BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 329/2004 Filed on 17.08.2004
Dated : 17.01.2011
Complainant:
Rajan. K, M/s Prakash General Stores, Anayara, Arasumoodu Junction, Thiruvananthapuram.
(By adv. V.S. Bhasurendran Nair)
Opposite parties :
Xerox Modi Corporation Ltd., T.C 39/3975, M.G. Road, Pallimukku, Kochi-682 016.
Xerox Modi Corporation Ltd., 109, Shivalik Apartments, Sector 35, Noida, District Goutham Budh Nagar, G.P-201 301.
Modi Xerox Corporation Ltd., T.C 3/2734, 1st and 2nd Floor, Pattom Palace P.O, Thiruvananthapuram.
(By adv. S. Renganathan)
This O.P having been taken as heard on 19.11.2010, the Forum on 17.01.2011 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant had purchased Modi Xerox photocopier from the opposite parties, that complainant paid Rs. 19,548/- as instructed by opposite parties, that the machine was installed and invoice was handed over to the complainant on 10.07.2000, that complainant was asked to issue 36 EMI cheques each for Rs. 3,201/- as monthly installment, that complainant was promptly paying the monthly installments as per the Equipment Finance Agreement, that as the said equipment vide model No. 5620 needed servicing, maintenance repair, an agreement was executed between the complainant and opposite parties as Full Service Maintenance Agreement (FSMA) on the very same date of the purchase, that Equipment Finance Agreement and FSMA are 2 independent agreements, that opposite parties can seize the equipment as per clause 10 of the Equipment Finance Agreement if the complainant defaults in making the monthly payments, whereas if the monthly payments of installments are regular, opposite parties cannot repossess the equipment, that as per FSMA agreement opposite parties are liable to maintain and repair the machine periodically, that the machine was under repair from 2002 January onwards, that the technicians from the opposite parties even though effected repair the machine was again not functioned properly, that the agent or officials of the opposite parties inspected the machine and opined that the said machine is having serious trouble or technical defects which require thorough maintenance. Accordingly the machine was taken to the authorized work shop on 25.03.2002 for detailed inspection and for maintenance and repairs. Thereafter opposite parties failed to return the equipment. Complainant made enquiries through telephone and in person several times. Opposite parties had not returned the machine in dispute alleging that there was balance of Rs. 25,608/-. It was informed by opposite parties that the machine was taken back from the complainant and opposite parties had adjusted its value towards the balance which is due to the opposite parties. It is submitted by complainant that the machine was used for only 1½ years. The amount which is to be paid as on 25.03.2002 is Rs. 55,000/-, that complainant had paid a sum of Rs. 76,320/- upto 25.03.2002, that the allegation of non-payment of installments is made to cover up the manufacturing defects of the machine. The taking over of the said machine by opposite parties and the collection of excess cheques and retaining the excess cheques as well as the repossession of the machine by the opposite parties is unfair trade practice and deficiency in service. Hence this complaint to direct opposite parties to return the excess 5 cheques of Rs. 3,201/- each illegally collected from the complainant along with the original machine Modi Xerox to the complainant, to realize an amount of Rs. 72,608/- paid by the complainant to the opposite parties and to pay a compensation of Rs. 2,00,000/- to the complainant.
Opposite parties filed version contending interalia that complainant purchased Modi Xerox photocopier from the opposite parties on 26.06.2000 for commercial purpose, that complainant voluntarily placed an order before the opposite parties to purchase the said photocopier, that contrary allegations made in para (2) of the complaint are false, that complainant paid Rs. 19,508/- vide D.D. No. 347507 dated 26.06.2000, that only 35 cheques, each for Rs. 3,201/- were handed over to the opposite parties, that from 01.10.2000 onwards irregular payments were made and the post dated cheques issued by the complainant for repayment of the amount in installments began to bounce on due dates on account of insufficiency of funds in his bank account, that there was no service call pending from the complainant and the machine was in perfect working condition, that the machine never showed any mechanical or manufacturing defects and no such defects were brought by the complainant to the opposite parties, that there is no liability to provide periodical service as per FSMA, that all service calls were attended based on the service requests made by the customer as and when required, that as complainant was not regular in payment of EMIs, opposite parties have got every right to repossess the equipment, that the machine in dispute was repossessed from the complainant with his full consent and he expressed his inability to pay the monthly installments. As on 25.03.2002 an amount of Rs. 25,608/- was outstanding as dues from the complainant to opposite parties, that since the machine was taken repossession by opposite parties in full and final settlement complainant is estopped from contending that the machine was taken possession for the purpose of rectifying the machine, that the cost of the machine is Rs. 1,01,928/- against which an amount of Rs. 15,290/- (15%) was paid by the complainant. The balance amount of Rs. 86,638/- was funded to the complainant for a period of 3 years with interest at 11% per annum as per finance agreement, that the total amount realized is only Rs. 56,903/-(upfront Rs. 15,290/- + Rs. 3,201/- as advance EMI + 12 EMIs realized). The balance amount due is Rs. 73,623/-, that is 8 EMIs due as on the date of return of the machine and balance EMIs from 01.04.2002 to 01.06.2003, that complainant himself had expressed his inability to pay the monthly installments and it was at his request and consent the equipment was taken back. There is no service deficiency on the part of opposite parties. There is no unfair trade practice. Complainant is not entitled to get any reliefs and the complaint is barred by limitation. Hence opposite parties prayed for dismissal of the complaint.
The points that arise for consideration are:-
Whether the complaint is barred by limitation?
Whether the complainant has remitted the monthly installments on due dates?
Whether the Modi Xerox photocopier equipment is having serious troubles or technical defects?
Whether the defects, if any, are curable?
Whether there is deficiency in service on the part of opposite parties?
Whether the complainant is entitled to any reliefs?
In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P7. In rebuttal opposite party has not filed affidavit, but produced 2 documents-(1) Equipment Finance Agreement and (2) letter regarding full and final settlement dated 25.03.2002 which are in the records.
Points (i) to (vi):- Admittedly, complainant purchased Modi Xerox photocopier machine from the opposite party having model No. 5620 bearing serial No. 2903493235. According to complainant in connection with the purchase of the said machine there were 2 agreements- Full Service Maintenance Agreement (FSMA) and Equipment Finance Agreement. Opposite party resisted the complainant by submitting that the contention of the complainant that there was FSMA is wrong. According to opposite party there is no liability to provide periodical services as per FSMA and all service calls were attended based on the service requests. It has been contended by opposite party that the allegation that complainant was promptly paying the monthly installments as per the Equipment Finance Agreement is not correct. Further, complainant was not regular in paying installments. Further there was no service call pending from the complainant and machine was in perfect working condition and the machine never showed any mechanical or manufacturing defects and no complaints were brought to the knowledge of the opposite parties. It is contended by opposite parties that as on 25.03.2002 an amount of Rs. 25,608/- was outstanding as dues (outstanding for 8 EMIs) and complainant had expressed his inability to clear the dues and as agreed by the complainant with opposite parties, the aforesaid photocopier machine was taken from him with his full and valid consent. The letter dated 25.03.2002 duly endorsed by the complainant was submitted by opposite party. The said letter is in the records. It is further contended by opposite parties that the complaint is barred by limitation. Hence the first issue to be required for consideration is whether the complaint is barred by limitation. Complainant has produced the photocopy of the invoice by Ext. P1 wherein the gross invoice amount is Rs. 1,01,928/-. It is specifically stated in Ext. P1 that the equipment stated in the invoice are hypothecated to Xerox Modi Corp Limited and their bankers. Ext. P2 is the copy of the advocate notice dated 27.06.2003 issued by the complainant to opposite parties stating that complainant has already paid 90% of the value of the machine and requested the opposite party to return the photocopier within 10 days stipulated in the notice. Ext. P3 is the copy of reply notice sent by opposite parties to complainant stating that the customer had entered into Equipment Leasing Finance Agreement with opposite party, that complainant had agreed to pay 36 EMIs each of Rs. 3,201/- and issued cheques in favour of opposite parties, that an amount of outstanding due to opposite parties as on 25.03.2002 was Rs. 25,608/-, that apart from that 15 EMIs amounting to Rs. 48,015/- was also pending as arrears as on 25.03.2002. Complainant has paid less than 50% of the total EMIs, that the cheques issued by him towards the EMIs were dishonoured so many times and notices were issued to complainant and suppressing all those facts complainant has issued advocate notice. Ext. P4 is the copy of the proceedings of the Tahsildar. Ext. P5 is the copy of the ration card. Ext. P6 & P7 are the birth certificates. As per clause 10 of the Equipment Finance Agreement (in the record) executed between the complainant and opposite parties there is provision for termination or determination. Clause 10 (a) of the said agreement reads as under: “If the purchaser shall make default as provided in Clause 3 (d) or in payment of any of the sums payable hereunder within 7 days of the due date or shall fail to observe or perform any of the terms and conditions of this agreement whether express or implied, MXFS may without prejudice to pre-existing liability of the purchaser to MXFS, determine this agreement forthwith and take possession of the equipment. MXFS may even otherwise by giving notice either orally or in writing to the purchaser terminate this agreement”. Further as per letter dated 25.03.2002 (furnished by opposite party) it is seen that both the complainant and opposite parties agree and confirm the return of the machine in full and final settlement of the deal and both parties will not raise any claim in future. It is to be pointed out that the machine was taken possession by the opposite parties on 25.03.2002 in full and final settlement of the deal. In the letter dated 25.03.2002 it is seen mentioned that both parties will not raise any claim in future. It is seen stated in the letter that complainant has expressed his inability to clear the dues and as mutually agreed by both parties, opposite parties taken back the above said photocopier from the complainant's premises. In the above said letter dated 25.03.2002 the agreement of both parties is evident by the signature of both parties. Further complainant never furnished any material to show that he had remitted the EMI on due dates. On perusal of the agreement and the letter dated 25.03.2002, it is seen that repossession of the machine is as per clause 10 of the Equipment Finance Agreement. It is to be noted that complainant ought to have filed the complaint on or before 25.03.2004, since the said machine was repossessed/taken back by the opposite parties on 25.03.2002. Complaint is seen filed on 17.08.2004. Thereby there is delay in filing the complaint. To condone the said delay, no delay condonation petition filed along with complaint. Opposite party has raised the issue that the complaint is barred by limitation. In view of the above, we find the complaint is barred by limitation. Further in view of the letter dated 25.03.2002, we find the machine was repossessed by opposite parties with full and valid consent of the complainant. Deficiency in service not proved. In view of the above we need not discuss the other issues under consideration. Complaint has no merits at all which deserves to be dismissed.
In the result, the complaint is dismissed. Parties shall bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 17th day of January 2011.
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G. SIVAPRASAD : PRESIDENT
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BEENAKUMARI. A : MEMBER
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S.K. SREELA : MEMBER
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O.P. No. 329/2004
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Rajan
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of the invoice dated 10.07.2000
P2 - Copy of the advocate notice dated 27.06.2003
P3 - Copy of reply notice sent by opposite parties to complainant.
P4 - Copy of the proceedings of the Tahsildar
P5 - Copy of Ration Card.
P6 - Copy of Birth Certificate
P7 - Copy of Birth Certificate
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Copy of Equipment Finance Agreement
D2 - Copy of letter regarding full and final settlement dated 25.03.2002.
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PRESIDENT
