DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 30th day of October 2010 .

Present : Smt. Seena.H, President

: Smt. Preetha.G. Nair, Member

: Smt. Bhanumathi.A.K, Member

C.C.No.22/2008

Salma

W/o. Aboobacker

Kurutholayil House

Kodumunda

Pattambi

Palakkad.

(Adv K.R. Santhoshkumar & Adv.M. Krishnadas) - Complainant

Vs

1. The Proprietor

Khatoer Finance

Financier

59,Erulappan Street

Sowcarpet

Chennai - 79

(Adv. K.R. Pradeep & Adv. Vinod)

2. Shaji

S/o. Thomas

Ebin Motors

Pattambi

(Adv K.R. Pradeep & Adv. Vinod)

3. Challani Mahavirchand

Financier

No.36, (Old 12J)

Kalathy Pillai Street

Sowkarpet -600 079

Tamilnadu - Opposite parties

O R D E R

By Smt. Seena.H, President.

Case of the complainant in brief:

Complainant entered into an hire purchase agreement in connection with the purchase of a Tipper Lorry bearing Registration No. KL10P 2865 with the 1^st opposite party through the 2^nd opposite party who is the agent of the 1^st opposite party. As per the agreement, hire purchase amount is Rs.3,60,000/- which has to be paid in 35 installments

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at the rate of 16,000/- per month. Complainant has handed over the R C Book, original assignment deeds, blank cheque leaves, signed blank paper and power of attorney in favour of 2^nd opposite party as security. Complainant cleared the whole dues as on 26/10/2007 even though the date of last installment was 14/11/2007. The grievance of the complainant is that even though the whole amount was paid, 1^st opposite party is withholding R C book and is not ready to issue Non objection certificate. Lawyer notice was sent to 1^st opposite party for which 1^st opposite party replied stating false statements. Complainant submits that he suffered great hardships and financial loss due to the act of opposite parties. Complainant could not ply the vehicle since 30^th September 2006 on account of non-payment of tax. Hence complainant prays for an order directing the 1^st opposite party to return the Registration Certificate book with non objection certificate and other documents and pay an amount of Rs.2,56,000/- towards compensation together with interest.

2^nd opposite party has not filed any version . 1^st opposite party filed version contending the following.

1^st opposite party admits the hire purchase agreement entered into between the complainant and 1^st opposite party , but denies the say of the complainant that as per the terms of the agreement complainant is bound to pay only 35 installments. According to 1^st opposite party, complainant has to pay 36 installments of Rs.16,000/- per month. On default, as per the agreement, opposite parties can charge 36% interest per annum for the defaulted amount. Further submits that Registration Certificate Book was handed over to the complainant through 2^nd opposite party in the month of January 2005 itself. According to 1^st opposite party, an amount of Rs.65,760/- which includes default charges and compensation together with one installment of Rs.16,000/- is due to opposite party.

3^rd opposite party who has subsequently impleaded has filed version as follows.

3^rd opposite party was impleaded on the basis of an information given by 2^nd opposite party that the RC was handed over to 3^rd opposite party who is also a financier. 3^rd opposite

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party submits that he is an unnecessary party in the complaint and no transaction has taken place between 3^rd opposite party and complainant or with the other opposite parties and hence prays for compensation for the illegal inclusion of their name.

Complainant filed affidavit . Exhibit A1 to A5 marked on the side of complainant. None of the opposite parties filed affidavit. Complainant was cross examined and Exhibit B1 was marked.

Now the issues for consideration are:

1. Whether there is any deficiency in service on the part of opposite parties?

2. If so, what is the reliefs and cost?

Issues 1 & 2

The definite case of the complainant is that even though complainant paid the whole amount as per the hire purchase agreement sufficiently earlier than the stipulated last date of installment, 1^st opposite party failed to handover the Registration Certificate book and issue No Objection Certificate to the complainant.

1^st Opposite party on the other hand has contended that one installment is still due to 1^st opposite party and 1^st opposite party is also entitled for the default charges and compensation for the said amount as per the agreement. It is also submitted on behalf of the 1^st opposite party that Registration Certificate was handed over to the complainant in the month of January 2005 itself.

We have gone through the entire evidence on record. It is seen that the complainant and 1^st opposite party has admitted the hire purchase agreement. According to complainant she has to pay 35 installment of Rs.16,000/- per month. It is to be noted that all the opposite parties has not filed any affidavit and pleadings in the version itself will not constitute evidence. Exhibit B1 hire purchase agreement evidences the fact that as per the agreement complainant is bound to pay 36 installments of Rs.16,000/-. So the say of the complainant is found to be false. According to 1^st opposite party, they are entitled for the

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one installment due along with default charges and compensation which comes to Rs.81,760/- as on 14/12/2007.

We find that the said stand of 1^st opposite party is totally unfair. If at all any installment is due, it is the duty of the opposite party to initiate legal action against the complainant. The date of last installment as per the agreement is 14/12/2007. 1^st opposite party has not initiated any steps against the complainant, not even a Lawyer notice even after the expiry of the stipulated period. Keeping mum for a long period and claiming default charges, penal interest and compensation for the said period is not at all a fair act on the part of 1^st opposite party. Further 1^st opposite party has stated in the version that they have handed over the Registration Certificate to the complainant in the month of January 2005 itself. In Exhibit A4, reply notice issued by 1^st opposite party to complainant , it is stated that as per the records and acknowledgment available in the file of 1^st opposite party, that the 1^st opposite party has returned the RC book to complainant in the 1^st week of January 2005 itself. We do not understand what prevented 1^st opposite party from producing the said records and acknowledgment. In the absence of any cogent evidence we are not in a position to accept the said contention of 1^st opposite party and it can only be precluded that Registration Certificate is still with 1^st opposite party. Restraining from taking legal action for making unfair advantage clearly amounts to deficiency in service on their part. It is seen that complainant has not claimed any relief against 1^st and 3^rd opposite parties.

In view of the above stated facts and circumstances of the case, we allow the complaint and order the following.

1. Complainant shall pay an amount of Rs.16,000/- being the amount due to 1^st opposite party within 1 month from the date of receipt of order.

2. On receipt of the said amount 1^st opposite party shall return the Registration Certificate book and issue No Objection Certificate to the complainant within one month.

3. On failure of return of Registration Certificate book and issuance of No Objection

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Certificate within the stipulated period, complainant is entitled to an amount of Rs.15,000/- as compensation.

4. 1^st opposite party shall pay an amount of Rs.1,000/- as cost of proceedings to the complainant.

Order if not complied within the period shall entitle the complainant interest at the rate of 9% per annum for the whole amount.

Pronounced in the open court on this the 30th day of October, 2010

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Date of filing: 05/02/2008

Witness examined on the side of Complainant

Complainant was cross examined as - PW1

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 – Copy of statement

2. Ext. A2 series – Receipts of Khatoer Finance

3. Ext . A3 – Copy of registered lawyer notice dated 7^th December 2007

4. Ext. A4 – Copy of Lawyer notice

5. Ext. A5 – Copy of Memo dated 21/06/08 of Regional Transport Officer, Pattambi.

Exhibits marked on the side of the Opposite Party

1. Ext. B1 – Hire purchase agreement dated 14/12/2004

Forums Exhibits

Nil

Costs

Rs. 1,000 (Rs. One thousand only)