IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 198/08 DATED 06-10-2008<br /> <br /> ORDER<br /> <br /> Complainant Dinesh Kumar Uchil, S/o Late Narayan Ail, Veerabadhreshwara Form, Pura Village, Hampapur Post, H.D.Kote Taluk<br /> (By Sri.B.G.Busappaiah., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Tata Finance Limited, Bezzola Complex, 1st Floor, UN Purav Marg, Chembur, Mumbai-400071.<br /> 2. The Branch Manager, Tata Finance Limited, Ramavilas Road, Mysore Branch, Mysore.<br /> (By Sri.Suresh, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 04.07.2008<br /> Date of appearance of O.P. : 22.08.2008<br /> Date of order : 06.10.2008<br /> Duration of Proceeding : 1 MONTH 14 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. This is a complaint presented by the complainant against the Opposite parties with his grievance, that he had purchased a vehicle with loan advanced by Opposite parties under hypothecation agreement dated 17.02.2005. The second Opposite party formed a repayment schedule commencing from 15.03.2005 up to 15.01.2008. The Opposite parties have received all the cheques from him drawn on Cauvery Grameena Bank and that Opposite parties have issued acknowledgements for having received the cheques. None of the cheques issued by him are bounced. The Opposite parties have acted with their wims and fancies in presenting the cheques, though he had sufficient funds in his account through out. As per the repayment schedule entire loan have to be discharged by 15.01.2008, the Opposite parties have encashed all the 35 cheques issued by him towards installments, but the Opposite parties for their own negligence filed a complaint against him before the Metroplean Magistrate at Kurla, Bombay during 2006 on the ground of dishonour of a cheque dated 15.04.2006. That he thereafter approached the Opposite parties branch at Mysore and told them that he had kept sufficient funds in his account and that case filed at Bombay is not proper. However, as he could not defend that case at Bombay sent Rs.10,120/- the cheque amount to avoid further complications, though the loan taken by him has been fully paid and ended on 15.01.2008, the Opposite parties have failed to issue clearance certificate for cancellation of a hire purchase agreement. They also issued a legal notice with false allegations and threatened to surrender the vehicle, for which he sent a suitable reply informing the Opposite parties that he has paid the entire loan amount. The Opposite parties have not fairly acted in that transaction and though he has paid entire loan, the Opposite parties have acted molafidely and thereby has prayed for damages in causing mental agony, loss of reputation, correspondence charges and to direct the Opposite parties to issue clearance certificate for cancellation of HPA with the RTO, Mysore.<br /> 2. Opposite parties have appeared through their advocate and filed version contending that the complainant is not a consumer, therefore the complaint is not maintainable. The Opposite parties have admitted to had advanced loan of Rs.3,00,000/- to the complainant for purchase of a four wheeler vehicle under an hypothecation agreement. They have also admitted that the complainant was required to repay the loan within 3 years in equal monthly installments of Rs.10,171/-. They have also admitted to had received cheques from the complainant for repayment of the loan drawn on Cauvery Grameena Bank, Hampapura Branch. The Opposite parties denying that the complainant had maintained sufficient balance at his account have stated that one cheque issued by the complainant dated 15.04.2006 for a sum of Rs.10,120/- on presentation to the Bank was dishonoured for insufficient funds on 17.05.2006 in respect of which a legal notice was issued and proceeded under 138 of Negotiable Instrument Act was initiated and stated that the complainant sent a D.D. for Rs.10,120/- in their favour and stated if the complainant was really was not at fault he could not settled the case, by sending the D.D. admitting the fault. They admitted to had issued a legal notice on 18.12.2006 demanding the over due amount of Rs.54,299/- against the loan amount, also referred to legal notice dated 05.02.2008 demanding Rs.51,134.80 as due from the complainant and therefore stated that they have not committed any illegality and further stated that complainant is still due a sum of Rs.3,54,250/- towards his loan amount as on 29.08.2008 and therefore have prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint, the complainant and one Vijaya Sarathi for first and second Opposite parties have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced a copy of the letter addressed to him by Opposite parties on 22.03.2008, then copy of a payment schedule given by Opposite parties, acknowledgement issued by Opposite parties for having received the repayment cheques and copy of the bank endorsement, copy of the legal notice issued by the Opposite parties and account extract of the complainant maintained in Cauvery Kalpatharu Grameena Bank, Hampapur Branch. The Opposite parties have produced a copy of the hypothecation agreement, copies of letters they had addressed and legal notice got issued to the complainant with account extract of loan amount of the complainant. Heard the counsel for both the sides and perused the records. Both the counsels have also filed their return argument.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that he has repaid the entire loan amount advanced by the Opposite parties and despite that the Opposite parties have failed to issue clearance certificate and to move for cancellation of hypothecation endorsement in the R.C.?<br /> 2. To what relief the complainant is entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- Certain undisputed facts of this complaint are the complainant availing a loan of Rs.3,00,000/- from the Opposite parties for purchase of a vehicle, entering into an hypothecation agreement dated 17.02.2005, that the complainant had agreed to repay the loan in 35 installments commencing from 15.03.2005 till 15.01.2008 and that the complainant had also issued 35 post dated cheques in favour of the Opposite parties for dischargel of the debt. The complainant has also produced a repayment schedule issued by the Opposite parties which shows that the complainant was to discharge the loan amount of Rs.3,54,250/- in 35 monthly equal installments of Rs.10,121/- each except the first cheque for Rs.10,170/-. The complainant has also produced the acknowledgements issued by the Opposite parties for receipts of cheques with their numbers issued by him. The complainant in the complaint and also in the affidavit evidence stated he had through out maintained more than sufficient funds in his account to honour all the 35 cheques issued by him in favour of the Opposite parties, and that all the cheques are got encashed and he is not due any amount towards repayment of loan. Whereas the Opposite parties have by denying the claim of the complainant, have stated that the complainant is still due a sum of Rs.3,54,250/- as on 29.08.2008.<br /> 7. It is curious to note from the contention of the Opposite parties that except they contending that one cheque issued by the complainant bearing No.118484 dated 15.03.2006 for Rs.10,121/- was bounced for want of sufficient funds have no where whispered about non-encashment of the remaining 34 cheques or their bouncing. The evidence of the complainant that all the cheques issued by him are got encashed has not been controverted by the Opposite parties. Even when one cheque mentioned above was bounced for insufficient funds and when the Opposite parties initiated proceeding under section 138 of Negotiable Instrument Act at a Bombay Court, the complainant admittedly had sent D.D. for the amount due under the cheque and that proceeding came to an end. Therefore, it is clear from the version of the Opposite parties and also the affidavit evidence except their contention that this one cheque got bounced no where they have denied the encashment of the remaining 34 cheques or regarding non-collection of the funds under those cheques. Therefore, if according to the payment schedule issued by the Opposite parties themselves if all these 35 cheques are got encashed, have realized in all Rs.3,54,250/- that was the total amount recoverable from the complainant, that means to say by encashing all the 35 cheques, the Opposite parties must have realised the entire amount due to them and they are realised that amount. If it all if the Opposite parties had not encashed all these cheques or if any of the cheques had bounced and they had not realized the money they would have stated so in their version and affidavit. Therefore, in the absence of any version of their own regarding non-encashment of those cheques and in view of the uncontroverted evidence of the complainant, we have no hesitation to hold that all the cheques issued by the complainant in favour of the Opposite parties for repayment of the loan are encashed. This conclusion in our view is irresistible because of the contention of the Opposite parties themselves who have only alleged about the dishonour of one cheque and they have not whispered anything regarding remaining cheques.<br /> 8. Even the endorsement of dishonour of a cheque dated 15.03.2006 is doubtful, because the complainant has produced account extract of his account No.212 maintained in Cauvery Kalpatharu Grameena Bank of Hampapur Branch right from 01.01.2006 to 27.03.2008. On seeing this extract, it is found right from 01.01.2006 till 27.03.2008 the complainant has maintained Bank balance more than Rs.1,00,000/- up to Rs.7,00,000/- and + during certain months. The endorsement of dishonour of cheque one referred to by the Opposite parties as we have stated is of dated 15.03.2006. It could be seen from the account extract of the complainant even during March 2006 for the whole month even during subsequent months he had maintained lakhs of rupees in his account and only for some days during May he had balance of Rs.91,000/- and plus. But, for all these period we see the balance of more than adequate amount to meet the need of the Opposite parties. The complainant has contended that he had issued all these cheques drawn on his account maintained in Hampapur branch of Hegadadevana Kote but the Opposite parties had sent that cheque to Cauvery Kalpatharu Grameena Bank, Hampapur branch of K.R.Nagara Taluk, which is the fault of the Opposite parties for which he cannot blamed and penalized. Therefore, on perusal of all these materials it is evident that the complainant has discharged his legal obligation by maintaining adequate funds in his account and the Opposite parties as seen from the account extract got all those cheques encashed and therefore we find no merits in the contention of the Opposite parties with regard to the complainant still due any amount to them.<br /> 9. Even as seen from the contention of the Opposite parties, they have mislead the complainant and have also mislead this Forum by either suppressing facts or by furnishing misleading information. As could be seen from the legal notice that the Opposite parties got issued to the complainant as long back as on 05.02.2008, they claimed a sum of Rs.51,134.80 was due up to 04.02.2008. That means to say the complainant was due according to them a sum of Rs.51,134.80 as on that date and not more than that and even at the end of this legal notice, they have informed the complainant to ignore this notice in case if the complainant has already paid the outstanding dues as demanded therein. This shows that the Opposite parties even as on that date of issue of notice they did not verify the account of the complainant to ensure whether the complainant was due any amount to them or not however claimed Rs.51,134.80. But, when the Opposite parties filed their version to this complaint on 04.09.2008 they have stated as if the complainant was due to them a sum of Rs.3,54,250/- towards the loan amount as on 29.08.208. As stated by us above by referring to the legal notice of these Opposite parties if as on 04.02.2008 if the complainant was only a sum of Rs.51,134.80 they could not have claimed Rs.3,54,250/- as claimed in the version from 04.02.2008 till 29.08.2008. This figure of Rs.3,54,250/- claimed by the Opposite parties in their version found to be a magic figure, because the balance amount of Rs.51,134.80 could not have multiplied to Rs 3,54,250/- from 04.02.2008 till 29.08.2008 under any stretch of imagination. The Opposite parties even in the affidavit evidence filed by them have shown the same figure Rs.3,54,250/- as due from the complainant as on 29.08.2008. But, surprisingly the Opposite parties in their written arguments filed on 11.09.2008 have stated that the complainant is due only sum of Rs.92,263/- on his loan amount as on 29.08.2008. It is not the case of the Opposite parties that the complainant in between the issue of notice or filing this complaint has paid any amount. Then how does the Opposite parties explain those discrepancies. These contradictory statements of the Opposite parties with regard to the amounts due exhibit their callousness irresponsibility and inaccurateness in making their claim. We do not find any reasons or justification for this sort of unscientific calculations and statements. It could be seen, when the complainant replied the notice of the Opposite parties, has categorically stated that he has paid the entire amount due towards loan amount and he is not due any amount, but despite that the Opposite parties have not bothered to verify the payments made by the complainant and to arrive to a calculation to find out whether any amount was due from him or not. Hence, on perusal of the evidence of the complainant, the account extract he has produced and the fact that the Opposite parties have not any where stated they did not get all the 35 cheques issued by the complainant encashed then there cannot be any basis for the claim of the Opposite parties to claim any more amount from the complainant. It is not even the case of the Opposite parties that other then one cheque any other cheques remained un cashed or bounced and thereby they have levied any other charges, interest etc., etc., The payment schedule was prepared by Opposite parties calculating the total amounts due by the complainant and accordingly cheque were taken and as there is no whisper about non-payment of any amounts under these cheques, the Opposite parties claim is highly unpardonable and has to be rejected as malicisious. Added to this as pointed out by us their unscientific method of calculation and claim made at different stages with different figure prove their recklessness in maintaining the account and making claim against honest repaying customers. The complainant as could be seen from the account extract found to be financially some what sound his image has been tarnished by the Opposite parties, as such the complaint in our view deserves to be allowed by answering point no.1 in the affirmative and we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The Opposite parties are therefore jointly and severally directed to issue a clearance certificate in favour of the complainant, declaring that the complainant has cleared the entire loan amount and to see that the endorsement of hypothecation made in the RC book is cancelled within 60 days from the date of this order, failing which the Opposite parties shall jointly and severally pay Rs.2.000/- p.m. as damages from the date of this order till the date of they getting that hypothecation endorsement cancelled by issuing a necessary certificate.<br /> 3. The Opposite parties shall also jointly and severally pay damages of Rs.10,000/- to the complainant within 60 days from the date of this order towards mental agony and dis-honouring his reputation. <br /> 4. The Opposite parties shall also jointly and severally remit a sum of Rs.10,000/- to the Legal Aid Account of this Forum.<br /> 5. Lastly, the Opposite parties shall also jointly and severally pay Rs.1,000/- towards the cost of this complaint to the complainant.<br /> 6. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 6th October 2008)<br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />