DOF.20.11.2009

DOO.28.06.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan     :  President

Smt.K.P.Preethakumari  :  Member

Smt.M.D.Jessy                :  Member

Dated this, the 28^th   day of June    2011

CC.313/2009

Ajay Sreedhar,

‘Manikkamangalam’

Near Sixer Soda, Alavil.P.O.                                 Complainant

 (Rep. by Adv. B.P.Saseendran)

1. Manager,

   Tata Finance, Arafa Complex,

   Cherootty Road, Calicut.

  (Rep. by Adv. A.K.Sajithkumar)

2. Business Head,

   Two Wheeler Loans,

   ICICI Bank Ltd.,

   P.O.Box No.36, Vashi P.O.

   Navimumbai 400 703.

   (Rep. by Adv.Rajesh V Nair)                           Opposite parties   

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to exonerate the complainant from paying the future interest and to direct the opposite parties to deliver the RC book and necessary documents and close endorsement of hire purchase agreement together with compensation of `1, 00,000 and to pay cost of this proceedings.

          The case of the complainant in brief is that the complainant purchased Yamaha Two wheeler by availing loan from Tata Finance Ltd. The complainant used to pay Hire Purchase instalment regularly as per the terms of agreement.  The 2^nd opposite party sent letter to complainant dt. 1.4.2004 intimating that complainant’s two wheeler loan agreement of Tata Finance Ltd.  will be serviced by the 2^nd opposite party. Immediately complainant contacted the opposite parties 1 and 2 and asked them to close the loan account by receiving the future instalments in lump sum and asked them to deliver RC book, NOC for clearing the endorsement with immediate effect. But there was no response. Complainant was not able to contact any authority of opposite parties. At last on 20.12.04 he wrote a registered letter informing them to close the loan with immediate effect and to return RC book. But there was no reply. Since there was no RC book in the hands of complainant he was forced to keep his vehicle idle. He could use the vehicle only in remote places. Checking authorities harshly behaved to him. So complainant had given stop payment memo, as there was no response to his call for closing of the loan. Complainant could not use his vehicle since he was not in possession of RC book. Complainant was entitled to get the discharge letters and relevant documents to be submitted before RTO by closing the Hire Purchase loan even in the month of April 2004. Opposite party is not entitled to collect the interest of future monthly instalments thereafter. Complainant suffered so much los due to non delivery of RC book. He could have sell the vehicle earlier and purchase a new model if RC book was in his custody. Hence it is highly necessary to direct the opposite parties to exonerate him from paying the future interest from 2005 January onwards and direct them to deliver the RC book and other necessary documents. Hence this complaint.

          Pursuant to the notice opposite parties entered appearance and filed version separately denying the main allegation of complainant.

          1^st opposite party contended as follows: The complainant had availed a loan of   `40865 for purchase of vehicle KL.13J7407. As per the agreement executed on 25.6.2003 loan amount has to be paid by 24 equal monthly instalments . As on 6.1.2010 the complainant is liable to pay `18726 towards the overdue instalments along with the accrued overdue charges in the sum of `31333 apart from the future instalments.  Complainant never approached the opposite party for closing his loan account and the respondent did not get any   letter dt          1.4.2004fromthe complainant. Complainant never tried to contact 1^st opposite party for closing the account. This contract is securitized with ICICI bank with effect from 31.3.2004. The 1^st opposite party made power of attorney in favour of ICICI Bank and the agreement file is with ICICI Bank So the opposite party is not liable to deliver the RC book to the complainant. It is handed over to ICICI bank. No registered letter received from the complainant in the month of December and henever approached for issuing RC book and NOC. This opposite party made Power of Attorney to ICICI bank and the agreement file is with ICICI bank. So this opposite party is not liable to deliver the RC book to complainant. 

          2^nd opposite party filed version separately contenting that complainant has not sent any intimation to 2^nd opposite party in respect of RC book.  The opposite party is trying to trace out the RC book to give the complainant and to get the accounts of the complainant to know the liability. This opposite party is not done anything unlawfully. Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     parties?

2. Whether the complainant is entitled for the relief as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1, DW1 Exts. A1 to A6 and.B1 &  B2 marked on the side of opposite party.

Issue Nos.1 to 3

          Admittedly complainant  availed a loan for purchasing a two wheeler as per Hire Purchase Agreement (No.181195) with Tata Finance Ltd. The complainant’s case is that he was informed two wheeler loan agreement with Tata Finance Ltd. Will be  served by the 2^nd opposite party  by letter dt.7.4.04. Complainant immediately contacted opposite party and asked to close the loan by receiving the future instalments, lump sum so as to receive RC book and no objection certificate. But there was no response. Registered letter sent for the same opposite party sent no reply. Opposite party’s case on the other hand is that complainant never approached the opposite party for closing his loan account. This contract with the complainant scrutinized with ICICI bank with effect from 31.3.04. RC book was handed over to ICICI Bank. 1^st opposite party  contended that  no  registered letter or any other letter for issuing RC book and NOC had not been received by them from the complainant. 2^nd opposite party also taken the contention that complainant has not sent any intimation to 2^nd opposite party.

          Complainant filed affidavit in lieu of chief examination in tune with his pleadings. Ext.A1 is the letter sent by the 1^st opposite party on1.4.04 to complainant. Ext.A1 intimated complainant that Tata Finance Ltd. has assigned and transferred to ICICI bank all amounts together with all interest, liquidated damages and all other  monies whatsoever stipulated in or payable  under the loan cum hypothecation agreement/Hire purchase agreement No.181195 entered into between complainant and TFL along with all right, title and interest of TFL in and under the loan agreement/Hire purchase along with the  underlying security. It is also instructed to make payments of all amounts constituting the Receivables directly and only to ICICI bank and/or its representatives. It is also informed that in the event he has provided post dated cheques pursuant to the loan agreement/Hire purchase agreement, no further action is required to be taken by him in respect of payment of amounts represented by such cheques. He was further informed that all communications and correspondence pertaining to the loan agreement/HPA should be addressed directly to ICICI Bank.

          Ext.A2 dated 1^st April 2004 is a letter sent by ICICI Bank, 2^nd opposite party to complainant regarding Hire Purchase agreement No.18195. It is seen informed that consequent to the arrangement with Tata Finance Ltd. his two wheeler loan/Hire Purcahse agreement with TEL will be served by ICICI bank. It is also informed to address  all communications pertaining to his loan/Hire purchase agreement  to them.

          Ext.A3 is the letter dated 20.12.2004 send by complainant to the Manger ICICI Bank Calicut wherein complainant informed that he wish to close his loan. It is mentioned therein that he came to know  five months back that the ICICI had taken over the loans of Tata Finance and he was ready to close the loan five months back itself but he could not do so because he had not received the whereabouts of their taken over. He has also mentioned that payments were withheld there from. He stated that he was hoping that ICICI will look into the matter and close his loan with no interest and penalties from the last date of his payment of instalments. He has further stated that he had contacted Tata Finance Manager five months back and he had advised to wait till he heard from ICICI. He continued to state that he was called from ICICI Bank, Kannur Branch last week and he informed them his willingness to close the loan on a one time payment. Ext.A6 is the postal receipts addressed to the Manger, Tata Finance. Ext.B4 is the notice issued for ICICI Bank as reminder for payment of over dues asking him to pay the following amounts:

          1. EMI of 17023

          2. Bounce charge of 200 and

          3. Late payment charge at the rate of 2% per month

It is also seen communicated that in case of default of payment they shall be constrained to exercise their rights under the agreement including repossession of vehicle.

          It can be seen that Ext.A3 is the letter dated 20.12.2004 addressed to the Manager ICICI Bank and the postal receipt. Ext.A6 proves that it was sent to opposite parties. But opposite parties took the contention that no such letter was written to them. The contention of opposite party cannot be believed at all in the light of Ext.A6. So also Exts.A1 and A2 proves that opposite parties 1 and 2 has sent letters to complainant informing details of his loan as well as the agreement between opposite parties 1 and 2. Hence it has come out from evidence that on 1.4.2004 complainant was aware of the agreement between opposite parties 1 and 2.Complainant also received information asking him to have further dealings with respect his loan directly with 2^nd opposite party.

          In cross examination 1^st opposite party put a question whether the payment of instalment defaulted after 15.7.2004. The answer of PW1 was that opposite party did not collected the amount from the account and it is not correct to say that there was no amount. It has to be taken note of what 1^st opposite party had informed complainant by their letters. Ext.A1. It is written that “in the event you have provided post dated cheques pursuant to the loan Agreement/Hire Purchase Agreement, no further action is required to be taken by you in respect of payment of amounts represented by such cheques”. So the question of default or non payment comes if cheque is bounced only. Complainant has deposed in his evidence that “ instalment AS-¨Xv  Tata Finance \v sImSp¯        cheque aptJ-\-bmWv . 24 instalment sâ   cheque sImSp-¯n-cp-¶p. 24 EMI bpsS ka-b-¯pT Fsâ A¡u-­n ]W-ap-­m-bn-cp-¶p. Hcp cheque DT  Fsâ Bank records  {]Im-cT aS-§n-bn-«n-Ã.” there was no cross examination on this aspect.  If that be so it cannot be considered complainant is a defaulter since no cheque has been returned. It has been taken into account that complainant has deposited cheque with Tata Finance Ltd. for the purpose of payment of higher purchase instlaments. Moreover, that was admitted by Ext.A1 letter which communicated information regarding the agreement with opposite parties 1 and 2 that since he has provided post dated cheques no further action is required to be taken. Under such circumstances it cannot be considered that complainant is a defaulter. Ext.B1 is not capable to prove the reason of non payment. This is a case wherein opposite parties are in possession of cheque for the payment of instalments. If opposite party proves that cheque is returned then that can be counted as a default of payment on the part of complainant. Of course that does not mean that complainant has paid the full amount.

          Complainant has no case that he has paid the entire amount. His case is that no instalment was due from him till he intimated his intentions to close the loan. According to complainant the letter of communication to opposite party by him to settle the loan has been sent in the month of December 2004 But he did not disclose how much amount remains to be paid. The first prayer of the complainant is to exonerate the complainant from paying future interest from 2005 January onwards. But does not say any thing about the amount to be paid. He has no prayer to exonerate  the balance amount. The prayer to exonerate is an admission that there is balance to be paid  or otherwise no question of exoneration of interest does not arise. But what is the amount to be paid is not stated by complainant. No where in complaint he has stated how much amount he has availed as loan and how much amount he has paid. It reveals only that the complainant is not open minded to place facts before the Forum.

However 1^st opposite party has stated that complainant availed loan for `40865 on 25.6.03 and it has to be repaid by way of 24 equal monthly instalments of `1703, except the  first instlament which is of `1696. Opposite party contended that as on 6.1.2010 the complainant is liable to pay `18726 towards the overdue instlaments. But opposite party has expressed their willingness to settle the matter for an amount of `17000 though it was rejected by complainant during the cross examination. Complainant deposed that “ `1700 cq]¡v bank Cu case H¯p-Xo#184;m-¡m³  ready bmWv F¦-n Rm³  k¶-²-\Ã.” The offer was rejected by the complainant even though he has admitted that he had made payment only 12 instalments out of 24 instalments. This reveals only a negative approach on the side of the complainant. On the one side he is not disclosing he balance amount to be paid and not responding or denying when opposite party contended that complainant is liable to pay  `18726. Further more complainant is not accepting the offer to settle the mater for an amount of `17000 even in the light of admission that he had only paid half of the instalments.

Complainant in his chief affidavit did not specifically denied the contention of 1^st opposite party with regard to the overdue instalments. The nature of utilization of cheque   also plays an important role in determining the merit of the case. So it is not safe merely depending upon Ext.B1 to draw the correct picture of the account. What prevented opposite party from producing the cheque and clear the amount is not explained by the opposite party without which it is not proper to find that complainant is  a defaulter. Post dated cheques were given from the outset for the purpose of the payment of instalments. Then the burden lies on opposite party to establish the reason why they could not make use of the cheque for clearing the instalment payments without which complainant cannot be considered as a defaulter. Hence there is no justification in asking complainant to pay overdue interest unless it is proved that the cheque issued by the complainant happened to be bounced. As stated above complainant has deposed in box that ‘ 24 EMI bpsS ka-b-¯pT Fsâ A¡u-­n ]W-ap--­m-b-cp¶p . ” That is not disproved. Hence the role of Ext.B1 is only limited purpose. Complainant put no question on this aspect while cross examining DW1. When opposite party has taken a specific contention that complainant is liable to pay  `18726 towards overdue installments, complainant has the burden to deny  it specifically and in cross examination same  has to be put to witness. Complainant has not even put such a suggestion. Thus it does amount to admission. Complainant had made it clear anywhere neither in pleadings nor in chief affidavit what is the actual amount due towards overdue instalments. Even while praying to exonerate future interest he has not stated anything about the due amount. Hence complainant is liable to pay `18726 towards over due instalments.

Now comes to the question whether the complainant is liable to pay the interest. It can be seen that complainant cannot be considered as a defaulter unless it is proved, the arrangements to pay the installments from the beginning itself by handing over the post dated cheque, has been failed due to the act of complainant.  The set up assured to make payment has not been proved failed by the opposite party. Ext.B1 account produced by the opposite party is not enough to prove what happened to the earlier set up that has been assured the payment of installments. Opposite party has not explained the specific purpose for which Ext.B1 is produced. Ext.B1 doesn’t reveal whether   the opposite party has produced the cheque of the complainant in time for collection. No evidence adduced in respect of the entry in Ext.B1. Hence it cannot be considered as a document reliable to come into a concrete conclusion. It cannot be ignored that it is an admitted fact that complainant has given post date cheque for clearing the instalment. Complainant also given evidence that no cheque has been returned in his account and there was enough amount till the end of instalment period was over.

          In the light of the above discussion we are of opinion that opposite parties are liable to deliver the RC book and other necessary documents closing the higher purchase agreement within one month without any late payment charge or overdue interest/penalty. On receiving the same complainant has to pay `17000 towards overdue insalments. In case opposite parties failed to deliver the RC book etc. they shall be liable to pay  `50,000 including the price and cost of the vehicle. Hence issue No.1 to 3 is answered partly infavour of complainant and orders passed accordingly.

          In the result, the complaint is allowed directing the   opposite parties to deliver the RC book and other necessary documents closing the higher purchase agreement without any late payment charge or overdue interest/penalty, within one month from the date of receiving this order. On receiving the documents RC book etc complainant has to pay  `17000  (Rupees Seventeen thousand only)  towards overdue instalments. In case opposite parties are failed to deliver the above documents they shall be liable to pay `50,000 (Rupees Fifty thousand only) including the price and cost of the vehicle with 8% interest from the date of this order. Complainant is at liberty to execute the order on the expiry of 30 days as per the provisions of consumer protection Act.

                      Sd/-                        Sd/-                    Sd/-

                   President              Member                Member

APPENDIX

Exhibits for the complainant

 A1 & A2.Letters dt.01.4.04 sent by OPs 1 & 2

 A3.Copy of the letter dt.20.12.04      sent to OPs by complainant

 A4. Copy of the letter sent by OP

 A5. Copy of the RC book

 A6. Postal receipt

Exhibits for the opposite party:

B1.Copy of the statement of accounts

B2. Copy of the power of Attorney

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

DW1. Sandeep K Nair

                  /forwarded by order/

          Senior Superintendent

Consumer Disputes Redressal Forum, Kannur.