F.A.No.312/2009 AGAINST C.C.No.77/2007  DISTRICT FORUM, KARIMNAGAR

Between:

M/s.Tata Motors Ltd.,

202, II floor Akash Ganga Complex,

H.No.6-3-637, Khairatabad,

Hyderabad,

Rep. by its Branch Manager.                                                                                       Appellant/

                                                                                                                                       Opp.party

                   And  

1. Mohd. Akhil Pasha,

    S/o.Qayyam Pasha late

    Aged 28 years, Occ:Business,

    R/o.6-2-715, Hussainpura,

    Karimnagar town.

2. Fathimunnisa Begum, W/o.Qayyum

    Pasha, aged 62 years, Occ:Housewife.

3. Mr.M.A.Hafeez, S/o.M.A.Abdul Nabi,

    Aged 60 years, Occ:Retired Employee,

    H.No.9-4-282, Sapthagiri Colony,

    Karimnagar Dt.,                                                                                                        Respondents/

Complainants

Counsel for the Appellant: Mr.Valluri Mohan Srinivas.

Counsel for the Respondents:Mr.Harinath Rao

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

AND

SMT.M.SHREESHA,  MEMBER

.

FRIDAY, THE NINTH DAY OF JULY,

TWO THOUSAND TEN

(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member.)
***

        Aggrieved by the order in C.C.No.77/2007 on the file of District Forum, Karimnagar, opposite party preferred this appeal.

        The brief facts as set out are that complainant No.1 was doing vegetable business and purchased a four wheeler carrier i.e. TATA LPT 909 bearing No.AP 15 X 0468 to eke out his livelihood.  He submitted that he availed a loan from the opposite party for purchasing the vehicle and complainants 2 and 3 are guarantors to the said loan.  The total value of the vehicle is Rs.7,31,530 and the complainant paid an amount of Rs.10,000/- towards booking of the vehicle on 13-6-2005 and also paid an amount of Rs.25,000/- as down payment and opposite party arranged an amount of Rs.7,31,530/- and the complainant No.1 entered into an agreement on 13-6-2005 and issued 28 cheques vide cheque bearing Nos.0366077 to 0366104 of Andhra Bank, Main Branch, Azmathpura, Karimngar for his future payments.  The complainant No.1 submitted that he paid Rs.25,000/- to the opposite party and also paid instalments regularly upto December, 2006 and as he met with an accident and received grievous injuries, he was admitted in hospital and was advised to take bed rest for six months.  The same was informed to the opposite party but all of sudden without issuing any notice to complainant No.1, opposite party has taken away the vehicle on 21-1-2007 and gave a legal notice stating that the vehicle was sold out and the complainant is liable to pay Rs.3,42,650/-.  It is the case of the complainant that the opposite party failed to give any prior intimation or paper publication for sale of the vehicle and the sale proceedings are conducted in the absence of complainant No.1 without intimating to the complainant and as such he is idle, his business was ruined, there is no source to pay instalments to opposite party and sustained heavy loss of Rs.2,00,000/- and his family is totally depending on that vehicle only and have sold their valuable articles.  Hence the complaint for a direction to the opposite party to return the cheques issued by complainant No.1, to pay down payment amount of Rs.35,000/- besides instalment amount of Rs.47,830 and also Rs.50,000/- towards damages and costs.

        Opposite party filed counter denying the averments of the complainant and stated that M/s.Tata Finance Ltd. had being amalgamated with Tata Motors Ltd. pursuant to the orders of Hon’ble High Court vide order dated 24-6-2005 and as such Tata Finance Ltd. ceases to exist and hence the present complaint against Tata Finance Ltd. is devoid of merits and is liable to be dismissed.  It submitted that the complainants do not come within the purview of C.P.Act and hence the complaint is liable to be dismissed.  It submitted that the complainant approached erstwhile Tata Finance Ltd. seeking financial assistance of Rs.5,87,000/- for purchase of a vehicle for commercial use  and it agreed to advance the amount for which the complainant to repay the same together with interest and insurance provision which is amounted to Rs.7,31,530/- and an agreement was entered on 13-6-2005 and the complainant agreed to repay the same in 46 monthly instalments.   It submitted that the complainant contrary to the agreement had committed default right from the insertion of the contract and paid only Rs.78,517/- towards the instalment against Rs.1,27,330- upto March, 2006 and if the dues are not paid in advance, they are liable to pay over dues, compensation charges and inspite of several demands and visits the dues were not remitted and the arrears of instalments, over due charges and other chares were mounting hence the vehicle was repossessed on 01-3-2006 and the fact of repossession was also intimated to the complainant and the vehicle was sold to the highest bidder for Rs.4,00,000/- in an open auction and the complainant has not chosen to participate in the open auction and even after adjustment of the sale proceeds, the complainants are liable to pay the substantial amounts for which necessary action for recovery is being initiated by the company by way of arbitration as per the terms of the agreement.  They submitted that they issued a legal notice dated 16-4-2007 demanding Rs.3,42,656/- and submitted that the complainant was at fault from the inception of the contract and cannot blame them for negligence as alleged and submitted that they sustained huge loss in respect of the advance of amount given to the complainant  and submitted that there is no cause of action to file the complaint.  They further submitted that the complainant had suppressed many factual aspects and to avoid further legal proceedings of recovery he approached the forum with unclean hands and prayed for dismissal of the complaint.

        Based on the evidence adduced i.e. Exs.A1 to A3 and B1 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite party to return the cheques submitted by the complainant towards the loan payment and pay Rs.40,000/- with 9% interest from the date of filing of the petition i.e. 28-6-2007 together with costs of Rs.1,000/-.

        Aggrieved by the said order, opposite party preferred this appeal.

        The appellant filed written arguments and contended that the complainant is a chronic defaulter and the complainant was actually liable to pay the entire dues in 46 monthly instalments but paid only Rs.78,517/- towards instalments as against the outstanding dues of Rs.1,27,330/- as on March, 2006.  It was because of the failure of the respondent/complainant to repay the loan that the financier was forced to repossess and sell the vehicle as per the terms of the agreement.  The learned counsel for the appellant further contended that the vehicle did not fetch more than Rs.4,00,000 and the financier cannot be held liable if the vehicle is sold only for that amount and hence there is no deficiency of service on their behalf. 

It is the complainant’s case that to eke out his livelihood he purchased Tata LPT 909 bearing No.AP 15 X 0468 and approached for loan of Rs.7,31,530 and has paid Rs.10,000/- towards booking of the vehicle on 13-6-2005 and Rs.25,000/- as down payment and then opposite party arranged Rs.7,31,530/- towards loan.  The complainant issued 28 cheques to the opposite party but paid instalments only up to December, 2006 and without giving any intimation to the complainant on 21-1-2007, the opposite party forcibly took away the vehicle from the complainant’s custody and sold it for Rs.4,00,000/-.  The complainant got issued Ex.A2 legal notice dated 16-4-2007 but he did not receive any reply.  It is the opposite party’s case that the first complainant paid only Rs.78,517/- towards instalments as against Rs.1,27,330/- up to March, 2006 and is a defaulter and hence the vehicle was possessed on 01-3-2006 and thereafter once again on 21-1-2007.  Subsequently it was sold to the highest bidder for Rs.4,00,000/- and after adjusting the same to the loan amount, the opposite party contends that the first complainant is liable to pay Rs.3,42,656/-. 

We observe from the record that the appellant/opposite party did not choose to file copy of the loan agreement on which terms and conditions he is relying upon.  It is also pertinent to note that no notice was issued by the appellant prior to sale and auction of the vehicle.   The appellant/opposite party only filed the copy of power of attorney.  There are no details with respect to the auction except for the appellant/opposite party stating that the vehicle did not fetch more than Rs.4,00,000/-.  Since the vehicle was sold in an auction without giving nay notice this act amounts to deficiency in service on behalf of the appellant/opposite party for which the District Forum  has awarded an compensation of Rs.40,000/- together with interest at 9% p.a. from the date of complaint.  Since compensation has already been awarded by way of Rs.40,000/- awarding interest again is unjustified and we modify the order of the District Forum by setting aside the interest granted.

In the result this appeal is allowed in part by setting aside the interest awarded on Rs.40,000/- while confirming the rest of the order of the District Forum.  There shall be no order as to costs.

Sd/-PRESIDENT.

Sd/-MEMBER.

JM                                                                                                                     Dt.09-7-2010