BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                      C.C.No.37/2012

Dated this the 17^th  day of March 2016

G. Krishnamoorthy, son of Govindasamy          

No.17, Muthumariamman Koil Street

Vambakeerapalayam,       

Puducherry.

                                                ….     Complainant

Vs.

1. Muthoot Capital Services Ltd., rep. by its   

    Managing Director, Muthoot Towers

    M.G. Road, Kochi – 682 035.

2. Muthoot Fincorp Ltd., Pondicherry Branch

    Rep. by its Authorised Signatory

    No.120, First Floor, Vellala Street     

    (Chinnasubrayapillai Street Corner)

    Puducherry – 605 001.

                                                ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

           MEMBER

FOR THE COMPLAINANT                                :  Thiru,S. Vimal, Advovate

FOR THE OPPOSITE PARTIES:                      :  Thiru R. Ramesh, Advocate  

O R  D  E  R

(By Thiru.V.V. STEEPHEN, Member)

This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 praying to direct the opposite parties either jointly or severally to issue Hypothecation Clearance Certificate for his vehicle Registration No. PY 01 B 1559;  to pay a sum of Rs.30,000/- with interest at the rate of 24% per annum from the date of complaint till discharge, towards compensation for the physical hardship, mental agony and monetary loss caused to the complainant due to opposite parties unfair trade practice and deficiency in service  and for costs of this complaint.  

2.  The case of the complainant is as follows:

          The complainant during the year 2011 purchased a "Honda Stunner" brand two wheeler vehicle bearing Regn. No. PY 01 BK 1559 for his personal use by availing financial service from 1^st opposite party through second opposite party by way of loan of Rs.36,846/- repayable in 18 months instalments vide loan Account No. 1110200.  When he decided to foreclose the loan, the opposite party informed the complainant that a payment of Rs.20,000/- be paid as full and final discharge of the loan.  On 22.03.2012 the complainant made the payment of a sum ofRs.20,000/- towards full and final discharge and foreclosure of the loan, the same was acknowledged by the opposite party, however, hypothecation clearance certificate was not handed over to the complainant in the pretext that the same has to be issued by the first opposite party and shall be released within a week's time from then.  Inspite of repeated requests oral and by letter dated 28.04.2012, the opposite parties have failed to provide the hypothecation clearance certificate and demanded a further sum of Rs.7000/- in breach of agreed terms of settlement, wherein, no such terms were imposed while receiving Rs.20,000/- alleging full and final payment for the foreclosure of loan.  The act of opposite parties amounts to unfair trade practice and deficiency in serviced which caused physical hardship and suffering, mental agony and monetary loss.  The complainant issued an Advocate Notice on 05.06.2012 to the opposite parties with a request to issue a hypothecation clearance certificate and also pay compensation for delay and deficiency in service.  Though the said notice was received and acknowledge by both the parties on 9.6.2012 and 06.06.2012, only the first opposite party gave reply with false and untrue allegations contrary to the established law and the terms of settlement for foreclosure.   The complainant further stated that while execution of the loan agreement, the complainant was made to understand only the number and quantum of amount payable in each installment and believing the same the complainant had signed the agreement.  While so, several part thereof were blank, which if filled after the same was signed by the complainant are not to his knowledge and notice and hence, would not bind him.  The complainant was also not provided a copy of the said agreement for his reference or understanding enabling him to make any objection there for at a later period of time.  Imposing arbitrary clauses in the agreement cannot be used to gag an innocent customer like the complainant who had offered to foreclose the loan on paying a sum of Rs.20,000/- as required by the second opposite party.  Hence, this complaint.

3.       The following are the averments narrated in the reply version filed by the Opposite Parties:

          The complaint is neither maintainable in law nor on facts.  The complainant availed a vehicle hypothecation loan vide HP No. 1110200 dated 17.06.2011 for a sum of Rs.33,000/- for purchasing a vehicle Honda Stunner bearing Regn. No. PY 01 BK 1559 and also executed an agreement.  All the terms and conditions including the repayment schedule were explained to the complainant before executing the agreement.  As per terms of agreement the equated monthly instalments is Rs.2,047/- per month for 18 months.  The complainant made payment for six months without any grievances.  Since the complainant wanted to foreclose the loan, the opposite parties gave a rebate of Rs.2,874/-  and the complainant has to remit a sum of Rs.24,600/- to foreclose the account, but he had paid only Rs.20,000/- as part payment.  The opposite parties are doing business as per the directions and norms of RBI issued for Non-Banking Financial Companies.  The complainant has filed the above complaint concealing the true facts and sent a notice with malafide intention to tarnish the image of the opposite parties and hence, the complainant is not at all entitled to get any relief as prayed in the complaint since there is no deficiency in service or unfair trade practice on the side of opposite parties.  Hence, prayed for dismissal of the complaint with exemplary costs.

4.       Points for determination are:

          1. Whether the complainant is the Consumer?

          2. Whether any deficiency in service or unfair trade practice attributed by the Opposite Parties?

          3. To what relief, the complainant is entitled for?

          5. The complainant was examined as CW1 and Exs.C1 to C7 were marked through him and the Opposite Parties has not chosen to examine and adduce any evidence before this Forum. 

6.       Point No.1:

          The complainant herein has availed a loan from the office of the first OP through second OP being the Branch Office of the first OP for the purchase of two wheeler vide vehicle loan account No. 1110200 to be repaid in 18 months instalments for which the service charges and other charges are levied by the OP and hence, the complainant is deemed to be a consumer to that of the OPs which is within the purview of Consumer Protection Act.  This point is answered accordingly.

          7. Point No.2:

          The complainant submits that a vehicle loan was availed from the first OP through the second OP vide vehicle loan account No. 1110200 and purchased a two wheeler for the loan amount (Ex.C2) to be repayable in 18 months instalments.  The complainant repaid the monthly instalments regularly for six months, thereafter defaulted for three months.  The complainant further submits that thereafter intending to foreclose the vehicle loan amount, approached the second OP to enquire about the quantum of amount to be paid as a single payment towards foreclosure of the vehicle loan account and as such, the complainant on the amount agreed upon by the OP remitted a sum of Rs.20,000/- on 22.03.2012 (Ex.C3) in the office of the second OP towards the foreclosure of the vehicle loan amount and requested the second OP to issue hypothecation clearance certificate, but, the OP refused to issue the same stating that the OP has never agreed for an amount of Rs.20,000/- single payment towards the discharge of the loan amount and further made a claim of balance amount from the complainant towards the closure of the loan amount for the issuance of hypothecation clearance certificate.  Hence, this complaint has filed by the complainant before this Forum

          8. On the perusal of the records and evidence of both sides, it is observed by the Forum that the main issue which revolves upon the case is that whether the payment of Rs.20,000/- made through Ex.C3 is to be considered as the payment receipt towards the foreclosure of the loan amount as per the complainant's plea or towards the part payment of the loan amount as per the OPs contention.  On perusal of the document Ex.C3 it is pertinent to note that the OP has not made any endorsement on Ex.C3 to the effect that Ex.C3 was issued towards the entire satisfaction of the loan amount or as an amount arrived towards the settlement for foreclosure of the vehicle loan.  Moreover, the complainant during the cross examination has deposed that as on 22.3.2013 i.e. date of payment  receipt (Ex.C3) 12 more instalemnts has to be paid by the complainant and further admits that Ex.C3 does not contain any endorsement regarding full and final settlement.  The relevant portion in the evidence is reproduced as follows:

……"Ex.C3 the payment receipt for Rs.20,000/- which is paid on 22.3.2012.  …. It does not contain any endorsement regarding full and final settlement ….. it is true that 12 instalments has to be paid on 22.3.2012 ….  It is true that 10 instalments carries Rs.20,470/-…. I have not filed any proof that Rs.20,000/- is the full and final settlement arrived between us…."

In the absence of such endorsement, it is hard to believe the plea of the complainant that Ex.C3 was issued by the OP towards the settlement for the foreclosure of the vehicle amount.  Apart from Ex.C3 no other documentary evidence is produced by the complainant to substantiate the claim of the complainant and further the letter written by the complainant (Ex.C6) to the OP no way supports the case of the complainant.  It is further argued by the complainant's counsel referring to Sec. 62 of the Contract Act stating that the OP has agreed to a new contract in the place of old contract through which document Ex.C3 came into existence and that the OP has to act upon the Ex.C3 but the complainant failed to prove that Ex.C3 came into existence only in pursuance of new agreement of contract with that of the OP.  Sec. 62 of the Contract Act reads as follows:

"If a parties to contract agreed to substitute a new contract for it or to rescind or alter it,  the original contract need not be performed."

Accordingly, it is the duty of the complainant to prove that new terms of  agreement of contract in the place of old contract has been accepted and consented by the OP by way of Ex.C3.    Since the payment receipt Ex.C3 does not contain any endorsement to the effect that it was issued towards the foreclosure of vehicle loan, the complainant failed to prove that Ex.C3 came into existence only in pursuance of the new agreement of contract with that of the OP.  Hence, unless the acceptance and offer is proved, no question of contract would arise.  In this case, the complainant failed to prove the alleged acceptance of the proposal offered by the complainant and the contention of the complainant that there exists a new contract between the complainant and OP based on document Ex.C3 as alleged cannot be taken into consideration and the complainant failed to prove his claim of Unfair Trade Practice hence, the complaint is liable to be dismissed. This point is answered accordingly.

          9.  Point No.3:

          In view of the discussion made in paras aforementioned, it is held that the Opposite Parties are not liable for deficiency in service.

          In the result,

The complaint is hereby dismissed.  No costs.

Dated this the 17^th day of  March 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW1           16.04.2014           G. Krishnamoorthy

OPPOSITE PARTY'S WITNESS:    NIL

COMPLAINANT'S EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:  NIL

( A. ASOKAN )

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER