DATE OF FILING: 04.03.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 29th day of June, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDU SOMAN MEMBER
C.C No.50/2011
Between
Complainants : 1. Binu Mathew S/o Mathew,
Mylackal House,
Chakkupallom P.O,
6th Mile, Udumbanchola Taluk,
Idukki District.
2. Asha Kuruvila D/o Kuruvila,
6/543, Kulangara House,
Puttady P.O,
Vandanmedu, Udumbanchola Taluk,
Idukki District.
(Both by Adv: Sijimon.K.Augustine)
And
Opposite Party : The Branch Manager,
SML Finance Limited,
SML Building,
Vellayamkudy P.O,
Kattappana,
Idukki District.
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The Ist complainant purchased a new Ape Truck Vehicle bearing Registration No.KL-37/5780 from the opposite party after paying Rs.70,000/- by cash on 8.01.2009. For paying the balance amount of the vehicle, the complainant availed a loan from the opposite party and for the security of the loan, the opposite party received complainant's sole property's documents. And also obtained signatures of the complainants 1 and 2 on various papers including printed, stamped, blank, also demanded two cheque books. Accordingly the Ist complainant brought one cheque book of the Chakkupallam Service Co-operative Bank Limited issued from the S.B Account No.2346 in favour of him bearing numbers 6271 to 6280 before the opposite party. Being dissatisfied with the cheques of the primary service co-operative bank, the opposite party did not obtain signatures on the above said cheque leaves and directed the complainants to open a new joint account in the District Co-operative Bank or in any one of the nationalized banks. Accordingly the complainants constrained to open a new joint S.B account bearing No.3997 before the IDCB, Anakkara branch after depositing Rs.1,000/- on 9.01.2009 and obtained a cheque book for availing the loan. The Ist complainant entrusted the above said blank cheque book bearing cheque leaf numbers 12906981 to 12906990 to the opposite party. The opposite party obtained blank signature only on the first 3 blank cheque leaves bearing numbers 12906981 to 12906983 and insisted him to bring his wife on 12.01.2009 for putting signatures upon the balance cheque leaves. Since the Ist complainant received the vehicle on 9.01.2009, the 2nd complainant did not turn up thereafter to the opposite party's office and the opposite party happened to keep the entire cheque book as such without the signature of the 2nd complainant. After that the complainants paid 12 monthly instalments @ Rs.6,821/- each to the opposite party till January 2010. Due to the manufacturing defects and recurring complaints of the vehicle, the Ist complainant could not run the vehicle properly and failed to remit the balance 40 instalments, which caused because of the persisting manufacturing defects and service delay of the opposite party. The complainants purchased the vehicle in order to earn their livelihood. Since the vehicle could not run due to engine complaints and manufacturing defects, the opposite party received the vehicle for repair under full guarantee period in January 2010 and done two engine resettings after calling technicians from Ernakulam and the vehicle was got repaired after 3 months. So the complainant was not able to ply the vehicle for 3 months. So the complainants surrendered the vehicle on 26.04.2010 in consultation with the opposite party's officials towards full and final settlement of the loan due amount. The said vehicle was surrendered by the complainant because the said vehicle was happened to be repaired another 3 times by the same complaints of crank, break, gear etc. The complainants could use the vehicle only less than one year and paid more than 1.5 lakhs towards the price of the vehicle. So no more amount is due to the opposite party and there is no chance or scope for issuance of any cheques in favour of the opposite party on or after the surrender of the vehicle. The 2nd complainant never executed, signed and issued any cheques to the opposite party. The opposite party filed a case under Section 138 of the Negotiable Instruments Act against the complainants as CC No.443/2010 before the Hon'ble Judicial First Class Magistrate Court, Kattappana by using the above said 3 blank cheques for Rs.1,86,000/- which is pending. The signatures upon the so called cheques are forged ones, fraudulently created with ulterior motives and malafide intention. There is no consideration for the cheques mentioned in CC No.443/2010 before the Judicial First Class Magistrate Court, Kattappana and there is no legally enforceable debt or liability exists in between the opposite party and the complainants. On surrendering the vehicle, the Ist complainant demanded blank cheque leaves, but it was denied by the opposite party. So the complainants closed their account with the IDCB, Anakkara branch. Again another notice was received from the District Court, Thodupuzha in Arbitration O.P NO.41/2010 filed by the opposite party claiming Rs.2,63,314/- and thereby attached the complainants' 75 cents of property, which is illegal. There is no mention of cheque case filed against the complainants for Rs.1,86,000/- and filed the same by suppressing the real facts. The loan amount is only Rs.1,70,000/- and the price of the new vehicle is Rs.2,40,000/-. Towards the price of the vehicle, complainants paid Rs.70,000/- on 8.01.2009 and paid 12 instalments. The default in paying the balance instalments caused due to the irresponsible and negligent act of the opposite party. Now it is reliably learnt that the opposite party is attempting to refer the case before their arbitrator namely George Thomas, Ernakulam or K.T.Abhilashkumar, Thodupuzha as revealed in their Arbitration O.P for which they are not entitled to. So this petition is filed for restraining the opposite party from filing arbitration cases and cheque cases against the complainants in this matter and also for compensation.
2. As per the written version filed by the opposite party, it is admitted that the opposite party sanctioned a loan to the complainants as per the terms of a hire purchase agreement. The Ist complainant had issued cheque bearing No.12906981 dated 13.07.2010 for an amount of Rs.28,600/- and the 2nd complainant had issued cheque bearing No.12906985 dated 15.04.2010 for an amount of Rs.57,200/- and also a cheque bearing No.12906984 dated 16.05.2010 for an amount of Rs.1,00,200/- towards the settlement of accounts with the opposite party. The opposite party had made necessary steps for the registration of the vehicle and the complainant had only remitted 9 instalments in the entire loan. The complainant was using the vehicle to its full extent and in rash and negligent manner. As per the hire purchase agreement, the complainant had to remit the loan amount in 42 instalments of Rs.6,821/-each. The complainant had only paid 9 instalments, thereafter the complainant had used the vehicle for 8 months without paying the instalment amount. The contention of the complainants that manufacturing defect and service delay is false and it is denied by the opposite party. The complainants had made default in the repayment of instalments. Thereafter repeated demands from the opposite party, the Ist complainant surrendered the vehicle and towards the settlement of accounts, cheque leaves issued by the Ist complainant. The complainants had issued the cheques in order to defraud the opposite party without keeping sufficient funds to honour the cheques. It is admitted that the opposite party had filed an Arbitration O.P No.41/2010 for an amount of Rs.2,63,314/- and that the property of the complainant was attached. The Arbitration case is pending before the Arbitrator K.T. Abhilashkumar. The complainant had availed a loan of Rs.2,86,482/- , which has to be repaid in 42 instalments of Rs.6,821/- each. So this petition is filed by the complainants with the ill intention to keep away from repaying the loan amount. Moreover the complaint is not at all maintainable before the Forum as per the Arbitration clause in page 6 clauses 33 – Arbitration Agreement. So the petition may be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainants are entitled to ?
4. The Ist complainant filed affidavit, deposed as PW1 and Exts.P1 to P6 marked on the side of the complainants. The opposite party was absent at the time of evidence and made exparte.
5. The POINT:- PW1 stated that he availed a loan of Rs.1,70,000/- from the opposite party for purchasing a new vehicle from the opposite party for an amount of Rs.2,40,000/-. Rs.70,000/- was paid by PW1 on 8.01.2009 towards the price of the vehicle. 12 instalments of the loan were also repaid by PW1. Ext.P3 is the copy of the pay-in-slip issued by the opposite party for booking the vehicle for an amount of Rs.70,000/-. At the time of availing the loan, the opposite party obtained signatures of complainants 1 and 2 on various papers including printed, stamped and blank and also demanded 2 cheque books. A cheque book of the Chakkupallom Service Co-operative Bank Limited in favour of the Ist complainant in S.B Account No.2346 bearing numbers 6271 to 6280 was issued to the opposite party by the Ist complainant. Another cheque book of the IDCB, Anakkara Branch bearing cheque leaf numbers 12906981 to 12906990 in the joint account of the complainants was issued to the opposite party, in which cheque leaf numbers 1, 2 and 3 were signed by the Ist complainant. The instalments upto January 2010 were paid by the complainants as Rs.6,821/- each. After that the complainants were not able to pay the balance instalments. The vehicle was having manufacturing defects and engine complaints, so the vehicle was entrusted to the opposite party for repair under full guarantee period in January 2010, two engine resettings were done by the opposite party by calling technicians from Ernakulam. It was delivered only after 3 months. So in consultation with the opposite party, the complainants surrendered the vehicle to the opposite party on 26.04.2010 as full and final settlement of the loan due amount. PW1 was able to use the vehicle only less than one year and they paid more than 1.5 lakhs as price of the vehicle. Ext.P4 is the copy of the letter issued by the opposite party at the time of surrendering the vehicle. After that a lawyer notice was issued by the opposite party to the complainants demanding to pay the Ist complainant to pay Rs.28,600/- and the 2nd complainant to pay Rs.1,57,400/- because the cheque leaves issued by the complainants were dishonoured, copy of which is marked as Ext.P1. After that the opposite party filed a criminal case under Section 138 of Negotiable Instruments Act before the Judicial First Class Magistrate Court, Kattappana as No.443/2010 against the complainants for an amount of Rs.1,86,000/- by using the 3 blank cheque leaves. The lawyer notice dated 19.04.2011 issued by the opposite party demanding the payment within 7 days is marked as Ext.P6. The opposite party filed an Arbitration case before the District Court, Thodupuzha as O.P No.41/2010 by claiming an amount of Rs.2,63,314/- against the complainants and thereby attached the complainants' 75 cents of property, which is also pending. Ext.P5 is the copy of the complaint filed before the District Court, Thodupuzha. The complainant already paid 12 instalments and Rs.70,000/- was paid as initially and the vehicle was surrendered to the opposite party. Because of the manufacturing defects and engine complaints of the vehicle, the complainant was not able to repay the loan amount.
As per the complainant, he paid an initial amount of Rs.70,000/- at the time of purchase of the vehicle and the loan became due because of the engine complaints and manufacturing defects of the vehicle. But the complainant never produced any evidence to show that he paid 12 instalments to the opposite party. No receipts or pass book issued by the opposite party produced to show the same. After that the vehicle was having manufacturing defects and recurring complaints. So he was not able to run the vehicle properly. The engine of the vehicle was twice resetted by the opposite party by calling technicians from Ernakulam. The vehicle was entrusted to the opposite party for repair and it delivered only after 3 months. But the complainant never produced any expert evidence to prove the allegation that the vehicle was having severe recurring complaints. If the vehicle was with the opposite party, the complainant never tried to produce the job card of the opposite party to show the same. The complainant never filed application for appointing a commissioner to prove his contention that the vehicle was having manufacturing defects.
As per the complaint, the vehicle was surrendered by the complainants in consultation with the opposite party on 26.04.2010 as full and final settlement of the vehicle. Ext.P4 is the letter issued by the opposite party at the time of surrendering the vehicle. But there is no such statement is written in that the vehicle is surrendered as full and final settlement. Another contention of the complainant is that the opposite party initiated criminal prosecution proceedings against the complainant as CC No.443/2010 before the Judicial First Class Magistrate Court, Kattappana for an amount of Rs.1,86,000/- by forging the cheque leaves issued by the Ist complainant. It is also stated by the complainants that the cheque leaves produced before the Magistrate Court are forged ones and fraudulently created. The signatures upon the so called cheque leaves are forged. These matters should be proved before the criminal court and it is a complaint under Section 12 of the Consumer Protection Act, 1986. If the opposite party produced the forged cheque leaves of the Ist complainant before the Court, that matters should be proved before the appropriate authority. Again the complainant received a notice from the District Court, Thodupuzha as O.P.41/2010 for an amount of Rs.2,63,314/- and the property of the complainant is already attached by the District Court. So the matter is pending before the District Court, Thodupuzha and it is for the due instalments of the loan availed by the complainants from the opposite party. The petition filed by the complainants before this Forum is also for the dispute regarding the dues in the instalments of the vehicle loan of the complainants. So this matter is pending before the District Court and the property of the complainants is attached by the District Court in O.P No.41/2010.
As per the opposite party, the complainant paid only 9 instalments out of the 42 instalments of Rs.6,821/- each. The cheque leaves produced before the Judicial First Class Magistrate Court are issued by the complainants in various occasions and they are liable to get that amount due from the complainants. We think that the complainants surrendered the vehicle to the opposite party, while the vehicle was having instalments due. The complainants never produced any evidence to show that the vehicle was surrendered as full and final settlement of the loan. The complainant also failed to prove that the dues were caused because of the recurring complaints of the vehicle and also due to manufacturing defects of the vehicle. The complainant even never produced the Registration Certificate of the vehicle to prove that he is the owner of the vehicle.
As per the complainant, he paid 12 instalments, but never produced any evidence to show that he paid a single instalment to the opposite party. But the opposite party himself admitted in their written version that the complainant paid 9 instalments. The disputed matter is also pending before two other courts. The opposite party filed an arbitration proceedings against the complainants before the District Court and the property of the complainants has been attached for the due instalments. The same matter has been challenged before this Forum also. The criminal case and the civil suits are pending before appropriate authorities. So we think that this petition is filed only as an experimental and the complainant never proved any of the allegations raised in the complaint against the opposite party.
Hence the petition dismissed. No cost is ordered against the complainants.
Pronounced in the Open Forum on this the 29th day of June, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
SMT.BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainants :
PW1 - Binu.M.Mathew
On the side of Opposite Party :
Nil
Exhibits:
On the side of Complainants:
Ext.P1 - Photocopy of lawyer notice dated 18/08/2010 issued by the opposite party to the complainants
Ext.P2 - Photocopy of reply notice dated 14.01.2011 issued by the complainants to the opposite party
Ext.P3 - Photocopy of Pay-in -Slip dated 8.01.2009 for Rs.70,000/- issued by the opposite party for booking the vehicle
Ext.P4 - Photocopy of letter dated 17.10.2010 showing the surrender of vehicle
Ext.P5 - Photocopy of arbitration complaint filed by the opposite party against the complainant before the Hon'ble District Court, Thodupuzha
Ext.P6 - Photocopy of Lawyer Notice dated 19.04.2011 issued by the opposite party
On the side of Opposite Party:
Nil
