SMT. G. VASANTHAKUMARI, PRESIDENT.

            Complainant’s case  is that the complainant is a consumer as contemplated under Section 2[d] of the Consumer Protection Act, 1986, that the opp.parties are rendering Banking and Financing Services, that the services rendered by the opp.parties are coming within the purview of service under Section 2[11] of the Consumer Protection Act, 1986, that the complainant had purchased an Ambassador Car bearing Reg.No.KL/3L/2862, towards  which, by executing an agreement in favour of the opp.parties.   Complainant had obtained a vehicle loan  of Rs.2,25,000/-  from the opp.parties on 10..12..2004, that at the time of execution of the said agreement, the first opp.party  had collected 10 post  dated signed cheques, signed blank papers and other documents  from the complainant and kept them in their custody, that it was assured that at the time of effecting payment of the last installment of the said  loan  amount, these documents , blank signed papers, unused cheques, termination letter and no objection certificate would be returned to the complainant, that as per the terms arbitrarily set out by the opp.parties, the said amount with interest for 4 years and other charges were to be repaid by the complainant in 47 instalments  of Rs.5,500/-each and balance  Rs.3,500/- as 48^th instalment, commencing from 19..1..2005 to 19..12..2008, that  the complainant was very particular in making repayment of the said loan amount  in time, that accordingly  the 48^th instalment  of  the said loan amounting  to Rs. 3,500/-  was remitted by the complainant on 19..12..2008  and hence entire loan amounts  with interest as per the terms of the loan agreement were remitted by the complainant in time, that thereafter, on various occasions the complainant approached the opp.parties  and requested for the termination letter, no objection certificate, cheques and other documents which  the opp.parties  are legally bound  to give to the complainant, but inspite of repeated requests made by the complainant, the opp.parties failed to return the documents and demanded the complainant to remit an additional amount of Rs.44,345/- for giving the termination letter and no objection certificate, that the act of the opp.parties claiming exorbitant  and unlawful amounts and denial of issuance of termination letter, no objection certificate, cheques and other documents  to the complainant resulted in much mental agony  and financial loss to the complainant and hence there is deficiency in service on the part of the opp.parties, for which the opp.parties are liable to compensate the complainant, that all attempts of the complainant to get termination letter, no objection certificate and other documents  from the opp.parties have failed  and hence this complaint.

          Opp.parties filed version contending that the complaint is not maintainable  before this Forum as it lacks jurisdiction over the alleged dispute, that the National Consumer Disputes Redressal Commission  has held that “the Hirer in a Hire Purchase Agreement  who is holding the vehicle as a ‘Bailee’ does not come under the definition of ‘Consumer’” , that in the above decision it is further held that the Hirer held  the vehicle as a Bailee of the Owners, and was not to have any proprietory right or interest as purchasers, that the subject matter involved in this dispute is covered by

an arbitration clause  which is specifically provided as clause 27 of the Agreement, that  it is a fact that there is a dispute regarding the balance amount to be paid  by the complainant, that the complainant is a gross defaulter ,  that the  complainant had entered into a Hypothecation Agreement on 18..12..2004 with the opp.party  and availed a loan of Rs. 2,25,000/-  for a period of 48 months, that as per Clause 3 of the Agreement the complainant had agreed to pay interest at the rate of 7.79 percentage flat per annum, that  the complainant is liable to  honour the Agreement executed by him and cannot make any lame excuses for  non payment, that  now the complainant is making this Hon’ble Forum  as a tool to fulfil his illegal and immoral  wish to avoid payment of amounts which are due to the opp.parties as per  the agreed terms of the Hypothecation Agreement, that the alleged due date card produced by the complainant is not admitted by   these opp.parties, that it is not correct  to say that the complainant was ready and willing   to pay the remaining instalments etc, that the complainant is bound by the Agreement which is signed and executed lawfully, that the complainant is liable to pay the amounts as per the terms of the agreement, that the complainant has no dispute regarding the agreement, that the repayment schedule attached with the agreement is in  tally with the terms of the agreement,   that the  loan amount, finance charges and total amount  to be paid by the complainant is perfectly reflected  in the repayment schedule attached with the agreement whereas it will be never  reflected in the alleged due date card produced by the complainant, that  both parties are bound to follow the recitals in the agreement  which is duly executed  and even admitted by the complainant,  that the allegation  that the first opp.party had collected 10 post dated signed cheques, signed blank papers and other documents from the complainant is false and hence denied, that the complainant  is unable to specify  the other documents  in the complaint, that the opp.parties have   not compelled the complainant to enter  into the agreement, that the complainant voluntarily visited the office of the opp.parties and after due verification and enquiries have entered into the agreement without any compulsion from any quarters, that the allegation that the 48^th instalment is Rs.3500/- is   utter false and  hence denied, that  as per  the repayment schedule attached with the agreement, the 48^th  instalment is Rs.47,062/-, that the opp.parties  never claimed exorbitant  or unlawful amount from the complainant, that the opp.parties never committed any deficiency in service, that there are no reasons for causing any mental agony to the complainant and prayed to dismiss the complaint with costs to the opp.parties.

Points that would arise for consideration are:

1.     Whether the complaint is maintainable before this Forum?

2.     Whether there is deficiency in service?

3.     Whether the complainant is entitled to get a decree directing the opp.parites  to return the signed cheques and other documents obtained from the complainant, loan termination letter and no objection certificate as prayed for?

4.     Reliefs and costs?

For the complainant PW.1  was  examined and marked Exts P1 to P4

For the opp.parties DW.1 was examined and marked Exts. D1 to D3

POINT 1

          This complaint was filed by the complainant for an order directing the opp.parties to return the signed cheques and other documents obtained from the complainant in connection with sanctioning of vehicle loan Account No.D.215/04 along with loan termination letter and no objection certificate of Ambassador Car bearing Reg.No.KL/3L/2862 to the complainant and directing the opp.parties to pay Rs.15,000/- as compensation  for their deficiency in service with cost of the proceedings.  Even though the opp.parties have raised a contention that the complaint is not maintainable before this Forum  as the Hon’ble National Commission has held that the Hirer in a Hire Purchase Agreement who is holding the vehicle as a ‘Bailee’ does not come under the definition of ‘ Consumer’,  not cared to  substantiate  that the complainant in this case is a Hirer in a Hire Purchase Agreement.  When the complainant was in box the opp.parties have not cross examined the complainant in that line.  On the other hand the case of the complainant is that he had purchased an Ambassador Car bearing Reg.No.KL/3L/2862 towards which, by executing an agreement  in favour of the opp.parties, complainant had obtained a vehicle loan of Rs.2,25,000/-  from the opp.parties on 10..12..2004, and  at the time of execution of the said agreement, the 1^st opp.party had collected 10 post dated signed cheques, signed blank papers and other unfilled printed documents from the complainant and sureties  and kept them in their custody and it was assured that at the time of  effecting payment of last instalment of the said loan amounts, these documents, blank signed papers, unused cheques, termination letter and no objection certificate would be returned  to the complainant.  According to the complainant he has effected payment of last instalment of the said loan amounts  and on request the above documents,  blank signed papers and unused cheques and termination letter and no objection certificate not returned and hence the complaint.  The facts and  circumstances, in the reported case and  in the case  on hand differs.  On remitting the entire amount the opp.parties are duty bound  to return the alleged documents.  So  according to us this complaint is perfectly maintainable before this Forum.  Point found accordingly.

POINTS 2 and 3

          In this case complainant was examined as PW.1   He has sworn before  this Forum in tune with  the allegations in the complaint.  Nothing was brought out in his cross examination to discredit the witness.  According to him the opp.parties  directed   him to repay the said loan amount of Rs.2,25,000/-  with 4 years interest and other charges in 47 instalments of Rs.5,500/-  each and balance Rs.3,500/-  as 48^th instalment, commencing from 19..1..2005 to 19..12..2008 and towards repayment of the said instalments the opp.party had given Ext.P1  Repayment Card to the complainant.  In Ext.P1  the opp.party  had recorded the due dates of payment, instalment amounts and had made endorsements in it  of the actual dates of payments.  Ext.P2 series are the receipts issued by the opp.parties on repayment of the instalments.  The dispute  arose after the remittance of the 48^th instalment on 18..12…2008.   According to the complainant after remitting the entire amount, as per Ext.P1 on various occasions he approached the  opp.parties  and requested  for the termination letter, no objection certificate and other documents  which the opp.parties are legally bound to return to the complainant but the opp.parties failed to return the documents  and demanded  the complainant to remit an additional amount of Rs.44,345/- for giving the termination letter etc.   The specific case of the complainant is that the act of the opp.parties claiming exorbitant and unlawful amounts and denial of  issuance of termination letter, no objection certificate, cheques and other documents  to the complainant  resulted in much mental agony and financial loss to the complainant .  Hence there  is deficiency in service on the part of the opp.parties, for which the opp.parties are liable to compensate the complainant.    The opp.parties have no case that Ext.P1 card was  prepared by the opp.parties at the time of executing the loan agreement  But the opp.parties have produced Ext. D1 agreement and argued that the repayment schedule attached to Ext. D1 agreement is in tally with the terms of the agreement, that as per clause 3 of the agreement,  the complainant had agreed to pay interest at the rate of 7.79% flat per annum and as per the repayment schedule attached to  Ext. D1 agreement, the complainant   has to pay  Rs.47,062/- as the last  instalment and admittedly the complainant did not pay this amount,  whereas  the complainant paid only Rs.3500/- which is reflected in  Ext.P1.     But the specific case of the complainant is that Ext. D1 agreement produced by the opp.party was unilaterally prepared by the opp.party after obtaining signature of the complainant and sureties in unfilled printed forms and without knowledge of the complainant and apart from that the schedule attached to the agreement  is a fabricated  document subsequently prepared  for the purpose of producing before this Forum.  Even though such an allegation was raised by the complainant, opp.party has not cared to examine the alleged guarantors in Ext. D1 to substantiate as to whether Ext.D1 was blank while they  were affixing their signature.  So also the witness who signed in Ext. D1 agreement not seen signed in the  repayment schedule attached to Ext. D1.   The repayment schedule is seen written by a person at a stretch and not the one prepared earlier before issuing Ext.P1  In schedule –I  attached to Ext.D1also it is seen written as instalments Rs.5000/- each from 19..1..2005 to 19..11..2008.  Instalments  Rs.47,062/-each from 19..12..2008  So the allegation of the complainant   that it may be the one prepared in blank signed printed papers cannot be  brushed  aside.  The instalments mentioned in Ext. D1 and the  repayment schedule tally with each other  upto 47^th  instalment.  For 48^th  instalment in Ext.P1  the amount of hire to return is Rs.3500/- and was remitted on 18.12.2008.  But in the repayment schedule the 48^th instalment seen written as Rs.47,062/-  If that be so, why the opp.party has not written the same amount in Ext.P1. creates doubt in the mind of this Forum.  The opp.parties have no case that Ext.P1 was not issued by them.  It is in their printed card in which their seal seen affixed.  It is in evidence that the complainant had remitted the full amount shown in Ext.P1 without any default.  It is true that it is   a matter of pure mathematical calculation but  why during  preparation of Ext.P1 the opp.parties mentioned the 48^th  instalment as Rs.3500/- and in the repayment schedule attached to Ext. D1  48^th  instalment as Rs.47,062/-.  Why they have not splitted that amount and included  in the other instalments so as to enable the complainant for easy remittance also stands un explained.  After remitting the entire instalments in Ext.P1  the complainant demanded the termination letter,  no objection certificate , cheques and other documents which the opp.parties are  bound to return and not to harass the complainant by creating such  documents.  It is argued by the learned counsel for the opp.parties  that the complainant has admitted   his signature in   Ext. D1.  It is true that he has admitted his signature  in Ext. D1  but the complainant’s case  that after getting his signature along with the signature of guarantors in blank printed forms  later filled the  same and produced before the Forum   stands unexplained.   According to us after remitting the instalments as per Ext.P1 when the complainant requested for the issuance of the termination letter no objection certificate, cheques and other documents the opp.parties denied the same and created such documents  and it is deficiency in service on the part of the opp.parties for which the opp.parties are liable to compensate the complainant.  Point found accordingly.

In the result, the complaint is allowed and the opp.parties are directed to return the  signed cheques and other documents obtained from the complainant  in connection with sanctioning of vehicle loan  account No.D.215/04 along with loan termination letter and no objection certificate of Ambassador Car bearing Reg.No.KL/3L/2862 to the complainant  and  to pay a compensation of Rs.5,000/- for their deficiency in service and Rs.1,000/ towards costs.  The order is to be complied with within one month from the date of this order.

Dated this the    30^th       day of December, 2011.

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I N D E X

List of witnesses for the complainant

PW.1. – Sabu

List of documents for the complainant

P1. – Chart for repayment

P2. – Copy of receipts

P3. – Statement

P4. – Cop0y of RC book

List of witnesses for the opp.parties

DW.1. – Subash

List of document for the opp.parties

D1. -    Agreement

D2. – Power of Attorney

D3. –Supplementary schedule