DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 22^nd day of  December 2012

Present : Smt.Seena H, President

            : Smt. Preetha.G. Nair, Member

            : Smt. Bhanumathi.A.K, Member           Date of filing: 29/02/2012

(C.C.No.43/2012)

1. Jiji.P

    S/o.Poulose,

    Pookkattu House

    Kolenchira Post,

    Vadakkancherry,

    Palakkad Taluk.

2. Poulose,

    S/o.Aiype,

    Pookkattu House

    Kolenchira Post,

    Vadakkancherry,

    Palakkad Taluk.                          -                       Complainants

    (By Adv.Asha.M)

Vs

1.M/s.Mahindra and Mahindra

   Financial Service Limited,

   Registered Office at Gate Way Building,

   Appolo Bunder, Mumbai – 400 001

   Rep.by its Chairman

2.M/s.Mahindra and Mahindra

   Financial Service Limited,

   Branch Office  at Chandranagar,

   Palakkad

   Rep.by its Manager                               -                        Opposite parties

(By Adv.Viju K Raphel)

O R D E R

          By Smt.Preetha.G.Nair, Member

           The 1^st complainant availed loan of Rs.6,00,000/- from the 2^nd opposite party on 31/7/2007 for purchasing a Tipper Lorry Swaraj Mazda bearing No.KL-49-6528. The 2^nd complainant is the guarantor to the loan. As per the agreement the complainant has to repay the sum with interest by installments and Rs.2,50,000/- is repaid by the complainants to opposite parties by 15 monthly installments. After that the complainant approached the opposite parties to settle the loan by repaying the balance in lump sum. Then the 2^nd opposite party obtained original of all the receipts of repayments and other connected documents of the transaction by saying that they have to verify the balance with the documents prior to final settlement. After taking the original documents from the complainants the opposite parties are reluctant to give the account details and close the loan.

At the time of availing the financial assistance from the opposite parties, they obtained blank signed cheque leaves of the complainants and blank signed stamp papers and revenue stamp affixed blank signed papers of the complainant as well as signatures of them in printed papers having unfilled columns as a security of repayment and also by holding that these are necessary for preparing documentation for the transaction in due course.

The complainants were regular in repayment and the officers of opposite parties  were reluctant  to give proper receipt to the payments made by the complainants.  Thereafter the opposite parties filed a false case Under Section 138 of Negotiable Instrument Act against the 1^st complainant as ST 2268/2008 before the Judicial First Class Magistrate Court No.1. Finally the 1^st complainant to rescue himself from the case on 20/11/10 through the 2^nd complainant  surrendered the vehicle and paid the amount claimed in the case and the opposite parties withdrawn the case. The opposite parties are complaints that the vehicle will be sold to 3^rd parties for a sum of Rs.8,00,000/- and the balance amount of Rs.3,00,000/-  after settling  the dues outstanding to Rs.5,00,000/- will be repaid to the complainant.

Thereafter when the complainant approaches the opposite parties and enquired about the subject matter they assured that the blank signed cheques and papers obtained from the complainants would returned after cancellation to the complainants. On believing the words of the opposite parties  the complainants not initiated any legal action against the opposite parties by considering that somehow a legal  action can be ousted. Thereafter till date the opposite parties had not returned back the blank signed cheques and papers of the complainants  or repaid the excess sale proceeds of Rs.3,00,000/- as promised.

   Now by fabricating false documents with the blank signed papers of the complainant, the opposite parties are trying to proceed legally against the complainant. Now the opposite parties stated that they sold the vehicle for Rs.5,00,000/- and the balance amount with interest is due to them. The vehicle at the time of forfeiture by the opposite parties worth more than Rs.9,00,000/-. The act of opposite parties amounts to deficiency in service. Hence the complainants prays an order directing the opposite parties to

1. Pay an amount of Rs.3,50,000/- towards the excess sale proceeds over the loan and compensation for the deficiency in service
2. Give back the blank  signed cheques and documents of the complainant
3. Pay the cost of the proceedings.

Opposite parties filed version stating the following contentions. The complainant for purchasing a tipper lorry availed a loan from the opposite party by entering into an agreement with them. The amount financed  was Rs.7,00,000/- and the finance charges were Rs.3,10,368/- Thus agreement  value was Rs.10,10,368/- and agreed to be repaid on 54 monthly installments of Rs.20,265/- The 1^st installment was fixed as Rs.17,383/- and the  installment was agreed to be paid on the 25^th day of every month. The date of the last installment was on 25/12/2011.

The complainant is a chronic defaulter in repaying the monthly installments and collected additional finance charges and other charges as per the terms of the agreement. As per the loan account maintained in the opposite party company the complainant is liable to pay an amount of Rs.6,11,175/- in the loan transaction. The allegation of the complainant  that after obtaining the original documents the opposite party is reluctant to give the account details and close the loan is denied. The complainant had no intention to repay the loan amount. The opposite party has not collected any unfilled documents, blank cheque, signed stamp papers and revenue stamp affixed blank signed papers as alleged by the complainant. All the amounts paid by the complainant  is accounted properly and they had not raised any complaints for non receipt of proper receipts till this complaint.

It is true that a cheque case as S.T.2268/2008 was filed against the 1^st complainant. But it was not filed by misusing the blank cheque of the 1^st complainant as alleged in the complaint. Since the complainants herein has defaulted the equal monthly installments as per the terms of the agreement the opposite party has initiated the arbitration proceedings against the complainants and the Hon’ble Arbitrator was pleased to pass an interim order allowing the opposite party to repossess the vehicle of the complainant on 25/11/2009. When the opposite party took steps to enforce the order of the Arbitrator with the assistance of the police authorities, the 2^nd complainant agreed to surrender the vehicle to the opposite party and the vehicle was surrendered. After  the surrender another registered notice was issued to the complainants herein on  7/3/2011 intimating him about the total amount due to the opposite party and also given notice of sale of vehicle. The complainants had not responded to that notice and the vehicle was valued  by an approved surveyor. The Surveyor  has assessed the value of the vehicle as Rs.4,65,000/- Further quotations were invited from the general public for the sale of the vehicle and the same were published in newspapers. After that the vehicle was sold for an amount of Rs.5,40,000/-and the amount was adjusted to the total dues outstanding in the account of complainants. Even after the adjustment of the amount still there is balance of Rs.6,11,175/- towards the loan account.  Since the amount of  defaulted  equal monthly installments for which the cheque was issued by the complainant would be satisfied after the sale of the vehicle the case ST2268/2008 which was  filed against the 1^st complainant was withdrawn by the opposite party. The opposite party has not fabricated any false documents. In the Arbitration proceedings even after repeated notices the complainants has  chosen to remain exparte. The opposite party has not collected any documents or cheque as alleged by the complainant. There is no deficiency of service on the part of opposite party. Hence the opposite parties prayed that dismiss the complaint with cost.

Complainant and opposite parties filed their affidavit. Ext.A1 and A2 marked on the side of the complainant. Ext.B2 to B11 marked on the side of the opposite parties.   

Matter heard.   

Issues to be considered are

1.    Whether there is any deficiency in service on the part of opposite parties  ?

2.    If so, what is the relief and cost ?

Issue No.1  & 2

According to the opposite parties the Hon’ble Forum lacks jurisdiction to entertain the complaint since both parties had agreed to confer exclusive jurisdiction to Mumbai Courts. Section 3 of the Consumer Protection Act held that “Act not in derogation of any other law”. The provisions of the Act grant additional remedy to the consumers. So the complaint is maintainable.

We perused relevant documents on record. The complainants  stated that they availed a loan of Rs.6,00,000/- from the 2^nd opposite party on 31/07/2007 for purchasing a Tipper Lorry. As per Ext.B2 the loan amount was Rs.7,00,000/- and corrected the amount of Rs.7,00,000/-  but not endorsed. Opposite party deposed that the loan amount of Rs.7 lakhs given to the complainant by way of cheque. The opposite parties had not produced documentary evidence to prove that 7 lakh given through cheque to the complainant. Also the complainants had not produced evidence to show that 6 lakhs  as the loan amount. As per Ext.B2 date of agreement was 31/7/07 and no. of installments was 48 months. As per Ext.B4 Interim Order passed by the Arbitrator dated 25/11/2009 that the vehicle repossess by the opposite party and to keep the vehicle in its safe custody. As per Ext.B3 the opposite parties had issued notice to repay the overdue amount of Rs.6,28,215/- and the late charges. In Ext.B6 the valuation report dated 16/3/2011 stated that the market value of vehicle was Rs.4,65,000/- and inspected the vehicle was found in road worthy condition and externally slight dent on the front body panels. Also in Ext.B6 attached the photos of the vehicle shows that the vehicle was in road worthy condition.

In Ext.B7 Newspaper published that the auction of cars and three wheelers on 21/3/11. Not stated the auction of Tipper lorry. Complainant counsel argued that the opposite parties had not published the sale of Tipper lorry in the newspaper. No contradictory evidence produced by the opposite parties.

In Ext.B8 the quotation dated 21/3/11 stated the maximum price of tipper is Rs.5,40,000/- At the time of cross examination of opposite party deposed that the vehicle was purchased by one Shibu  for an amount of Rs.5,40,000/-. No documentary evidence produced by the opposite parties to show that the vehicle sold for an amount of Rs.5,40,000/-. Ext.B11 marked with objection. In Ext.B11 the dates mentioned in 54 installments from 31/7/2003 to 25/12/2011. On verification 25/5/08, 25/5/09, 25/5/10 and 25/5/11 the amount was zero. At the time of cross examination of DW2 deposed that  zero ImWn¨ncn¡p¶ Øe¯v insurance amount ASbv¡m\pÅXpsIm­v  partybv¡v additional burden htc­ F¶v IcpXn EMI Hgnhm¡nbXmWv. On excluding  that dates the complainants had to pay 50 installments. i.e. 49 x 20265 + 1 x 17383 Total amount is Rs.10,10,368/-. The signature of the complainants in Ext.B2 and Ext.B11 are different. Also in Ext.B2 mentioned in the schedule that 48 as the No. of installments. The opposite parties had not produced the evidence  to prove that the total loan amount and  no. of installments. The 2^nd complainant deposed that the vehicle repossessed on 2010. No  documentary evidence produced by the opposite parties. The opposite parties stated that vehicle sold to one Shibu. But the opposite parties had not examined  Shibu as a witness. As per Ext.B2 schedule and DW1 deposed that the  loan period from 2/07/2007 to 1/06/2011. In Ext.B5 dated 3/3/11 the opposite party stated that to repay the overdue amount of Rs.6,28,215/- and the late charges accrued thereon. Thereafter the opposite parties had not sent notice to pay the loan amount. The opposite parties admitted that after the sale of the vehicle the ST2268/2008 was withdrawn by the opposite party.

As per Ext.B9 the price of the complainant’s vehicle was Rs.8,80,326/- on 7/9/2007.The opposite parties had agreed that the vehicle sold for an amount of Rs.5,40,000/- in the year of 2011. The vehicle purchased in the year 2007.  After 3 years 30% of depreciation considered on the price of vehicle. i.e. 30% of Rs.8,80,326/- is Rs.2,64,097.8

Rs.8,80,326 – Rs.2,64,097.8  = Rs.6,16,228.2.

As per Ext.B5 the over due amount on 3/3/11 was Rs.6,28,215/-.

Then the balance amount is Rs.11,987/-.

But the opposite parties had stated that the complainant is liable to pay an amount of Rs.6,11,175/- towards his liability. As per Ext.A2 the opposite parties had issued lawyer notice to the 1^st complainant to pay the cheque amount of Rs.1,01,245/- as the defaulted amount. As per Ext.A1 the opposite parties had filed complaint under section 138 and 142 of NI Act before the Judicial First Class Magistrate Court against 1^st complainant. According to the complainants  they surrendered the vehicle to the opposite parties and withdraw the complaint. At the time of examination DW1 deposed  that post dated cheques mentioned with amount received at the time of loan transaction and presented the cheque to the bank. The loan installment period is over.

The act of opposite parties amounts to deficiency in service. The opposite parties had not produced evidence to show the price of the vehicle sold. Also the vehicle sold after  3 years from the date of purchase. But the opposite parties had not given the actual price of the vehicle.  The sale of the vehicle was not published in the newspaper. The opposite parties had not issued notice to the complainants to the sale of the vehicle.

The depreciation amount deducted from the price of the vehicle, the complainant is liable to pay Rs.11,987/- to the opposite parties. We considered the opposite parties directed to pay Rs.25,000/- as compensation for mental agony. Then the balance amount of Rs.11,987/- deducted from Rs.25,000/- is Rs.13,013/- rounded off Rs.13,000/-. The complainants had not produced evidence to show the blank cheques given to the opposite parties.

In the result complaint  partly allowed. We direct the opposite parties jointly and severally liable to pay Rs.13,000/- (Rupees Thirteen  thousand only) as compensation for mental agony and pay Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings to the complainant.

 Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.  

Pronounced in the open court on this the 22^nd   day of December 2012.

   Sd/-

Seena H

President

   Sd/-

Preetha G Nair

Member

   Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Copy of complaint filed before JFCM No1 Court

Ext.A2 – Truecopy of lawyer letter addressed to complainant.

Witness examined on the side of the complainant

PW1 –  P.I.Poulose

Exhibits marked on the side of the opposite party

Ext.B2 – Copy of the Agreement between complainant and opposite party

Ext.B3 – Copy of Computer print out of ledge account maintaine in the OP’s

            company in the name of the 1st complainant

Ext.B4 – Ceritifed copy of the interim order  from the Hon’ble Arbitrator

Ext.B5 – Office copy of the notice issued to the 1st complainat along with its

              postal receipt.

Ext.B6 – Valuation report of the vehicle  submitted by the valuer to the

             opposite party

Ext.B7 – Copy of Mangalam daily regarding auction

Ext.B8 –Quotation received from Shibu.P.O

Ext.B9 – Copy of invoice submitted by the complainant to the opposite party

Ext.B10 – Certiicate regarding the employment of Sri.Sathyavelu.M

Ext.B11 – Office copy of the finance scheme between complainant and opposite

              party

Witness examined on the side of the opposite parties

DW1 – Pratheesh.A.C

DW2 – Sathyavelu.M  

Cost

Rs.2,000/-allowed as cost of the proceedings.