KERALA STATE CONSUMER DISPUTE REDRESSAL COMIISSIONVAZHUTHACAUD, THIRUVANANTHAPURAM F.A.No.765/2006 JUDGMENT DATED : 29.01.2010 PRESENT:- SMT.VALSALA SARANGADHARAN : MEMBER SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER SHRI.S.CHANDRA MOHAN NAIR : MEMBER 1. The Branch Manager, : APPELLANTS Maharashtra Apex Corporation Ltd., Nayak’s Road, P.O.Kasargod. 2. The Chairman, Maharashtra Apex Corporation, Manipal. (By Adv.Sri.S.S.Kalkura) Vs 1. P.A.Chacko, S/o. Antony : RESPONDENTS Poonthara House, P.O.Kadumeni, Kasargod District. Additional Respondents 2 to 9. 2. Mrs.Ammini Chacko, aged 68, W/o.late P.A.Chacko, House No.E.P.14/367, Poothira House, Kadumeni.P.O., Cherupuzha-671 511. 3. Lilly Kutty Antony , aged 46, W/o.late Antony, Poothira House, Kadumeni.P.O., Cherupuzha – 671 511. 4. Mrs.Lessy Antony, D/o.Late Antony, aged 21, Poothira House, Kadumeni.P.O., Cherupuzha -671 511. 5. James Antony, aged 19, S/o.Late Antony, Poothira House, Kadumeni.P.O., Cherupuzha – 671 511. 6. Moni Baby, aged 48, D/o.Latge P.A.Chacko, W/o.Thomas, Nambiarparambil House, Tharathalli, Alakkod, Chittarikkal – 671 376. 7. Thomas Chacko, S/o.Late P.A.Chacko, aged 47, House No.EP 14/367, Poothira House, Kadumeni.P.O., Cherupuzha – 671 511. 8. James aged 40, S/o.Late P.A.Chacko, House No.EP14/367, Poothira House, Kadumeni.P.O., Cherupuzha – 671 511. 9. Minimol Chacko, D/o.Late P.A.Chacko, aged 30, Kundanthara, Cherupuzha-670 511. (By Adv.Sri.B.Vijayakumar) JUDGMENT SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER The appellants were the opposite parties and respondent was the complainant in C.C.189/05 on the file of CDRF, Kasargod. The complaint therein was filed alleging deficiency of service on the part of the opposite parties in issuing no objection certificate to get the higher purchase endorsement cancelled. The complainant alleged remittance of the entire loan amount on 19.03.2002 and approached the opposite party to get the ‘No Objection Certificate’ for the purpose of getting higher purchase endorsement cancelled by the Registering Authority. The opposite parties entered appearance and filed written version and contended that balance amount was due from the complainant and thereby they justified their action in not issuing the no objection certificate. They also contended that an arbitration proceedings was pending prior to the institution of the complaint in C.C.189/05. 2. Before the Forum below, the complainant was examined as PW1 and Exts.A1 to A5 and Exts.B1 and B2 documents were also marked on the side of the parties. On an appreciation of the evidence on record, the Forum passed the impugned order directing the opposite parties to issue no objection certificate with a further direction to pay compensation of Rs.10,000/- and cost of Rs.2,000/-. Hence the present appeal by the opposite parties therein. 3. When this appeal was taken for final hearing, there was no representation for the additional respondents 2 to 9, the LRS of the deceased original respondent. We heard the learned counsel for the appellants/ opposite parties. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the award passed by the arbitrator and also the suppression of that fact by the complainant in C.C.189/05. It is also submitted that there was balance amount due to the opposite party from the complainant and that they are justified in not issuing no objection certificate. The learned counsel for the appellants has also pointed out the finding made by the Forum below based on the deficiency of service on the part of the opposite parties in disbursing the amounts due to other depositors in some other consumer complaints. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. 4. The points that arise for consideration are: 1. Whether there was deficiency of service on the part of the opposite parties (appellants) in issuing ‘No objection certificate’ with respect to the vehicle owned by the complainant (Respondent)? 2. Whether the Forum below can be justified in holding that there was deficiency in service on the part of the opposite parties? 3. Is there any sustainable ground to interfere with the impugned order directing the opposite parties to issue ‘No Objection Certificate’ and also for payment of compensation of Rs.10,000/- with cost of Rs.2,000/-? 5. Points 1 to 3 :- There is no dispute that the respondent/complainant availed loan for the purpose of purchasing a Mahindra and Mahindra Jeep. The loan was availed in the year 1995 and evidencing the loan transaction an agreement was entered into between the complainant and opposite party. Admittedly, the complainant was bound to pay the loan amount by way of monthly instalments at the rate of Rs.7,350/- for the first 40 instalments and thereafter at the rate of Rs.6,750/- for the next 20 monthly instalments. The maturity date of the loan transaction was 01.10.2000. Admittedly the complainant failed to repay the loan amount by monthly instalments. The complainant paid the last instalment only on 19.03.2002. Thus, there was delay of more than one year for making re-payment of the loan amount by way of monthly instalments. Naturally, the complainant was bound to pay over due interest for delayed payment of instalments. But there is nothing on record to show that the complainant paid over due interest for delayed payment of instalments. The case of the complainant that he paid a sum of Rs.4500/- by way of over due interest cannot be believed or accept without any supporting evidence. There is nothing to show that the complainant remitted the entire over due interest as stipulated in the loan agreement. 6. Ext.A1 receipt dated 19.03.2002 would make it clear that the complainant had only remitted the last instalment amount of Rs.6,750/-. Ext.A1 receipt would given an indication that there was failure on the part of the complainant to pay the over due interest for delayed payment of instalments. If that be so, the Forum below cannot be justified in finding the opposite parties as deficient in rendering service as financier. 7. The complainant as PW1 has categorically admitted in the cross examination that there was the arbitration proceedings pending while the complaint in C.C.189/05 was filed. It is come out evidence that the aforesaid arbitration proceeding was initiated in the year 2003 and that the complainant had also entered appearance in the aforesaid arbitration proceedings. But there is no mention about such an arbitration proceeding in the complaint in C.C.189/05. It can very safely be concluded that the complainant (respondent) filed C.C.189/05 by suppressing the material fact regarding pendency of arbitration proceedings. It is also to be noted that the arbitrator was appointed as per the provisions incorporated in the loan agreement. It is to be noted that the name of arbitrator was also stipulated in the loan agreement. It is also to be noted that the complainant had also participated in that arbitration proceedings. He filed objection in that arbitration proceedings. An award is passed by the arbitrator on 24.06.2006. The respondent/ complainant approached the CDRF, Kasargod by suppressing that material fact regarding pendency of arbitration proceedings. It can be concluded that the complainant approached the Forum below with some ulterior motive and to get ‘No Objection Certificate’ for getting the higher purchase endorsement cancelled. In fact he adopted a short cut method. There was no material before the Forum below to find the opposite party deficient in rendering service. The facts and circumstances of the case would give an indication that some amount was due from the complainant to the opposite parties. But at the same time without paying the aforesaid amount complainant made an attempt to get the NOC for the purpose of getting higher purchase endorsement cancelled. The Forum below cannot be justified in finding the opposite parties negligent in issuing ‘No Objection Certificate’ to the complainant. So, the impugned order dated 05.07.2006 passed by CDRF, Kasargod in C.C.189/05 is liable to be quashed. Hence we do so. These points are answered accordingly. 8. The above appeal was originally filed against complainant P.A.Chaccko who was the respondent in this appeal. During the pendency of this appeal it was reported by the counsel for the original respondent that the respondent died on 08.09.07. The aforesaid submission was made by the counsel for the original respondent on 24.10.2007 and thereby the appeal was posted to 09.11.2007 for taking steps. Thereafter, the appellants filed I.A.945/07 on 29.11.2007 to get the legal representatives of the original respondent impleaded as additional respondents 2 to 9. It was also submitted in the affidavit filed in support of the said impleading petition that the appellants came to know about the death of the respondent/ complainant only on 24.10.2007. Notice was also issued to the legal representatives of the original respondent and thereby legal heirs 2, 5 and 6 entered appearance on 06.03.08. Notices issued to the other legal heirs did not return. So, the notice on the legal heirs was held sufficient. Thus, this commission was pleased to allow I.A.945/2007 and thereby additional respondents 2 to 9 were impleaded. But, subsequently there was no representation for the additional respondents 2 to 9 and they remained absent. So, this appeal was heard in the absence of the additional respondents. 9. The appellants have also filed a petition on 24.12.2009 to accept additional documents at appellate stage. But, no sufficient reason is stated for late production of those documents. It is to be noted that the present appeal was filed in the year 2006. The petition to accept additional documents at this appellate stage is filed only on 24.12.2009. The said delay of 3 years would show the negligence on the part of the appellants/petitioners. Since there was negligence and laches on the part of the appellants in filing this petition, this commission is pleased to dismiss the said petition filed by the appellants to receive additional documents at the appellate stage. In the result, the appeal is allowed. The impugned order dated 05.07.2006 passed by CDRF, Kasargod in C.C.No.189/05 is set aside. Both parties are directed to suffer their respective costs through out. SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER SMT.VALSALA SARANGADHARAN : MEMBER SHRI.S.CHANDRA MOHAN NAIR : MEMBER Kb. | 
