By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act to get an order directing the opposite parties to transfer the title of vehicle No. KL 12 E 8998 in favour of the complainant on receipt of balance consideration from the complainant.
2. Brief of the complaint:- The complainant agreed to purchase a vehicle bearing No. KL 12 E 8998 from the opposite party. The total sale consideration was fixed as Rs.8,07,000/-. Thus an agreement was executed between the complainant and opposite party on 16.08.2013 on that day the complainant paid an advance amount of Rs.1,07,000/- out of the total sale consideration to the opposite party. It was stipulated that when the balance sale consideration of Rs.7,00,000/- was agreed to pay to the opposite party on 04.09.2013 on condition that opposite party should handover the original vehicular documents pertaining to the said vehicle to the complainant. Subsequently on demand of opposite party this complainant had paid Rs.2,13,000/- towards the balance consideration on various dates on the assurance that opposite party shall handover the original vehicular documents at the instance of the acceptance of balance consideration. Complainant again alleges that opposite party has not disclosed about the financial liability over the vehicle with M/s. Shriram Transport Finance Limited even at the time of entering the agreement or on subsequent occasions. This was noticed by the complainant only after the receipt of lawyer notice from the opposite party. This complainant admits that he is liable to pay the balance sum of Rs.4,87,000/- at the time of handing over the vehicular records. The complainant filed this complaint alleging unfair trade practice on the part of opposite parties that non discloser of loan liability of the said vehicle at the time of execution of agreement.
3. On receipt of notice, opposite party entered and version filed.
4. Brief facts of the version:- The opposite party admitted that on 16.08.2013 opposite party and the complainant entered in to an agreement of sale with respect to the vehicle bearing No. KL 12 E 8998. Total consideration and balance payment of Rs.4,87,000/- is admitted by the opposite party. Opposite party further stated that the sale was to mature on transfer of title by opposite party after receipt of balance consideration from the complainant on or before 04.09.2013. It was further stipulated that upon payment of balance consideration to opposite party on or before the agreement date opposite party has to transfer the original vehicular documents to the complainant. Opposite party vide agreement was bound to assist the complainant for getting the RC transferred. Opposite party further stated that the vehicle was handed over to the complainant along with the photocopy of the vehicular documents on the date of agreement itself and it was further stipulated that opposite party has to get the clearance from the Motor Transport Workers Board. Accordingly opposite party has cleared all the dues up to March 2013 and opposite party was always ready and willing to perform his part and only because of the latches in paying the balance consideration on the part of the complainant this opposite party was unable to close the loan amount due to Shriram Transport Finance Co Ltd. On believing that the complainant will pay the balance amount this opposite party submitted the originals of vehicular documents to the financier on 13.09.2013 and promised them that the loan will be cleared and requested them to take steps to issue clearance certificate. Now the financier started actions to clear the amount by attachment and sale of the movable and removable properties of this opposite party. On 15.10.2013 opposite party send lawyer notice to the complainant requesting him to perform the contract. In the reply complainant alleges that opposite party has not disclosed about the financial liability over the vehicle with M/s. Shriram. Transport Finance Co Ltd. Even at the time of entering the agreement or on subsequent occasions. Opposite party denied this and stated that on 16.08.2013 ie the date of agreement itself this opposite party handed over the vehicle with the photocopy of RC to the complainant, there is an endorsement in the RC book regarding the financial liability over the vehicle with Shriram Transport Co Ltd with effect from 20.11.2010.
5. Opposite party again stated that it is due to the latches of the complainant he was unable to perform the agreement. It is the complainant who violated the terms of agreement now huge amount become due to the financier due to the default of complainant. The complainant not acted upon the agreement within date, hence the opposite party could not clear the dues pending before the financier and there is no unfair trade practice on the part of opposite party and he is entitled to get cost and compensation from the complainant.
6. Complainant present and examined as PW1 and Ext.A1 to A3 documents were marked. Ext.A1 is the copy of Agreement executed between complainant and opposite party. Ext.A2 is the Lawyer Notice and Ext.A3 is the Reply Notice. OPW1 and OPW2 was examined on the side of the opposite party and Ext.B1 to B8 were marked. Ext.B1 is the copy of Registration Certificate. Ext.B2 is the copy of complaint given to DYSP, Mananthavady. Ext.B3 is the copy of police complaint. Ext.B4 is the Demand Notice dated 30.09.2013. Ext.B5 is the Notice dated 20.11.2013. Ext.B6 is the Copy of Registration Certificate. Ext.B7 is the copy of Insurance Policy. Ext.B8 is Chart issued by Shriram Transport Co Ltd to the opposite party. Heard both sides.
7. Based on the rival contention by opposite party following points are to be decided:-
1. Whether there is any unfair trade practice from the part of opposite party?
2. Relief and Cost.
8. Point No.1:- Complainant approached this Forum to execute the sale agreement with respect to the vehicle No. KL 12 E 8998. Hence the important aspect that has to be proved is that whether the complainant was always ready and willing to perform the contract. Opposite party denied the claim hence it is the duty of him to prove that there is violation of agreement from the side of complainant, also complainant has to prove the readiness and willingness. PW1 adduced evidence and marked Ext.A1 Sale Agreement. According to PW1 Ext.A1 sale agreement was executed between the complainant and opposite party on 16.08.2013. As per the agreement opposite party has agreed to sell his vehicle owned and possessed by him to the complainant. Total sale consideration fixed was Rs.8,07,000/- it is mentioned in the Ext.A1 agreement that on the date of the agreement an amount of Rs.1,07,000/- was paid to the opposite party by the complainant as advance sale consideration. As per the stipulations in the agreement the balance sale consideration of Rs.7,00,000/- has to be paid by the complainant to opposite party on or before 04.09.2013 and on paying the balance consideration opposite party has to transfer the original vehicular documents in favour of the complainant without liability. It is further stipulated that the vehicle was handed over to the complainant along with the photo copy of the RC on the date of agreement on 16.08.2013 and if any party to the agreement has committed breach of contract the other party can initiate proceedings against the person who committed breach and for which his properties would be liable, thus from the recital in Ext.A1. It is evident that the amount paid by the complainant is advance towards the total sale consideration further acceptance of total amount of Rs.2,13,000/- was admitted by the opposite party. An amount of Rs.5,87,000/- is now remaining unpaid as balance is admitted by both parties.
9. Opposite party examined as OPW1, had not denied the Ext.A1 agreement in the version and also during evidence. He had also admitted the acceptance of the advance amount of Rs.3,20,000/- from the complainant. According to this he has not violated the terms of agreement. It was the complainant who violated the terms of agreement and he is not entitled for an order from the Forum. Apart from this according to OPW1 he has initiated steps to perform the contract as per Ext.A2 legal Notice, and it is stipulated in Ext.A1 that opposite party had already hand over the vehicle together with photocopy of the RC to the complainant at the date of execution of agreement (16.08.2013) itself. Hence the allegation in the complaint that the complainant was not aware of the liability of the vehicle before Shriram Finance is unbelievable. Opposite party was also ready and willing to perform his part and only because of the complainant's latches in paying the balance consideration opposite party failed to close the loan amount due to Shriram Finance. The complainant not acted upon the agreement even after the receipt of Ext.A2 Legal Notice and the complainant not even approached this opposite party to perform the contract or he has not entrusted any mediator to settle the issue or not examined a witness to prove his readiness and willingness to perform the contract. During cross examination PW1 admitted that he had received the copy of Ext.B1 RC book together with the vehicle on the date of execution of Agreement (16.08.2013) itself. The recital of Ext.A1 is that on paying the balance consideration by the complainant opposite party need to handover the original vehicular documents on or before 04.09.2013 here the complainant had not paid the balance consideration to the opposite party till the date of complaint or not even deposited the amount before the Forum during the pendency of the case. Complainant has not even examined any witness to prove his readiness to pay the balance consideration. But no such efforts were seen taken by him to prove his bonafide. Perusal of Ext.B1 RC Book (confronted) it is noticed that loan endorsement is there with Shriram Finance with effect from 20.11.2010. Hence the allegation that non disclosure of loan liability on the part of opposite party will not sustain.
10. At this juncture it is pertinent to note that it is not proved from evidence on records that the complainant had sufficient funds to perform the agreement on the date mentioned in Ext.A1 Agreement (04.09.2013). The complaint is filed on 13.03.2014, if the complainant is ready with balance consideration he could have very well deposit it before the Forum at the time of filing the complaint and the vehicle in dispute is in the possession of this complainant on 16.08.2013 onwards. Loan liability are still pending before financier in the name of opposite party. As per Ext.B4 and B5 it is evident that opposite party has to get the clearance from the financier and he has to clear all the dues. Now the opposite party is liable to pay huge amount as penal interest. Hence on an overall evaluation of the pleadings and evidences, we opine that there cannot attribute any deficiency on the part of opposite party. The vehicle is actually in possession of the complainant from 16.08.2013 onwards, hence complainant is entitled to get transferred the original documents in favour of him on payment of balance consideration to opposite party. Point No.1 is found accordingly.
11. Point No.2:- In view of the findings on the above points the complainant is entitled to get the original vehicular documents on payment of balance consideration to the opposite party. Since the Point No.1 is found in favour of the complainant he is entitled to get cost of the proceedings.
In the result, the complaint is partly allowed and the opposite party is directed to give original vehicular documents without encumbrance in respect of vehicle No. KL 12 E 8998 to the complainant within one month from the date of receipt of this Order and the complainant is directed to pay the balance consideration of Rs.4,87,000/- (Rupees Four Lakh and Eighty Seven Thousand) to the opposite party at the rate of 6% interest per annum from 04.09.2013 within one month. Opposite party is also directed to pay Rs.2,000/- (Rupees Two Thousand) as cost of the proceedings.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 31st day of August 2015.
Date of Filing:13.03.2014.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
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PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Sujith. P. M. Complainant.
Witness for the Opposite Party:-
OPW1. Sabu Varghese. No Job.
OPW2. Raveendran. Loading.
Exhibits for the complainant:
A1. Copy of Agreement.
A2. Lawyer Notice. Dt:15.10.2013.
A3. Reply Notice. Dt:06.11.2013.
Exhibits for the opposite party:-
B1. Copy of Registration Certificate.
B2. Copy of complaint given to DYSP.
B3. Copy of police complaint.
B4. Demand Notice. Dt:30.09.2013.
B5. Notice. Dt:20.11.2013.
B6. Copy of Registration Certificate.
B7. Copy of Insurance Policy.
B8. Chart issued by Shriram Transport Finance Co Ltd.
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PRESIDENT, CDRF, WAYANAD.
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