Kerala

Idukki

CC/180/2020

Devassia Antony - Complainant(s)

Versus

Reliyant Hire Purchase - Opp.Party(s)

22 Nov 2022

ORDER

DATE OF FILING : 17.12.2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  22^nd  day of  November,  2022

Present :

                    SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.180/2020

     Between

Complainant                                        :   Devassia Antony,

                                                                 Karimuttom House,

                                                                 Attappallam P.O.,

                                                                 Kumily, Idukki.

(By Adv: Sibi Thomas)

        And

Opposite Party                                     :   Reliyant Hire Purchase Co. Ltd.,

                                                                 Puliyanmala Road, Kattappana,

                                                                 Kattappana.

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. Heard both sides upon the question of maintainability.  For the purpose of considering this point, it will be necessary to advert to facts of the case in brief which are as here under :

 

Complainant had purchased a tipper lorry for the purpose of earning his livelihood, bearing Reg. No.KL-37-A-3959.  On 22.10.2014, as per a hire purchase agreement, complainant had availed Rs.7 lakhs as loan from opposite party which is a company engaged in hire purchase business.  Loan amount was to be repaid in Equated Monthly Instalments.  Complainant had paid about Rs.4 lakhs towards repayment.  However, since last 3 years, opposite party is unauthorisedly keeping the RC book of vehicle with him, upon wrong premises that payment of instalments is in arrears.  Hence complainant was unable to pay tax for the vehicle and to renew its permit, since the last 3 years.  Vehicle was being kept idle without plying.  Complainant had filed a criminal complaint against opposite party for retaining the RC book unauthorisedly, before DySP of Kattappana.  As directed by DySP, RC book was returned to complainant.  Though complainant had paid tax of the vehicle, he was unable to renew the permit due to lack of NOC from opposite party.  Therefore complainant was unable to ply the vehicle.  As mentioned earlier, about Rs.4 lakhs were paid by complainant.  However, opposite party has demanded Rs.6 lakhs.  It has also filed a cheque case against complainant under                                                                                                             (cont….2)

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Section 138 of NI Act, before Judicial First Class Magistrate Court, Kothamangalam, which is pending.  A civil suit is also  filed before Thodupuzha Court in this regard.  Since complainant had no other option, he had approached opposite party and made an offer to surrender the vehicle.  However, opposite party had informed him that he does not want the vehicle and advised him to sell the vehicle and repay the loan.    Since there was no permit, complainant was unable to sell the vehicle also.  Withholding of NOC has disabled the complainant from renewing the permit and to ply the vehicle.  This amounts to unfair trade practice on the part of opposite party.  Harassing the complainant by not giving NOC even after filing cheque case and civil case for realization of amount due is also unfair trade practice and deficiency in service.  Complainant therefore prays for a direction against opposite party for issuance of NOC and also for production of statement of account pertaining to loan and its repayments.  He also seeks a direction against opposite party to deduct interest, penal interest and other charges and only to realise remaining amount from complainant.

 

2. Opposite party had entered appearance and filed written version.  His contentions are briefly discussed here under :

 

According to opposite party, complaint is not maintainable in law or upon facts.  As per the terms of hypothecation agreement, opposite party had filed an arbitration petition which has now culminated in passing of an award.  Opposite party had approached District Court at Idukki for execution of the same, which is pending.  Hence this complaint is not maintainable.  Complainant had availed Rs.8,18,000/- as loan from opposite party on 27.9.2014, for the purchase of a tipper lorry.  Loan was to be repaid in 36 Equated Monthly Instalments of Rs.27,710/-.  Complainant had defaulted payment of instalments  for years altogether. It is incorrect to say that RC book was unauthorisedly retained by opposite party.  Though RC book was obtained from complainant for official purpose of opposite party, it was returned to him without fail.  Opposite party had not refused to give NOC of the vehicle to complainant.  There is a written agreement with regard to loan between complainant and opposite party.  As per agreement, instalments were due from 27.10.2014 till 27.9.2017.  Complainant has remitted only 14 instalments.  Remaining 22 instalments are yet to be remitted.  Total dues with interest would come to Rs.11,08,784/- as on 18.2.2021.  Opposite party had demanded interest as per terms of agreement.  Arbitration award is pending execution and also a case has been filed by opposite party under Section 138 of NI Act against complainant.  Despite this, opposite party had earlier given NOC to complainant for renewing the permit.  Unless the complainant clears the arrears, opposite party cannot asked to issue NOC or other records to him.  This complaint is only an abuse of process and it is to be dismissed with cost.

According to opposite party, there are no specific allegations of deficiency in service and secondly since already an arbitration award has been passed, complainant                                                                                                              (cont….3)

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cannot proceed with this complaint.  On the other hand, complainant contends that remedies provided under the Act are in addition to and not in derrogation of provisions  contained in other statutes.  Now the points which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Order to be passed ?

 

3.  Point No.1 :

 

Specific contentions with regard to deficiency in service and unfair trade practice are not addressed apart from alleged withholding of NOC which complainant argues is necessary for remitting tax and renewal of permit, without which vehicle cannot be plied. However, complainant himself admits that payment of loan instalments are in arears.  Though he would say that he had remitted about Rs.4 lakhs towards instalments, nothing has been produced along with complaint to substantiate this.  1^st document produced is copy of hire purchase chart showing the amount to be paid as instalments which discloses that only 2 instalments have been paid.  Document Nos.2, 3 and 4 are copies of temporary receipts issued with regard to payment of Rs.10,000/-, 15,000/- and 45,000/- respectively.  These are all shown to be payment made subject to realization of cheque indicating that cheques were issued by complainant towards payment of amount mentioned in the receipts.  Admittedly, cheque cases are pending against complainant, filed by opposite party which prima facie shows that cheques issued by complainant have bounced.  5^th document is photocopy of receipt for Rs.55,420/- issued to complainant from opposite party.  6^th one is similar receipt for Rs.27,710/-.  Document No.7 to 10 are also similar receipts with regard to payment of Rs.27,710/-.  Last document is photocopy of counterfoil with regard to deposit of Rs.26,000/- in Federal Bank to the account of opposite party. Total payment is of Rs2,19,970/-, sans amounts covered by temporary receipts. However opposite party admits that 14 instalments have been paid, which would total to Rs.3,87,940/-. This seems to be true in view of admissions in complaint that about four lakhs have been remitted by complainant. Remaining 22 intalments are in arrears. Total amount due along with interest is Rs.11,08,784/- as on 18.2.2021.  Though complainant claims that opposite party had refused to issue NOC to him on a subsequent occasion or thereafter, opposite party contends that amounts due as per the hypothecation/loan agreement has not been paid by complainant.   That opposite party can be asked to issue NOC only if the loan dues are cleared.  This being the situation when there is admittedly default in payment of loan instalments, prima facie, we cannot say that there was deficiency in service or unfair trade practice on the part of opposite party in withholding NOC. Opposite party is apparently within it’s rights to withhold NOC as complainant has not paid loan dues. Though complainant has sought for a direction against opposite party, prohibiting him from claiming interest, penal interest and other charges, complainant does not have a case in his pleadings that excess interest has been charged or that penal interest and                                                                                                                          (cont…4)

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excess charges have been realized from him.  His  only grievance against opposite party is non-issuance of NOC.  Without specific plea with regard to rate of interest charged, penal or excess interest and other charges to be collected or collected, directions claimed for payment of due amount less interest, penal interest and charges will not survive for consideration.  Upon a perusal of entire pleadings in the complaint, we are unable to find any specific instance of deficiency in service or unfair trade practice in withholding NOC, which admittedly and apparently is for the reason that complainant is not paying instalments.  Complainant does not have a case that there is any clause in the agreement which will enable him to get NOC from opposite party even if loan amount is in arrears.  Hence 1^st direction for issuance of NOC cannot be granted.  He does not have a case that he had demanded a statement of account from opposite party specifically at any point of time.  Therefore 2^nd direction also will not survive for consideration.  No lawyer notice or personal notice has been issued by him to opposite party before the complaint, seeking issuance of statement of accounts or computation of loan dues as such.  It is seen that complainant has come after an award was  passed in arbitration proceedings with regard to loan default which was  put into execution also before the filing of this case. Complaint is also after filing of cheque case against complainant with regard to dishonour of cheques issued towards payment of loan instalments.  These being the facts, we find that complainant has not made out a prima facie case with regard to the alleged deficiency in service or unfair trade practice.  There is no cause of action as such for the complaint.

 

          Second contention is with regard to passing of arbitration award.  Able counsel appearing for opposite party has submitted photocopy of decision rendered by National Consumer Disputes Redressal Commission in Revision dated 8.5.2018,  which was a case, where complainant had simultaneously sought for arbitration and also for reliefs under the Consumer Protection Act of 1986,it was held by National Commission that complainant cannot avail simultaneous remedies and therefore if there is an award by arbitration, prior to consumer complaint, that award will operate as res judicata.  In this case, complainant has not preferred any arbitration case.  Hence it cannot be said that he had chosen simultaneous remedies.  Opposite party has not submitted a copy of award passed by Arbitrator.  We are not aware whether the complainant had appeared in those proceedings and contested the matter.  Hence contentions that complaint is not maintainable, since there is already an arbitration award, cannot be sustained.  However, we find that complainant has not even made out, prima facie, that there was any deficiency in service or unfair trade practice on the part of opposite party.  Therefore, complaint is liable to be rejected.  Point No.1 is answered accordingly.

 

 

                                                                                                                  (cont….5)

 

 

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4. Point No.2 :

 

          In the result, this complaint is rejected as not maintainable.

 

                      Pronounced by this Commission on this the   22^nd  day of November, 2022

 

                                                                                      Sd/-

      SRI. C. SURESHKUMAR, PRESIDENT

                                Sd/-

     SMT. ASAMOL P., MEMBER

                      Sd/-

    SRI. AMPADY K.S., MEMBER

 

 

 

     Forwarded by Order,

 

 

ASSISTANT REGISTRAR