DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri C.Thyagaraja Naidu, B.Sc., B.L., President
Smt.S.Lalitha, Member, M.A., M.L.,
Sri S.Niranjan Babu, B.A., B.L., Male Member
Wednesday, the 27th day of October, 2010
C.C.NO.42/2010
Between:
Jaripiti Krishna Murthy
S/o Pedda Gurrappa
H.No.4-90, Masakavankapalle
Kurumalla Post, Nallamada Mandal
Anantapur District. … Complainant.
Vs.
1. The District Area Manager
L & T Finance Ltd., KSR Complex
Opp: Edga, Near RTC Bus Stand Road
Kurnool.
- The Manager,
L& T Finance Ltd., KSR Complex
Opp: Edga, Near RTC Bus Stand Road
Kurnool.
3. M/s L & T Finance Ltd., rep. by its
Regional Manager, Regional Office,
502, 5th Floor, Dega Towers
6-3-1085, Raj Bhavan Road, Somajiguda
Hyderabad – 500 082.
- M/s L & T Finance Ltd.,
Registered Office,L3, 41 PM House
Ballard Estate, P.O. Box 278
Mumbai – 400 001.
5. * M/s Prakash Engineering Works
Sri Durga Auto Motives,
Gooty Road
Anantapur.
(* Added as per order
in I.A.No.309/10
dt.19-07-2010) … Opposite Parties.
This case coming on this day for final hearing before us in the presence of Sri R.Rama Kumar and Sri D.Phani Kumar, advocates for the complainant and opposite parties 1 & 4 are called absent and set-exparte, Sri A.N.Guru Prasad, advocate for the opposite parties 2 & 3 and the 5th opposite party in person and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Sri C.Thyagaraja Naidu, President: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 to 5 to direct the opposite parties 1 to 4 to return the tractor with extra fittings in good condition, if the tractor was sold away, direct the opposite parties 1 to 4 to pay vehicle price calculating the market value of the vehicle at the time of sale and direct the opposite parties 1 to 5 to make remaining loan amount with interest to the complainant, direct the opposite parties 1 to 5 to pay damages of Rs.50,000/- and loss of earnings from the vehicle i.e. Rs.1,000/- per day till the date of realization and to direct the opposite parties 1 to 4 to return the cheques received from the complainant at the time of entering into Hypothecation Agreement.
2. The brief facts of the amended complaint are that: -The complainant has purchased Escorts Tractor & Trailer bearing Regn.No.AP-02-N-7839 and 7840 from Ghantasala Tractors, authorized dealer of Escorts Tractors under Hire Purchase Agreement with the opposite parties 1 to 4. The opposite parties 1 to 4 sanctioned loan amount of Rs.3,20,000/- to purchase tractor-trailor under Loan-cum-Hypothecation and for that purpose, the opposite parties 1 to 4 have taken signatures of the complainant on unfilled Hypothecation Agreement and also obtained blank cheques bearing Nos.123076 to 123084 signed by the complainant. The complainant has to repay the loan amount within 48 months. The opposite parties 1 to 4 paid an amount of Rs.2,50,880/- to M/s Ghantasala Tractors, who is the dealer of Escorts Tractors and remaining amount kept with the opposite parties 1 to 4 stating that after getting permanent R.C. the amount will be paid to the complainant for purchase of trailor. As agreed the opposite parties 1 to 4 shall have to pay Rs.62,720/- to the complainant after getting original R.C. from R.T.O. Authorities, the said amount has not paid to complainant so far. The loan installment commenced from 25-06-2007 to 20-03-2011. The complainant has been making payments towards the loan amount. Because of drought conditions prevailing in the area the complainant could not make payments regularly in time. However, the complainant so far paid an amount of Rs.2,06,450/- and the opposite parties 1 to 4 accepted the payments made by the complainant and issued receipts without any objection or protest. While so, on 24-12-2009 the complainant was out of the Village, the subordinates and workers of the opposite parties 1 to 4 took away the tractor illegally from the lawful custody of the complainant without issuing demand notice or seizure notice or notice for dishonour of cheque if any. The complainant has not received any prior notice for seizing the vehicle. The said seizure if any is illegal and against the well established principles of law. The complainant got issued a legal notice dt.08-01-2010 to the opposite parties to return the vehicle and to pay damages and loss of income immediately after they took possession of the vehicle illegally from the lawful custody of the complainant. The legal notices were served on the opposite parties 3 & 4 and returned from opposite parties 1 & 2. The opposite parties have not given any reply to the said legal notice. On the other hand, the opposite parties sent a notice dt.06-01-2010 which was posted on 21-01-2010 (as per the postal receipt on the cover ) to the complainant and guarantor to pay an amount of Rs.2,70,719/- payable under the agreement, failing which the opposite parties constrained to sell the said vehicle. Immediately, after receiving the said notice the complainant issued reply notice stating about the facts and demanded opposite parties to return the vehicle, pay damages and loss and return of cheques. The said reply notice dt.06-02-2010 was served on the opposite parties 3 & 4 and notices were returned from the opposite parties 1 & 2 as they refused to take notices. Even after the said reply notice, the opposite parties have not returned the vehicle or paid loss and damages or returned the cheques. The complainant purchased trailor by paying cash. The opposite parties 1 to 4 alleging that they made payment of Rs.30,000/- to M/s Prakash Engineering Works, opposite to Sri Durga Auto Motives, Gooty Road, Anantapur by way of cheque. The opposite parties 1 to 4 and 5 colluded together and manipulated and created the documents. The opposite parties played fraud on the complainant with regard to loan transaction. The opposite parties have adopted unfair trade practice and committed deficiency of service in making the payment of loan amount. The entire action of the opposite parties is illegal, arbitrary and as a result the complainant suffered lot mentally and physically. The complainant having no other go has filed this complaint against the opposite parties 1 to 5 seeking reliefs as prayed for in the complaint with costs.
3. The opposite parties 1& 4 remained exparte.
4. The 2nd opposite party filed counter and contended that the L & T Finance Ltd., sanctioned the loan of Rs.3,20,000/- by taking the Loan-cum-Hypothecation Agreement and the complainant agreed for the terms and conditions thereon in the agreement by affixing his signature along-with his guarantor. The L & T Finance Ltd., obtained the post dated cheques and a demand promissory note for Rs.4,67,200/- for the collateral surety purpose. The complainant has to pay the loan amount by way of 08 installments each of Rs.58,400/-payable half yearly. However upon the request of the complainant, L & T Finance Ltd., repayment schedule is fixed as mentioned in the repayment schedule. The payments are 48 months, half yearly+ quarterly Rs.10,000/-. However, L & T Finance Ltd., accepted the payments of the complainant at his convenience. Again upon the request of the complainant, the L & F Finance Ltd., changed the repayment schedule and the same is payable as mentioned thereon in the schedule. The complainant persistently defaulted in payment of the installments. Upon his failure, the L & T Finance Ltd., repossessed the tractor on 25-12-2009 as the complainant is still due an amount of Rs.2,70,719/- and a notice was also served on the complainant well in advance on 06-01-2010. The L & T Finance Ltd., has not violated the terms and conditions of the Loan-cum-Hypothecation Agreement and as per the same the tractor was taken into possession upon the persistent failure of the repayment of the complainant. This opposite party denied the other averments mentioned in the complaint and contended that the complainant is not entitled for the reliefs as prayed fro in the complaint and that therefore, the complaint filed by the complainant is liable to be dismissed with exemplary costs.
5. The 3rd opposite party filed a memo adopting the counter filed by the 2nd opposite party.
6. The 5th opposite party filed counter and contended that the complainant never paid cash of Rs.90,000/- to him as alleged in the complaint. In fact, the complainant paid cash of Rs.60,000/- only and the remaining amount of Rs.30,000/- was received by way of cheques from the L & T Finance Company. As per the terms & conditions of the loan agreement, the complainant has to pay cash of Rs.60,000/- only and rest of the amount of Rs.30,000/- will pay the Finance Company by way of cheque through the consumer only. It is contended that the opposite parties 1 to 4 informed him that they have handed over Rs.30,000/- cheques to enable to hand over the same by the complainant, this opposite party issued a receipt of Rs.90,000/- , which includes Rs.60,000/- cash and cheque amount of Rs.30,000/-. The complainant never paid any excess amount of Rs.30,000/- to him, therefore, the question of paying Rs.30,000/- extra to this opposite party by the complainant does not arise. He denied the other averments mentioned in the complaint and contended that the complaint filed by the complainant is not maintainable and that therefore, the same is liable to be dismissed with costs.
7. Basing on the above pleadings, the following points that arise for consideration are:
1. Whether the seizure of the tractor of the complainant by the opposite parties 1 & 4 is illegal? If so whether the opposite parties 1 to 4 are liable to return the tractor of the complainant, which was seized by them, failing which the opposite parties 1 to 4 are liable to refund the value of the tractor at present market value with damages as prayed for in the complaint?
2. Whether the complainant has paid Rs.90,000/- to the 5th opposite party in respect of the value of the trailer? If so, whether the payment of Rs.30,000/- paid by the opposite parties 1 to 4 to the 5th opposite party towards Loan-Hypothecation Agreement for trailor/accessory is liable to be returned to the complainant?
3. To what relief?
8. To prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Exs.A1 to A8 documents. On behalf of the 2nd opposite party, the evidence on affidavit of the 2nd opposite party has been filed and marked Exs.B1 to B18 documents. On behalf of the 5th opposite party, the evidence on affidavit of the 5th opposite party has been filed. No documents have been marked on behalf of the 5th opposite party.
9. Heard both sides.
10. POINT NO. 1: - The counsel for the complainant contended that the complainant has purchased Escorts Tractor & Trailer bearing Regn.No.AP-02-N-7839 and 7840 from Ghantasala Tractors, authorized dealer of Escorts Tractors under Hire Purchase Agreement with the opposite parties 1 to 4 and the opposite parties 1 to 4 sanctioned loan of Rs.3,20,000/- to purchase the said tractor-trailor. He contended that out of the said amount the opposite parties 1 to 4 have paid an amount of Rs.2,50,880/- to M/s Ghantasala Tractors, who is the dealer of Escorts Tractors and remaining amount kept with them stating that after getting permanent R.C. the amount of Rs.62,720/- will be paid to the complainant after getting original R.C. from R.T.O. Authorities. He contended that the said amount of Rs.62,720/- has not been paid to complainant so far. He contended that the loan installments commenced from 25-06-2007 and ends by 20-03-2011 and the complainant has paid Rs.2,06,450/- till 26-06-2009 and the opposite parties 1 to 4 issued receipts to that effect. The complainant demanded the opposite parties 1 to 4 to release remaining balance loan amount of Rs.62,720/- immediately after getting original R.C. but the opposite parties 1 to 4 kept silent. He contended that on 24-12-2009 the opposite parties 1 to 4 took away the tractor illegally leaving the trailer from the lawful custody of the complainant when the complainant was out of the Village without issuing demand notice or seizure notice or notice for dishonour of cheque if any to the complainant. He contended that the complainant got issued a legal notice on 08-01-2010 to the opposite parties 1 to 4 to return the tractor and to pay damages and loss of income, immediately after they took possession of the vehicle illegally from the lawful custody of the complainant and the legal notices were served on the opposite parties 3 & 4 but they did not give reply to the said legal notice. But they sent sale notice dt.06-01-2010, which was posted on 21-01-2010 to the complainant and guarantor to pay Rs.2,70,719/-, which is payable under the agreement, failing which the opposite parties constrained to sell the said tractor. He contended that immediately after receiving the said notice, the complainant issued reply notice dt.06-02-2010 stating about the facts and demanded the opposite parties 1 to 4 to return the vehicle, pay damages and loss and return of cheques. Even after the said reply notice, the opposite parties have not returned the vehicle or paid loss and damages or returned the cheques. He contended that after filing the complaint, the complainant came to know that the opposite parties 1 to 4 have paid Rs.30,000/- by way of cheque to the 5th opposite party towards cost of balance amount in respect of trailor even though the complainant has paid full amount of Rs.90,000/- to the 5th opposite party towards total cost of the trailor under Ex.B8 cash bill filed by the opposite parties 1 to 4. He contended that the said amount of Rs.30,000/- ought to have been paid to the complainant by the opposite parties 1 to 4. Therefore, the complainant is not liable to pay the said amount of Rs.30,000/- to the opposite parties 1 to 4 and the said amount has to be deducted towards the loan amount sanctioned to the complainant by the opposite parties 1 to 4 and the opposite parties 1 to 4 have to collect the said amount of Rs.30,000/- from the 5th opposite party since there is no agreement between the complainant and the opposite parties 1 to 4 that the opposite parties have to pay Rs.30,000/- to the 5th opposite party towards cost of the trailor. Therefore, the complainant having no other go filed this complaint against the opposite parties seeking the reliefs as prayed for in the complaint.
11. The counsel for the opposite parties 2 & 3 contended that the opposite parties 1 to 4 have sanctioned the loan amount of Rs.3,20,000/- to the complainant for purchase of tractor and trailor and the complainant has executed loan Hypothecation Agreement Ex.B1 and Ex.B2 Irrevocable Power of Attorney in favour of the opposite parties 1 to 4 and Ex.B3 letter of guarantee by the guarantor. He contended that as per the agreement Ex.B1 the opposite parties 1 to 4 have paid an amount of Rs.2,83,600/- to Gantasala Tractors, who sold the tractor to the complainant and Rs.30,000/- to Prakash Engineering Works towards trailor cost. Thus, the entire agreement amount of Rs.3,20,000/- has been paid by the opposite parties 1 to 4 towards the loan for purchase of tractor and trailor by the complainant. He further contended that after disbursement of the said loan, the complainant has to pay loan amount in 48 months half yearly + quarterly Rs.58,400/- as per repayment schedule mentioned in Ex.B14. He contended that the complainant was not regular in payment of installments and he has been paying the installments as and when he likes. He contended that by 20-06-2009 the complainant has to pay Rs.2,43,600/- if he had regularly paid the installments without any default and in case if he commits default then for the default payment the complainant is also liable to pay penal interest as contained in Ex.A1 Loan-cum-Hypothecation Agreement. He contended that by 25-06-2009 the complainant had only paid Rs.2, 06,400/- on different dates without following repayment schedule dates. He contended that since the complainant persistently committed default in payment of the installments, hence the opposite parties repossessed the tractor on 25-12-2009. He contended that the complainant is still due an amount of Rs.2,70,719/- and notice was also served on the complainant well in advance on 06-01-2010. Since the complainant has not paid the said amount, therefore, in pursuance of the loan-cum-hypothecation agreement Ex.B1 and Irrevocable Power of Attorney Ex.B2, the opposite parties have seized the tractor by giving notice to the complainant. Therefore, the contention of the counsel for the complainant that the opposite parties have seized the vehicle without notice to the complainant cannot be accepted. Therefore, the complainant is not entitled for any reliefs as prayed for in the complaint and the complaint filed by the complainant is liable to be dismissed with costs.
12. The 5th opposite party in person contended that on the request of the complainant, he has issued Ex.A8 cash bill for Rs.90,000/- but actually the complainant has paid Rs.60,000/- and informed that the balance amount of Rs.30,000/- will be paid by the opposite parties 1 to 4 after delivery of the trailor manufactured by him and accordingly the opposite parties 1 to 4 have paid Rs.30,000/- towards the balance amount of the cost of the trailor. He contended that the contention of the complainant that he has paid Rs.90,000/- to him is not correct and that therefore, he is not liable to refund the amount of Rs.30,000/- either to the complainant or to the opposite parties 1 to 4. Therefore, the complaint filed by the complainant is liable to be dismissed with costs.
13. Ex.B1 is Loan-cum-Hypothecation Agreement executed by the complainant in favour of the opposite parties 1 to 4. As seen from Ex.B1, it goes to show that the complainant was sanctioned a sum of Rs.3,20,000/- towards loan for purchase of tractor and trailor. As per Ex.B12 the cost of the tractor is Rs.4,20,000/-, cost of the trailor/accessory is Rs.90,000/-. Total cost of tractor and trailor/accessory is Rs.5,10,000/-. The margin money to be paid by the complainant towards tractor is Rs.1,30,000/- and towards trailor/accessory is Rs.30,000/-. Total margin money to be paid by the complainant towards tractor and trailor/accessory is Rs.1,60,000/-. Out of the total costs of Rs.5,10,000/- towards the tractor and trailor/accessory the opposite parties 1 to 4 have to advance loan amount towards tractor is Rs.2,90,000/- and towards trailor/accessory is Rs.30,000/-.Total Rs.3,20,000/- and the said loan amount of Rs.3,20,000/- has to be paid in 48 months half yearly + quarterly Rs.58,000/- and number of installments is 8 and the complainant has to pay upfront payment/charges Rs.6,400/-. Ex.B14 is repayment schedule of the loan amount. As per Ex.B14 the 1st installment starts on 20-06-2007 and the last installment ends by 20-03-2011. As per Ex.B14 repayment schedule, the complainant has to pay Rs.58,400/- half yearly. As per condition No.11 of Ex.B1 Loan-cum-Hypothecation Agreement if the borrower commits default in observance and performance of any of the terms of the agreement and such breach shall have continued for a period of 7 days after notice in writing thereof has been given to the borrower by lender the lender shall be entitled at all times to take charge and possession or seize the vehicle and without intervention of court shall sell by public auction. Thus in view of the said condition, if the borrower fails to pay the installments within stipulated time, the opposite parties being financers are entitled to reprocess the vehicle.
14. The complainant in the complaint has given the dates of payments made by him and also filed receipts issued by the opposite parties for the said payments. As per receipts filed by the complainant and as shown in the complaint, it goes to show that the complainant though started payment of installments from 02-07-2007 on wards but till 25-06-2009, in all he has paid Rs.2,06,450/-. But the said payments are not in accordance with the repayment schedule mentioned in Ex.B14. As seen from Ex.B14 repayment schedule from 20-06-2007 till 20-06-2009 the complainant has to pay a sum of Rs.2,43,600/- .
15. Ex.A8 is the letter dt.09-03-2007 addressed by the opposite parties 1 to 4 to Ghantasala Tractors, authorized dealer for Escorts Tractors, Anantapur. As seen from Ex.A8, it goes to show that the cost of the tractor is mentioned as Rs.4,20,000/- and the costs of the trailor/accessory is mentioned as Rs.90,000/-. Total costs of tractor and trailor/accessory is mentioned as Rs.5,10,000/- and the sanctioned loan amount is mentioned as Rs.3,20,000/-. Further it is mentioned in Ex.A8 that the loan amount of Rs.3,13,600/- will be released within 3 days on receipt of the documents mentioned in Ex.A8 i.e.
1. Our HP agreement completed in full with notarization.
2. Original invoice and Delivery Challan duly signed by the borrower.
3. Copy of Registration Certificate with LTF endorsement.
4. Copy of Comprehensive insurance policy with LTF endorsement.
5. Repayment schedule duly accepted by the borrower.
6. Post dated cheques
7. Duplicate key.
8. Request letter from the borrower for disbursement of the amount.
9. Form 21 & 22 and
10. Margin money receipt.
Thus as per Ex.A8 if the complainant submits the above mentioned documents then the opposite parties 1 to 4 will release Rs.2,50,880/- to Ghantasala Tracotrs on receipt of temporary registration and thereafter Rs.62,720/- will be released on receipt of permanent R.C.
16. The complainant as per Ex.B7 Cash Advance Voucher has paid Rs.1,30,000/- on 20-03-2007 to Ghantasala Tractors and also paid Rs.60,000/- on 23-03-2007 to Prakash Engineering Works, Anantapur towards trailer/accessory advance by cash. As seen from Ex.B8 it goes to show that on 23-03-2007 the complainant has paid Rs.90,000/- under cash bill to 5th opposite party i.e. Prakash Engineering Works, Anantapur for purchase of Two Wheels Tripping trailor with tyres and Chassis No.1980607. Thus Exs.B7 & 8 documents clearly goes to prove the fact that the complainant has paid margin money of Rs.1,30,000/- towards tractor to Ghantasala Tracotrs and submitted to Ghantasala Tracotrs cash bill of Rs.90,000/- paid to Prakash Engineering Works for purchase of trailer with chassis No. 1980607.
17. As per Ex.B12 Loan Offer-terms & conditions, the opposite parties 1 to 4 have sanctioned loan amount of Rs.3,20,000/- and out of the said loan amount for tractor Rs.2,90,000/- and for trailer/accessory Rs.30,000/-. In the documents filed by the opposite parties 1 to 4 it is nowhere mentioned or agreed that the opposite parties 1 to 4 shall pay Rs.30,000/- towards loan amount for trialor/accessory to Prakash Engineering Works. But as per Ex.A8 document, the opposite parties 1 to 4 have to pay the said Rs.30,000/- in respect of the trailor/accessory to Gantasala Tractors only. Therefore, the payment of the said amount of Rs.30,000/- by the opposite parties 1 to 4 to the 5th opposite party was not in accordance with the terms and conditions of the Loan-cum-Hypothecation Agreement or at the request of the complainant. Therefore, the amount of Rs.30,000/- paid by the opposite parties 1 to 4 to the 5th opposite party cannot be included in the loan amount of the complainant. If the said amount of Rs.30,000/- is deducted from the actual loan amount of Rs.3,20,000/- sanctioned to the complainant it will come to Rs.2,90,000/-as the loan amount.
18. As per Ex.B13 document filed by the opposite parties 1 to 4 it goes to show that Ghantasala Tractors, Escorts Dealers addressed a letter to the opposite parties 1 to 4 requesting them to pay D.D. directly to Escorts Ltd., Hyderabad instead of paying to Ghantasala Tractors to save time. Basing on the said letter Ex.B13 the opposite parties 1 to 4 have paid Rs.2,24,480/- on 13-04-2007 through Cheque No.904595 and Rs.56,120/- and on 29-08-2007 through Cheque No.916955 to Escorts Ltd as per Ex.B18 Statement of Account filed by the opposite parties 1 to 4. Thus in all the opposite parties 1 to 4 have paid Rs.2,80,600 to Escorts Ltd and the balance of Rs.9,400/-has been adjusted towards upfront charges etc. In all the opposite parties 1 to 4 have only paid loan amount of Rs.2,90,000/- to the complainant for purchase of tractor by the complainant.
19. As seen from Ex.B16 Repayment Schedule filed by the opposite parties 1 to 4 it goes to show that on 25-04-207 Rs.3,20,000/- is shown as opening principal, Rs.4,869-95 is shown as principal, Rs.4,869.95 is shown as interest, Rs.3,24,869-95 is shown closing principal. On 25-08-2007 Rs.3,29,776.81 is shown as opening principal, Rs.5,018.74 is shown as principal, Rs.5,018.74 is shown as interest, Rs.3,34,795.55 is shown as closing principal. Thus, it clearly goes to show that as per Ex.B16 by 25-09-2007, the complainant’s closing principal is Rs.3, 34,795-55. But actually the opposite parties 1 to 4 have only paid Rs.2,80,600/- to Escorts Ltd., as per Ex.B18 Statement of Account apart from upfront charges etc, in all the opposite parties 1 to 4 have paid only Rs.2,90,000/- towards the loan amount of the complainant. The date of delivery of the tractor to the complainant is on 22-03-2007 as per Ex.B11. Therefore, the opposite parties 1 to 4 charging interest on Rs.3,20,000/- up to 25-04-2007 and showing closing principal as Rs.3,24,869.95 is not correct. Thus the repayment schedule filed by the opposite parties 1 to 4 under Ex.B16 cannot be accepted as correct repayment schedule.
20. As per Ex.B14 repayment schedule the complainant by 20-06-2009 has to pay Rs.2,43,600/-. Basing on the loan amount of Rs.3,20,000/- installments of repayment schedule has been fixed as per Ex.B14 instead of fixing installments of repayment schedule on the loan of Rs.2,90,000/- which was actually paid by the opposite parties 1 to 4 to the complainant. Therefore, the repayment schedule as shown in Ex.B14 has to be re-fixed afresh basing on the actual loan amount of Rs.2,90,000/- paid to the complainant. Thus it clearly goes to show that the opposite parties 1 to 4 have exploited the complainant by charging interest in respect of the amount, which was not paid to the complainant i.e. Rs.30,000/-. Therefore, the complainant is not liable to pay the said amount of RS.30,000/- which was paid to the 5th opposite party by the opposite parties 1 to 4 without authorization from the complainant.
21. As per condition No.11.1 of Ex.B1, it goes to show that before seizure of the vehicle for non-payment of the installments, the opposite parties 1 to 4 have to issue notice to the complainant. In the instant case, the opposite parties 1 to 4 have not placed any material to show that before the seizure of the vehicle, they have issued notice to the complainant calling upon him to pay arrears of the amount, other-wise, they will seize the vehicle.
22. The complainant in his evidence on affidavit has categorically stated that the opposite parties 1 to 4 with out issuing notice to him they have seized the tractor on 24-12-2009 when he was not in his house and thereafter he issued notice on 08-10-2010 to the opposite parties 1 to 4 to return his vehicle as they have seized the vehicle in his absence on 24-12-2009 and to pay damages and loss of income. Thereafter the opposite parties 1 to 4 sent notice on 21-01-2010 by putting anti date as 06-01-2010 calling upon him to pay Rs.2,70,719/- within 7 days from the date of receipt the notice towards full and final discharge under the agreement failing which they shall be constrained to sell the vehicle seized. Ex.A4 is cover containing the notice issued by the opposite parties 1 to 4 on 06-01-2010 to the guarantor of the complainant. As seen from Ex.A4, it goes to show that the said notice was issued to the guarantor and the same was posted on 21-01-2010 as per postal label affixed on it. The opposite parties 1 to 4 have not filed any documentary proof to show that the notice dt.06-01-2010 was actually sent on 06-01-2010 by filing postal receipts. Therefore, the contention of the opposite parties 2 & 3 that they have issued legal notice on 06-01-2010 to the complainant cannot be accepted.
23. Since the opposite parties 1 to 4 have sent Rs.30,000/- to the 5th opposite party without any authorization letter from the complainant, therefore the payment of Rs.30,000/- to the 5th opposite party by the opposite parties 1 to 4 cannot be included in the loan account of the complainant and the complainant is not liable to pay the said amount of Rs.30,000/- to the opposite parties 1 to 4 and opposite parties 1 to 4 are at liberty to collect the said amount from the 5th opposite party if they desire so.
24. On considering the entire facts and circumstances, it clearly goes to prove the fact that the opposite parties 1 to 4 have not issued any notice to the complainant before seizure of the vehicle and seizure of the vehicle of the complainant without notice is illegal and that therefore, opposite parties 1 to 4 are liable to return the tractor of the complainant in good condition after the same is certified by the concerned Motor Vehicle Inspector that the tractor is in good running condition within one month from the date of this order and the opposite parties 1 to 4 shall prepare fresh repayment schedule for Rs.2,90,000/- from the date of loan by giving 8 installments half yearly + quarterly as granted for Rs.3,20,000/- and the amount so far paid by the complainant has to be deducted from the loan amount and for the balance loan amount, the complainant shall pay in installments as fixed by the opposite parties 1 to 4 within stipulated time, other-wise the opposite parties 1 to 4 are entitled for usual charges for non-payment of the amount and if the complainant fails to pay future installments, the opposite parties 1 to 4 are also entitled to recover the tractor by issuing notice to the complainant for realization of the dues of the opposite parties 1 to 4 as contemplated under condition11.1 of Ex.B1 agreement. If the opposite parties 1 to 4 fail return the tractor to the complainant within one month from the date of this order then the opposite parties 1 to 4 are liable to pay Rs.1,30,000/- the margin money paid by the complainant at the time of obtaining loan amount from the opposite parties 1 to 4 and also Rs.50,000/- towards damages for mental suffering with interest @18%p.a. on the said amounts from the date of seizure of the vehicle i.e. from 24-12-2009 till the date of realization. The said interest is awarded since the opposite parties have charged interest @ 18.26% p.a. in respect of the amount advanced to the complainant as per Ex.B16. Accordingly this point is answered.
25. POINT NO.2:-The contention of the 5th opposite party that the complainant has only paid Rs.60,000/- and that the complainant has not paid Rs.30,000/- cannot be accepted because the 5th opposite party issued cash bill under Ex.B8 dt.23-03-2007 for receiving Rs.90,000/- from the complainant towards Two Wheeler Tripping Trailer with tyres bearing Chassis No.1980607. Further the 5th opposite party in his counter has stated that through the complainant the opposite parties have sent cheque for Rs.30,000/- for the balance amount towards tralor/accessories cannot be accepted because as per Ex.B18 the opposite parties 1 to 4 have sent Rs.30,000/-through cheque No.916955 dt.29-08-2007 to Prakash Engineering Works directly.
26. As per Ex.B18 the opposite parties 1 to 4 have sent Rs.30,000/- to the 5th opposite party without any authorization letter from the complainant. Therefore, the payment of Rs.30,000/- to the 5th opposite party by the opposite parties 1 to 4 has to be recovered by the opposite parties 1 to 4 from 5th opposite party only and the complainant is not entitled to recover the said amount from the 5th opposite party. Accordingly this point is answered.
27. POINT NO.3: - In the result, the complaint is allowed and the opposite parties 1 to 4 are directed to return the tractor seized by the opposite parties to the complainant in good running condition after certifying the same by the concerned Motor Vehicle Inspector within one month from the date of this order and the opposite parties 1 to 4 shall prepare fresh repayment schedule for Rs.2,90,000/- from the date of loan by giving 8 installments half yearly + quarterly as granted for Rs.3,20,000/- and the amount so far paid by the complainant has to be deducted from the loan amount and for the balance loan amount, the complainant shall pay in installments as fixed by the opposite parties 1 to 4 within stipulated time, other-wise the opposite parties 1 to 4 are entitled for usual charges for non-payment of the amount and if the complainant fails to pay future installments, the opposite parties 1 to 4 are also entitled to recover the tractor by issuing notice to the complainant for realization of the dues of the opposite parties 1 to 4 as contemplated under condition11.1 of Ex.B1 agreement. If the opposite parties 1 to 4 fail return the tractor to the complainant within one month from the date of this order then the opposite parties 1 to 4 are liable to pay Rs.1,30,000/- the margin money paid by the complainant at the time of obtaining loan amount from the opposite parties 1 to 4 and also to pay Rs.50,000/- towards damages for mental suffering with interest @18%p.a. on the said amounts from the date of seizure of the vehicle i.e. from 24-12-2009 till the date of realization with costs of Rs.5000/-. The said interest is awarded since the opposite parties have charged interest @ 18.26% p.a. in respect of the amount advanced to the complainant as per Ex.B16. The complainant against the 5th opposite party is dismissed without cost.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open
Forum, this the 27th day of October, 2010.
MALE MEMBER LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTIES:
-NIL- - NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 - Original Receipts dt.03-07-07, 25-10-2008, 04-05-2009 18-05-2009, 25-06-2009
issued by the opposite parties 1 to 4 in favour of the complainant.
Ex.A2– Office copy of legal notice got issued by the complainant to the opposite parties 1 to 4.
Ex.A3- Postal acknowledgement signed by the opposite parties 3 & 4 and returned postal
Covers of the opposite parties 1 & 2.
Ex.A4 – Returned Postal Cover containing notice dt.06-01-2010 sent by the 4th opposite party.
Ex.A5 - Office copy of legal notice dt.06-02-2009 got issued by the complainant to the opposite
parties 1 to 4.
Ex.A6 - Postal acknowledgments signed by the opposite parties 3 & 4.
Ex.A7 – Returned Postal covers of opposite parties 1 & 2.
Ex.A8 - Photo copy of letter dt.09-03-207 sent by the 3rd opposite party to M/s Ghantasala
Tractors, Kadiri.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY No.2
Ex.B1 - Photo copy of Loan-cum-Hypothecation Agreement dt.25-03-2007 executed by the
Complainant in favour of the opposite parties 1 to 4.
Ex.B2 - Photo copy of Irrevocable Power of Attorney dt.25-03-2007 executed by the
Complainant in favour of the opposite parties 1 to 4.
Ex.B3 - Photo copy of Letter of Guarantee dt.25-03-2007 executed by the guarantor in favour
of the opposite parties 1 to 4.
Ex.B4 - Photo copy of Annexure to Loan Agreement dt.25-05-2007 and terms & conditions of
M/s Ghantasala Tractors, Kadiri.
Ex.B5 - Photo copy of Tractor Finance application form dt.13-01-2007 submitted by the
complainant to the opposite parties.
Ex.B6 - Photo copy of Kisan Gaurav Scheme – Loan Terms & conditions of the opposite
parties 1 to 4.
Ex.B7 - Photo copies of Cash Advance Voucher dt.20-03-2007 issued by Ghantasala Tractors,
Kadiri and Receipt dt.23-03-2007 issued by Prakash Engineering Works, Anantapur.
Ex.B8 - Photo copy of Cash Bill dt.23-03-2007 for Rs.90,000/- issued by Prakash Engineering
Works, Anantapur.
Ex.B9 - Photo copy of Sale Certificate issued by Ghantasala Tractors, Kadiri.
Ex.B10 - Photo copy of Invoice dt.22-03-2007 for Rs.4,20,000/- issued by Ghantasala Tractors,
Kadiri.
Ex.B11 - Photo copy Delivery Certificate dt.22-03-2007 /- issued by Ghantasala Tractors,
Kadiri.
Ex.B12 - Photo copy of Loan Offer – Terms & Conditions dt.09-03-2007 issued by the 4th
Opposite party.
Ex.B13 - Photo copy of letter issued by Ghantasala Tractors, Kadiri to the 3rd opposite party.
Ex.B14 – Photo copy of Repayment Schedule relating to the complainant issued by the opposite
parties 1 to 4.
Ex.B15 - Photo copy of letter dt.06-01-2010 issued by the opposite parties to the complainant.
Ex.B16 - Photo copy of Repayment Schedule relating to the complainant issued by the
opposite parties 1 to 4.
Ex.B17 - Photo copy of Client Statement relating to the complainant issued by the opposite
parties 1 to 4.
Ex.B18 - Photo copy of details of Loan Sanction dt.09-06-2010 issued y the opposite parties
1 to 4.
MALE MEMBER LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR.
Typed by JPNN
