KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 324/2009
JUDGMENT DATED:18.9.2010
PRESENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
N.K.Chandran, : APPELLANT
Sreenilayam House,
Peroor Village,
Peroor.P.O.
(By Adv. S.Reghukumar)
Vs.
1. Muthoot Leasing & Financing, : RESPONDENTS
Kottayam,
Repd. By its Branch Manager.
(By Adv.N.Satheesh kumar, Counsel ofr R1)
2. Kulathunkal Motors,
M.C.Road, Kottayam,
Repd. By its Branch Manager.
(By Adv.Narayan.R, counsel for R2)
3. Rakesh,
Sreepadam, Erikad.P.O.,
Puthuppally.
JUDGMENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
The appellant was the complainant and respondents were the opposite parties in CC.No.61/06 on the file of CDRF, Kottayam. The complaint was filed alleging deficiency in service on the part of the 1st opposite party in demanding the instalment amount at the rate of Rs.6825/- instead of Rs.6057/-. The opposite parties 1 and 3 entered appearance and filed versions. The 2nd opposite party, Kulathungal Motors remained ex-parte. The opposite parties 1 and 3 denied the alleged deficiency in service . They contended that the complainant executed the hypothecation agreement agreeing for availing financial assistance of Rs.3,00,000/- for the purpose of purchasing the motor car from the 2nd opposite party; that the complainant agreed to repay the loan amount in 60 monthly instalments at the rate of Rs.6825/-. But the complainant failed to repay the loan amount as agreed. So the 1st opposite party initiated action for recovering the amount due to the 1st opposite party. Thus the opposite parties 1 and 3 prayed for dismissal of the complaint.
2. Before the Forum below Ext.A1 to A7, B1 and B2 documents were marked on the side of the parties of the complaint in CC.61/06. On an appreciation of the documentary evidence available on record, the Forum below passed the impugned order dated 26th February, 2009 dismissing the complaint in CC.61/06. Hence the present appeal.
3. We heard the learned counsel for the appellant/complainant and respondents 1 and 2. There was no representation for the 3rd respondent.
4. Admittedly the appellant/complainant availed financial assistance from the 1st respondent/1st opposite party Muthoot Leasing & Financing, Kottayam for the purpose of purchasing diesel motor car from the 2nd respondent/2nd opposite party Kulathungal Motors. Ext. B1 hypotecation agreement is not disputed by the appellant/complainant. The appellant/ complainant has got a case that Ext.B1 hypothecation agreement was signed by him without filling the said hypothecation agreement. In other words, the appellant/complainant would contend that a blank hypothecation agreement was signed by the complainant for the purpose of availing financial assistance from the 1st opposite party. But there is nothing on record to substantiate the case of the appellant/complainant that he signed a blank agreement and that the entries in B1 hypothecation agreement were entered subsequently by the 1st opposite party. On a perusal of Ext.B1 hypothecation agreement would make it clear that the appellant/complainant executed the aforesaid hypothecation agreement agreeing the terms and conditions incorporated therein.
5. It is pertinent to note at this juncture the case of the complainant that the monthly instalments fixed was Rs.6057/- But B1 hypothecation agreement would make it clear that the appellant/ complainant agreed to repay the loan amount in 60 monthly instalments at the rate of Rs.6825/-. It is also to be noted that the appellant /complainant has got a case of fraud committed by the 1st respondent/1st opposite party in getting the B1 hypothecation agreement signed. If that be so, the burden is upon the appellant/complainant to establish the alleged fraud played upon him. It is a well settled position that the person who alleges fraud has to plead and prove the same. In the present case the appellant/complainant has not succeeded in establishing the lleged fraud or cheating. Thus, in all respects it can very safely be concluded that B1 hypothecation agreement with schedule of hypothecation were signed by the appellant/complainant as the borrower by fully understanding the contents of the same. The Forum below has rightly relied on B1 and B2 documents.
6. As per the B1 hypothecation agreement and B2 schedule of hypothecation the appellant/complainant as borrower agreed to repay the loan amount in 60 monthly instalments at the rate of Rs.6825/-. The case of the appellant/complainant that he agreed to repay the loan amount in 60 monthly instalments at the rate of Rs.6057/- can not be believed or accepted. So, the request of the complainant to direct the 1st opposite party to allow the complainant to remit the monthly instalments at the rate of Rs.6057/- can not be allowed. The Forum below has rightly rejected the aforesaid prayer.
7. Admittedly, the appellant/complainant was a chronic defaulter in repaying the monthly instalments as agreed by the hypothecation agreement. Therefore, the 1st opposite party Muthoot Leasing & Financing , Kottayam has every right to proceed against the appellant/complainant (the borrower) to recover the loan amount due to financier. Thus, it can be seen that the appellant/complainant preferred the complaint in OP.61/06 without bonafide; but it was filed with the malafide intention of prolonging repayment of the loan amount. In all respects, the Forum below has rightly dismissed the complaint in CC.61/06.
In the result the appeal is dismissed. The impugned order dated 26.2.09 passed by the CDRF, Kottayam in CC.61/06 is confirmed. The parties are directed to suffer their own respective costs.
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
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