DATE OF FILING : 17.6.2010

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 20^th day of September, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.129/2010

Between

Complainant : Hari K.K., S/o Kamalahasan

Kizhakkemattathil House,

Sanyasioda P.O.,

Balagram,

Idukki District. (By Adv: Saji Augustine)

And

Opposite Party : The Managing Partner,

Star Enterprises,

2^nd Floor, Soorya Towers,

Velloorkunnam,

Moovattupuzha P.O.,

Ernakulam District.

(By Adv: K.M. Sanu)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant is the registered owner of the vehicle bearing registration No.KL-37-1182, an Ape Autorickshaw. The complainant had purchased the vehicle from Century Autos, Thodupuzha. The owner of the said firm, Mr. Pappa had agreed to arrange a loan from the opposite party. So an agent of the opposite party came to Thodupuzha and after signing the papers for the loan the vehicle was released to the complainant. The complainant had thus availed Rs.85,000/- as loan. As per the terms of the loan agreement, the above said amount with interest has to be repaid in 36 monthly instalments of Rs.3,840/- each. The complainant was making regular payments to the opposite party and thus paid 19 instalments. Each time when the complainant paid the amounts to the opposite party they have charged amounts over and above the amount shown in the receipt. The complainant paid about 19 instalments to the opposite party, but the opposite party never issued receipt for the same. At the time of availing the loan, the opposite party asked to entrust the R.C. Book of the vehicle to them. The complainant entrusted the RC Book of the vehicle to the opposite party and also two blank cheque leaves as security for the transaction. The cheques were bearing Nos.020961 and 020962 of Co-operative Bank, Balagram branch. In the month of December 2008, the complainant had approached the opposite party and demanded to get back the RC Book of the vehicle for producing before the RT Office for testing the vehicle. But the opposite party refused to hand over the RC Book and demanded huge amount of money from the complainant to close the hire purchase account. The opposite party calculated exorbitant amount as interest, the loan amount was Rs.85,000/- and it was divided into 36 monthly instalments with interest. So the complainant is not entitled to further interest for the loan amount. Since the RC Book of the vehicle was not handed over to the complainant, the complainant was not able to test the vehicle and was

not able to ply the vehicle for the last 7 months. The complainant sustained a loss of Rs.150/- and the total damage is assessed as Rs.30,000/-. A notice under Section 138 of Negotiable Instrument Act was issued to the complainant by the opposite party by misusing the cheque with number 020961. So this petition is filed for getting back the true and correct statement of account of the Hire Purchase loan and also for directing the opposite party to settle the complainant's loan account. It is also prayed to direct the opposite party to hand over the RC Book of the vehicle and also restraining the forcible possession of the vehicle from the complainant.

2. The opposite party filed written version stating that all the transaction for the loan of the vehicle was caused at Moovattupuzha and it is not under the jurisdiction of this Forum. On 30.12.2006, the complainant availed a loan of Rs.97,000/- from the opposite party with 36 monthly instalments of Rs.3,840/- each and a Hire Purchase agreement also signed for the same. The R.C. Book of the vehicle was given as security for the loan, at the time of availing the loan. The complainant made default in the payments of the loan, the instalments were paid after long delay. The 19^th instalment was paid on 24.6.2009 and balance instalments were not paid by the complainant. Due date for instalment was on 30^th of every month and if the complainant make default, the opposite party is entitled to charge default interest for the defaulted period. Receipts were also given to the complainant for the instalments paid by the complainant. Several times, the opposite party demanded the complainant to clear all the dues of loan. On 20.8.2009, the complainant approached the opposite party's office and issued a cheque for an amount Rs.72,470/-. The cheque was dishonoured when presented before the bank. So a criminal complaint was filed before the JFMC, Moovattupuzha as ST No.8040/09 and it is posted on 5.10.2010 for hearing. The complainant never requested the R.C. Book and the statement of account of the loan from the opposite party. The opposite party is ready to produce the R.C. Book of the vehicle as per the request of the complainant before the R.T. Office for paying the tax of the vehicle. So there is no deficiency from the part of the opposite party and the petition may be dismissed.

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. There is no oral evidence adduced by the opposite party and Exts.R1 to R5 marked on the side of the opposite party.

5. The POINT :- The complainant is examined as PW1. PW1 is the registered owner of the Ape Autorickshaw bearing registration No.KL-37-1182 and it was purchased from the Century Autos, Thodupuzha. Ext.P1 is the agreement created on 15^th December, 2006, for the purchase of the vehicle from the owner of the firm, Vijayan (alias) Pappa and the PW1. At the time of availing the loan the said Mr. Pappa, who was the agent of the opposite party was also present. Several blank papers were got signed by the opposite party and issued a loan of Rs.85,000/- from the opposite party. The complainant paid 19 instalments. 2 blank cheque leaves, signed by the complainant and the RC Book of the vehicle were given as security for the loan. Ext.P2 (series) are the receipts issued by the opposite party for the payment of the loan. Ext.P3 is the copy of the Demand Draft paid by the complainant. As per the cross examination of the learned counsel for the opposite party, the complainant admitted that he paid 19 instalments and he is not aware of the statement of accounts of the loan. The 18^th instalment was paid on 24.6.2009, which was to be paid on 30.6.2008. A criminal case filed before the JFMC, Moovattupuzha, for the balance instalments as ST.8040/09 on 5.10.2010. A Hire Purchase agreement was created at the time of availing the

loan and the complainant is entitled to pay penal interest, if any payment default in the due instalments. No oral evidence adduced by the opposite party, but the opposite party produced the Hire Purchase agreement of the loan created between the opposite party and the complainant. The decision taken between the partners of the partnership firm that, Sri. P.P. Kuriakose, is authorised to

conduct the case is marked as Ext.R2. Copy of the CMP filed before the JFMC, Moovattupuzha is marked as Ext.R5. Ext.R3 is the copy of the Partnership Deed. The ledger copy of the loan account is produced and marked as Ext.R4. As per the written version and the ledger produced by the opposite party, the complainant paid 19 instalments of the loan and an amount of Rs.68,215/- is due to the opposite party by the complainant as on 30.7.2008.

When the opposite party demanded the dues of the loan, the complainant paid 19 instalments to the opposite party and it is also clear from the Ext.R4, Hire Purchase ledger. But some delay has been caused to the payment for the instalments and as per the complainant it is also charged by the opposite party as per Ext.P2 (series), which comes to an amount of Rs.49,910/-. As per the opposite party, the opposite party is entitled to get interest as per the Hire Purchase agreement, which is Ext.R1, created between the complainant and the opposite party. As per the opposite party the complainant himself made delay in payment of the loan amount and the complainant never approached for RC Book of the vehicle. The opposite party is ready to supply the RC Book for paying the tax of the vehicle. The amount charged as penal interest for the defaulted instalments is as per Ext.R1 Hire Purchase agreement. The complainant approached the opposite party's office on 20.8.2009 and issued a cheque for Rs.72,470/- for the due instalments. The cheque was dishonoured from the bank and a complaint was filed as Ext.R5 before the JFMC, Moovattupuzha for the same amount. As per the complainant, they have issued two blank cheque leaves as security for the loan, at the time of availing the loan and never issued such a cheque dated on 20.8.2009 for the instalments of the loan. The complainant was not able to ply the vehicle through the road because the road tax is not paid, because the RC Book is not with the complainant. But the opposite party charged exorbitant amount as penal interest. So we think that the opposite party never produced any circular from the Government or from the RBI that they can charge a specified rate of interest or to show that they have charged interest as per the norms of the Government or RBI. So we think that it is proper to fix 12% interest per annum for the defaulted instalments for defaulted period. There is no evidence produced by the complainant to show that there is heavy loss caused to the complainant because of the non-plying of the vehicle.

Hence the petition allowed. The opposite party is directed to settle the loan account of the complainant by calculating the interest as 12% per annum for the defaulted instalments for the defaulted period. The opposite party is also directed to give back the RC Book of the vehicle and return cheque leaves which were given as security for the loan and if the cheque No.0020962 is not received by the opposite party, the opposite party should declare the same in writing to the complainant within 30 days of the closing of the loan. So that the complainant can approach the bank for appropriate remedy. The opposite party is also directed to return all the documents given as security for the loan of the vehicle and the opposite party is restrained from forceful possession of the vehicle from the custody of the complainant without due course of law.

Pronounced in the Open Forum on this the 20^th day of September, 2010

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Hari K.K.

On the side of the Opposite party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - The agreement created on 15^th December, 2006, for the purchase of the vehicle.

Ext.P2(series) - The receipts issued by the opposite party for the payment of the loan (9Nos.).

Ext.P3(a&b) - Copies of the Demand Drafts.

On the side of the Opposite party :

Ext.R1 - Copy of the Hire Purchase Agreement created on 11^th December, 2006.

Ext.R2 - Copy of the decision taken in the meeting of Partners on 2.2.2009.

Ext.R3 - Copy of the acknowledgement of registration of the firm “Star Enterprises”.

Ext.R4 - Copy of the Hire Purchase Ledger.

Ext.R5 - Copy of the complaint filed by the opposite party before the JFMC,

Moovattupuzha, dated 13.11.2009.