IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 29th day of February, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.71/2010 (Remanded)
Between:
Suresh Kumar,
Kavinte Padinjattethil,
Vellappara.P.O.,
Konni, V-Kottayam Village,
Kozhencherry Taluk,
Pathanamthitta Dist.
(By Adv. P.R. Shibu) … Complainant
And:
1. The Managing Director,
M/s. Subash & Company,
No.4, Erulappan Street,
1st Floor, Sowcarpet,
Chennai – 600 079.
(By Adv. T. Harikrishnan)
2. The Manager/Proprietor,
M/s. Yathra Autos,
Opp. General Hospital,
DDRC Road, Pathanamthitta. ….. Opposite parties.
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Facts of the case in brief is as follows:- The 1st opposite party is a financial institution providing loans and the 2nd opposite party is the agent of the 1st opposite party. For purchasing an autorickshaw, the complainant availed a loan from the 1st opposite party on executing an agreement on 12.04.2007 agreeing to repay the loan amount by 30 monthly instalments of ` 2,900 each. The date of last instalment is 12.10.2009. At the time of availing the loan, 4 signed blank cheques drawn on the Bank of Baroda, Pathanamthitta Branch from his S.B.A/c. No.SB/2003/JK and the original registration certificate and the duplicate key of the autorickshaw was given to the 2nd opposite party agreeing to return the same on completion of the payment of the loan amount. The vehicle was registered with the Regional Transport Authority, Pathanamthitta by registration No.KL-03 Q/2127. The income from the autorickshaw is only the livelihood of the complainant. The complainant paid all the 30 instalments as agreed. He demanded to return the cheque leaves, R.C. Book and key of the autorickshaw. But the opposite parties did not return the same for the reason best known to them and they also demanded to pay more money. The above said act of the opposite parties is illegal and it is an unfair trade practice. Without the original registration certificate, the complainant is not able to produce the vehicle before the authorities for testing. The vehicle is repaired and painted for producing before the R.T.O, Pathanamthitta for testing. But due to the above reason, the vehicle is kept at his house without plying the vehicle and hence the complainant is loosing ` 500 per day. Because of the above said act of the opposite parties, the complainant had sustained financial loss and mental agony and the opposite parties are liable to the complainant. Hence this complaint for an order of this Forum directing the opposite parties to return the original R.C. Book, duplicate key and the cheque leaves and for realizing an amount of ` 50,000 as damages along with the cost of this complaint.
3. Opposite parties neither appeared nor filed version. Hence opposite parties were declared as exparte. Since opposite party was exparte, this Forum allowed the complaint on the basis of the proof affidavit of the complainant and on the basis of documents produced and marked as Ext.A1 to A3.
4. Aggrieved by the order, the 1st opposite party filed an appeal as Appeal No.600/2010 before the Hon’ble CDRC and the Hon’ble CDRC allowed the appeal and set aside the order of this Forum and remanded the matter back to this Forum for fresh disposal.
5. On getting the order of Hon’ble CDRC this Forum issued notice to both parties and 1st opposite party entered appearance and filed their version. 2nd opposite party has not appeared. Hence 2nd opposite party was declared as exparte.
6. According to 1st opposite party, complaint is not maintainable either in law or on facts. They admit that complainant had availed Hire Purchase facility from them through the 2nd opposite party who acted as an agent. Complainant executed a Hire Purchase Agreement dated 12.04.2007 in favour of the 1st opposite party and thereby availed the facility to the tune of ` 87,000 from the 1st opposite party with regard to the Bajaj autorickshaw. As per the terms of the agreement complainant had to pay a monthly rent of ` 2,900 from 12.05.2007 onwards to 30 months. As per Hire Purchase Agreement, the hire purchase was noted in the R.C Book of the vehicle by the registering authority. Opposite parties would not obtained blank cheque leaves, original R.C Book from complainant as alleged.
7. Complainant violated the hire purchase agreement by defaulted the monthly instalments/rent in time i.e. on or before 12th of every month. The 1st instalment was paid any after a default of 58 days, 2nd instalment after a default of 120 days and so on. As per the terms of the Hire Purchase Agreement, the opposite party is entitled to charge penal interest on the defaulted instalment till payment. According to 1st opposite party allegations regarding the delay in getting fitness certificate from the RTO for want of original R.C Book is false and hence denied. In fact, the actual need of the complainant is a NOC from the opposite parties showing closure of the Hire Purchase facility. The opposite party can issue the NOC only after the complainant pay the balance amounts due from the complainant. As on date an amount of ` 22,062.90 is due from the complainant under the hire purchase agreement as detailed in the statement of accounts. As and when the complainant pays up the dues, the opposite parties are ready and willing to give the necessary NOC to him. Therefore, there is no deficiency of service on their part. Hence they canvassed for the dismissal of the complaint with their cost.
8. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
9. Evidence of the complaint consists of the oral deposition of PW1and PW2 and marked Exts.A1 to A4 and B1 and B2.
10. Point Nos. 1 to 3:- In order to prove complainant’s case, complainant’s power of attorney holder filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A4. Ext.A1 is the passbook issued by the 1st opposite party in respect of the loan amount. Ext.A2 is the photocopy of the Registration Certificate of the vehicle KL.03 Q/2127. Ext.A3 is the office copy of the lawyer’s notice dated 11.02.2010 issued to the opposite parties. Ext.A4 is the power of attorney executed by the complainant.
11. Apart from Ext.B1 and B2, 1st opposite party has not adduced any oral evidence. Ext.B1 is the statement of accounts in connection with the complainant’s repayment and outstanding. Ext.B2 is the Hire Purchase Agreement dated 12.04.2007 executed by the complainant.
12. On the basis of the contention and averment of the parties, we have perused the entire materials on record. Complainant’s case is that opposite parties would not returned the registration certificate of the autorickshaw, duplicate key and the signed blank cheque leaves entrusted with the opposite parties at the time of availing loan from them, in spite of closing of the loan account by paying the entire loan amount as agreed. The said acts of the opposite parties, the complainant had sustained financial loss and mental agony and opposite parties are liable to compensate the same.
13. 1st opposite party’s contention is that complainant availed a valid loan of ` 87,000 by executing a Hire Purchase Agreement. He has not prompt in paying the instalment and thereby a defaulter. They had not obtained blank cheque leaves or original R.C. Book as alleged by the complainant. According to them, they are ready and willing to issue NOC only after paying the outstanding dues of the complainant.
14. It is seen that there is no dispute regarding the issuance of loan and the agreement entered by parties. The only dispute is the delayed repayment of loan and thereby the breach of Hire Purchase Agreement. Ext.A1 shows that complainant paid the monthly instalments of ` 2,900 and the total payment was 30 instalments. Ext.B2 shows that complainant was not prompt in payment of instalments. Evidence shows that 1st instalment was paid only after a delay of 58 days and 2nd instalment after a delay of 120 days and so on. Ext.B1 shows that complainant entered into a hire purchase agreement with 1st opposite party.
15. As per Hire Purchase Agreement, complainant has to pay interest if the payment was made after the due date. On a perusal of Ext.B2, it is crystal clear that there is no prompt payment of instalment on the part of complainant. The same was admitted by PW1 in his deposition which is as follows: “Ext.A1 {]Imcw XhW kwJy-IÄ Hcp {]mhiyw t]mepw due dateþÂ AS-bv¡msX FÃm Xh-W-I-fnepw hogvN hcp-¯n-bn-«p-tÃm”? (Ans) icn-bm-Wv.
16. From the overall facts and circumstances and on the basis of the observation and findings, we are of the view that complainant was not prompt in paying the instalments in due date as per Ext.B1 and B2. Therefore, he has to pay the interest. Unless and until complainant not paying the interest dues, opposite parties are not bound to issue no objection certificate as per ext.B1. Therefore, we found no deficiency of service on the part of opposite parties. Hence complaint is not allowable.
17. However, complainant is directed to pay the interest dues up to the date of termination of hire purchase agreement. Thereafter, the rate of interest, if any, be fixed as per the guidelines of Reserve Bank of India. On payment of dues, 1st opposite party is directed to issue no objection certificate, blank cheque leaves etc. This C.C is disposed as per the above direction.
Declared in the Open Forum on this the 29th day of February, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Sasikumaran. V.
PW2 : Sidhique. S.
Exhibits marked on the side of the complainant:
A1 : Loan Pass Book Original.
A2 : Copy of Registration Certificate.
A3 : Copy of lawyer’s notice dated11.02.2010
A4 : Power of attorney executed by the complainant in favour of
Sasikumar.
Witness examined on the side of the opposite parties: Nil
Exhibits marked on the side of the opposite parties:
B1 : Hire Purchase Agreement dated 12.04.2007.
B2 : Statement of Accounts.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Suresh Kumar, Kavinte Padinjattethil, Vellappara.P.O.,
Konni, V-Kottayam Village, Kozhencherry Taluk,
Pathanamthitta Dist.
(2) The Managing Director, M/s. Subash & Company,
No.4, Erulappan Street, 1st Floor, Sowcarpet,
Chennai – 600 079.
(3) The Manager/Proprietor, M/s. Yathra Autos,
Opp. General Hospital, DDRC Road, Pathanamthitta.
(4) The Stock File.
