Shaik Khaleel Ahamed, S/o Gulam Mahaboob,
aged 43 years, D.No. 5/151, Nabikota, Akkayapalli,
Kadapa, Kadapa District. ….. Complainant.
1) Shriram City Union Finance Ltd., Rep. by its
Branch Manager, C/o Shriram Chit Funds Ltd.,
Near Apsara Theatre, Chinnachowk, Kadapa,
2) Asst. General Manager, Shiram City Union Finance Ltd.,
zonal Office, Near Rayalcheruvu Road, Tirupati.
3) Chief Executive, Shriram City union Finance Ltd.,
C/o Shriram Chit Funds Ltd., 3/6478, 3rd floor,
Anand Estates, Liberty Road, Opp. Indian Bank,
Himayatnagar, Hyderabad. ….. Respondents.
O R D E R
2. The brief facts of the complaint is as follows:- The complainant purchased one Yamaha Crux two wheeler worth about Rs. 30,500/- on 8-8-2006 with finance availed from R1. The complainant had paid Rs. 10,500/- towards down payment and R1 provided finance for the balance amount. The agent of R1 got opened S.B Account in the name of the complainant at Head Post Office, Kadapa and took cheque book and obtained signatures of the complainant on cheques and informed that R1 would encash cheque for Rs. 1,440/- each. The agent of R1 directed the complainant that he had to pay the amount for 20 cheques of Rs. 1,440/- each. But he received 24 cheques instead of 20 cheques without informing the complainant. The complainant did not observe the same.
The complainant was remitting the cash in postal account from the date of finance to satisfy the cheques sent by R1 towards instalments. Due to ill health, the complainant could not maintain the balance in his postal account for a few months. Suddenly around 8.30 p.m on 29-10-2008 about 5 to 7 members under the pretext of recovery squad from R2 came to the complainant and high handedly took away the two wheeler bearing registration No. Ap 04 L : 3131. On account of it the complainant lost his prestige in the locality, on the next day the complainant approached the R1 and informed about seizure of the vehicle by R2. The R1 informed that the complainant had to pay Rs. 24,600/- towards finance amount. The complainant went to the Post Office and checked the payment made by him through cheques. On verification the respondents received 16 cheques of Rs. 1,440/- each totaling Rs. 23,040/- till September 2008. It was informed to R1 and the complainant represented that he had to pay the amount for four cheques. R1 demanded for payment of Rs. 24,600/-. The complainant cleared 16 cheques and he had to pay Rs. 11,520/- i.e. Rs. 1,440 X 8 as the remaining amount. The complainant was ready to pay the amount towards final settlement.
The R1 did not agree but demanded more amount. Atlast the complainant approached R2 & R3 and ultimately he got issued notice dt. 13-2-2009 calling upon respondents to receive the balance amount of Rs. 11,520/- and deliver the vehicle and also pay Rs. 30,000/- towards damages. The respondents did not give any reply. Therefore, the complaint was filed directing the respondents to receive Rs. 11,520/- and delivery the vehicle to the complainant and pay Rs. 30,000/- towards compensation for mental agony and Rs. 2,000/- towards costs.
3. The R1 filed a counter adopted by R2 & R3 with a memo. The total invoice value of the Yamaha Crux two wheeler was Rs. 37,300/- but not Rs. 30,500/- as mentioned by the complainant. It was not correct that the complainant paid Rs. 10,500/- towards down payment as per the instruction of the agent of R1. The complainant paid Rs. 10,164/- and Rs. 839/- was deducted towards up front financial charges (processing fee) and remaining was towards initial payment. The complainant did not pay Rs. 10,500/- towards down payment. The respondents had no knowledge that the agent of the R1 got opened S.B. Account in the name of the complainant in Head Post Office, Kadapa and took cheuqe book in the name of the complainant.
It was not correct that the agent of R1 obtained 24 cheques for Rs. 1,440/- each instead of 20 cheques without informing the complainant. It was not correct that the complainant did not observe the number of cheques in cheque book. The complainant had to prove that he was remitting cash in Head Post office to satisfy the cheques sent by the R1. It was not correct that 5 to 7 persons of the R1 came to the complainant on 29-10-2008 around 8.30 p.m stating that they were recovery squad from R2 and took away the two wheeler high handedly. The vehicle was seized on 30-10-2008 but not on 29-10-2008. It was not correct that the staff of R2 expressed that the complainant had to pay due of Rs. 24,600/-. The complainant signed on the proceedings at the time of seizure of the vehicle on 30-10-2008. The complainant availed a loan of Rs. 27,975/- and executed hypothecation loan agreement. The complainant availed Rs. 27,975/- on 8-8-2006 repayable with interest @ 11.75% which was equivalent to Rs. 6,571/- and the total amount was Rs. 34,560/-.
It was payable in 24 monthly instalments @ Rs. 1,440/- p.m. The first instalment was commenced on 7-9-2006 and the last instalment was on 7-8-2008. About 10 cheques out of 24 cheques were honoured for Rs. 23,040/-. The remaining 8 cheques were dishonoured for Rs. 11,520/-. Thus the balance due amount was Rs. 11,520/- towards 8 installments. The complainant was liable to pay Rs. 200/- towards cheque return charges. The complainant agreed to pay 2.5% p.m on the outstanding instalments. 8 Cheques were presented by the complainant were dishonoured and hence, the complainant was liable to pay 2.5% p.m on the outstanding insalments. The complainant was a chronic defaulter. The vehicle was seized on 30-10-2008 and so he was liable to pay Rs. 5/- per day for parking charges up to 23-5-2009 i.e. Rs. 1025/-. The complainant had to bind on the conditions laid in the hypothecation agreement.
There was no deficiency of service on the part of the respondents. Thus the complaint may be dismissed with costs. Hypothecation was not a statutory creation. Under hypothecation, charge had been created. In view of hypothecation the goods hypothecated should be taken into possession. Thus the complainant had to approach Civil Court of law for his rights under mercantile agreement. The District Forum, Kadapa had no correct jurisdiction.
4. On the basis of the above pleadings the following points are settled for determination.
i. Whether there is any negligence and deficiency of service on the part of the respondents?
ii. Whether the complainant is entitled to the relief as prayed for?
iii. To what relief?
5. On behalf of the complainant Ex. A1 to A8 were examined and on behalf of the respondents Ex. B1 to B6 were marked. No written arguments have been filed by either party.
6. Point No. 1 & 2 The complainant purchased one Yamaha Crux two wheeler on 8-8-2006 for Rs. 37,300/- financed by R1 and paid Rs. 10,500/- towards down payment and agreed to pay Rs. 1,440/- each by way of cheques and gave 24 cheques to the agent of R1 and requested him to withdraw Rs. 1,440/- each by way of cheque and pay to the R1. The account was opened in head Post office, Kadapa. By September 2008, the complainant paid Rs. 23,040/- by way of 16 cheques of Rs. 1,440/- each. It was informed to R1.
The complainant represented that he had to pay only the amount under four cheques i.e. total 20 cheques of Rs. 1,440/- each instead of 24 cheques. But R1 demanded Rs. 24,600/- towards finance due. In complaint para – 4 and para – 5 and in prayer Column under para – 9 the complainant admitted that he had to pay balance amount of Rs. 11,520/- towards final settlement under 8 cheques of Rs. 1,440/- each. So the total recovery was under 24 cheques as alleged by the respondent but not 20 cheques as stated by the complainant. While so on 29-10-2008 some people named as recovery squad from R2 came to the complainant and high handedly took away the two wheeler bearing registration No. AP 04 L : 3231. The respondents contended that it was not taken into possession high handedly but it was with the consent of the complainant by way of consent letter under Ex. B5, dt. 21-10-2008.
The vehicle was seized on 30-10-2008 by way of letter obtained from the complainant under Ex. B6. Ex. B5 and B6 were Xerox copies of consent letter and seizure letter. At the time of purchase the R1 took a pro-note for Rs. 27,975/- with interest @ 11.75%. The Xerox copy of pro-note dt. 8-8-2006 was Ex. B3. Ex. B2 was Xerox copy of loan cum hypothecation agreement executed by the complainant in which also the cost of the vehicle was shown as Rs. 27,975/- and monthly installments were 24 payable by way of cheques for Rs. 1,440/- each commenced with first insalment on 7-9-2006 and last instalment was on 7-8-2008. The Xerox copy of loan cum hypothecation agreement was Ex. B2, which was also singed by the complainant.
7. The respondents filed Ex. B1 a Xerox copy of ledger account extract. The complainant filed Ex. A1 delivery certificate of the two wheeler. Ex. A2 is the copy of account extract issued by head Post office, Kadapa for S.B. Account of the complainant. Ex. A6 was Xerox copy of postal saving pass book. Ex. A3 was office copy of registered notice. Ex. A4 was postal receipt and Ex. A5 was postal acknowledgement.
8. The respondents claimed Rs. 20,465-40Ps as on 23-5-2009 as due amount from the complainant under heads payable cheques of 8 X 1,440/- = Rs. 11,520/-, Cheque return charges Rs. 200/- each = Rs. 1600/-, additional finance charges @ 2.5% p.m = Rs. 6,320-40Ps, parking charges @ Rs. 5/- per day from 30-10-2008 to 23-5-2009 of Rs. 1,025/-. In view of Ex. B5 & B6 the respondents took possession of the vehicle by way of seizure with consent of the complainant. More over the complainant was in due of the loan availed from R1 i.e. Rs. 11,520/-. The same was admitted by the respondents in their counter.
In complaint the complainant filed the complaint directing the respondents to receive Rs. 11,520/- from him and deliver the vehicle. The complainant would have deposited the said amount at the time of filing of the complaint to prove his bonafides in the forum. But he did not do so. He would have at least sent the said amount by way of D.D. to the respondents before filing of the complaint and it was also not done. The respondents did not file any letter from the Head Post Office, Kadapa that 8 cheques were dishonoured with sufficient reasons. Therefore, the respondents are not entitled for Rs. 200/- per cheque as cheque return charges totaling Rs. 1,600/-. When the vehicle was seized in view of hypothecation the financier would become the owner of the vehicle and hence, there was no scope to pay any parking charges by loan borrower to the financier who would became the owner until all the instalments were repaid.
The claiming of parking charges would not arise. The owner of the vehicle would keep the vehicle in his parking place of the house and hence to whom the owner would pay the parking charges. It is the question?. Therefore, payment of parking charges would not arise. Since the respondents failed to prove that the cheques were dishonoured, there was no scope to them to claim 2.5% as additional finance charges per month. The respondents had no scope to claim all these charges by way of counter without paying any court fee in a separate complaint. As the complainant admitted to pay Rs. 11,520/- it was his duty to deposit the amount as discussed earlier. The respondents had not issued any notice to the complainant to pay Rs. 11,520/- and take back the vehicle. The financier would generally reject to receive the amount in lupsum from the borrower, with a view to get some unlawful gain. When the complainant approached the respondents to receive the amount they rejected. Thus there is deficiency of service on the part of the respondents. Hence, the points are answered accordingly.
9. Point No. 3 In the result, the complaint is allowed, directing the complainant to pay Rs. 11,520/- (Rupees Eleven Thousand five hundred and twenty only) by way of D.D within 30 days from the date of receipt of this order to the respondents who are directed to deliver the vehicle to the complainant after taking acknowledgement, immediately on receipt of the D.D from him. The complainant is not entitled to any compensation and costs.