Punjab

Ludhiana

CC/14/176

Vijay Thapar - Complainant(s)

Versus

Shiram Tpt Finance Co.Limited - Opp.Party(s)

27 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

       C.C. No: 176 of 17.02.2014

                                                                      Date of Decision:27.02.2015

Vijay Thapar son of Shri Kewal Krishan Thapar, Sole Proprietor of M/s Thapar Traders, Property No.B,IV-1785, Phalahi Bazar, Ludhiana.

……Complainant

                                                    Versus          

Shriram Transport Finance Company Limited, having one of its branches at Pakhowal Road, Ludhiana-141001 through its Branch Manager/Incharge.

                                                                             ……...Opposite Party

        Complaint under section 12 of the Consumer Protection Act,1986.

         

Quorum:     Sh.R.L.Ahuja, President.                 

                   Sh.Sat Paul Garg, Member.

                   Ms.Babita, Member.               

                 

Present:       Sh.Karun Jindal, Adv. for complainant.

Sh.Krishan Mohan Sethi, Adv. for Op.

 

ORDER

R.L.AHUJA, PRESIDENT

 

1.                Present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after in short to be described as ‘Act’) has been filed by Sh.Vijay Thapar(hereinafter in short to be referred as ‘complainant’) against Shriram Transport Finance Company Limited, having one of its branches at Pakhowal Road, Ludhiana, through its Branch Manager/Incharge (herein-after in short to be described as ‘Op’)- alleging deficiency in service on their part.

2.       In brief, the case of the complainant is that the complainant purchased one vehicle i.e. I-20 car having registration No.PB-10-DD-6861 after getting a loan of Rs.3,70,000/- from the OP company in the month of May, 2011 and the loan amount was to be recovered by the OP company in 46 equally monthly installments of Rs.10,903/- per month. At the time of sanctioning of the loan for the purchase of the car, the OP company received one advance equal monthly installment of Rs.10,910/- on 23.5.2011 in cash from the complainant and also received 18 blank cheques bearing No.689505 to 689518 duly signed by the complainant drawn on UCO Bank, Dal Bazar Branch, Thapar Complex, Hindi Bazar, Ludhiana from his bank account No.0824021-0000397. The remaining cheques of the pending EMI’s were to be given to the OP after 18 cheques had been got encashed by the OP. At the time of sanctioning/giving the loan, the officials of OP got signed a number of printed documents having unfilled blank spaces in the same from the complainant. Lateron, the officials of OP termed/assigned those duly signed blank documents/papers, a loan agreement without the consent of the complainant and without conveying the number of the document, contents of the same and without supply a copy of the said alleged loan agreement/documents. Even till date, in spite of various requests, no copy of the said alleged loan agreement/ documents has been supplied to the complainant and the officials of OP asked the complainant to deposit the monthly installments in cash or the loan amount in lump sum and that a copy of the loan agreement will be sent to the complainant by post at his home address when the whole amount of loan has been paid off by the complainant. The loan amount of Rs.3,70,000/- was to be returned/paid to the OP in 46 monthly installments of Rs.10,903/- and the first installment of Rs.10,910/- was deposited in cash on 23.5.2011 with the OP by the complainant. The OP company continued getting the cheques encashed from the banker of the complainant which had been issued by the complainant, by filling the blank spaces every months. In the last week of May, 2012, the officials of the OP company asked the complainant to deposit the EMIs of the loan in cash to which, the complainant did not agree and asked the officials of OP to first get the remaining cheque No.689517 and 689518 lying with them encashed from the banker of the complainant as agreed and after that the complainant would be issuing them the cheques for the remaining amount of the loan. Instead of acceding the genuine demand of the complainant, the concerned officials of OP started threatening the complainant that in case, the complainant did not deposit the EMIs, in cash, they will utilize the remaining two cheques by filling up huge amount and file a complaint u/s 138 of Negotiable Instrument Act and that the complainant would be responsible for the consequences of the same. The complainant personally approached the officials of OP at Ludhiana not to take any such like steps which are against the rules but to get the blank cheques lying with them encashed from the banker of the complainant and also requested them to supply him the information qua authenticated details of the amount already received from the complainant and rate of interest being charged on the loan amount of Rs.3,70,000/- and authenticated copy of the alleged loan agreement and all other documents got executed from the complainant at the time of sanctioning of loan and a true statement of account up-to-date. However, instead of supplying the requisite information, the OP deputed two ‘goonda’ type muscleman on 3.2.2014, who came to the residence of the complainant at about 8:00 PM and asked the complainant to hand over the keys and custody of the vehicle financed by the OP, otherwise, they will forcibly take the vehicle with them. The threatening action of the said goonda type muscleman of the Op made the complainant so awful that since he has not been able to ply his vehicle. Such act and conduct of OP is claimed to be deficiency in service on the part of OP by the complainant. Hence, by filing the present complaint, it is prayed that Op be directed to supply the authenticated details of the amount already received from the complainant and rate of interest being charged on the loan amount of Rs.3,70,000/- and authenticated copy of the alleged loan agreement and all other documents got executed from the complainant at the time of sanctioning of loan and a true statement of account up-to-date and besides to pay Rs.50,000/- as compensation and litigation costs and other benefits to the complainant.

3.                Upon notice of the complaint, OP was duly served and appeared through Sh.Krishan Mohan Sethi, Advocate and filed the written reply, in which, it has been submitted in the preliminary objections that the complaint is not maintainable in its present form against the answering OP. The complaint is not maintainable as the complainant has not come to this Hon’ble Forum with clean hands as the complainant has filed the present complaint just to arm-twist the answering OP, so that the answering compromise the earlier litigations with the complainant. Further, a complaint u/s 138 of Negotiable Instrument Act is already pending against the complainant and the complainant filed the present complaint just to make a defence in that complaint and the present complaint is just a counter blast to the complaint u/s 138 of N.I.Act filed by the answering OP. The answering OP is Public Limited Company incorporated under the Provisions of Companies Act, 1956 and is dealing inter-alia in the business of financing, loan, hypothecation, hire-purchase and leasing of the vehicles. The complainant being proprietor of M/s Thapar Traders had entered into one Loan-cum-hypothecation agreement No.LUNDA0105200004 dated 20.5.2011 with the company and obtained credit facility and hypothecated one Hyundai I20 car bearing registration No.PB-10-DD-6861 in favour of the company, for getting credit facility from the answering OP as per the terms and conditions of the agreement. The above said loan-cum-hypothecation agreement contain arbitration clause. According to the terms and conditions of the abovesaid agreement, all disputes, differences and/or claims arising out of these presents or as to the construction, meaning or effect hereof or as to the rights and liabilities of the parties herein under shall be settled by arbitration to be held in Ludhiana in accordance with the provisions of Arbitration and Conciliation Act, 1996 or any statutory amendment thereof and shall be referred to the sole arbitration of a person to be nominated/appointed by Shriram. The award given by the arbitration shall be final and binding on all the parties concerned. Hence, suit is barred u/s 5 of the Arbitration and Conciliation Act, 1996. Bare perusal of the complaint would clearly reveal that the issue agitated by the complainant are the subject matter of the arbitration. No cause of action has accrued to the complainant against the answering OP as answering OP is not liable for any type of deficiency on their part. The complaint is barred as per the provisions of Consumer Protection Act as the whole of the transactions are of commercial nature. The complainant applied for the loan for commercial purpose as he is running a business and he purchased the vehicle in question for expansion of his business and not for earning his livelihood, hence he is not a consumer as per law. On merits, it is submitted that the complainant had purchased the vehicle i.e. I20 car in the name of his firm M/s Thapar Traders for the expansion of his business and that the EMI’s were 47, out of which, one was of Rs.10,910/- and the other were of Rs.10,831/- and remaining 45 installments were of RS.10,903/-.  It is denied that the answering OP received 18 cheques from the complainant. It is denied that loan of Rs.3,70,000/- was to be returned to answering OP by 46 monthly installments of RS.10,903/-. Rather, it is submitted that it is the complainant who used to make the payment while issuing cheque on each month. It is denied that in the last week of May, 2012, the officials of answering OP asked the complainant to deposit the EMIs of loan in cash and to first get the remaining cheques No.689517 and 689518 lying with them encashed from the banker and after that the complainant will be issuing them the cheques for remaining amount of loan. This is the whole concocted story of the complainant created just to save his skin from the prosecution in complaint u/s 138 N.I.Act filed by the answering OP. Rather, it is submitted that the complainant himself defaulted in paying the equated monthly installments and after that he himself settled the matter with the answering OP and issued one cheque for the whole of the settlement amount and fraudulently get it dishonoured and when the company initiated prosecution against him in terms of law and he after becoming aware of the prosecution filed the present complaint and there is no unfair trade practice and breach of trust on the part of the answering OP. Otherwise, similar pleas were taken as mentioned in the preliminary objections and at the end, denying all other allegations of the complainant being wrong and incorrect, answering OP made prayer for dismissal of the complaint with costs.

4.                In order to prove the case of the complainant, learned counsel for the complainant tendered into evidence affidavit of complainant as Ex.CA, in which, he has reiterated all the contents of the complaint. Further, learned counsel for the complainant has proved on record document Ex.C1.

5.                On the other hand, in order to rebut the case of the complainant, learned counsel for the OP adduced evidence by placing on record affidavit Ex.RW1/A of Sh.Ram Krishan, its Law Officer, in which, he has reiterated all the contents of written reply filed by OP and refuted the case of the complainant. Further, learned counsel for the OP has proved on record documents Ex.R1 to Ex.R5.

6.                We have heard the learned counsel for the parties and have also perused the record on the file very carefully.

7.                Perusal of the record reveals that it is an undisputed fact between the parties that complainant had purchased one vehicle i.e. I-20 Car bearing registration No.PB-10-DD-6861 after raising loan of Rs.3,70,000/- from the OP in the month of May, 2011. Further, it is an undisputed fact on record that the loan was to be repaid by the complainant in 46 equally monthly installments of RS.10,903/- per month.

8.                As per the allegations of the complainant that the OP had already received 18 blank cheques which were duly signed by the complainant and drawn on UCO Bank, Dal Bazar Branch, Thapar Complex, Hindi Bazar, Ludhiana from his bank account No.0824021-0000397. The remaining cheques of the pending EMI’s were to be given to the OP after 18 cheques had been got encashed by the OP. At the time of sanctioning/giving the loan, the officials of OP had got signed a number of printed documents having unfilled blank spaces in the same from the complainant and later on, OP started giving threats to the complainant to fill the two cheques No.689517 and 680518 and to lodge the complaint u/s 138 of N.I.Act. On the other hand, there is specific plea of the Op that the complainant had raised the loan and he had executed the loan-cum-hypothecation agreement No.LUNDA0105200004 dated 20.5.2011 with the OP and by virtue of that agreement, it was the legal obligation of the complainant to repay the loan amount as per repayment schedule as well as the terms and conditions of the aforesaid agreement. Further, there is a plea that since the complainant was a defaulter and he issued the cheque NO.689517 dated 12.8.2013 for Rs.3,90,000/- which was dishonoured and as a result of which, complaint u/s 138 of Negotiable Instrument Act was filed by the OP and the present complaint is only a counter blast against the proceedings which have been initiated by the OP u/s 138 of N.I.Act against the complainant.

9.                Perusal of the record further reveals that it is an undisputed fact between the parties that the complainant had raised the loan of Rs.3,90,000/- and executed the Loan-cum-Hypothecation Agreement Ex.R2 in favour of the OP and both the parties are bound by the terms and conditions of the said agreement. Further, perusal of the evidence of OP reveals that the OP has placed on record copy of cheque No.689517 dated 12.8.2013 for Rs.3,90,000/- Ex.R4 which was issued by the complainant in favour of the OP and also placed on record copy of complaint filed u/s 138 of N.I.Act Ex.R3 and copies of statement of account qua the loan account of the complainant as Ex.R5.

10.              Though, the complainant has claimed the relief in his complaint that directions be given to the OP to supply him the information qua authenticated details of the amount already received from the complainant and rate of interest being charged on the loan amount of Rs.3,70,000/- and authenticated copy of the alleged loan agreement and all other documents got executed from the complainant at the time of sanctioning of loan and a true statement of account up-to-date and Rs.50,000/- as compensation and other benefits.

11.              So, it appears from the evidence of the complainant that it was obligatory on the part of the OP to supply the copies of statement of the loan account of the complainant showing the amount already received from the complainant by the OP and also to show the rate of interest being charged by the OP on the loan amount and also to supply the copy of loan agreement which was got executed by the OP from the complainant at the time of raising the loan by the complainant.

12.              In view of the above discussion, we hereby partly allow this complaint and as a result, we hereby direct the Op to supply the complainant regarding the information qua authenticated details of the amount already received from the complainant and rate of interest being charged on the loan amount of Rs.3,70,000/- and authenticated copy of the alleged loan agreement and all other documents got executed from the complainant at the time of sanctioning of loan and copy of true statement of account up-to-date qua the loan account of the complainant within 15 days from the date of receipt of copy of this order. Keeping in view the facts and circumstances of the present case, no order as to compensation and litigation costs is passed. Copies of the order be sent to the parties free of cost and thereafter, file be consigned to the record room.

           

          (Babita)                (Sat Paul Garg)              (R.L.Ahuja)

            Member                Member                       President.   

Announced in Open Forum

Dated:27.02.2015

Gurpreet Sharma.