BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 19^th DAY OF AUGUST 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to return him all the original documents of his vehicle together with compensation/damages of Rs.10,000/- with litigation cost, etc.

2. The brief averments made in the complaint are as under:

The complainant had purchased the Lorry bearing No.KA-02-A-5787 from OP for which he availed loan of Rs.2,80,000/- from OP on 21.06.2006.  That the complainant has paid instalments till 2008.  That he has already paid a total sum of Rs.2,00,000/- towards the said loan transaction.  That due to his ill health the complainant could not continue to pay the remaining instalments and became a defaulter.  Thereafter, OP asked him to pay outstanding amount of Rs.80,000/-.  That after discussions and negotiation both parties came to a conclusion that the complainant shall pay a sum of Rs.50,000/- towards full and final settlement.  Accordingly, the complainant paid a sum of Rs.49,000/- on 30.08.2010 by way of demand draft and Rs.1,000/- by way of cash for which OP has issued a receipt by making an endorsement that “your loan amount cleared, collect clearance certificate and collect your RC papers on Wednesday or Thursday dated 02.09.2010”.  That the complainant approached OP on 02.09.2010 to receive original documents but OP went on postponing the same for one or the other reason.  That the complainant visited office of OP several times but every time he was turned back without handing over the original documents.  That on 04.01.2011 suddenly OP got issued notice to the complainant demanding him to pay a total sum of Rs.1,82,000/- though he had already cleared the entire loan amount.  That the complainant got issued a legal notice dated 03.02.2011 to OP calling upon to return all the original documents of the vehicle.  However, the OP did not comply the demand made in the said legal notice.  That the said act of OP has put the complainant to great inconvenience and mental agony.

For the aforesaid reasons, the complainant prays for an order directing the OP to return him all the original documents of the vehicle and award him compensation/damages of Rs.10,000/- together with litigation cost, etc.

3. In response to the notice issued OP appeared through their advocate and filed version contending in brief as under:

That it is true that complainant has purchased a Lorry from OP on 21.06.2006 by executing loan-cum-hypothecation for Rs.2,80,000/-.  That one Mr.Ilyas is guarantor for the complainant for the said loan transaction.  That the complainant had agreed to repay the loan amount in 20 instalments but failed to pay the instalments and became defaulter.  That the complainant issued a post dated 13.07.2009 cheque for Rs.4,21,000/- drawn on State Bank of Mysore, BHEL Branch, Bangalore and assured    OP that the said cheque will be honoured.  That when OP presented the cheque, the same was dishonoured for insufficient funds on 15.07.2009.  That the OP intimated the same to the complainant.  That OP got issued a legal notice dated 20.07.2009 to the complainant as well as the guarantor through RPAD which has been served on both of them but both of them have failed to reply the same.  That OP filed PCR no.18223/2009 on the file of XIII A.C.M.M at Bangalore and after recording the sworn statement a case has been registered against the complainant in CC No.27808/2009 and summons has been issued to him.  Subsequent to service of summons, the complainant has made part payment in a sum of Rs.49,000/- by way of demand draft on 30.08.2010 and cash of Rs.1,000/-.  That the complainant has suppressed the bouncing of the cheque and the criminal proceedings initiated against him in his complaint to mislead the court and has filed this complaint with malafide intention to harass the OP.  That the complainant is still liable to pay a sum of Rs.3,71,000/- towards the said loan transaction.

For the aforesaid reasons, OP prays for dismissal of the complaint with a direction to complainant to pay them the arrears of loan together with a sum of Rs.10,000/- towards mental agony and harassment.

4. Subsequent to filing of the version the complainant was called upon to tender his evidence by way of affidavit.  Accordingly the complainant submitted his evidence by way of evidence.  Thereafter OP got filed the affidavit evidence of one Mr.Ajith Kumar Jain, GPA holder of OP in support of the averments made in the version.  Both the parties have submitted their written arguments and have produced certain documents in support of their respective contentions.

5. The points that arise for our determination in this case are as under:

6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments submitted by both sides, documents relied upon by both sides and other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  It is not in dispute that the complainant purchased a Lorry bearing No.KA-02-A-5787 from OP availing loan of Rs.2,80,000/- on 21.06.2006 from OP by executing loan cum hypothecation agreement.  It appears that the complainant agreed to repay the said loan amount in 20 instalments.  However as admitted by the complainant himself he became defaulter due to several personal problems.  According to the complainant he had already paid a sum of Rs.2,00,000/- to OP till 2008 before he fell ill and the remaining amount was only Rs.80,000/- and after negotiation with OP it was agreed between them that the complainant shall pay a sum of Rs.50,000/- towards full and final settlement.  OP denies receipt of Rs.2,00,000/- towards loan transaction as claimed by the complainant.  OP also denies that the complainant was to pay only Rs.80,000/- and after negotiation they agreed to receive Rs.50,000/- towards full and final settlement.

9. To substantiate that he had paid sum of Rs.2,00,000/- till 2008 the complainant did not produce any documentary evidence such as Bank statement or receipt issued by OP.  The complainant also did not produce any documents to substantiate his contention that he was liable to pay only Rs.80,000/- and after negotiation OP agreed to receive Rs.50,000/- towards full and final settlement.  When OP denies any full and final settlement for Rs.50,000/- it is incumbendent on the part of complainant to substantiate the same by producing credible, oral or documentary evidence.  However the complainant did not place any credible material/evidence on record to believe that subsequent to 2008 he was liable to pay Rs.80,000/- and after negotiation OP agreed for full and final settlement by receiving Rs.50,000/-.  No doubt OP admits receipt of demand draft on 20.08.2010 for a sum of Rs.49,000/- and cash of Rs.1,000/- on the same day.  It is contended by the OP that the receipt of Rs.50,000/- on 30.08.2010 is not towards full and final settlement but towards part payment of arrears of loan.

10. It is contended by the OP in their version that the complainant has issued a cheque dated 13.07.2009 for Rs.4,21,000/- towards payment of arrears with a promise that the cheque will be honoured on its presentation and on presentation the cheque was bounced for insufficient funds on 15.07.2009 for which OP filed a private complaint in PCR No.18223/2009 on the file of XIII A.C.M.M at Bangalore and case also came to registered against complainant in CC no.27808/2009.  The complainant did not deny in his affidavit evidence, regarding the dishonour of the cheque issued by him for Rs.4,21,000/- and also regarding registration of case against him on the file of XIII ACMM at Bangalore under section.138 of Negotiable Instrument act.  In view of the failure of complainant in denying the said allegations made by the OP in their version as well as in their affidavit it has to be accepted that the complainant had issued a cheque dated 13.07.2009 for a sum of Rs.4,21,000/- towards payment of arrears of loan and the said cheque, on presentation, was bounced for in-sufficient funds for which a criminal proceedings came to be initiated against him U/s.138 of Negotiable Instrument Act on the file of XIII ACMM at Bangalore.  The complainant has suppressed this material fact while filing the complaint.  Even after OP brought to our notice regarding the bouncing of the said cheque and initiation of criminal proceedings the complainant failed either to admit or deny the same.  This conduct on the part of complainant indicates that he has not come to the court with clean hands.

11. If at all the complainant was pay only a sum of Rs.50,000/- subsequent to 2008 as claimed in the complaint, what was the need for him to issue a cheque for Rs.4,21,000/- on 13.07.2009.  The material placed on record by the OP totally falsifies the claim set out by the complainant in his complaint.  It is evident that the complainant having failed to pay the entire loan amount together with interest has filed this complaint suppressing material facts with a sole intention to get back the original documents of the vehicle.  The present complaint is an attempt on the part of complainant to Malign and harass OP for no any fault on their part.  Therefore, the complainant has to be directed to pay litigation cost to the OP for dragging them to the court un-necessarily and making them to spend money and time for this unwarranted litigation.

12. The order could not be passed within the stipulated time due to heavy pendency. 

13. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  The complainant is directed to pay cost of Rs.6,000/- to the OP within six weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 19^th day of August 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 09.11.2011.

1. Sri.K.Manju.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 09.12.2011.

1. Sri.Ajith Kumar Jain.  

Document produced by the Opposite party - Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*