Kerala

Kottayam

247/2006

Sheeja Thomas - Complainant(s)

Versus

MD - Opp.Party(s)

MK Vasudeva Kurup

30 Sep 2009

ORDER


Report
CDRF, Collectorate
consumer case(CC) No. 247/2006

Sheeja Thomas
TC Thomas
...........Appellant(s)

Vs.

MD
Brach Manager
...........Respondent(s)


BEFORE:
1. Bindhu M Thomas 2. Santhosh Kesava Nath P

Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER

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CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present.

Sri.Santhosh Kesavanath.P. President

Smt.Bindhu M.Thomas Member

Sri.K.N.Radhakrishnan Member.


 

CC.No.247/06

Wednesday, the day of 30th September, 2009.

 

Petitioner 1. Sheeja Thomas

Thakadiyil parambil house

Channanikadu.P.O.

Kottayam.

2. T.C.Thomas

Thakadiyil parambil house

Channanikadu.P.O.

Kottayam.

(Adv.M.K.Vasudevakurup)

Vs.

Opposite parties. 1. Shriram Investments Ltd.

123,Angappa Naicken Street, Chennai-600 001

Having Administrative

Office at Mookambika

Complex 3rd Floor, No.4.

Lady Desikachary Road

Mylapore Chennai-600 001

Rep.by its Mg.Director.

2. Branch Manager

Shriram Investments Ltd.

Geetha Commercial Complex Near Y.M.C.A.

MC Road, Kottayam-1.

(Adv.Joy Joseph)

O R D E R

Smt.Bindhu M.Thomas, Member.

The case of the complainant's case is as follows.


 

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The first complainant, the registered owner of vehicle No.KL.7S.5479 entered into a hire purchase agreement with the first opposite party and availed a loan on 15-10-04. The said agreement was executed in the second opposite party's office at Kottayam. As per the hire purchase agreement, the loan amount should be repaid in 36 monthly instalments ie. from 15-10-04 to 15-10-07. For the security of the Hire amount, the opposite parties demanded blank cheques and blank stamp papers, and the first complainant gave five cheque leaves and two blank stamp papers and two white papers with revenue stamp stamp on the date of the Hire purchase agreement itself. The cheque No are 3921821 to 3921825. Second complainant gave 12 cheque leaves bearing No. 3918741 to 3918752 on 15-10-04. On further demand another set of 12 cheques from the second complainant's is account was also given. After 3-4 instalments the complainant defaulted payment and the vehicle was repossessed by the opposite parties in June 2005. Eventhough hire purchase agreement is valid upto 15-11-07 all the dues and loan amount were settled and the hire purchase agreement was terminated in November 2005. The vehicle was also released. Termination letter was issued by the opposite parties and on 22-11-05 the registering authorities put an endorsement in the registration certificate that the hire purchase agreement was cancelled. While terminating the hire purchase agreement, the complainants demanded the opposite parties to return the above mentioned cheques and other documents which were entrusted with the opposite parties as security. The second opposite party informed that the said cheques will be returned only in March 2006. On 23-3-06 the complainant

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received the lawyer's notice u/s. 138 of NI Act and u/s. 420 of IPC calling upon her to pay amount of Rs.1,45,000/-. The complainant alleged that the opposite parties had misused the cheques for making unlawful gain. Hence the complainant filed this complaint praying the following reliefs.

(i) to direct the opposite parties to return the cheques

    entrusted to him as security.

    (ii) Rs.10,000/- as compensation.

    (iii) Litigation cost.

The first and second opposite parties filed version together with the following main contentions.

    (i) This complaint is not maintainable either in law

    or on facts of the case.

    (ii) The complainant utilized the hire purchase loan taken

    from the opposite parties for purchasing a bus to make profit

    So the complainant is not a consumer as defined

    u/s. 2(d) (1) (i) (ii) of Consumer Protection Act.

(iii) Hire purchase transactions are outside the purview of

    Consumer Disputes Redressal Forum.

(iv) The complainant committed default in paying instalments

    several times as a result the opposite party suffered loss

    and complainant is bound to make up the loss.

(v) No signed blank cheque or any signed stamp papers

    were accepted by the opposite party at the time

    of taking the loan.

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(vi) This complaint is filed only as a defence in a

    criminal complaint that may be instituted against

    her for dishonouring any duly executed

negotiable instruments.

(vii) The complainant has not adduced any evidence

    to show that blank cheque leafs and signed stamp

    papers where handed over to the opposite parties.

(viii) The complainant has not suffered any mental

    agony or financial loss by the act of the opposite

    parties.

Hence the opposite parties prayed to dismiss the complaint with compensatory costs to them.

Points for consideration are:

  1. Whether the complaint is maintainable?

  2. Whether there is any deficiency in service or unfair

    trade practice on the part of opposite parties?

  3. Reliefs and costs?

Evidence consists of affidavits filed by both parties and exhibits A1 to A3.

Point No.1.

The opposite parties counsel argued that the complainant purchased the vehicle for commercial purpose and hence no complaint shall lie before this forum. The learned counsel further argued that as the complainant had purchased vehicle under hire purchase agreement and as such he was mere

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bailee and not owner under the definition of consumer protection Act. Whereas the learned counsel argued that it was a loan agreement and the case is only against the act of opposite party in withholding the cheques documents and sending notice and misusing the cheques with them

after terminating the hire purchase agreement which amounts to deficiency of service and unfair trade practice from the side of opposite parties.

From the facts and circumstances of the case we feel that the complaint is filed against the deficiency in service and unfair trade practice from the side of the opposite parties. According to the opposite parties hire purchase transactions are outside the purview of consumer disputes redressal forum. In our view when a vehicle is purchased by a consumer by borrowing money from financier, the consumer is the owner of the vehicle and not the financier unless the ownership is transferred and the transaction between the consumer and the money lender will unquestionably a loan transaction. Moreover as per S.2 (1) (o) of consumer protection act the service ''financing'' also comes under the purview of consumer protection act. So in our opinion this complaint is maintainable,.

Point No.2.

The complainants averred that they had given five cheque leaves bearing nos. from 3921821 to 3921825 from her account in Dhana Lakshmi Bank, Kottayam along with other 12 cheque leaves bearing nos. 3918741 to 3918752, two blank stamp papers and two white paper with revenue stamp as a security for the hire amount. But nothing is placed on record to prove that the above said cheque leaves and documents were given to the opposite

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party as security. A lawyer's notice issued by the opposite party to the complainant dated 13/3/06 is produced and marked as exhibit A2. In exhibit A2, the opposite party alleged that the petitioner has issued a cheque bearing no. 3921821 dated 19/11/05 drawn on the Dhanalekshmi Bank, Kottayam Branch for Rs.1,45,000/- towards the discharge of the liability he owned towards the opposite parties. Where as the petitioner averred that the said cheque was given to the opposite party as a security of the hire amount. No scrap of paper is placed on record by the opposite parties to show that a cheque bearing no.39212821 or any other cheque or documents are executed by the complainant for the discharge of their liabilities towards the opposite parties.

The copy of the RC certificate is produced and marked as exhibit A1. In exhibit A1 it is endorsed that ''the existing HPA with Shriram Investments Ltd. Ernakulam is cancelled w.e.f. 22-11-05''. No prudent man will believe that the opposite parties will issue a termination letter to the registering authorities without clearing all the dues and thus settling the loan amount. Moreover if any amount is due from the petitioner, what prevented the opposite parties from producing the statement of account before the forum.

So in our view the act of opposite parties in misusing the cheques with them and issuing lawyer's notice dated 13/3/06 to the complainants for making in unlawful gain after the termination of the hypothecation agreement is a clear case of unfair trade practice. Point No.2 is found accordingly.


 


 

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Point No.2.

In view of the findings in point No.1 and Point No.2 this complaint is allowed.

The complaint is ordered as follows.

If any cheques and documents are withheld by the opposite parties in connection with the Hire purchase agreement the opposite parties will return them to the complainants. The opposite parties will also pay Rs.2000/- as compensation for the mental agony caused to the petitioners along with a litigation cost of Rs.1000/-.

This order will be complied with within one month of receipt of its copy.

The complaint is disposed of with the aforementioned directions.

Smt.Bindhu M.Thomas Member Sd/-

Sri.Santhosh Kesavanath.P. President Sd/-

Sri.K.N.Radhakrishnan Member. Sd/-

APPENDIX

Documents of the petitioner.

Exhibit A1 Copy of registration certificate

Exhibit A2 Copy of lawyer's notice issued by the opposite parties.

Exhibit A3 Reply notice issued by the complainant.

Documents of the opposite parties.

NIL.

By Orders,


 

Senior Superintendent.

Kgr/5 copies.




......................Bindhu M Thomas
......................Santhosh Kesava Nath P