By Sri. K. Gheevarghese, President:
 

The complaint filed under section 12 of the Consumer Protection Act 1986.

The Complainant is the owner of the Stage Carriage No. KL 2/F 7027. The amount of Rs.3,00,000/- for purchase of vehicle and Rs.24,000/- towards the Insurance Deposit was availed as loan from the 1^st Opposite Party. The Complainant agreed the terms with Opposite Party for the repayment of the loan amount and repayment was to be in mode as the chart issued. The entire loan is to be closed in 36 instalments. The loan due date ends on 28.1.2006. The Complainant is only responsible to make the repayment of Rs.4,41,000/- though the repayment by the Complainant was Rs.4,40,300/-. An additional amount of Rs. 1,75,000/- is at present demanded by the 1^st Opposite party under various heads which amount to clear deficiency in service and unfair trade practice. The blank cheques collected at the time of delivery of the vehicle by the 1^st Opposite Party is also to be given back. The Complainant is ready to remit Rs.700/- towards closing of the liability. There may be an order directing the Opposite Party to:-

1. Issue no objection certificate.

2. Cancel hypothecation endorsement in the Bus KL 2/F 7027 return the signed cheques and stamp paper obtained from the Complainant along with cost and compensation.

2. The Opposite Parties filed version in short it is as follows:- The 1^st Opposite Party avered that the dispute in between the Complainant and Opposite Parties are to be settled in the proceedings of the arbitration. The ownership of the vehicle is with the 1^st Opposite Party. The lease finance Rs.3,00,000/- was provided to the Complainant and that amount was to be paid in instalments of 36 months. The allegation of the Complainant that only a sum of Rs.700/- remains due is incorrect. The Complainant entered into the terms of agreement with the Opposite Party to levy an interest at the rate of 36% for the sum remain due on the defaulted instalments. The Complainant failed to remit the instalments and no punctuality was maintained for the remittance of instalments in chart wise. The 2^nd Opposite Party has entered into financing of the vehicle through the 1^st Opposite Party. The accumilated penal charges towards the defaulted period was cleared by the 1^st Opposite Party from time to time and the interest and principal were remitted to the 2^nd Opposite party by the 1^st Opposite party. The Complainant is at present in due a sum of Rs.3,09,890/- till 15.4.2009. The clearance certificate for the termination of endorsement in the R.C is only possible if due amount is cleared by the Complainant. The Complainant is not entitled for any relief more over the subject in issue is apart from jurisdiction of this Forum. The 1^st Opposite Party demanded the clearance of due amount how ever the Complainant was not ready to mend for it. As a settlement step of the Complainant the cheque issued for Rs.1,75,000/- was also dishonored. The complaint filed is nothing but a means of escape from liability of the Complainant. The cost and compensation claimed by the Complainant are not bonafied and sustainable. Hence the complaint is to be dismissed with compensatory cost.

3. The 2^nd Opposite Party's contentions in short is as follows. The Complainant is not a consumer and the adjudication of the dispute is not maintainable in this Forum. Against the 2^nd Opposite Party there is no allegation of deficiency in service on that ground the complaint is not maintainable. The 2^nd Opposite Party has no direct deal with the Complainant. The role of this Opposite Party is to give financial assistance to the selected and sponsored borrower of the 1^st Opposite Party for the purchase of vehicle on the terms of contract. The screening sanctioning of borrowers are to be done by the 1^st Opposite Party. The repayment of the loan amount are to be in monthly instalments. These all are guided by the terms of agreement agreed in between 1^st and 2^nd Opposite Parties. The default in monthly remittance of the instalments would not be reflected in the remittance of the 1^st Opposite Party to the 2^nd one. The Complainant is not entitled for the relief as prayed for KTDFC had sanctioned a loan of Rs. 3,00,000/- to the party on 29.7.2003 for the purchase of TATA Bus. The repayment was to be made in 48 instalments after a moratorium period of one month, for starting repayment of EMI. The repayment has to be made as the sum of Rs.8,374/- even if the loanee make any default in repayment 'SIL' is responsible for the due amount of instalments. In this case the 1^st Opposite Party remitted the entire instalments as per the repayment schedule.

4. The 1^st Opposite Party has to pay due instalments respective of the payment of the Complainant. The Complainant has entered into hypothecation agreement with the Shriram Investment. The allegation of the Complainant that the 1^st Opposite Party collected at the time of availing loan blank cheque and blank stamp papers are incorrect. More over with the consent of the borrowers, the 1^st Opposite Party is authorised to collect the service charges not exceeding 3% of the loan amount from the loanee. The Complainant entered into agreement with this Opposite Party upon the written request of the 1^st Complainant. The no objection certificate to cancel the hypothecation endorsement in the R.C is possible for which the Complainant has to clear all the dues. The 1^st Opposite Party is responsible to clear the due instalments disregarding the instalments in due from the Complainant. If the due amount from the Complainant is cleared the no objection certificate to cancel the hypothecation endorsement can be issued. The complaint is not maintainable and it is to be dismissed with cost.

5. The points in consideration are:-

1. Whether the complaint is maintainable maintainable in this Forum?

2. Is there any deficiency on the part of the Opposite parties?

3. Relief and cost.

6. Points No.1, 2 and 3:- The points No.1, 2 and 3 can be considered together. The Complainant and Opposite Parties filed proof affidavit. Exts. A1 to A5 are the documents marked for the Complainant. The documents Exts. B1 to B13 are produced for the Opposite Parties. The Complainant and the 1^st Opposite Party have tendered oral evidence in this case.

7. It is the settled position of the law that though the loanee and financier have entered into the agreements with terms and conditions that the dispute if any arises in between the financier and the loanee it is to be settled by the proceedings of the arbitrator the adjudication in Foras are not barred by law. The act of Consumer Protection Act is not derogatory to the other laws and dispute in between the financer and loanee can be decided by the Consumer Disputes Redressal Forum.

8. The case of the Complainant is that the Complainant entered into an agreement with the 1^st Opposite Party for the financing of the vehicle and availed the loan of Rs.4,41,000/-. The repayment of the loan amount is to be remitted in 36 instalments on the due date specified in the loan chart. The Complainant remitted 4,40,300/- and the balance amount Rs.700/- yet to be paid. Even after the payment of that amount the Opposite Party is demanding an additional amount of Rs.1,75,000/-. The complaint filed is to get the no objection certificate for cancelling hypothecation endorsement in RC collecting due amount of Rs.700/- from the Complainant. The blank cheques and stamp papers collected from the Complainant are to be given back along with cost and compensation. According to the Complainant at the time of filing the complaint the due amount towards the instalments is Rs.700/-. Ext.A2 is the chart as per which the repayment are to be in 36 instalments. The instalments starts from 29.08.2003 and the last instalment date is on 28.07.2006. Ext.B2 is the agreement along with the over due calculation filed by the 1^st Opposite Party. The Complainant has not completed the due amount on 28.07.2006 the receipts produced by the Complainant does not tally the contentions of the Complainant. More over it is seen that the Complainant admitted in the reply notice ie Ext.B11 his readiness for the remittance of Rs.54,790/- towards the due amount. The contention of the Complainant that the amount due towards the instalment is Rs.700/- cannot be considered. The interest and the penal charges as claimed by the 1^st Opposite Party is unreasonable. The payment made by the Complainant towards the instalment was not strictly complying to the stipulations in the cart. The 1^st Opposite Party further admitted that even after the last due date of instalment the Complainant remitted Rs.25,500/-. According to the repayment chart of the loan amount, the amount that to be repaid in total was to be on or before 28.07.2006. It is not seen that the liability on the side of the Complainant is more than the amount avered in the Complainant. The 2^nd Opposite Party is only a funding agency and Complainant has no direct nexus with the 2^nd Opposite Party. The finance issued to the vehicle by the 2^nd Opposite Party is through the Shriram Financiers who is arrayed as the 1^st Opposite Party in this case. Ext.B13 shows that the liability of the 1^st Opposite party with the 2^nd Opposite Party is cleared disregarding the due amount from the Complainant. The repayment of the loan amount is to be through the 1^st Opposite Party.

9. Admittedly the Complainant is found to be liable to pay Rs.54,790/- to the 1^st Opposite Party. According to the repayment chart the loan amount is to be cleared on or before 28.7.2006. The Complainant has to pay Rs.54,790/- the due amount with an interest at the rate of 12% from 28.07.2006 till the date of payment to the Opposite Parties. On acceptance of the due amount the 1^st Opposite Party has to give the written letter to the 2^nd Opposite Party. So as to issue a no objection certificate to the Complainant.

In the result, the complaint is partly allowed. The Complainant is directed to pay the 1^st Opposite Party Rs.54,790/- (Rupees Fifty Four thousand Seven hundred and Ninety only) along with the interest at the rate of 12% from the date of 28.7.2006 till payment to the 1^st Opposite Party towards clearance of the liability. On acceptance of the amount the 1^st Opposite Party is directed to give a letter in writing to the 2^nd Opposite Party for the issuance of the No Objection Certificate for cancellation of the hypothecation endorsement in the RC of the vehicle. No order as to cost and compensation.

Pronounced in open Forum on this the day of 31^st October 2009.

PRESIDENT: Sd/-

MEMBER- I : Sd/-

MEMBER-II: Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. Kunhan Complainant.

Witnesses for the Opposite Parties:

OPW1. Venugopal Legal Consultant.

Exhibits for the Complainant:

A1. Copy of Certificate of Registration.

A2. Repayment Chart.

A3. HP/ Lease Acknowledgment Slip. dt:28.7.2003.

A4. HP/ Lease Acknowledgment Slip. dt:28.02.2005.

A5 series (30 numbers) Receipt.

Exhibits for the Opposite Parties:

B1. Agreement.

B2. Form 22 – Proposal as at 15.04.2009. dt:23.04.2009.

B3. Copy of Policy Schedule.

B4. Copy of Certificate of Insurance of Passengers Carrying Commercial Vehicle.

B5. Copy of Motor Insurance Certificate cum Policy Schedule. dt:12.9.2006.

B6. Copy of Power of Attorney. dt:17.03.2007.

B7. Copy of Cheque. dt:26.11.2007.

B8 (2 sheets) Copy of Acknowledgment.

B9. Copy of Postal Receipt. dt:19.12.2007.

B10. Copy of Lawyer Notice. dt:18.12.2007.

B11. Copy of Reply Notice. dt:15.01.2008.

B12. Copy of Agreement.

B13. Copy of Loan Status Report as on 27.03.2009.