( As per Ajit Kumar Jain, Hon’ble member)
Complainant filed this complaint against opposite parties for seeking various relief as per prayer clause.:-
1 Complainant has purchased a truck of worth Rs. 07,54,035/- bearing registration No. MH35/K672. The truck was delivered on dt. 31/05/2006. This truck was financed by Rs.6,77,000/- by O.P.No. 1. As per the terms and condition of O.P.No.1, complainant furnish blank cheque of all installment including interest with clear under standing that O.P.No.1 would encash the cheque every month before 6th day. As per the agreement first 15 monthly installment would be of Rs. 21411/- . As per the condition of O.P.No.1 first cheque was to be produced on 5th July 2006. But O.P.No.1 failed to produce the cheque for collection of amount 1st installment.
2 Complainant was willing to pay the installment on decided date and there was sufficient amount in his account. But due to negligency of O.P.No.1 (bank) the same was not produced on the decided date. Then O.P.No.1 admitted the mistake and fault on their part and insured complainant that this will not be happened again and accepted the cash payment of the installment of the month of July on 31/08/2006.
3 That , the same mistake was done by O.P. in the month of August 2006 as O.P.No.1 did not produce the cheque for the month of August and did not inform the matter to the complainant. After this, in the month of Sept., Oct., Nov., Dec. cheques were encashed by the bank themselves on the decided date. When complainant demanded Bank statement of last 6 month then on 22/12/2006 O.P.No.1 delivered a letter to the complainant that the installment of the month of August of amount Rs. 21411/- is due on 23/12/2006 complainant forth with contracted with O.P.No.1, fault was accepted by the O.P.No.1 and they insisted complainant to pay in cash and accept the cash payment of Rs.21411/- towards the installment for the month of August. Then on date 25/09/2009 complainant received a letter from O.P.No.1 and informed the complainant that they have assigned in favour of O.P.No.2 all the amount outstanding payable by the complainant with respect to the above loan and O.P.No.1 was forwarding to O.P.No.2 all the post dated cheque/ ECS mandates etc. So it was clear from the letter of O.P.No.1 that they are forwarding to O.P.No.2 all the ECS mandates/ post dated cheque and that for encashment of their respective due dates starting Octomber 2009 . Then on 01/11/2009 O.P.No.2 informed the complainant that Rs.25908.48 amount is outstanding against complainant and also blamed that he is a irregular customer. Then Gondia office collection executive Shri Yogesh informed the complainant that because of some technical problem O.P.No.2 unable to encash the ECS cheque so requested the complainant to pay the installment by cash and assured that they are not going to levy and delay payment changed as levied in the letter. So complainant paid 4 months of amount of Rs.25692/- on 09.01.2010 . Then the complainant paid the installment on the required date every month upto the month of May 2010.
4 After paying all installment complainant demanded the NOC, then O.P.No.2 demanded the delayed payment charges Rs.13062/- and other penalty of rs.5000/- the complainant required to pay else the complainant cannot get NOC. Then on 04.06.2010, complainant requested to issue NOC but O.P.No.2 straight way refused to the complainant and advised the way of court.
5 Complainant prayed to declare that O.P.S. have no right to retain the N.O.C. of loan amount, so complainant stake his claim there on for Rs.50,000/- and prayed to direct O.P.S. for issuing N.O.C. and also award compensation. (Ex.1)
6 In response to notice u/s 13 of C.P.Act 1986, O.P’s appeared and filed their reply. (Ex.13 & 15). O.P.No. 1 & 2 submitted that due to agreed terms and condition of agreement it is clearly stated that the parties to the said agreement have agreed to refer the dispute/s arising between them to arbitration. O.P. further submitted that the relationship between the complainant and the answering respondents are of “Debtor and creditor” Therefore the complainant could No. 1 be said to be the consumer in the eye of Law. O.P.No.1 fruther submitted that the complainant has purchased the truck for commercial purpose and the commercial transactions are based in the Act.1986.
7 O.P.No.2 also denied all allegation against him. O.P.No.2 submitted that the complainant had availed the financed of Rs.6,77,000/- for purchase of a truck . The O.P.No.2 granted the loan through O.P.No.1 vide agreement dt. 06.06.2006. The amount was to be repaid in 47 months. The complainant was irregular in making payment of installment. This fact can verified by the statement of account duly maintained by O.P. in it’s due course of business. The said statement clearly shows that the complainant was not paying the installments regularly as per schedule as agreed by him.
8 The O.P.No.2 further submits that the N.O.C. can be given only after payment of D.P.C. for which the answering respondents are legally entitled. Lastly O.P.No.2 submitted that the complaint may kindly be dismissed with heavy exemplary cost:
9 On verifying all the submitted records and hearing argument of both the parties only point arose for our consideration whether complainant is entitled for relief or any relief as southed in his prayer and our finding is in positive due to following reasons.:-
REASONS
10 omplainant has deposited blank cheques of ICICI bank i.e. O.P.No.1 for total installment with the O.P.No.1 with a clear under standing that O.P.No.1 would encash the cheque filling the date and amount conveniently by first week of every month. It was also agreed as per agreement that the first 15 months the monthly installments would be of Rs.21411/- complainant has arranged balance amount in his account for payment. And there is no any evidence that the cheque was dishonoured due to insufficient fund. But O.P.No.1 has not submit the cheque for collection so we cant held complainant responsible for not payment or delay payment. To present or claimed the installment’s cheque is responsibility of O.P.s.
11 On the due date complainant furnished that much amount that is required for the installment in his account and hence complainant also didn’t find it necessary to verify that the installment is paid or not as the cheques were already with the O.P.No.1 . So complainant is not responsible for not collecting the cheques. And also complainant is not responsible for any delay payment charges.
12 “Complaint submit one case Law Kerala State Consumer Dispute Redressal Commission Thiruvananthapuram” appeared in III (2010) CPJ 118
Malabar Finanance corporation (ASF)
-VERSUS-
Devassia K.P.Appeal No. 203 of 2009
Decided on 2.06.2010
In this case closure of hire purchase dues and issue of clearance certificate directed.
13 .P.No.1 aslo submitted one case Law.
II (2002) CPJ 437
Meghalaya State Consumer Disputes Redressal Commission, Shillong Bhagwati Prasad Bajoria Vs. – General Manager, Tata Engineering and locomotive co. Ltd. & 3 others.
This case Law is not applicable to the case in hand.
In this case complainant is prominent business man having fleet of vehicles, engaged in business of transportation. But in the case in hand, forum has asked about his driving licence to drive heavy vehicle and complainant produce his driving licence and he was not owner of fleet of vehicle. Hence complainant is consumer u/s 2 (d) (ii) Explanation.
14 Hence we proceed to pass following order.
ORDER
(1) Complaint is partly allowed.
(2) Both O.P.s are directed to issue N.O.C. of the loan amount within one month from the date of this order.
(3) Both O.P.’s are also directed jointly & severally to pay Rs.5000/- (Rs. Five Thousand ) as the compensation to complainant for mental and physical agony within one month and also Rs.1000/- (Rs. One Thousand) as the cost of the litigations.
