DATE OF FILING :26.11.2010

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 28th day of April, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.250/2010

Between

Complainant : Shaju S/o Sebastian,

Nadookunnel House,

Vimalagiri P.O,

Mariyapuram,

Idukki District.

(By Adv: Biju Vasudevan)

And

Opposite Party : The Manager,

SML Finance Limited,

SML Building,

Vellayamkudy P.O,

Kattappana,

Idukki District.

(By Adv: Gem Korason)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant purchased a goods Autorikshaw bearing Reg.No.KL-6C-2921 from the opposite party on 16.11.2006 for earning his livelihood. The cost of the vehicle was Rs.79,000/-, the complainant paid Rs.15,000/- on the same day itself and the balance amount was availed as loan from the opposite party. At the time of purchase of the vehicle, the opposite party assured that the vehicle was in good condition, there was no mechanical defect to the vehicle and also believed to the complainant that the vehicle was surrendered by another person due to dues in the vehicle loan. After 3 months of the purchase of the vehicle it showed several complaints and the matter was informed to the opposite party. But the opposite party told that there was no guarantee for the vehicle. The complainant was promptly paying Rs.2,701/- each for 11 months, thus totally an amount of Rs.29,711/- was paid by the complainant. When the vehicle was too defective to run, it was surrendered to the opposite party on 5.02.2008. The opposite party told that the vehicle will be sold out to some other person and the balance amount will be returned to the complainant. The cheque leaf and stamp paper which were issued by the complainant at the time of availing the loan as security were also offered to return at that time. After that several times the complainant approached the opposite party for getting back the documents, but the opposite party denied the same. While on 15.11.2010, the Manager of the Idukki District Co-operative Bank informed to the complainant that a cheque for Rs.48,000/- was produced by the opposite party for collection in the account of the complainant. But as per the request of the complainant the cheque was returned. The opposite party never revealed about the statement of account of the vehicle loan and about the sale of the vehicle to the complainant. The opposite party deliberately filled up the cheque leaf which was given as security for the vehicle loan to the opposite party and produced the bank for collection. So the petition is filed for getting back the documents filed by the complainant and also for getting back the amount paid by the complainant.
 

2. In the written version filed by the opposite party, it is denied that the complainant paid an amount of Rs.15,000/- initially and the balance amount was taken as loan from the opposite party for the purchase of the vehicle. The complainant had entered into a hire purchase agreement with the opposite party in respect of vehicle bearing Reg.No.KL-6C-2921. As per the terms and conditions of the hire purchase agreement, the complainant has to pay 36 instalments of Rs.2,701/- each to the opposite party. The opposite party never assured that the vehicle was in good condition and that it was not having any mechanical defect. The complainant had misused the vehicle to its full extent without remitting the instalment amounts and thereafter repeated demands from the opposite party, the complainant had surrendered the vehicle to them. The opposite party further informed the complainant that there were huge dues from the part of the complainant. The complainant thereby authorised the opposite party to sell the vehicle and to appropriate the amount in his account. As per the said terms the opposite party had sold the vehicle. Thereafter the opposite party several times contacted the complainant to clear the balance dues. After repeated demands from the opposite party the complainant came to the office of the opposite party and had issued cheque bearing No.51041 dated 15.10.2010 for Rs.48,600/- drawn on the Idukki District Co-operative Bank, Vazhathoppu branch. There is also a criminal case pending against the complainant as C.C.17/2011 before the Judicial First Class Magistrate Court, Kattappana. The complainant now with ill intention to keep away from repaying the amount had filed this complaint before the Forum. The agreement between the complainant and the opposite party clearly points out the arbitration clause in page 6 clauses 33, as per the agreement 'if any dispute arises between the parties the dispute should be referred to the arbitrator'. So the complaint is not at all maintainable before this Forum.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to ?
 

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P3 marked on the side of the complainant. No oral evidence adduced by the opposite party and Ext.R1 marked on their side.

5. The POINT :- Complainant produced evidence as PW1. PW1 purchased a goods autorikshaw on 16.11.2006 from the opposite party by paying an amount of Rs.15,000/- and the total amount for the vehicle was Rs.79,000/-. Ext.P1 is the copy of the agreement created between the complainant and the opposite party for the purchase of the vehicle. The finance agreement created at the time of availing the vehicle loan was for Rs.79,000/- and the EMI was Rs.2,701/- for 36 months. Two blank cheque leaves of the complainant and a signed stamp paper of Rs.50/- was also given as security for the loan. But unfortunately the vehicle became defective within 3 months. The complainant promptly paid Rs.2,701/- each to the opposite party for 11 instalments and the vehicle was surrendered to the opposite party on 5.02.2008. Ext.P3 is the copy of the pass book for the repayment. Ext.P2 is the letter issued to the opposite party by the complainant at the time of surrendering the vehicle. As per the cross examination of the learned counsel for the opposite party, PW1 deposed that the total amount of the vehicle loan was Rs.97,236/- and the EMI was Rs.2,701/- for 36 months. Rs.15,000/- was paid to the opposite party for the purchase of the vehicle and the loan amount and its interest includes Rs.97,236/-. There is a criminal case pending before the Judicial First Class Magistrate Court, Kattappana as C.C No.17/2011. Ext.R1 is the copy of the complaint filed by the opposite party against the complainant under Section 138 and 142 of the Negotiable Instrument Act for an amount of Rs.48,600/-.
 

It is admitted by the opposite party that the complainant paid an amount of Rs.15,000/- at the time of purchase of the vehicle. Ext.P1 agreement also shows the same. Ext.P3, copy of the repayment pass book shows that the complainant had promptly paid 11 instalments of Rs.2,701/- each. This matter is not at all challenged by the opposite party. So the complainant had paid an amount of Rs.44,711/- to the opposite party and the vehicle was surrendered on 5.02.2008. In Ext.P2 letter issued to the opposite party by the complainant at the time of surrendering the vehicle, it is written that three instalments were due for the vehicle loan and after settling the accounts, the documents should be returned to the complainant. But as per the opposite party, the vehicle was surrendered by the complainant and it was sold out by the opposite party. Eventhough the amount was appropriated with the loan account of the complainant there was an existing balance of Rs.48,600/-. So after repeated demands the complainant approached the opposite party and issued a cheque for the same. The Cheque No.51041was issued on 15.10.2010 for an amount of Rs.48,600/-. The opposite party filed a criminal case against the complainant when the cheque was dishonoured when it was presented before the bank for encashment.
 

The entire cost of the vehicle was Rs.79,000/- and the complainant paid Rs.44,711/- to the opposite party including the vehicle loan and the amount paid by the complainant at the time of purchasing the vehicle. So the balance amount due to the opposite party is only Rs.34,289/-. But the complainant surrendered the vehicle to the opposite party after 1 year and 3 months of the purchase of the vehicle. At that time, there is only 3 dues to the loan account of the complainant as per Ext.P2 letter. So the vehicle was sold out by the opposite party and an amount was received by the opposite party. But the opposite party never revealed how much amount received to the opposite party by the sale of the vehicle. It is the duty of the opposite party to issue the statement of account of the loan to the complainant and also to notice the complainant that the vehicle was sold

out for a certain amount. That was not done by the opposite party. There is no evidence produced by the opposite party for the same. After surrendering the vehicle, they have sold out the vehicle and that amount was appropriated with the account of the complainant's loan. Again when the opposite party demanded for the balance amount the complainant issued a cheque on 15.10.2010 for Rs.48,600/-. The vehicle was surrendered on 5.02.2008 and it may have sold out by the opposite party in the earliest days. But the cheque was issued by the complainant to the opposite party only on 15.10.2010 for the balance amount. That is after 2 ½ years of the date of surrendering the vehicle. So we think that the version of the opposite party is not at all believable because the cheque was issued only after 2 ½ years of the surrendering of the vehicle. The amount received by the opposite party for the sale of the vehicle is not at all mentioned by the opposite party and the date of sale is not mentioned in anywhere in the written version. So we think that the opposite party had received more than half amount of the loan instalments and a bulk amount was received from the sale of the vehicle. It is not proper to proceed against the complainant for the further dues of the vehicle loan again and the complainant is entitled to get back the documents produced at the time of availing the loan. As per the complainant, the opposite party received two blank cheque leaves and a stamp paper of Rs.50/- at the time of availing the loan as security.
 

So the petition partially allowed. The opposite party is directed to return two blank cheque leaves and the signed stamp paper worth Rs.50/- issued by the complainant at the time of availing the vehicle loan for the vehicle bearing Reg.No.KL-6C-2921. The opposite party is also restrained from further proceedings against the complainant or his properties for the recovery of the loan amount.

Pronounced in the Open Forum on this the 28th day of April, 2011

Sd/-
 

SRI. LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-
 

SMT. SHEELA JACOB(MEMBER)

Sd/-
 

SMT. BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

Shaju Sebastian

On the side of Opposite Parties :

Nil

Exhibits:

On the side of Complainant:

Ext.P1 - Carbon copy of agreement dated 15.11.2006 between the complainant and the opposite party for the purchase of the vehicle

Ext.P2 - Photocopy of complainant's letter dated 5.02.2008 addressed to the opposite party

Ext.P3 - Photocopy of pass book for repayment of the loan

On the side of Opposite Party :

Ext.R1 - Copy of complaint filed by the opposite party against the complainant under Section 138 & 142 of the Negotiable instruments Act, before

the Judicial First Class Magistrate Court, Kattappana