Dated this the 27^th  day of July  2013

 

Present    : Smt.Seena H, President

Ramesh Kumar,

S/o.Appavu,

Old No.1/61, New No.1/83,

Zamin Kottem Patti,

Pollachi (PO), Coimbatore                                       -        Complainant

(By Adv.Redson Skaria)

V/s

 

1.The Branch Manager,

Manappuram General Financing

B-37,RVG Building, 1^st Floor,

Pollachi – 642 001

 

2.The Branch Manager,

Manappuram General Financing

SJ Complex, Near Kalyan Silks,

Railway Station Road,

Palakkad

 

3.The Chairman,

Manappuram General Financing

Manappuram House,

Valappad, Thrissur                                         -   Opposite parties

(By Adv.K.N.Babu)          

          By Smt.SEENA.H. PRESIDENT

 

Complaint in brief :

Complainant purchased a goods autorickshaw for self employment purpose by availing loan from the opposite party finance company. The arrangements for the loan was done by 2^nd opposite party. Agreement was entered into from the office of the 2^nd opposite party where the representatives  of 1^st opposite party were present. 1^st opposite party gave the papers and forms to sign and the complainant signed all the papers. Loan amount of Rs.70,000/- was received from the Pollachi branch  Office of the opposite party. Vehicle was purchased for Rs.1,20,000/- and an amount of Rs.25,000/- was spent for conditioning the vehicle.  As per the agreement entire amount has to be paid in 30 installments. Installments from October 2006 to November 2007 was paid by the complainant which comes to Rs.55,348/-. Thereafter complainant was bedridden due to back pain and could not pay the installments. Opposite party sent a notice dated 30/01/2008 to remind payment due for which one month time was prayed by the complainant, but opposite party without any notice or intimation repossessed the vehicle from the possession of the complainant within a week. Thereafter another notice dated 29/02/2008 was sent demanding payment of installments within 7 days to get back the vehicle. Complainant’s brother went to opposite party’s office for making payment, but was informed that the vehicle was sent to Coimbatore for loading and unloading purpose. Thereafter nothing was heard from the opposite party. Thereafter several notices one after the other was received by the complainant intimating the date of auction. Eventhough complainant went there, no auction took place. Finally on 4/2/09 opposite party by letter informed the complainant that the vehicle was sold in auction for an amount of Rs.13,000/- and an amount of Rs.39,000/- was due towards debt. Complainant received another notice dated 15/6/12 demanding Rs.1,01,397/- as the amount due. Cheque  case was filed by the complainant using the one given at the time of agreement. Opposite party now threatens stating that other cheques will be utilized for realization of the balance amount. Hence the complaint. Complainant prays for an order directing opposite parties to give back the cheques submitted with the loan agreement and restrain opposite parties from presenting the cheque and compensation and cost of the proceedings.

Opposite parties filed version contending the following:

That the complaint is not maintainable before the Forum. Complainant has availed loan from the 1^st opposite party’s branch office at Pollachi. No transaction took place at Palakkad. Further no blank cheques or blank papers were obtained by opposite parties while granting loan. Complainant defaulted payment of installments and several notices were issued requesting to clear the dues. On 23/2/2008 complainant surrendered the vehicle to 1^st opposite party. Thereafter also several intimation were sent to clear debts and take back the vehicle. No one approached the opposite party for payment. So opposite party sold the vehicle in public auction after publishing it in the local daily, for an amount of Rs.13,000/-. Market value of the vehicle was assessed by a licensed expert surveyor. Amount was credited to the account of the complainant. The details of the sale was intimated to the complainant  by registered post. Even after the sale an amount of Rs.35,000/- is due towards the loan. Now the complaint is filed to escape from the said liability. Hence the complaint is liable to be dismissed.

The evidence adduced by the parties consists of their respective chief affidavits. Ext.A1 to A22 marked on the side of the complainant. Complainant and opposite party cross examined as PW1 and DW2. Witness on the side of the complainant and opposite party examined as PW2 and DW1.

Issues for consideration:

1.    Whether the  complaint is maintainable before the Forum ?

2.    Whether there is any deficiency in service on the part of opposite parties?

3.    If so, what is the relief and cost ?

Admittedly complainant has availed loan from opposite party No.1. The stand of the complainant is that all the arrangements for the loan was done by 1^st opposite party from the office of the 2^nd opposite party and the agreement was also signed by the complainant from the 2^nd opposite party office. Complainant examined witness who is the brother of the complainant to prove that the loan agreement was signed from the Palakkad office of the opposite party. Opposite party produced a certificate issued by the head office of opposite party company stating that Palakkad branch office was opened only on 11/11/2008. We are of the view that opposite party can very well produce more reliable evidence as opening of a new branch office requires several formalities. So in our view eventhough place of agreement as per Ext.A21 is seen as Pollachi, opposite parties has not adduced any concrete evidence to show that the transaction took place at Pollachi. Hence we find that the complaint is maintainable before the Forum. 1^st issue is answered in favour of the complainant.

 

Admittedly Rs.70,000/- is the loan amount availed. Amount to be repaid in 30 installments. As per Ext.A19 account statement, complainant has repaid 14 installments and 16 installments is due to opposite parties as on 18/12/2007. Though complainant stated that the vehicle was repossessed by the opposite party there is no allegation as to any forceful repossession  or illegal repossession.   Ext.A18 shows that the vehicle has been surrendered by the complainant. Signature in Ext.A18 is not disputed. Ext.A2 series (notice dated 30/1/08) shows that prior to repossession notice has been issued to the complainant. As per law in case of hypothecation till the last installment is paid the financier is the owner of the vehicle. As per Ext.A18 vehicle was surrendered on 23/2/08. There after several notices marked as A11 series was seen to be issued by opposite party directly to the complainant requesting to pay the dues amount and take back the vehicle. Also intimating that in case of default the vehicle will be auctioned.

As per Ext.A4 notice dated 5/3/2008 the auction date is mentioned as 19/03/2008. Ext.A7 notice dated 11/7/08, auction date mentioned is as 1/08/08. Ext.A13 shows that the vehicle was actually auctioned on 13/08/08. No intimation as to this particular date seen intimated to the complainant. It is not understood what prevented the opposite parties from intimating the actual date of auction. The said act amounts to deficiency in service on the part of the opposite parties.

      The value of the vehicle as on the date of hire purchase agreement Ext.A11 is Rs.1,10,000/- i.e. in the year 2006. The surveyor has assessed the value of the vehicle as Rs.10,000/- as per Ext.A14 dated 28/07/2008 i.e. within a period of two years. It is also pertinent to note that the overall condition of the vehicle as per Ext.A14 is stated as Average. How the surveyor has arrived at such an amount is also not born out by Ext.A14. We are of the view that the said amount is arrived at without any basis and is very low. Even if 60% depreciation is calculated the vehicle fetch Rs.44,000/- Thereafter as per Ext.A8 notice dated 4/2/09 intimating sale is seen issued to the complainant and also requesting to clear the balance amount of Rs.39,000/-. It is not understood why the opposite party has kept mum for a period of 6 months for issuing Ext.A16. Ext.A5 notice dated 15/06/2012   is issued demanding Rs.1,01,397/- as the pending amount as on the date of notice. So far opposite party has not taken any legal measures for realization of the amount payable if any, which itself shows that nothing is due to opposite parties. The act of opposite parties amounts to unfair trade practice also.

In view of the above stated facts and circumstances of the case, we partly allow the complaint and order the following:

1.    Opposite parties are jointly and severally directed to close the loan

account of the complainant and return all the document including signed blank cheques within one month from the date of receipt of order, failing which complainant is entitled for an amount of  Rs.30,000/- (Rupees Thirty thousand only)  as  compensation.

2.    Opposite parties are directed to pay an amount of Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.

 

  Sd/-

Seena H

President

  Sd/-

Preetha G Nair

Member

Bhanumathi.A.K.

Member