CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



FIRST APPEAL NO.1535 OF 2008 Date of filing : 04/12/2008

@ MISC. APPL. NO.2168 OF 2008 Date of order : 02/07/2009

IN CONSUMER COMPLAINT NO.51 OF 2004

DISTRICT CONSUMER FORUM : MUMBAI SUBURBAN



M/s Shree Satguru Co-Op. Credit Society Ltd.

through Mrs.Ujwala B.Pawar,

14, Mili Co-op. Hsg. Society,

T.M.Kataria Marg, Mahim,

Mumbai 400 016. … Appellant/Org.O.P.No.1



V/s.



1) Zamir Ahmed Khan,

Room No.3, Zakinabai Chawl,

Masjid Galli, Kajupada, Pipe Line,

Kurla (W), Mumbai 400 070. … Respondent/Org. Complainant



2) The State of Maharashtra

(Consumer Dispute Redressal Forum,

Bandra Suburban Dist.) … Respondent.


Corum : Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
Mrs. S.P. Lale, Hon’ble Member

Present: Advocate for the appellant.

Advocate for the respondent.

- : ORDER :-
Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member

1) This appeal arises out of order/award dated 30/09/2008 passed in Consumer complaint No.51/2004 Zamir Ahmed Khan V/s.M./s.Shree Satguru Co-Op. Credit Society Ltd. & Another by Mumbai Suburban District Consumer Forum (‘Forum below’ in short). Respondent No.1/org. Complainant (hereinafter referred as ‘Complainant’).

2) Complainant-Zamir Ahmed Khan had taken a loan from Appellant/ Org. O.P. No.1 (hereinafter referred as ‘Society’) to purchase a motorcycle. He made down payment of Rs.11,890/- and the remaining amount was agreed to be repaid with equated monthly installment of Rs.1,900/- p.m. for nineteen months. The Complainant had issued 19 post dated cheques towards the same. 18 cheques have accordingly honoured and thus, Complainant paid 18 EMIs, as 19th installment remained to be paid, as revealed from the record, since the cheque was bounced. The same was demanded along with other charges by the Society giving him 3 demand letters and a final notice dated 26/02/2003. This final notice was replied by the Complainant firstly asking to represent the cheque and thereafter on 20/09/2003 showed willingness to repay legal dues in cash and handover the RC book and clearance certificate. The dispute remained unsolved over the quantum of the dues. The Society had taken possession of the vehicle on 11/11/2003. Thereafter, this consumer complaint is filed claiming possession of the vehicle, compensation of Rs.87,745/- towards recurring damages at the rate of Rs.300/- per day. Forum below partly awarded the claim with the direction of return of the vehicle or its current price and further directed to pay compensation of Rs.50,000/- along with costs of Rs.1,000/-. Feeling aggrieved thereby, Society has filed this appeal.

3) It may be pointed out that dealer of the vehicle from whom the vehicle purchased i.e. M/s.Navyug Automobiles was joined by the complainant as O.P.No.2. The impugned award was passed against both, the Society and the dealer.

4) We heard Shri.D.J.Shanbag, Advocate for appellant and Shri.M.Inamulla, Advocate for the respondent. Perused the record.

5) It may be pointed out that in the appeal Org.O.P.No.2-M/s.Navyug Automobiles is not made a party but, instead of that the State of Maharashtra through Forum below is made as party which is not a proper party or necessary party. We hereby give direction to strike off the name of respondent No.2 the State of Maharashtra accordingly.

6) The Complainant actually concealed the fact of bouncing of cheque of (EMI) for Rs.1,900/- referring to the averments made in the complaint. This fact surfaces as an admitted fact from correspondence placed on record. Complainant once asked the Society to represent the cheque and then as earlier recorded, showed willingness to pay amount in cash. However, no such amount is tendered or paid.

7) Forum below mentioned that non-furnishing the documents of loan is a service deficiency on the part of the Society. However, copy of agreement of hire purchase was already on record. Besides that the promissory note executed by the Complainant as a part of loan documents is also on record. The Society had taken the possession of the vehicle for the dues as per the agreed terms of hire purchase agreement, particularly, clause 11 of the said agreement. Considering the admitted position of the arrears, even if the dispute raised about levy of cheque rejected charges, penal interest and notice fee, still the agreement gives right to the Society to take back the possession of the vehicle. The possession was taken only after giving three demand notices and the notice styled as ‘final notice’. Under circumstances there cannot be any deficiency on part of the Society. Complainant is not entitled to any relief much less relief of return of possession of the vehicle or compensation in lieu thereof.

8) It is tried to be argued that it is dispute between Society and its member and therefore, consumer complaint would not lie. This argument is devoid of any substance. Admittedly, the Society had made available loan to the complainant to purchase the vehicle and even seized the vehicle under loan agreement for default. Remedy before the Consumer Forum is an additional remedy and therefore, this complaint is tenable.

9) As far as relief granted against the dealer O.P.No.2 is concerned, we prima-facie feel it an erroneous order. However, the dealer being not a party before us, we refrain ourselves from making any comment on that count.

For the reasons stated above, we pass the following order :

O R D E R

1) Appeal is allowed with cost of Rs.1,000/-.

2) Impugned order/award dated 30/09/2008 is set aside as against the

appellant/the Society.

3) Appeal stands disposed of accordingly.

4) Copies of the order be furnished to the parties.





(S. P. Lale) (S. R. Khanzode)

Member Presiding Judicial Member