IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 29th day of November, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 131/2012 (Filed on 27.07.2012)
Between:
Thahira Sulaiman,
W/o. Sulaiman,
Mulloor Veedu,
Mannadi,
Kadampanadu Village,
Pathanamthitta Dist,
Pin – 691 530.
(By Adv. Ajith Prabhav) …. Complainant
And:
1. Tata Motors Finance Ltd.,
Regd. Office at Nanavathi Mahalya,
3rd Floor, 18 Hoomi Modi Street,
Mumbai – 400 001, Rep. by its-
Director.
2. Branch Manager,
Tata Motors Finance Ltd.,
Branch Office at Geetha Trade Centre,
KMC 16/13/E, Near YWCA,
Nagampadam, M.C. Road,
Kottayam – 686001,
Rep. by its Branch Manager.
3. Mr. Binu, Legal Manager,
Tata Motors Finance Ltd.,
Residing at Cheriyappalli House,
Kakkanadu.P.O.,
Cochin – 682 030. …. Opposite parties
O R D E R
Smt. K.P. Padmasree (Member):
Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Fact of the case in brief is as follows: 1st and 2nd opposite parties are engaged in the business of providing finance for the purchase of vehicles. 3rd opposite party is the legal manager of the 1st and 2nd opposite parties. In the year 2007, complainant availed a loan of ` 17,95,000 from the opposite parties for the purchase of an Excavator as per hypothecation agreement. After availing the said loan amount, the complainant had repaid a total sum of ` 15,35,820 to the opposite parties on various dates. In the mean time, the complainant transferred the vehicle to one Mr. Yusuf, retaining the hypothecation with the opposite parties with the consent of 2nd opposite party. Later, the said Yusuf defaulted in paying the loan instalment due to the opposite parties. So the complainant filed a complaint before Judicial First Class Magistrate Court, Pathanamthitta and as per the direction of the court, police registered a case as Crime No.334/09 u/s 420 of IPC. As per the direction of the Dy.Superintendent of Police, Adoor, Mr. Yusuf surrendered the excavator before the police station and the complainant informed the matter to the 2nd opposite party.
3. The aforesaid criminal case was compromised under the mediation of the 3rd opposite party and the opposite parties agreed to settle the entire dues on taking possession of the excavator. At the relevant time, the balance loan amount due to the opposite parties were merely about ` 5,00,000. But the value of the vehicle at the time of surrender was ` 13,00,000. 2nd and 3rd opposite parties made the complainant and her husband to believe that the entire loan transaction can be settled on surrender of the vehicle and for satisfying the remaining loan amount, the value of the vehicle surrendered was more than sufficient. On that day the 3rd opposite party issued a letter to the complainant acknowledging the surrender of the vehicle and further assuring that there will not be any litigation in respect of the vehicle transaction. Thereafter 2nd and 3rd opposite parties take the vehicle to their Yard at Kottayam.
4. Later on 21.12.2011 complainant received a lawyer notice demanding an exorbitant amount in respect of the aforesaid loan transaction. Complainant issued reply notice informing that the vehicle was surrendered and transaction was closed. Thereafter 1st opposite party issued reply notice to the complainant’s counsel stating that a sum of ` 12,98,592-21 is due from the complainant in respect of the loan transaction. 1st opposite party frained ignorance in respect of the surrender of the said vehicle and receipt of the same by 2nd and 3rd opposite parties as full and final settlement by giving appropriate letter. After the receipt of the said notice from opposite parties, complainant’s husband approached the 2nd and 3rd opposite parties but they evaded from saying lame excuses.
5. The intention of the opposite parties is to obtain an arbitration award through fraudulent means. The opposite parties have no right to initiate any arbitration proceedings against the complainant in relation to the aforesaid transaction. The act of the opposite parties is an unfair trade practice, which caused mental agony and hardships to the complainant. Hence this complaint for getting the vehicle KL-26/3104 Excavator in proper working condition or to realize a sum of ` 13,00,000 with 12% interest along with compensation of ` 3,00,000 and cost.
6. In this case, opposite parties have not turned up and hence they were declared as exparte.
7. On the basis of the averments in the complainant, the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this case consists of the proof affidavit of the complainant and Exts.A1 to A11. After closure of evidence complainant was heard.
9. The Point:- Complainant’s allegation against the opposite parties is that he had entered into an hypothecation agreement with the opposite parties for ` 17,95,000 for the purchase of an Excavator. After availing said loan amount complainant repaid a total sum of ` 15,35,820 to the opposite parties. In the mean time, complainant transferred the vehicle to another person retaining hypothecation with the opposite parties and with the consent of 2nd opposite party. Later, the transferee defaulted in paying the loan instalment. Complainant filed complaint before Judl. First Class Magistrate Court, Pathanamthitta and as a result the transferee surrendered the vehicle before the police station. On getting information, 2nd and 3rd opposite party agreed to settle the entire dispute on taking possession of the said excavator and they took the possession of the vehicle and 3rd opposite party issued a letter to the complainant acknowledging the surrender of the vehicle. Further opposite parties assured that there will not be any litigation in respect of the said vehicle transaction.
10. Thereafter 1st opposite party issued legal notice demanding an exorbitant amount in respect of the aforesaid loan transaction and also opposite parties initiated false arbitration proceedings against the complainant in Mharashtra State. According to the complainant, the act of the opposite parties is an unfair trade practice which caused financial loss and mental agony to the complainant and the opposite parties are liable to the complainant for the same. Hence complainant prays for allowing the complaint.
11. In order to prove the case of the complainant, complainant filed proof affidavit along with 9 documents. On the basis of the proof affidavit, the documents produced were marked as Exts.A1 to A9. Ext.A1 is the photocopy of the agreement dated 19.12.2009 between the complainant and Mr. Yusuf. Ext.A2 is the letter dated 19.12.2009 issued by 3rd opposite party to the complainant. Ext.A3 is the reply notice dated 13.01.2012 issued by complainant’s counsel to opposite parties 1 and 2. Ext.A4 is the acknowledgment card of Ext.A3. Ext.A5 is the postal receipt of Ext.A3. Ext.A6 and A6(a) are the acknowledgment card and postal receipt of Ext.A3 issued to 2nd opposite party. Ext.A7 is the reply notice to Ext.A3. Ext.A8 is the notice intimating the appointment of arbitrator. Ext.A9 is the copy of arbitration proceedings. Ext.A10 is the notice issued by arbitrator. Ext.A11 is the interim order in the arbitration proceedings.
12. On the basis of the contentions, we have perused the available evidence on records and found that the complainant had purchased an excavator by availing loan from the opposite parties and he had transferred the said vehicle to one Yusuf retaining the hypothecation agreement between the complainant and opposite parties. Later the said Yusuf defaulted the payments of the hypothecation agreement. Thereafter as per the mediations between the complainant and the said Yusuf in the presence of Adoor Dy.Superintendent of Police and 2nd and 3rd opposite parties, the vehicle in question is taken by the 2nd and 3rd opposite parties on the assurance that the complainant will not be charged for the remaining dues to the opposite parties. Ext.A1 agreement and Ext.A2 letter clearly confirms the above said transactions. Therefore opposite parties are not entitled to demand any amount from the complainant. So the demand from the part of the opposite parties and the arbitration proceedings against the complainant are not sustainable.
13. However, the complainant has not adduced any evidence to show outstanding dues to the opposite parties as on 19.12.2009, though he claimed that he had repaid a total sum of ` 15,35,820. But as per Ext.A2 the 3rd opposite party had given an assurance that there will not be any litigation in this connection on the basis of the surrender of the vehicle. In view of the said undertaking given in Ext.A2 it is implied that complainant has no dues as on 19.12.2009 as the value of the surrendered vehicle is adjusted in the loan account. The prayer in the complaint is either for the return of the vehicle or for the realization of ` 13,00,000. But the actual value of the vehicle on the date of surrender of the vehicle is not brought out in evidence by the complainant. Moreover there is no mention regarding the repayment of the balance amount due to the complainant, as on the date of surrender, entitled from the opposite parties on closing the loan account by effecting the surrender and the adjustments in the loan account by crediting the then value of the vehicle. In respect of these aspects, we doubt that there is some suppression of certain material facts. So we are of the view that the prayers in the complaint are not allowable as such even though this complaint is allowable as the opposite parties acted against the spirit of Ext.A2 undertaking. Therefore this complaint can be allowed with modifications:
14. In the result, this complaint is allowed with modifications; thereby opposite parties are directed to withdraw from all actions taken by them against the complainant in this transaction from 19.12.2009. At the same time, complainant is at liberty either to repossess the vehicle from the opposite parties in working condition on payment of the actual dues outstanding as on 19.12.2009 or to realize an amount equal to the balance amount, if any, stands in the credit of the complainant’s loan account as on 19.12.2009 that has to be adjusted in the loan account by the opposite parties consequent to the surrender of the vehicle along with 10% interest per annum for the said amount from 19.12.2009 to this day along with compensation of ` 25,000 (Rupees Twenty five thousand only) and cost of ` 5,000 (Rupees Five Thousand only). Opposite parties are directed to comply this order within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize a total sum of ` 5 lakhs (Rupees Five Lakhs only) on non standard basis from the opposite parties with 10% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 29th day of November, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant: Nil
Exhibits marked on the side of the complainant:
A1 : Photocopy of the agreement dated 19.12.2009 between the
complainant and Mr. Yusuf.
A2 : Letter dated 19.12.2009 issued by 3rd opposite party.
A3 : Advocate notice dated 13.01.2012 issued by complainant’s
counsel to opposite parties 1 and 2.
A4 : Acknowledgment card of Ext.A3.
A5 : Postal receipt of Ext.A3.
A6 & A6(a): Acknowledgment card and postal receipt of Ext.A3
A7 : Reply notice dated 29.02.2012 to Ext.A3.
A8 : Notice intimating the appointment of arbitrator.
A9 : Copy of arbitration proceedings.
A10 : Notice issued by arbitrator.
A11 : Photocopy of Interim order in the arbitration proceedings.
Witness examined on the side of the opposite parties: Nil
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Thahira Sulaiman, Mulloor Veedu, Mannadi,
Kadampanadu Village, Pathanamthitta Dist,
Pin – 691 530.
(2) Director, Tata Motors Finance Ltd., Regd. Office at
Nanavathi Mahalya, 3rd Floor, 18 Hoomi Modi Street,
Mumbai – 400 001.
(3) Branch Manager, Tata Motors Finance Ltd.,
Branch Office at Geetha Trade Centre,
KMC 16/13/E, Near YWCA, Nagampadam, M.C. Road,
Kottayam – 686001,
(4) Mr. Binu, Cheriyappalli House, Kakkanadu.P.O.,
Cochin – 682 030.
(5) The Stock File.
