DOF.15.12.2006 DOO.01.06.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 1st day of June 2011 CC.284/2006 1.V.K.Priya, Ambayathodi House, P.O.Muzhappala, Kannur. 2.C.Uthaman, Ambayathodi House, P.O.Muzhappala, Anjarakandy Amsom, Mamba Desom. Complainant (Rep. by Adv.N.Gangadharan) Manager, Shriram Investments Ltd., 3rd floor, Hassan Arcade, Opp.RT Office, Kannur 2. (Rep. by Adv.P.K.Naushad) Opposite parties O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to return of the excess amount of `65,735 paid by the complainant with 9% interest and also to return the blank signed stamp papers and blank signed cheques together with the litigation charges. The case of the complainant in brief is as follows: Complainant No.1 availed a loan of `3,10,000 on 15.4.04. Complainant No.2 is the guarantor . Loan agreement was executed but the copy was not served to complainant. Opposite party obtained 2 blank cheques of State Bank of India and 4 cheque leaves of Anjarakandy Farmers Co. operative Bank and signed blank stamp papers and also blank papers signed with revenue receipts. The agreed rate payable to the loan is 2% above the rate of commercial bank, during the year 2004 i.e. 8.5% as per the RBI circular. Complainant is liable to pay only 10.5% interest. Loan period is 36 months. Up to 11.9.06 complainant had paid 3, 10,000. When complainant requested to settle the account opposite party demanded exorbitant amount. At last legal notice was sent on 19.5.06, 25.7.06 and also on 11.9.06 requesting to close the account. Opposite party replied to pay `1, 60,910. It is not legally enforceable. It is calculated without any basis. Complainant is always ready to pay the balance amount if any which is legally entitled by the opposite party. The opposite party threatened that in the event of non-payment of the amount so demanded the vehicle will be repossessed. In the reply notice the opposite party has offered to settle the loan account for an amount of `3,75,000 for which complainant was ready. But later opposite party failed to settle the account when complainant approached them. At last complainant has paid `60,000 as excess amount. As per calculation statement complainant has paid in toto an amount of `65735, which the opposite party is legally liable to return to complainant. Opposite party without settling the account playing only unfair trade practice. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version denying the main allegation of complainant. The complainant purchased the bus on the strength of Hire Purchase Agreement. As per the agreement complainant was strictly bound to pay the hire charges in every calendar month. But he failed to pay the amount in time. While the complaint is pending before the Forum, the complainant paid the dues as well as the hire charges by their free will. Which shows that there is no arrears of hire charges. Complainant has not paid any amount in excess. The averment of the complainant that the agreed interest rate was 10.5% is false. No exorbitant amount is demanded by the opposite party. It is also false to say that the cheque leaves of State Bank of Travancore, Thalassery, Anjarakandy Farmers Co. operative Bank and signed blank stamp papers and other blank signed papers with revenue receipts are given by the complainant to the opposite party. The opposite party has not obtained any of the above cheques or other blank papers. There is no deficiency in service or unfair trade practice on the side of opposite party. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of oral evidence of PW1, DW1 and documentary evidence Exts. A1 to A10 marked on the side of complainant and Exts.B1 to B3 marked on the side of opposite party. Issue Nos.1 to 3 Admittedly complainant No.1 availed a loan from opposite party for an amount of `3, 10,000. But complainant alleged that copy of the loan agreement has not been given to complainant Opposite party obtained certain blank cheques, blank signed stamp papers and also blank signed papers with revenue stamps. Complainant alleges that the agreed interest rate was 2% above the rate of commercial bank i.e. 8.5% When complainant asked to settle the account he was asked to pay excess amount of `1,60,910. It was a baseless calculation. Opposite party threatened if the amount is not paid the vehicle would be re-possessed. In the reply notice opposite party agreed to settle the account for `3,75,000, which was acceptable to complainant. But opposite party failed to settle though complainant was ready and willing to settle the account. At last complainant paid `60,000 together opposite party is liable to refund an amount of `65,735 as excess amount paid. Opposite party on the other hand contended that complainant failed to pay the amount in time as per the agreement. During the pendency of the complaint, complainant paid dues as well as the hire charges. He has not paid any excess charges. Opposite party contended that it is false to say that the agreed interest was 10.5%. Opposite party also contended that it is false allegation that the cheque leaves and signed blank stamp papers with signed paper and revenue stamps are given to opposite party. The evidence goes to show that during the pendency of the complaint complainant has paid the total amount and admittedly received the NOC. Hence at present the main case of the complainant is that complainant has paid an excess amount of `65735 and opposite party is liable to refund the amount with interest. The averment of the complainant is that he was compelled to pay the excess amount only due to the threatening of the repossession of vehicle and withholding of all documents with respect to the vehicle. Practically it was paid to get Exts.A7 and A8. Ext s.A1 is the letter sent by the complainant to opposite party requesting to close the account waving the interest. Ext.A2 dt.25.7.06 is also a letter sent by the complainant requesting to take a lenient view to wave over due interest and to close the loan. Ext.A3 is also a letter showing that the office of the opposite party collected interest on the principle amount in exorbitant rate and requesting to take lenient view to collect only bank interest as per the reserve Bank direction to the financial institutions. Ext.A4 dt.21.9.06 is the reply sent by opposite party to complainant informing tht the company is ready to settle the contract on the basis of account maintained in the ordinary course of business for a sum of `3,75,000 provided, if the complainant pay the amount on or before 13.9.06. Thus he was called upon to pay the arrears of instalments amount to `1,60,910. Ext.A4 admitted that the amount of `3,10,000 was advance by the complainant. Exts.A5 series shows the amount of payment as follows: Ext.A5. `5,000 Dt. 2.6.04 Ext.A5(1). `15,000 dt.24.6.04 Ext.A5(2). `5,000 dt.28.9.04 Ext.A5(3). `8,000 dt.28.10.04 Ext.A5(4). `10,000 dt.24.12.04 Ext.A5(5). `16,000 dt.31.1.05 Ext.A5(6). `32,000 dt.26.3.05 Ext.A5(7). `16,000 dt.30.4.05 Ext.A5(8). `16,000 dt.28.5.05 Ext.A5(9). `15,000 dt.11.7.05 Ext.A5(10). `10,000 dt.13.9.05 Ext.A5(11). `20,000 dt.28.9.05 Ext.A5(12). `15,000 dt.5.11.05 Ext.A5(13). `25,000 dt.15.12.05 Ext.A5(14). `13,500 dt.6.2.06 Ext.A5(15). `88,500 dt.11.9.06 Total `3, 10,000 Ext.A5 series and the admission in Ext.A4 reply notice proves that an amount of `3,10,000 has been remitted by complainant. Ext.A6 is a separate receipt obtained n 22.6.07 for payment of an amount of `1,25,000. It is seen paid `60,000 excess above the agreed amount `3,75,000 as per Ext.A4. Calculation statement filed by complainant shows a payment of an amount of `65,735 as excess amount Anyhow whether calculation statement is accepted or not on the basis of Ext.A5 series, Ext.A4 reply and Ext.A6 receipt makes it clear that complainant paid total amount of `4, 35,000 and the promised amount to settle the matter is `3,75,000. Hence there is substance in the allegation of the complainant that they have paid an excess amount of at least `60,000. Complainant’s case is that complainant is compelled to remit the amount only to get the non-objection certificate and Hire Purchase cancellation letter. It is quite natural that the owner of the vehicle, thinking of dealing the issue in such a practicable way. He will not be able to do anything with the vehicle without getting NOC and Hire Purchase cancellation letter. Hence there is nothing to disbelieve complainant with respect to the reason of payment of excess amount. However opposite party has agreed to settle the account on payment of `3,75,000. DW1 in his cross examination has admitted that “]cm-Xn-¡m-c³ `4,35,000 cq] Xncn-¨-S-¨n-«p-v. km[m-cW loanee default sNbvXm guarantor¡vt\m«o-kvsIm-Sp-¡-W-T. Cu tIkn Kmc³S#161;v t\m«okv sImSp-¯p-sh-¶p-Im-Wn-¡m³ bmtXmcp -tc-J-bpT lmP-cm-¡n-bn-«n-Ã. . In absence of such notice it can be considered that opposite party has no complaint with respect to any default on the part of complainant. DW1 also admitted in cross examination that opposite party was ready to settle the account on payment of an amount of `3,75,000. Though opposite party has complained that complainant paid installments irregularly no action has been taken against complainant as per default clause. In the absence of such action it can be assumed that complainant was not a chronic defaulter. Since it was agreed to settle the account for an amount of `3, 75,000, it is not justifiable to levy the excess amount. Under such circumstances we are of opinion that opposite party is liable to refund the excess mount of `60,000 to the complainant. Complainant has specific case that opposite party obtained certain blank cheque, blank signed stamp and also blank revenue stamped white papers. Opposite party contended that they have not collected any cheque from the complainant and no signed stamp paper is with them. In the cross examination DW1 stated that they are not in a habit of obtaining blank signed cheques and such other alleged document. DW1 deposed thus:R§/span> post dated cheques or blank cheques hm§n-¡m-dnà F¶mWv R§-fpsS hmZ-T……Cu tIkn-epT bmsXmcp hn[ tUm¡p-saâ-kpT hm§n-¨n-«n-Ã. In version also it has been denied by the opposite party. In chief affidavit PW1 has stated thus: “Loan agreement H¸n-Sp¶ ka-bT 2T lc-Pn-¡m-csâ Xe-tn SBI imJ-bn-ep-ff 591318, 591319 F¶o H¸n« blank chequeDT AXp-Iq-SmsX H¶mT lc-Pn-¡m-cn-bpsS A©-c-¡n Farmers Co. operative Banksâ 009410 009411, 009412, 009413H¸n« blank sN¡p-I-fpT IqSmsX H¸n« blank ap{Z-I-S-em-kpT H¸o« blank revenue stamped papers DT hm§n-¨n-cn¡p-¶p. complainant produced cheque book of State Bank of India Ext.A10 which the counter shows cheque No.591318 and 591319 issued infavour of opposite party. So also the above shown cheques of Ancharakandi Farmers co. operative Bank is seen issued as per counter of pass book Ext.A9. Opposite party contended that they have no such practice of keeping of blank cheques . DW1 in his evidence deposed that ‘ Ext.B1 article (1) clause (9) blank sN¡v hmMvMmdnà F¶v {]Xn-]m-Zn-¨n-«p-v. Cu tIkn-epT bmsXmcp hn[ tUm¡p-saâ-kpT hm§n-¨n-«n-Ã. But on scrutiny of Ex.B1 it can be seen that Article 1 (9) provides thus: The Borrowers or the guarantors shall deposit with the Lender post dated cheques for the amount of installments and shall ensure that adequate balances are available in the bank account from which the post dated cheques have been issued”. So the evidence of DW1 cannot be believed in this aspect. In the light of above explained clause in hypothecation agreement it can be very well assumed that opposite party is in custody of above mentioned post dated cheque which the opposite party is liable to return the blank signed cheuqes. So also the opposite party has no right to misuse any such document obtained by opposite party as security. In case opposite party is not returning the cheques opposite party is liable to pay an amount of 15,000 as compensation to complainant. Thus the issues 1 to 3 are answered in favour of complainant. In the result, the complaint is allowed directing the opposite party to return the excess amount of `65,735 (Rupees Sixty five thousand Seven hundred and thirty five only) paid by the complainant and also to return the blank cheques to complainant No.1. In case opposite party happened to fail to return the blank cheques an amount of `15,000 (Rupees Fifteen thousand only) has to be paid instead of returning the cheque. Opposite party is further directed to comply the order within one month from the date of receipt of this order. Complainant is at liberty to execute the order after the expiry of one month. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the letter dt.19.5.06 sent to OP A2 & 3.Copy of the letter dt.25.7.06 and 11.9.06 sent to Vice President of OP by complainant A4. Copy of the lawyer notice sent to OP A5. Copies of receipt issued by OP A6. Copy of the receipt dt.22.6.07 issued by OP A7. NOC dt.25.6.07issued by OP to RTO A8. Copy of the RC of Vehicle No.KL.13.H.4862 A9. Cheque book of complainant issued from Anjarakandy Farmers SC Bank A10. Cheque book of complainant issued from State Bank of India Exhibits for the opposite party: B1.Copy of the Hypothecation agreement executed by complainant and OP B2. Copy of the power of Attorney B3.Copy of the statement of accounts Witness examined for the complainant PW1.Uthaman Witness examined for the opposite party: DW1. K.Rajan /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
