and 3^rd Opposite parties are responsible for outstanding loan as per the terms of agreement executed between the 1^st and 2^nd Opposite Parties.

5. In short the 2^nd Opposite Parties are responsible for due installments, interest and other charges from the individual borrower, if the loanee failed to make repayments the steps that are to be taken left upon the 2^nd Opposite Party. This Opposite Party has no role in the issuance of individual loan, and as a result this Opposite Party is unnecessarily dragged in to this dispute. Rs.6,00,000/-was sanctioned to the complainant on 22-04-2003 for the purchase of stage carriage, the loan amount was dispersed by the 2^nd Opposite Party, the terms of repayment was in equated monthly installments of 60 in numbers. It was informed to this Opposite Party wide letter dated 19-12-2007 that the vehicle No. KL 12 B 5501 was re possessed on 29-11-2007 in consequences of installment dues. It was also informed to the 1^st Opposite Party that the loan was closed by 2^nd Opposite Party and no objection Letter No. SRTO Loan No. NV-628/KTDFC dated 29-10-2009 addressed to registering authority along with signed form No.35 to Sriram Transport to the 2^nd Opposite Party for the termination of hypothecation endorsement in RC Book . The 2^nd Opposite Party closed the loan on 10-10-2009, this Opposite Party has closed the loan issued and the hypothecation was terminated. As an individual borrower the complainant is in noway connected to this Opposite Party. The complaint filed against the

Opposite Parties is nothing but vexatious, it is to be dismissed with cost.

6. The 2^nd and 3^rd Opposite parties filed version in brief it is as follows:- The complaint is time barred and it is not maintainable. The vehicle was seized and sold before 30.11.2007. The allegation of the complainant of the subsequent proceedings is intended only to condition. The delay in filing the complaint. The Complainant filed suit against this opposite party and it was dismissed. The vehicle was repossessed complying all the legal proceedings and when the installments became over due. The repossession of the vehicle was not questioned by the complainant and the sale of the vehicle was also with the consent and the permission of the complainant, there was no offer or any readiness on the part of the complainant to close the loan and to take back the vehicle. It is also visible from the act of the complainant to pay any amount for the closing of the loan due. The complainant suppressed all the facts and the complainant is with a intention to mislead the Forum. If the repossession of the vehicle was against the consent and approval of the complainant what hindered him from filing criminal case is also answerable. The vehicle was sold in compliance of the provisions of loan and nothing stand on the way even unwillingness of the complainant.

7. The complaint is filed as a subsequent proceeding after the award of the arbitrator that was on 05.06.2010. it is to pay Rs.10,27,212/- by the complainant and his guarantor. The copy of the award was also sent to the complainant and guarantor. At the outsets the complaint filed is with dishonest interest and the complaint is also unsustainable, for these reasons the complaint is to be dismissed with compensatory cost to this opposite parties.

8. The Points in consideration are:

1. Whether the complaint is time barred?.

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

3. Relief and Cost.

9. Points 1,2 and 3:- The evidence in this case consist of the proof affidavit of the complainant Exts.A1 to A7, B1 to B10 are the documents produced, and the oral testimony of the complainant.

10. The case of the Complainant is that the vehicle was repossessed illegally without complying legal proceedings which was on 30.11.2007. After the repossession of the vehicle by the 2^nd and 3^rd opposite parties there is an undertaking offered by the complainant for the release of the vehicle and application was given to opposite parties 2 and 3 in with response which was on 26.03.2010. The complaint filed is in the absence of any response from opposite parties 2 and 3 to the application of the complainant. The opposite parties 2 and 3 contented that the complaint is time barred. However

limitation aspect of this complaint is not invoked as a preliminary issue. The complainant has not produced any documents to substantiate his condition that cause of action for the complaint starts from

subsequent proceedings except the oral testimony of the complainant, it is also deposed that the dispute in issue actually start from 2006 onwards. Ext A5 and A6 are the documents produced by the complainant but the veracity of this documents are challenged. The relief sought by the complainant is to settle the loan account of the complainant as per law and to return the vehicle. The repossession of the vehicle was not in pursuance of the legal formality. The complainant was not send notices on the repossession of the vehicle and the sale of the vehicle in auction. Ext B6 series and B7 series are the notices sent to the complainant informing the possession and subsequent sale of the vehicle in auction if the liability is not closed. The complainant has no case that the vehicle was re possessed by the hirer

when there was no liability. Ext B1 is the copy of the hire purchase agreement. The complaint is filed after the award of the arbitrator which was on 5^th June 2010, it was sent in registered post to Varkey. P.M. who is the Third part guarantor in the hire purchase agreement. It is to be considered that award of the arbitrator was known to him but it was not questioned in appeal. The oral testimony of the complainant it is also admitted that the relief sought by him is from opposite parties 2 and 3. The 1^st

opposite party has no contractual relationship with complainant, the repossession of the vehicle by 2^nd and 3^rd opposite parties and the sale of this vehicle in auction cannot be considered as a deficiency in service and the points are found accordingly.

In the result complaint is dismissed. No order as to cost.

Pronounced in Open Forum on this the day of 31^st August 2011.

Date of filing:20.11.2010.