This complaint  having come up for final hearing before us on 20.05.2015  on perusal of the material records  and on hearing the  arguments of  Thiru.Durai Thiyagarajan, the counsel for the complainants  and Thiru. R.Shanmuga Sundaram, the counsel for the opposite parties  and having stood  before us for consideration, till this day the Forum  passed the following  

By President, Thiru..P.G.Rajagopal, B.A.B.L., 

                       This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986.                

2) The gist of the complaint filed by the complainant is that the first complainant Purchased Bajaj CT 100 Deluxe motor cycle from the first opposite party to give it asgift to the second complainant at the time of his marriage with the first complainant’sdaughter one Gokilah appened on02.02.2006.The complainant came across the first opposite party advertisement offree fridge offer scheme for the sale oftwo wheeler i.e C.T 100Deluxe and when he approached the first opposite party in that regard to get the detailsof the said advertisements, the first opposite party introduced the second opposite party for getting the loan facility and as the first opposite party insisted that the first complainantshould paya sum of Rs. 500/- if he wants to availthe free offer fridge scheme the first complainantpaid Rs.500/- on19.01.2006 for bookingthe vehicle under free offer fridge scheme.The first complainanthas also availed loan facility from the secondopposite partywho sanctioned the loan of Rs. 35,038/- to be paid within the period of36 monthly instalments of Rs. 1321/- each.Accordingly,the first complainantavailed the loan amount of Rs. 35,038/- and himself paid Rs. 5500/ andgot the deliveryof the vehicle from the first opposite party on 01.02.2006 but the fridge was not deliveredas it was notavailable at the timeand assurance was giventhatit will be deliveredafter the arrivalof thestock. The first complainant regularly paid29instalmentsto the 2^nd opposite party andashe tooksome time to makethe 30^thinstalment, the second opposite party took away the vehicle illegally when it was parkedbefore theentrance of Dr.Lenin’sclinic by the second complainant.The failure of the first opposite party to deliver thefridge under thefree scheme andalsothe action of the second opposite party in seizing thevehicle illegally is deficiency of service on the part of theopposite parties.The complainanttherefore prays for an order to direct the first opposite party to deliver thefridgeunder the free schemeor to pay the value of the fridgeand to direct the second opposite party toreturn back the vehiclebearing registration No. TN 49P 6399 and to payRs. 1,00,000/-towards compensation for the mentalagony and hardshipcaused to the complainantalong with cost of thiscomplaintandto grant such and other reliefs as this Forum would deem fit.

3) The  gist of the  written version  filed by the first opposite party is that no  fridge  was offered  to be given under any free scheme by the first opposite party as alleged by the complainants. Further the first opposite party  has  nothing to do with the  Hire Purchase Agreement  dated  31.01.2006 between the first complainant  and the second opposite party. The complaint is barred by the period of limitation.

4)  The gist of the written version filed by the second opposite party is that as per the terms of the Hire Purchase Agreement between the second opposite party and the first complainant if the purchaserfails to make payment and defaulted in payment of installment the financier is entitled to seize the vehicle from the custody of the borrower.But the first complainant has committed default and when the second opposite party requested him to pay the current installment, the first complainant voluntarily handed over the vehicle to the second opposite party because of hisinability to make the payment.No telegram had been sent by the second opposite party on 16.12.2008 as alleged in the complaint.The complaint is barred by limitation and is liable to be dismissed.

5)  The complainant  has filed his proof affidavit  reiterating  all the averments made in his complaint and filed  19  documents  which are marked as Ex.A.1 to  Ex.A.19.  The first opposite party has filed his  proof affidavit in support of his defence. Written arguments have been submitted  by both the  complainant and the   opposite parties.

6)   The points for Determination are:

                     1) Whether  the complaint is barred by  the period of limitation?

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

                     3) Whether the complainant is entitled to any relief? If so to what relief?

7) POINT  NO.1:  The  contention of the first opposite party is that the complaint is  filed  after the period of limitation and is liable to be dismissed in liminie.   His argument is that the vehicle has been purchased  and delivered  to the first complainant on  01.02.2006  but  the complaint  is filed  on  13.09.2010 beyond the period of two years from the date of cause of action and hence  it is barred by  the period of  limitation.  It is argued  on behalf of the  complainant  that  as the first opposite party  promised to deliver the fridge  before the completion of the 36 instalments of loan to be paid by the first complainant i.e. 31.01.2009, the complainant  took delivery of the vehicle  without the fridge  and if  31.01.2009  is taken to be  the starting point of limitation, the complaint  is  filed in time.  Further the complainant  sent lawyer’s notice on  26.06.2009 which is received  by the first opposite party on  29.06.2009 and no reply is given by the first opposite party and hence the complaint  should have been construed to be in time.

8) As far as the 1^st opposite party is concerned the complainants  ought  to have filed the complaint on or before  01.02.2008, the date of expiry of the 2^nd year from 01.02.2006, the  date of delivery of the vehicle by the 1^st opposite party to the 1^st complainant.  According to the 1^st complainant’s case the fridge under the free scheme ought to have been delivered  along with the said vehicle and the same was not delivered as there was no  stock available.  Further  no documentary evidence is produced by the complainants to establish  their version that there was an offer by the 1^st opposite party  to provide  a Fridge freely with the two wheeler CT 100 Deluxe.  The contention of the complainants is that the notice was sent by the complainants’  Advocate on 26.06.2009 and no reply is sent by the opposite parties and the complaint is  within the period of limitation as it is filed within two years from the said date  26.06.2009.  The said  contention is not acceptable in view of the decision of the Hon’b;e  Consumer Disputes Redressal Commission reported in 2014(3) CPR 158 in

“Niloba Ghansham Nalinand Others…… Complainants

                                /versus/

 Lodha Pranik Developers Private Limited               …. Opposite parties.

in which it is held that it is well settled that the correspondence representations and legal notice do not extend the time of limitation.Hencethe complainant is barred by the period of limitation as against the 1^st opposite party in view of the provisions contained under Sec. 24A of the Consumer Protection Act 1986.

9)  The allegation of the complainant as against the 2^nd opposite party is that the latter has illegally seized the motor cycle from the custody of the 2^nd complainant on 16.12.2008 and therefore he is liable to return the vehicle with compensation of Rs.1,00,000/- for the  mental agony and loss caused to him.  As far as the 2^nd opposite party is concerned the said date of 16.12.2008, the date of seizure of the vehicle is the date of cause of action for the complaint against him and the complaint having been filed on13.09.2010 within two years, it is not barred by the period of limitation as against the 2^nd opposite party.

10) POINT NO.2:As the complaint is found to be barred by the period of limitation as against the opposite party No.1, this Forum need not give a finding on the said point in view of the decision of the Hon’ble Supreme Court held in the decision reported in II(2009) CPJ 29 SC that if the complaint is barred by time and yet the Forum decides the complaint, the Forum would be committing illegality.

11)  The allegation of the complainants is that the instalments of the loan had been regularly paid by them and the second opposite party through his  henchmen  illegally took away the vehicle  on 16.12.2008 and hence  he is liable to return the vehicle and pay the compensation of Rs.1,00,000/- for his mental agony. But the contention of the second opposite party is that the 1^st  complainant  was making default in payment of the instalments and he voluntarily handed over the vehicle to the second opposite party because of his inability to make the payment.  Further he has  argued that as per the terms of the  Hire   Purchase Agreement  he is entitled to recover  the vehicle from the borrower in case the latter defaulted in the payment of the instalments.  The Ex.A.5 to Ex.A.14, the various receipts for the payment of the instalments of the loan would  establish  only the version of the 2^nd opposite party that the 1^st complainant was not prompt and  regular in the payment of the instalment of the loan amount only  payment towards arrears of the loan amount had been made by the complainant every now and then  and not regularly.  Particularly Ex.A.8 and Ex.A.10 the reminder letters sent by the second opposite  party would go to establish that the cheques given by the  1^st complainant towards the payment of the instalment of the  loan amount had been often  dishonoured by the Bank  for want of sufficient  funds in  his account and that also proves the version of the 2^nd opposite party that the 1^st complainant committed default in making the payment of the instalments of the loan.

12)  Further in many judicial decisions such as

2014 (1) CPR 21 Andhra Pradesh State Consumer Disputes Redressal Commission

2013 (1) CPR 163 Maharastra State Consumer Disputes Redressal Commission

and  2013 (1) CPR 559 (National Commission)  in

Mr.Ashok Laxman Gulhane…… Petitioner

               /versus/

The Manager, Tata Finance Co., Ltd., and other    ….. Respondents.

to quotea few, it is held that the financier is entitled to seizure or repossession of thevehicle and to sell it if the repayment was not prompt and regular.Hencethere is no deficiency of service or unfair trade practice on the part of the 2^nd opposite party.

12) POINT No.3:In the result, the complaint is dismissed and there is no order as to costs.

This order was dictated by me to the Assistant, transcribed by her and corrected  and pronounced by me on this  04 th   day of  JUNE  2015.

MEMBER -I                                                                                                 PRESIDENT

List of documents on the side of the complainant:-

List of documents on the side of the   Opposite parties :    NIL

MEMBER -I                                                                                         PRESIDENT