| Final Order / Judgement | OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI C.C.32/2008 Present:- 1)Md.Sahadat Hussain, A.J.S. - President 2)Sri U.N.Deka - Member 1. Sri Debesh Chandra Chakravarty -Complainants S/o.Late Mahesh Ch.Chakraborty R/o Chinaki Path,Zoo Narengi Road,Gitanagar. P.O.Zoo Road,Guwahati-781024,Assam. -vs- 1) M/S Bimal Auto Agency -Opp. parties Adabari,Guwahati-14,Assam 2) I.C.I.C.I.Bank Towers,Bandra Kurla Complex, Mumbai-400057, India 3) I.C.I.C.I.Bank Ltd. I.C.I.C.I.Bank House,3rd Floor,3A,Suru Saday Road,Kolkata-700019. 4) I.C.I.C.I.Bank Ltd. Ohio Shopping Complex, 1st Floor, M.G.Road,Fancy Bazar,Guwahati-781001,Assam. Appearance- The complainant himself forwarded argument. Learned advocate Mr.Ramesh Kr.Jain for opp. party No.1 and Learned advocate Mr.Pawan Neog for opp. party No.2 & 3& 4 Date of argument- 27.4.2016 Date of judgment- 10.5.2016 Judgment - This is a proceeding u/s 12 of Consumer Protection Act, 1986.
- The complaint filed by Sri Debesh Ch.Chakravarty against Bimal Auto Agency and other three opp.parties were admitted on 13.3.08 and notices were served on all the opp.parties and they have also contested the case by filing written statement separately . The complainant filed his affidavit on 20.8.09 and he was cross examined by learned counsel of Opp.Party No.1 and Opp.Party No.2 to 4 seperately. Thereafter, Opp.Party No.1 filed affidavit of Sri Pranab Chakravorty as their evidence and he was also cross examined by the complainant side. On the other hand, Opp.Party No.2 to 4 namely I.C.I.C.I. Bank Ltd. filed affidavit of one Sri Arindam Singh Deka as their evidence. He was also cross examined by complainant side and also by Opp.Party No.1 side. After closure of the hearing of the evidence, the complainant, Sri Debesh Ch.Chakravorty filed his written argument and Ld advocate Mr.R.K.Jain filed written argument of Opp.Party No.1 and Ld.advocate Mr.Kulajit Das filed written argument of Opp.Party No.2 to 4. Thereafter on 27.4.16 the complainant, Mr. Debesh Ch.Chakravorty forwarded his oral argument ; Ld advocate Mr.R.K.Jain forwarded his oral argument for Opp.Party No..1 as well as Ld.advocate Mr.Pawan Neog forwarded his oral argument for Opp.Party No.2 to 4. We have perused the pleading of the parties, their evidence as well as argument of their Ld.counsels and deliver the judgment which is as below-
- The gist of the pleading of the complainant is that he purchased one Maruti 800 car bearing Engine No. 2089155 , Chessis No.2314804 and Registration No. AS-01 K-2250. He entered to an agreement with Bimal Auto Agency to purchase a new Maruti Wagon R Car in exchange of his Maruti 800 car and accordingly he sold his Maruti 800 car to Opp.Party No.1 Bimal Auto Agency on 29.3.2006 for a total price of Rs. 78,000/- including Rs.5,000/- as Exchange Bonus vide receipt dtd.29.3.06 with condition that the said amount would be paid by Opp.Party No.1 towards part payment of price of New Maruti Wagon R Car and as per agreement he purchased Maruti Wagon R car bearing Engine No. 4319229, Chessis No. 395521 and Registration No. AS01 Y9081 from Opp.Party No.1 on 30.3.06 for total price of Rs.3,57,978/- vide Invoice No.82251 dtd.30.3.06 and he also paid Rs.39,648/- vide cheque No. 377896 dtd. 29.3.2006 as part payment towards a sale price of the said car. As per agreement both that two amounts would be adjusted by Opp.Party No.1 towards price of the new Maruti Wagon R Car and the balance amount which was Rs.2,39,330/- would be received by the Opp.Party No.1 from Opp.Party NO.2 (I.C.I.C.I. Bank Ltd.) and accordingly Opp.Party No.1 & 2 have obtained his signature on various blank forms, blank stamp papers, blank documents as well as some authority letters addressed to SBI,Guwahati Branch in respect of his Saving Bank Account No. 10823988444 and they have also received a updated cheques arranging from 377891 to 377895 and is signed all the papers and cheques on bonafide belief that said would be used for the purpose of granting loan of Rs.2,39,330/- only, he was kept in dark about the whole transaction between Opp.Party No.1 & 2 and an amount of Rs.6,770/- was being deducted from his Bank account in every month as EMI of a loan regularly from the month of May,2006 and total amount of Rs.1,48,940/- has been recovered by Opp.Party No.2 from his Bank account from May,2006 to March,2008. On 23.4.2007 suddenly he has received a unsigned statement of account from Opp.Party No.2 in respect of alleged loan agreement No. LAGUW 00006490347 which is reads as follows-
Agreement No.: LAGUW 00006490347 Disbursal Date: 03.04.2006 Tenure:60 Instalment Period: 05.05.2006 to 05.04.2011 Amount financed: Rs.3,56,978.00 Instalment paid: Rs.74,470/- Instalment overdue: Rs.6,770.00 Other over dues: Rs.477.00 Future Instalments: Rs.2,23,410.00 Pre EMI paid: Rs.0 . He had never received any car loan to the tune of Rs. 3,56,978.00 (Rupees three lakhs fifty six thousand nine hundred seventy eight) only from Opp.Party No.2 nor the Opp. Party No.2 paid any such amount to the Opp.Party No.1 for his behalf of for purchase of Maruti Wagon R Car by him from the Opp.Party NO.1. The whole loan transaction to the tune of Rs.3,56,978.00 (Rupees three lakhs fifty six thousand nine hundred seventy eight) only was made by the Opp.Party No.2 with him is not based on facts, but on fraud and concealment and hence the said loan agreement is liable to be declared as void and inoperative in law. The opp.parties have mis-appropriates the exchange value of his Maruti 800 car i.e. Rs.78,000/- as well as the advance money i.e. Rs.39,648/- by not adjusting the same towards the sale price of the said car. He also sent letters to opp.parties on 3.5.2007 , 16.5.2007 and 3.9.2007 in connection with the said matter and in reply to this letters the Ld advocate of Opp.Party No.1, by sending a letter dtd.4.7.2007, informed him that the opp.party is not liable to return the aforesaid amounts. Thereafter, Opp.Party No.2 & 3 have sent letters to him on 5.7.07, 3.1.08 and 5.2.08 demanding payment of Rs.6,770/- as outstanding instalment and such acts are deficiency of service towards him for which he has suffered financial loss to the tune of Rs.1,17,648/- and therefore, he prays for issuance of direction to the opp.parties to pay him Rs.1,17,648/- with interest @ 20% and also to declare loan agreement vide LAGUW 00006490347 sought to have been executed by him is void and inoperative and also to pay Rs.2,00,000/- for compensation alongwith Rs.50,000/- as cost of the proceeding. - The gist of the pleading of Opp.Party No.1, Bimal Auto Agency is that the complainant has no cause of action for filing the complaint; complainant purchased a new Wagon-R LXi on 30.3.2006 bearing Engine No. 4319229, Chessis No. 395521 and Registration No. AS01 Y9081 at theprice of Rs.3,57,978/- financed by ICICI Bank Ltd. for whom Opp.Party No.1 was acting merely as an agent. The vehicle was insured with Bajaj Allianz General Insurance Co.Ltd. . The vehicle was purchased by the complainant in exchange of the old Maruti 800 car bearing Registration No. AS-01 K-2250 valued at Rs.78,000/- under Maruti True Value exchange scheme. But the Opp.Party No.1, specifically denied that the said amount of Rs.78,000/-+5,000/- as exchange bonus would be adjusted against the sale price of the said New Maruti Wagon R Car. It is admitted by Opp.Party No.1 about the receipt of Rs.39,648/- by cheque No.377896 dtd 29.3.06 drawn on State Bank of India towards part of the sale price of the new Wagon R Car. The opp.party No.1, specifically denied that there was no any specific understanding between the opp.party No.1 and complainant that the balance amount of sale price of Rs.2,21,481/- is to be arranged as loan from ICICI Bank Guwahati. The opp.party No.1 specifically stated that there was no question of adjustment of the amount of Rs.78,000/- and 39,648/-(in total Rs.1,17,648/-) but those amount were to be adjusted towards the sale price of Rs.3,39,129/- of the new Maruti Wagon R car and the balance amount of sale price of Rs.2,21,481/- was to be provided as loan in favour of the complainant by ICICI Bank directly to the opp.party No.1 on 30.3.06. The loan was provided by the Bank to the complainant was Rs.3,56,978 to be paid by the complainant along with interest amounting to Rs.49,222/- in 60 equal installments, out of this, the opp.party No.1 paid to Bank Rs.1,01,550/- i.e. in 15 equal installments of Rs.6,770/-, thus the balance loan remained to be paid is Rs.3,04,650/-. On this amount the complainant has, during the period of time, paid to the Bank Rs.81,240/- i.e. Rs.6770/- in 12 equal installment as per ICICI Bank statements submitted to the complainant. Thus the balance loan remains Rs.2,23,410/- (Rs.3,04,650/- -Rs.81,240/- to be paid by the complainant as future installments as mentioned by the Bank in the statements submitted to the complainant. As such, the question of adjustment of old car amount does not arise at all.
SCHEDULE “ A “ - Cost of 15 installments paid by the Opp.party NO..1 to the bank @ Rs.6770/- 1,01,550.00
- Cost of Registration charge 14,143.00
- Cost of extended warranty 1,890.00
- Documentation charges 65.00
Total amount Rs.1,17,648.00 Paid by the complainant SCHEDULE “B “ - Cost of the complainant’s old car Rs. 78,000/-
- Paid through cheque No. 37896 Rs.39,648/-
Total Rs. 1,17,648/- The statement made in para nos. 8 & 9 of the petition are absolutely false and denied by the opp.party No.1. The opp.party No.1, specifically states that signature of the complainant was taken on blank stamp papers/blank documents/authority letters, five undated cheques bearing Sl No. 377891, 377892, 377893, 377894 and 377895 from the complainant. But, as per policy of the Bank, the loanee has to execute authority letters addressed to the State Bank of India ,Guwahati for payment of monthly installments as the loan was provided by ICICI Bank on behalf of State Bank of India,Guwahati. The complainant signed and executed documents of the loan after fully understanding the terms and condition of the Bank loan. They have paid loan amount of Rs.1,01,550/- for purchase of the said car to the bank on behalf of the complainant. As complainant signed the loan agreement and loan agreement is a lawful agreement. As they paid Rs.1,01,550/- to his Banker (Opp.Party No.2 & 3), the complainant is not entitled to get back any money from them.The loan was with condition of payment of Rs.6,770/- per month in 60 equal installments in respect of the loan amount of Rs. 3,56,978/-. The agreement, they have entered with the complainant, cannot be repudiated owing to it is a legal agreement and they did not commit any unfair trade practice or deficiency of service towards the complainant and therefore they are not liable to pay any amount to the complainant including the compensation and cost of the proceeding whatsoever. - The gist of the pleading of the opp.party No.2 to 4 is that the complaint is not maintainable and it is filed without any just ground, which is a wholly misconceived and unsustainable in law and liable to be dismissed. The complaint is frivolous and vaxacious. The complainant availed a loan of Rs.3,56,978/- for purchasing a Maruti Wagon R Car and the advance amounts of Rs.78,000/- and Rs.39,648 totalling Rs.1,17,648/- was adjusted in payment of down payment and registration charge etc. by the opp.party No.1. The complainant signed the loan agreement knowing and understanding of terms and condition of the agreement. They have not committed any deficiency of service towards the complainant and therefore the complainant is not entitled to any relief sought for. The complainant purchased a Maruti Wagon R from Opp.Party No.1 in exchange of his old Maruti 800 car and with the loan granted by them (ICICI Bank) and the loan amount was Rs.3,56,978/-, but not Rs.2,39,300 and the complainant himself put his signature over the loan agreement without any hesitation and the loan agreement is a lawful agreement and they have not resorted to any unfair trade practice. The complainant is entitled to get any relief from them.
- We have perused the evidence of the parties and found that the complainant in his evidence states that he had sold his old Maruti car to Opp.Party No.1 (Bimal Auto Agency, Adabari) on 29.3.2006 with exchange value of Rs.78,000/- which includes Rs.5,000/- as exchange bonus and he agreed with Opp.Party No.1 that the entire sale-value of Rs.78,000/-would be used in payment of down payment and that he also deposited Rs.39,648/- to Opp.Party No.1 by cheque No.377896dt. 29.3.06. It is found that Opp.Party No.1, in their evidence, admits that they received Rs.78,000/- as a cost of complainant’s old car and Rs.39,648/- vide cheque No. 377896 from the complainant . Thus, it is clear that the complainant had deposited Rs.1,17,648/- to the Opp.Party No.1 as advance money for purchasing a new Maruti Wagon R from them.
It is both sides’ admitted fact that the complainant entered into a loan agreement with ICICI Bank (Opp.Party No.2 to 4) for financing him to purchase a new car from Opp.Party No.1. But the complainant states he entered to a loan agreement with Opp.Party No.4 (ICICI Bank) for a loan of Rs.2,29,330/- only but not for the entire price of the new car i.e.Rs.3,56,978/- but in the cross examination , PW (the complainant) himself admits that the loan sanctioned by Opp.Party No.4 was Rs. 3,56,978/-. After perusing Ext. 4 and Ext. B (loan agreement) perusing Exhibit 4 and Ex B(loan agreement) it is found that the loan amount sanctioned to the complainant was Rs.3,56,978/- which was payable in sixty EMI at the rate of Rs.6,770/- p.m. . Thus, it is crystal clear that Opp.Party No.4 sanctioned the total cost of price of the Matuti Wagon R . The complainant proposed to purchase the said vehicle from Opp.Party NO.1 at a price of Rs. 3,56,978/- taking said amount on loan which was payable in 60 EMI s s at the rate of Rs.6770/- p.m. and it was sanctioned on the request of the complainant. It is also both sides’ admitted fact that the complainant purchased a new Maruti Wagon R from Opp.Party No.1 on 30.3.2006 at a price of Rs. 3,56,978/-(Rupees three thousand fifty six thousand nine hundred seventy eight)only. The opp.party No.1 side states that out of total amount got received from the complainant which also includes the exchange value of Rs.78,000/-, they paid Rs.1,01,550/-to Opp.Party NO.2 to 4 (ICCI Bank) which would be 15 equal instalments at the rate of Rs.6770/-p.m. as part payment of the price of the vehicle and paid Rs.14,143/- as registration fee, Of the new vehicle and Rs.1,870/- as charge of extended warranty and Rs.65/- documentation charge . This fact is not denied by te complainant. But after perusing Ex G(loan statement), it is seen that ICCI Bank deducted forty five EMIs at the rate of Rs.6770/- from the account of the complainant in regular manner from 5.5.2006 to 5.1.2010 and thereby recovered Rs.2,55,428/- as principal amount and Rs.49,222/- as interest. It is also seen from Ex-C that the loan showed fully repaid. The total EMI was 60 as per loan agreement, and the Bank recovered 45 EMI s from the complainant. Hence, it is proved that the Opp.Party No.1 paid the total of 15 EMI s to the bank (Opp.Party NO.4) , meaning thereby Opp.Party No.1 paid Rs.1,01,550/- to the Bank, Opp.party NO.4 against the loan of the complainant. The complainant does not deny that Opp.Party No.1 paid Rs. 14,143/- to the registration authority as charge of registration of this new vehicle and adjusted Rs.1,890/- for extended warranty charge and Rs.65/- as documentation charge. Thus, it is clear that out of total advance amount Rs.1,17,648/- (Rs. 78,000 exchange value + Rs.39,668/- direct payment), the Opp.Party NO.1 paid Rs. 101,550/- to Opp.Party NO.4 (ICICI Bank) against the loan of the complainant and paid Rs.14,143/- as registration charge of the new vehicle of the complainant to registration authority and adjusted Rs.1,890/- as charge of extended warranty and Rs.65/- as documentation fees. Thus, it is found that the Opp.Party No.1 has not misappropriated the advance amount of Rs.1,17,648/- which was deposited by the complainant to them. Herein, it is also found that no amount was misappropriated by I.C.I.C.I.Bank nor they sanctioned a loan of Rs.3,06,978/- to the complainant at their own whim. - Opp.Party No.1 is found to have admitted that they paid Rs.1,01,550/- to the Bank against the loan of the complainant which will be 15 installments at the rate of Rs.6,770/- p.m. From Exhibit C, it is seen that the loan was recoverable in 60 equal installments at the rate of Rs.6,770/- and first installment fell on 5.5.2006 and 60th installment fell on 5.5.2011 , but the Bank closed the account at 45th installment with declaration that Rs.3,04,650/- was recovered, which includes principal part as Rs.2,55,428/- and interest part as Rs.49,222/- meaning thereby the Bank (ICICI) might had received Rs.1,01,550/- from Opp.Party No.1 before start of interest which had started from 5.5.2006,against the loan of the complainant. Thus, it is crystal clear that the Opp.Party No.1, just after delivery of the new vehicle to the complainant, paid Rs.1,01,550/-(Rupee one lakh one thousand five hundred fifty) to the Bank (ICICI) against the loan of the complainant, So , it appears to us that Opp.Party NO.1 has not misappropriated any amount of the advance payment made to them by the complainant at the time of purchasing the vehicle , nor Opp.Party No.2 to 4 have misappropriated any amount of the complainant and nor realised any amount in excess of loan granted.
- Because of what has been discussed as above, we find that the complainant has no cause of action for filing this complaint against the opp.parties . Hence, the complaint is dismissed on contest.
Given under our hands and seal of this forum on this day 10th May,2016. Free copies of judgment be delivered to the parties. (Md.S.Hussain) President (Mr.U.N.Deka) Member | |
