By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to get compensation from the opposite parties as per the terms of settlement.
2. Brief of the complaint:- The complainant availed a vehicle loan from the 2nd opposite party with the guarantee of the 2nd complainant. The opposite party No.1 is the agent of the financier. While so the complainant defaulted some installments in repayment of loan. Then opposite parties tried to seize the vehicle subsequently 1st complainant approached this Forum and filed CC.192/2015 to restrain the opposite parties from seizing the vehicle. As per the direction of this Forum this complainant deposited Rs.68,000/- before the Forum in order to restrain the opposite parties from the seizure of the vehicle. The 2nd opposite party suppressing the Order of this Forum Arbitration Case No. CTM2851/2015 was filed against the complainants and this complainant's filed objection before Arbitrator. Thereafter the opposite parties settled the issue as per the compromise terms . As per terms opposite party was permitted to sell the vehicle with the consent of the complainant or sell the vehicle in public auction and excess amount will be returned to the complainant after deducting balance due with 12% interest. This complainants are entitled to get an amount of Rs.3 lakhs after adjusting the cost of fair value of vehicle. On believing the terms of compromise complainants surrendered the vehicle and intimated the counsel of the complainants at Chennai. Then complainant withdrawn CC.192/2015 filed before this Forum. But this opposite parties proceeded with the Arbitration proceedings and obtained an award for Rs.12,10,088/- with 18% interest with liberty to sell the vehicle as procedure. On the same day itself 2nd opposite party posted pre-sale notice stating that they will sell the vehicle on 25.03.2016. The 1st complainant was out of station and the notice itself is unfair and against the terms of settlements. On receipt of notice the complainant informed the objections. Thereafter opposite parties violated terms of settlement. Hence filed this complaint.
3. On receipt of notice, opposite parties filed version stating that the complainant came before this Forum suppressing material facts and not entitled for any relief as prayed. It is admitted that the complainant had entered into a loan cum hypothication agreement with these opposite parties for the purchase of a lorry. As per the terms of the agreement the complainant had availed an amount of Rs.12,28,000/- and he has to pay the same with interest of Rs.3,62,997/- amounting to Rs.15,90,997/-. The amount financed with interest was repayable in 47 monthly installments of Rs.33851/-. The contention raised that the complainant was regular in payment of E.M.I's is wrong and baseless. The complainant was a chronic defaulter of many monthly installments. As on 01.07.2015 the net monthly installments payable by the complainant is 24 out of which many have been not paid and many paid out of time. As on 06.07.2015 the complainant was liable to pay an amount of Rs.2,91,318/- thousand three hundred and towards installments overdue and Rs.1,09,995/- for overdue charges. As per the provisions of the agreement the opposite parties were constrained to determine the agreement by forfeiture and the matter was referred for arbitration to the sole arbitrator invoking the arbitration clause. In the meanwhile the complainant filed another complaint before this forum as C.C.192/2015 alleging that the opposite parties were trying to repossess the vehicle forcibly and seeking to restrain them. He also prayed for interim prohibitory order which was also granted on condition of deposit of Rs.68,000/-. Therein the opposite parties appeared and contested the same. The said complaint was disposed by this forum on 11.02.2016 as withdrawn by the complainant. The allegation in the complaint that the said dispute was settled between the parties with certain terms is false and denied by these opposite parties. There never occurred any such settlement or "terms" as claimed by the complainant. These opposite party never agreed to pay any amount to the complainants. Withdrawal of the deposited amount by the complainant was not opposed by these opposite parties as the same was a conditional arrangement between this Forum and the complainant. In the meantime the opposite parties initiated Arbitration Proceedings against the complainants before the Sole Arbitrator Sri. C.T.Mohan as Arbitration Case No. CTM 3851/2015. All though due notices were issued to the complainants they did not respond. Pending the Arbitration proceedings this opposite parties filed a petition before the Honourable high court of Madras as Arbitration No.5519/2015 and on getting notice the complainant appeared before the honorable court and filed an affidavit and based on that affidavit an order dated 06.11.2015 was passed by the honorable High court of Madras directing the complainant to pay the pending dues on or before 04.01.2016 and as he failed to comply the order, as per order of Hon'ble High court of Madras in Application No.5519/2015 dated 07.01.2016 an Advocate commissioner was appointed and he took possession of vehicle and there after Arbitration award was passed on 17.03.2016. There after due intimation notices were issued to the complainants intimating them regarding the sale of the vehicle in auction which were also received by the complainants. The vehicle was sold on 25.03.2016 for an amount of Rs.7,60,000/-.
4. Opposite parties further stated that this opposite party has not engaged in any unfair trade practice warranting the interference of this Forum. What they acted was as per the terms of agreement. As per the Arbitration award this opposite parties are entitled to realize an amount of Rs.12,10,088/- from the complainant with interest at the rate of 18% till realization and this complaint is filed on experimental basis and no such terms between the parties at the time of withdrawal of CC/192/2015.
5. Complainant adduced evidence as PW1 and Ext.A1 to A5 documents were marked. Ext.A1 is the copy of Order in IA.278/2015 in CC.192/2015. Ext.A2 is the copy of Order in CC.192/2015 dated 11.02.2016. Ext.A3 is the Copy of Arbitration Award in Arbitration Case No.CTM3851/2015. Ext.A4 is the Pre-sale Notice dated 17.03.2016. Ext.A5(1) is the Reply Notice dated 06.04.2016 and Ext.A5(2) is the Acknowledgment Card. Opposite parties not adduced any oral evidence and Ext.B1 to B4 documents were marked. Ext.B1 is the Arbitration Award in Arbitration No.5599/2015 dated 07.01.2016. Ext.B2 is the Arbitration Award in Arbitration No.5599/2015 dated 10.02.2016. Ext.B3 is the copy of Pre-sale Notice. Ext.B4 is the Copy of Notice 19.04.2016.
6. Heard both parties.
7. On perusal of complaint, affidavit, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
8. Points No.1 & 2- The case in the complaint is that during the pendency of CC.192/2015 before this Forum the matter in issue was settled between the complainant and opposite parties on terms. As per the terms of settlement this complainant is entitled to get an amount of Rs.3 Lakhs from the opposite parties after adjusting fair value of the vehicle. Subsequently opposite party violated the terms and proceeded with Arbitration case. Hence filed this complaint to get compensation.
9. Opposite party opposed the case stating that there is no such terms between the complainant and opposite parties. As per the terms of agreement complainant availed loan of Rs.12,28,000/- and he has to pay the sum with interest of Rs.3,68,997/-. But the complainant defaulted in installments since he was a chronic defaulter opposite party initiated Arbitration proceedings and final award was passed (Ext.B1) on 06.04.2016. Thereafter opposite party sent pre-sale notice and lawyer notice to the complainant As per the provisions of the Agreement they are entitled to realize an amount of Rs.12,10,088/- from the complainant with interest thereon at the rate of 18% per annum from 07.12.2015 till realization.
10. Complainant argued that he had withdrawn CC.192/2015 on the belief that opposite party will settle the issue as per terms of settlement from complainant's document Ext.A3 and A4 it appears that he had received pre-sale notice on 17.03.2016 itself and also he had received Arbitration award. Ext.A1 and A2 are the copy of the Orders in IA.278/2015 in CC.192/2015 and Order copy of CC.192/2015 this clearly speaks that there is no such terms in the final order passed by this Forum. In the Final Order dated 11.02.2016 it is seen that “Both parties represented and complainant submitted that the matter is settled between parties and it is endorsed in the complaint also. Complainant also filed petition to release the amount which is already deposited by the complainant before the Forum. Since the matter is settled between parties, released the deposited amount to the complainant on identification. Hence the complaint is closed”.
11. But opposite party opposed the case by stating that there is no such terms of compromise in between the opposite party and complainant. They never agreed to pay any amount to the complainants. Arbitration proceedings were intimated after due notices were issued to the complainant but they did not respond and Ext.B1 Arbitration award was passed on 17.03.2016 during the pendency of the Arbitration case these these complainants filed former complaint and that was disposed by this Forum on 11.02.2016 as withdrawn by the complainant (Ext.A2) what they acted was as per the terms of agreement.
12. On going through the evidences and records we are of the considered view that, former complaint CC.192/2015 was disposed off as withdrawn by the complainants. The copy of Final Order Ext.A2 was produced and marked, but there is no settlement terms shown in Ext.A2 Order. If there is any terms of compromise between the opposite party and the complainant it is the sole responsibility of the complainant to produce it before this Forum, here complainant failed to prove his allegations in the complaint either through documentary or oral evidence of witness. From records (Ext.A3 and Ext.B1) it appears that the matter in issue is already adjudicated by a competent authority on 17.03.2016 itself. Subsequently on 31.05.2016 this complaint was filed alleging deficiency of service on the part of opposite party is not maintainable. Mere oral submission is not sufficient to prove the terms of compromise in this case. No evidence produced before us to prove that opposite parties agreed to pay an amount of 3 Lakhs to the complainant as per the terms of compromise.
13. Hence in our view the complainant on his own satisfaction withdrawn CC.192/2015 and filed this 2nd complaint without any merit. If there is any bonfides in the complaint supporting evidences should be there with him. More over the subject matter in issue is already decided by a competent authority. Hence this complainant is not entitled to get any relief as prayed for.
In the result, the complaint is dismissed. No Order as to Cost.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 27th day of October 2016.
Date of Filing: 12.04.2016.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Muhammed. Driver.
Witness for the Opposite Parties:-
Nil.
Exhibits for the complainant:
A1. Copy of Order in IA.278/2015 in CC.192/2015. Dt:04.07.2015.
A2. True Copy of Order in CC.192/2015. Dt:11.02.2016.
A3. Copy of Arbitration Award. Dt:17.03.2016.
A4. Pre-sale Notice. Dt:17.03.2016.
A5(1). Copy of Notice. Dt:06.04.2016.
A5(2). Acknowledgment Card.
Exhibits for the opposite parties:-
B1. Arbitration Award in Arbitration No.5599/2015. Dt:07.01.2016.
B2. Arbitration Award in Arbitration No.5599/2015. Dt:10.02.2016.
B3. Copy of Pre-sale Notice. Dt:17.03.2016.
B4. Copy of Notice. Dt:19.04.2016.
Sd/-
PRESIDENT, CDRF, WAYANAD.
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