COMPLAINT FILED ON 24/10/2019

                                                                                             DISPOSED ON 23/12/2022

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:607/2019

DATED:23^rd  December 2022

PRESENT: -     Kum. H.N. MEENA., PRESIDENT., B.A. LL.B.,

                       Sri. G. SREEPATHI, B.COM., LL.B., MEMBER       

                        Smt. B.H. YASHODA. B.A., LL.B., LADY MEMBER

:ORDER:

Smt. B.H. YASHODA.    B.A., LL.B., LADY MEMBER.

The above complaint has been filed by complainant U/s 12 of the Consumer Protection Act, 1986 for seeking the relief of to direct the opponents to hand over original 10 Cheques and original documents pertain to complainant Tractor and to direct the opponents to issue clearance certificate by closing the loan account and to award compensation of Rs.3,00,000/- in favour of complainant towards the mental shock pain and agony caused to the complainant from the acts of opponents and pass such other cost expenses and reliefs as this Hon’ble Forum deems fit to grant in the interest of Justice and Equity. 

The brief facts of the complaint:

        1. It is stated by the complainant he has approached the Tejas Motors, Vinayaka Complex, Oppt. State Bank of India, R.M.C. Road, Chitradurga for Purchase of Sonalika Tractor, where in the said Tejas Motors have introduce the opponent No. 1, at that time complainant has shown willingness to obtain financial assistance from the Bank, the Tejas Motors have advice complainant that the opponent No. 1 has providing best financial assistance within a short span and provide best opportunity for return of loan amount, as per the advice of Tejas Motors the complainant has approached the opponent No.1 for financial assistance for purchase of Tractor and obtained a loan of Rs. 5,00,000/on 60 instalments, out of 60 instalments 50 instalments are for a Sum Rs. 3000/- per month and 10 instalments are for a sum of Rs, 73147/- for once in six months. i.e.,  instalment No. 6, 12, 18, 24, 30, 36, 42, 48, 54 and 60 instalments are for a sum of Rs. 73,147/- and the remaining instalments are for a sum of Rs. 3000/- as  per the repaying schedule issued by opponent No. 1, the complainant has paid a sum of Rs. 1,88,147/- instead of Rs. 1,79,294/- up to 3/12/2012, i.e.,  he has paid upto date instalments and paid an excess amount of Rs. 4152/- till 3/12/2012, thereafter the complainant has facing so many problems that the tractor purchase by the complainant has given trouble one after the another and consume more fuel than specified by the company/manufacturer, as per the manufacturer the tractor has to consume 4 litres of diesel per hour, instead of that the tractor has consume 8 litres of diesel per hour, and further the tyres supplied by the dealer has completely burnt for 400 hours, as per the dealer the tyres has to burnt upto 1000 hours, for all these things the complainant has sustained heavy loss, for that reason he has unable to repay the loan amount on regular dates.

        2. Further, the complainant stated that, being aggrieved by the manufacturing defect the complainant has filed a complaint before this Hon’ble Forum, the same has been registered as C.C No. 51/2013, in this case the dismissed as the complainant is not the owner of the said tractor as the said tractor has not registered, hence by considering the same the said complaint has been dismissed. Further stated by the complainant that during the pendency of the above said complaint the opponent No. 1 has harass the complainant and trying to take the possession of Tractor, at that time the complainant to restrain the opponent No.1 from take the possession of tractor illegally filed a suit against the opponent No. 1 before the 2^nd Additional Civil Judge (Jr. Dn.) Chitradurga the same is registered as O.S No. 447/2013, in this case the Hon’ble Court has been pleased to grant ad-interim Temporary Exparte Injunction order, that after appearance of opponent No.1 the same has been dispose off on the ground of Arbitration clause present in the hypothecation agreement.

3. It is further stated by the complainant that, he has got good repayment record for that the Opponent No. 1 has sent a letter stating that they have reduce in future monthly loan instalments which is tune to Rs. 604/-(Rupees Six Hundred and Four only) per instalment and which is in total of Rs.27180/- on overall balance amount due to opponent No. 1. Further stated by the complainant that he has repay the loan amount on regular instalment basis to the opponent No. 1. even though there is pendency of complaint before this Hon’ble Forum as well as Suit is pending before the Civil Judge Court, Chitradurga and even after they have filed an arbitration case, even though the opponent No. 1 has filed arbitration case and obtained the decree fraudulently without disclosed the real facts of repayment of loan amount by complainant to the Hon’ble Arbitrator on the basis of false and fabricated facts the opponent No. 1 has obtained the decree fraudulently and for the execution of same they have filed an execution proceeding before the Hon’ble Principal District and Sessions Judge, Chitradurga the same has registered as Ex. 147/2015 where in the opponent No. 1 has filed the petition for recovery of Rs. 6,44,387/-, That after receipt of notice complainant has appear through his counsel and submitted that he has ready to pay the balance loan amount and complainant has repay the entire loan amount from 03/12/2011 to 25/11/2017 and paid a sum of Rs. 8,45,547/- to the opponent No. 1 through their agent as well as through Court deposits. That even after payment and deposit of
Rs. 1,60,000/of loan amount before the Hon’ble Principal District and Sessions Judge, Chitradurga the opponent No. 1 has not came forward to withdraw the said amount and not came forward to take appropriate steps hence the Hon’ble Court has been please to dismissed the Execution petition by its order dated 13/12/2017.

        4. It is stated by the complainant that, at the time of obtaining of loan amount the opponent No. 1 has obtained 10 blank cheque belongs to complainant. That complainant has paid Rs. 8,45,547/- till 25/11/2017 even after payment of the said amount the opponent No. 1 has issued notice on collusion with opponent No. 2 who has no way concerned to this complainant and the same is against the  Law of land, and it amounts to deficiency of service on their part, the opponents instead of issuance of clearance certificate they have issued notice is just to harass and make inconvenience to complainant, from the acts of the opponents, the complainant has Sustained heavy losses and suffering from mental shock, pain and agony. That from the beginning itself the opponent No. 1 has harass the complainant in one way or the other, even though the complainant has repay the loan amount the opponent No. 1 has not issued clearance certificate, this act of the opponents clearly Shows their malafide intention it leads to deficiency of service on their part. Hence the opponents have liable to compensate the complainant for their illegal activities and harassment.

        5. It is further stated by the complainant that, after receipt of notice from the Opponent No. 1 and 2 dated 21/01/2019 which has been posted on 08/03/2019, the complainant has replied with all the detail repayment of loan amount through reply notice dated 28/3/2019, even after reply has been given to both opponents, that after lapse of several months the opponent No. 1 once again issued notice to the complainant demanding for payment of loan amount is just to harass the complainant. Further, stated by the complainant that after receipt of notice and also after replied to the notice the complainant has approached the opponent No.1 several time for issuance of clearance certificate, instead of doing so he opponent No.1 has on colluded with opponent No.2 has manage to issue notice through opponent No.2 and trying to harass this complainant, this act of opponents clearly shows their deficiency in service.

        6. After registering the complaint, The Hon’ble Commission has issued Notice to Opponent Company and it were duly served to the opponents and OP No.1  filed their version by denying the allegations of the complaint. The complaint under reply is denied in entirely as the same is based on vague, false and misconceived notion and thus liable to be dismissed as frivolous and vexations complaint.        

        7. The opponents in their version have denied each and every allegations, averments an claim made in the complaint, as the Hon’ble Forum has no jurisdiction to entertain the complaint, the complainant has filed the complaint before this forum in CC No.51/2013, the Hon’ble Forum registered the complaint and full pledged enquiry was done and finally the Forum was pleased to dismissed the complaint, hence no jurisdiction to entertain the complaint.

8. Further, the opponent stated in version that the complainant has paid a sum of Rs.1,88,147/-instead of Rs.1,79,294/- upto
3-12-2012, i.e., he has paid upto the date Installments and paid an excess amount of Ks.4,152/- till 3-12-2012, thereafter the Complainant has facing so many problems that the Tractor purchased from the OP No.2 has given trouble one after the another and consume more fuel than specified by the Company/Manufacturer, as per the Manufacturer the Tractor has to consume 4 litres of diesel per hour, instead for that the Tractor has consume 8 litres of diesel per hour, and further the tryes supplied by the dealer has completely burnt for 400 hours, as per the dealer the tyres has to burnt upto 1,000 hours, for all these things the Complainant has sustained heavy loss, for that reason he has unable to repay the loan amount on regular dates are all completely false.

9. Further, the OP No.1 stated that the averments made in the complaint false and during the pendency of the complaint, the opponent No.1 has to harass the complainant and trying take the possession of Tractor, at that time, the complainant to restrain the opponent No.1 from take the possession of Tractor illegally are false and the complainant averred in his complaint that he has got good repayment record for that the opponent No.1 has sent a letter stating that they have reduce in future monthly loan instalments which is tune to Rs.604/- per instalment and which is in total of Rs.27,180/- on overall balance amount due to opponent No.1 are all false.

10. Further the opponent stated in his version denied that the complainant has repaid the loan on regular installment basis to the opponent No.1 even though there is pendency of complaint before this Hon’ble Forum as well as suit is pending before the Civil Judge court, Chitradurga and even after they have filed an arbitration case, even though the opponent No.1 has filed arbitration Case and obtained the decree fraudulently without disclosed the real facts of repayment of loan amount by Complainant to the Hon’ble Arbitrator on the basis of false and fabricated facts the opponent No.1 has obtained the decree fraudulently is false and for the execution of same, they have filed an execution proceeding before the Hon’ble Principal District and Sessions Judge, Chitradurga the same has registered as Ex.147/2015 wherein the OP No.1. has filed the petition for recovery of Rs.6,44,387/-. That after receipt of notice Complainant has appear through his Counsel and submitted that he has ready to pay the balance loan amount and Complainant has repay the entire loan amount from, 3-12-2011 to 25-11-2017 and paid a sum of Rs.8,45,547/- to the opponent No.1 through their agent as well as through Court deposits. That even after payment and deposit of Rs.1,60,000/of loan amount before the Hon’ble Principal District and Sessions Judge, Chitradurga the opponent No.1 has not came forward to withdraw are false, and not came forward to take. appropriate steps. Hence, the Hon’ble Court has been please to dismissed the execution petition by its order dated:13-12-2017 are all false.

11. Further the opponent stated in his version that at the time of obtaining of loan amount the opponent No.1 has obtained 10 blank cheque belongs to Complainant is false. That Complainant has paid Rs.8,45,547/- till 25-11-2017 even after payment of said amount the opponent No.1 has issued notice on collusion with opponent No.2 who has no way concerned to this complainant and the same is against the law of land and it amount to deficiency of service on their part, the opponents instead of issuance of clearance certificate they have issued notice is just to harass and make inconvenience to Complainant, from the acts of the opponents are false and all the facts stated in the complaint allegations are concocted and created story, and there is no deficiency in service by the opponents and prays for dismissal of the complaint.

12. The complainant got himself examined as P.W.1 by filing by Affidavit as a part of examination in-chief and the documents Ex.A-1 to Ex.A-6 were got marked and closed their side evidence.

13. The opponent No.1 have examined as D.W.1 and closed the evidence on their side and no any documents produced by the opponents. Complainant and opponent No.1 have filed their version and written Arguments. Arguments of complainant and OPs were heard.

14. After perusal of the complainant and OP No.1 evidence and all documents the points that arise for our consideration for decision of above complaint are that:

1. Whether the complainant proves that he is the consumer?
2. Whether the complainant proves that he has paid full loan amount to the opponent company? If so, on what date the complainant has paid the final loan instalment amount to the opponents.  
3. Whether the complainant proves that the opponents are negligent and there is deficiency in service?
4. What order?

15. Our finding on the above points are as follows:

a) (1) to (3) Affirmative.

b) (4) As per final order.

REASONS

15.Point No.1: The complainant examined as P.W.1, and documents marked as exhibits A-1 to A-6 viz., Ex.A-1: Copy of the order sheet in Ex.Pet. No.147/2015 of Principal district & Sessions Judge, Chitradurga along with other documents i.e., Ex.A-2: Statement of Accounts issued by OP No.1 Magma Finance Limited,  Ex.A-3: Calculation Memo filed by the complainant before Principal district & Sessions Judge, Chitradurga, in Ex.No.147/2015, Ex.A-4: notice issued by the OP No.1 to the complainant dated 21/01/2019 Ex.A-5 Reply notice dated 28/03/2019  by the complainant Ex.A-6 Notice issued by the OP No.1 to the complainant dated 13/06/2019. As per the documents, there is no dispute that the complainant is the consumer of opponents. Hence, issue No. (1) is affirmative.  

16. Point No.2 & 3: The Hon’ble commission observed, that the evidence of complainant, the complainant has approached the OP No.2 for purchase of Sonalika Tractor wherein the said Tejas Motors have intraduce the opposite party No.1, at that time complainant has shown willingness to obtain financial assistance from any Bank, the Tejas Motors have advice complainant that the opponent No.1 has providing best financial assistance within a short span and provide best opportunity for return of loan amount, as per the advice of Tejas Motors the complainant has approached the opponent No.1 for financial assistance for purchase of Tractor and obtained a loan of Rs.5,00,000/- on 60 instalments, out of 60 instalments 50 instalments are for a sum of Rs.3,000/- per month and 10 instalments are for a sum of Rs.73,147/- for once in six months i.e., instalments No.6, 12, 18, 24, 30, 36, 42, 48, 54 and 60 instalments are for a sum of Rs.73,147/- and the remaining instalments are for a sum of Rs.3,000/- as per the repayment schedule issued by opponent No.1 the complainant has paid a sum of Rs.1,88,147/- instead of Rs.1,79,294/- upto 03-12-2012 i.e., he has paid upto the date Installments and paid an excess amount of Rs.4,152/- till 3-12-2012, as per Ex.A-2 and A-3 and as per the Ex.A-1 the complainant deposited the amount of Rs.1,60,000/- before the Hon’ble Principal District and Sessions Judge, Chitradurga in Ex.No.147/2015 . But, eventhen, the OPs have not received the amount nor taken any further steps against the complainant/JDR. Hence, the Hon’ble District Court was pleased to dismissed as the DHR has not taken any steps and Decree Holder is at liberty work out his remedies. But, till today the opponents have not proceeded with the case. Eventhen, the issuance of notice to the complainant is highly illegal one. As per the Ex.A-1 to A-3, the complainant has paid the full loan amount of Rs.8,45,547/- to the opponents but, the opponents have failed to issue the clearance certificate and return the 10 Nos. cheques and original docuements obtained from the complainant. It shows that the opponents have committed deficiency in service.

        18. The opponent No.1 have examined as D.W.1 and they have not produced any documents as alleged in their version.

        19. In the above circumstances, perused the documents and evidence of complainant and evidence of opponent No.1, Chief Affidavit and written Arguments, it shows that there is deficiency in service on the part of opponents. As such, the Point No.2 and 3 taken into consideration as Affirmative.

20. Point No.4: As discussed on the above points and for the reasons stated there in we pass the following as per the points.

::ORDER::

        The present complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opponents is partly allowed.

        It is ordered to the opponents to return the 10 Numbers cheques and original documents and issue clearance certificate by closing the loan account.

It is ordered that the OP No.1 & 2 are directed to pay compensation of Rs.10,000/- towards mental shock, pain and agony of the complainant from the acts of the opponents.

It is ordered to pay Rs.5,000/- towards to cost of proceedings.

It is further ordered that the opponents No.1 & 2 are hereby directed to comply the above order within 30 days from the date of this order. If the OPs failed to comply the orders, it will carry 9% interest P.A. from the date of filing the complaint till its realization.

        Communicate the order to parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 23^rd December 2022.)

LADY MEMBER                   MEMBER                    PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

1. Sri Y.K. Manjunatha Shetty, S/o Late Y.S.B. Krishna Shetty,   

by way of affidavit of evidence.

Wetness examined behalf of opponent:

DW-1:- Sri Prashanth Kumar, by way of affidavit of evidence.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

Nil

LADY MEMBER                   MEMBER                    PRESIDENT

GM**