ORDER

(R.L.AHUJA, PREISDENT)

1.                The present complaint under section 12 of The Consumer Protection Act (hereinafter in short to be referred as ‘Act’) has been filed by Sh.Gian Chand s/o Sh.Nand Lal resident of H.No.4114/5, St. No.12, Joti Colony, Jamalpur, Chandigarh Road, Ludhiana (hereinafter to be referred as ‘complainant’) against M/s Shriram Transport Finance Company Ltd., 2813, First Floor, Ranjit Tower, Gurdev Nagar, Pakhowal Road, Ludhiana, through its Branch Manager and others (hereinafter to be referred as ‘OPs’)-directing them not to misuse the security cheques of the complainant and also to settle the loan account of the complainant, as the vehicle was resold by the OP1 to OP2 directly from the complainant by giving false representation and by false assurances. Further Ops be directed to return back the security cheques of the complainant to the complainant, to pay Rs.50,000/- as compensation on account of mental agony, tension, harassment, to pay Rs.11,000/- as legal charges to the complainant alongwith any other relief which this Forum deems fit.

2.                Brief facts of the complaint are that complainant was owner of one Mini Truck AP having registration no.PB-10DE-5486, engine no.B4035848, chassis no.825060 model no.2011, which was got hypothecated and financed by OP1 M/s Shriram Transport Finance Company Ltd. Due to some financial crises, the complainant failed to pay the installments in time to the OP1. As such, the complainant approached to OP1 and requested them to settle his loan account, in which aforesaid vehicle was got financed by the complainant. On the request of the complainant, the officials of the OP1 told to the complainant that they will sell the said vehicle and then they will settle his loan account. In that way the officials of the OP1 introduced the OP2 with the complainant and got sold the said vehicle to the OP2 directly from complainant in Rs.40,000/- in cash alongwith future loan liability of 30 monthly installments of Rs.6700/- each. At the time of selling the said vehicle, OP1 assured to the complainant that they will collect the balance installments directly from the OP2. OP2 had also given the assurance that he will pay the balance installment in time directly to the OP1. After the purchase of the said vehicle, OP2 used the same, but failed to repay the loan amount to OP1 as per schedule. The complainant, number of times made requests to the OP2 to pay the EMI of loan amount to OP1, but the OP2 every time linger on the matter on one false pretext to another. In failure of repay the loan amount by OP2, OP1 gave threats to the complainant that in case, he will not clear all the outstanding payment, then they will misuse the security cheques of the complainant, which were handed over to the OP1 by the complainant at the time of got financed the said vehicle from it. The complainant requested to the OP1 that the said vehicle was got sold as per the directions given by them and moreover he was not known to OP2. The OP2 was got introduced with the complainant by OP1. As such, there is no liability of the complainant, but OP1 refused to accede the genuine request made by the complainant. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 appeared through his counsel and filed written statement taking preliminary objections that the present complaint is legally not maintainable and same is liable to be dismissed. Further submitted that in brief, the complainant has obtained the financial assistance from the OP1 vide account no.LUDNA0101210003, LUDNA0201170005, LUDNA0301160007 for vehicle no.PB-10-DE-5486 and also signed the Hire Purchase Agreement at the time of obtaining loan. There is an arbitration clause in the above said agreement regarding disputes and there is no clause in agreement of obtaining security cheques at the time of loan. The complainant has sold the vehicle at his own without the consent of the OP1 as disclosed and digested the amount at his own level and further failed to pay the loan amount to the OP1. So, the complainant is not entitled to any relief. But the OP1 is at liberty to initiate any legal proceedings to recover the balance loan amount of Rs.1,65,897/- as on 22.5.14. Further submitted that the Forum has no jurisdiction to try, entertain and decide the present complaint. There is no deficiency on the part of the answering OP. On merits, denying all other allegations of the complaint, OP1 prayed for the dismissal of the complaint.

4.                Notice was sent to OP2, through registered post on 6.8.14. But no report was received. As such, after expiry of 30 days of waiting period, OP2 was proceeded exparte, vide order dated 08.09.14.

5.                In order to prove his case, Ld. counsel for complainant has placed on record affidavit of complainant Ex.CA, wherein, the same facts have been reiterated as narrated in the complaint and also placed on record documents Ex.C1 and Ex.C2. On the other hand, Ld. counsel for OPs has placed on record affidavit of Sh.Ram Kishan, Manager Legal, Shriram Transport Finance Co. Ltd., Pakhowal Road, Ranjit Tower, Ludhiana Ex.RA, wherein, the same facts have been reiterated as narrated in the written statement and also submitted the document Ex.R1.

6.                We have heard the Ld. counsel for both the parties and have also perused the entire record before us.

7.                It is undisputed fact between the parties that complainant was the owner of Mini Truck AP bearing registration no.PB-10DE-5486, which was got hypothecated and financed by OP1 M/s Shriram Transport Finance Company Ltd. It is further undisputed fact that the complainant failed to pay the installments of the vehicle to the OP1. It is further undisputed fact that the said vehicle was sold by the complainant to OP2 after taking Rs.40,000/- in cash alongwith future loan liability of 39 monthly installments of Rs.6700/- each by OP2, which is evident from the copy of the sale agreement Ex.C1. It is also undisputed fact that at the time of raising the loan, complainant executed certain documents in favour of OP1. As per allegations in complaint, the complainant had deposited cheques as a security of the loan amount, which may become payable after charging of interest. As per the further allegations of the complainant, the OP1 got sold his vehicle to OP2 and complainant was absolved from his liability of remaining loan installments of the vehicle. However, the OP1 did not return cheques duly signed by the complainant, which were given as security of the loan amount.

8.                In the preliminary objections of the written statement, it has been specifically mentioned that there is an arbitration clause in the above said agreement regarding disputes and there is no clause in agreement of obtaining security cheques at the time of loan and further it has been submitted that OPs are at liberty to initiate any legal proceedings to recover the balance loan amount of Rs.1,65,897/- as on 22.05.2014. The perusal of the sale agreement Ex.C1 reveals that deal is between the complainant and purchaser Hasan Ali and there is no reference in the sale agreement/affidavit of the complainant that the sale agreement was got executed with OP2, through OP1 and this documents does not bear the signatures of OP1. So, it cannot be presumed that the vehicle was sold by the complainant to OP2, through OP1.

9.                Whereas, the question of mis-using of cheques is concerned, the same were allegedly given in blank to OP1. The OP1 denied the fact of receiving the cheques in question. It is the legal right of the complainant to get back the alleged cheques bearing no.497191, 497192, 497193, 497194, 497195, 497196, 497197, 497198, 497199, 497200, 497201 and 497202 drawn on Axis Bank Ltd., Ludhiana, which have allegedly been given by the complainant to OP1, if the OP1 is in possession of the same.

10.              Sequel to the above discussion, the present complaint is partly allowed and OP1 is directed not to misuse the security cheques of the complainant, if any, in their possession and Further OP1 is directed to settle the loan account of the complainant. Keeping in view of the above no order as to cost and compensation. Copy of the order be supplied to the parties free of costs. File be consigned to record room.

                   (S.P.Garg)                                         (R.L.Ahuja)

                     Member                                             President

Announced in Open Forum.

Dated:14.01.2015 

Hardeep Singh