ORDER 1.(a) This Complaint is filed on 08/12/2008 under section 12 of the Consumer Protection Act, 1986. The Complaint in brief, is as hereunder;
(b) The Complainant availed a vehicle loan from the Opposite Party-Financier in a sum of Rs.1,70,000/- in the year 2001, in order to buy one Tractor and one Trailer. While sanctioning the loan, the Opposite Party-Financier has taken five blank cheques from the Complainant with his signature. That loan was cleared by the Complainant on 14/12/2004 itself. There was no balance. Wherefore, the Opposite Party-Financier had the obligation to return those five blank signed cheques along with No Due Certificate. Such a Certificate is necessary to get the entries relating to hypothication made in the Registration Certificate touching that vehicle removed to enable the Complainant to sell the said vehicle or avail a fresh loan. Inspite of repeated requests, the Opposite Party-Financier failed to issue No Due Certificate and also failed to return those five blank signed cheques.
Ultimately, a Notice has been caused on 11/11/2008. The 1st Opposite Party sent a reply that Notice on 22/11/2008 raising untenable contentions and demanding a sum of Rs.35,195=15 paisa towards additional financial charges as on 19/11/2008. When the Complainant had cleared that entire loan as long back 14/12/2004, the question of raising a demand for Rs.35,195=15 paisa by way of additional financial charges cannot arise. That very demand amounts to Unfair Trade Practice.
The non-return of those five blank cheques and the non-issuance of the No Due Certificate would amount to deficiency of service, on the part of the Opposite Party–Financier. On account of the above Omissions of the Opposite Party-Financier, the Complainant had been put to agony, sufferance and financial loss. Hence, this Complaint is filed seeking a direction to the Opposite Party-Financier to issue No Due Certificate and to return those five blank signed cheques and also to pay a sum of Rs.1,00,000/- by way of compensation along with the cost of the litigation.
(c) Along with the Complaint, the Complainant has made available three documents and they are: 1) the loan clearance Extract,
2) Legal Notice dt.11/11/2008 and
3) Reply Notice dt.22/11/2008.
(d) The Complainant has filed an application on 22/12/2008 to condone the delay if any in filing this Complaint.
2.(a) The Opposite Parties have entered appearance through Counsel and produced their Version of the case on 12/02/2009. In short, it is as hereunder. This Complaint is neither maintainable at law, nor on facts of the case. The Complainant failed to discharge this obligation towards repayment of the loan, as per the Terms and Conditions stipulated in the Loan Agreement entered in between the Complainant and the Opposite Party-Financier bearing No.S0012792, dt.30/09/2001. The Complainant has not approached this Forum with clean hands. The Complainant cannot be a Consumer within the purview of the Consumer Protection Act, 1986. This very Complaint is a misconceived one. In the Loan Agreement, there is an Arbitration Clause and if there is any dispute, it is obligatory for the Complainant to seek Arbitration. This Complaint is also hit by the Law of limitation.
(b) It is true, the Complainant had approached the Opposite Party-Financier seeking Financial Assistance. Accordingly, a sum of Rs.1,70,000/- was provided to the Complainant to buy “Mahindra Tractor 275” under a Loan Cum Hire Purchase Scheme of the Opposite Party-Financier. The Complainant thereafter failed to stick to the financial discipline regarding repayment of monthly instalments (Hire charges) touching the loan and became a defaulter several times. Hence, as per the terms of the said Loan Agreement, the Opposite Party-Financier had to levy charges for delayed payments on the Complainant. As per the same, as on 04/02/2009, a sum of Rs.35,195=15 paisa was due from the Complainant to the Opposite Party-Financier. When that is the position, the question of issuance of No Objection Certificate and return of those cheque leafs does not arise.
There is no good reason to condone the delay in filing this Complaint. Moreover, as per the Loan Agreement, the jurisdiction to decide any dispute vests in Mumbai Courts. Wherefore for all these reasons, this Complaint has to be dismissed with compensatory cost of the Opposite Party-Financier.
3. In the light of the contention of the parties, they were called upon to produce evidence in support of their respective case by way of affidavits and documents. Accordingly, the Complainant has produced his affidavit on 03/03/2009. A list with two documents are made available by the Opposite Party-Financier on 03/03/2009 along with an affidavit of one Narendra Kumar S/o Sivasubramanyam said to be the Manager-Cum-Law Officer in the Opposite Party-Financier. At the end, this Forum heard on merits.
4. In the circumstances, the following points do arise for our consideration and decision in this Proceeding and they are;
(i) Whether this Forum has the jurisdiction to maintain this Complaint?
(ii) Whether this Complaint is hit by the Law of limitation ?
(iii) Whether the Opposite Party-Financier have remained deficient in rendering services to the Complainant in respect of the transaction referred to in the Complaint?
(iv) Whether the Complainant is entitled for any relief against the Opposite Party-Financier ? (v) What Order? 5. Our Findings to these points are as hereunder:
v) As per the operative portion of the Order here- below.
6. We shall strengthen our findings on the following:
R E A S O N S
POINT NO.1 (a):- Placing reliance upon the Loan cum Hypothecation Agreement, the Opposite Party-Financier has chosen to question the very jurisdiction of this Forum to maintain this Complaint. A xerox copy of that Agreement of Hire Purchase dt.30/09/2001 is made available by the Opposite Parties in this case, in evidence. Clause No.22 of the said Agreement provides for Arbitration, if any dispute difference or question arises between the parties to that Agreement. The question is, just because there is a Clause of Arbitration in that Agreement can it be said that the jurisdiction of this Forum under the Consumer Protection Act, 1986 to maintain the Complaint of this nature is ousted ?.
Certainly not. It is not the case of the Opposite Party-Financier that already there is an Arbitration proceeding pending disposal touching the matter in question. Moreover any relief under the Consumer Protection Act, 1986 is not only an independent relief, but also an additional relief. In addition to the relief or reliefs provided elsewhere under any Statute. Section-3 of the Consumer Protection Act, 1986 is clear on this point.
Moreover, this proposition of Law has been upheld by the Hon’ble Supreme Court of India also (Ref.to (2000) (5) SC Cases 294 in the matter between Sky-Pack Couriers Ltd. V/s TATA Chemicals Limited).
(b) The Opposite Party-Financier has also questioned the competence of this Forum placing reliance upon Clause-23 of the above Agreement. We have gone through that Clause-23. However, the same can be distinguished. As per Clause-23, the parties to the said Agreement as Owner and hirer of the vehicle in question, have agreed that Courts in Mumbai alone shall have exclusive jurisdiction in respect of any matter, Claim or dispute arising out of that Agreement.
However, it has to be seen that this Forum is not a Court. On the other hand, this Forum is a quasi Judicial Authority or Tribunal. (c) Wherefore in the light of the above observations, we are of the clear opinion that as far as the contention of the Opposite Party-Financier that this Forum has no jurisdiction to maintain this Complaint has no substance. Accordingly, this point is answered.
7. POINT NO.2(a):- Now coming to the aspect of limitation, Section-24(A) of the Consumer Protection Act, 1986 states that the Complaint shall not be maintained by any Authority under the said Act if the Complaint is not filed within the period of 2 years from the date when the cause of action arose for the Complaint and in case the Complaint is not within the period of 2 years, then the Complainant has to show sufficient reason/reasons to the satisfaction of that Authority regarding the delay and if the Authority is satisfied, the Complaint can be maintained. Nodoubt in this case, at a subsequent point of time, an application by the Complainant is made with a request to condone the delay in filing the Complaint if at all there is any delay. However, that question arises only if it is held that there is delay. If not, that question does not arise.
(b) It is the contention of the Complainant that the vehicle loan referred to in the Complaint is settled on 14/12/2004 itself and that in the light of the settlement, the Opposite Party-Financier is liable to return the five blank signed cheques to him along with a No Due Certificate and the Opposite Parties have failed in that regard. It is not the case of the Opposite Parties that the loan is fully settled as contended by the Complainant. On the other hand, according to the Opposite Parties, the Complainant is still due a certain amount touching that very Loan Account.
Therefore according to them, the question of return of those five blank cheques and also issuance of a No Due Certificate does not arise. Moreover, there is no material on record to come to the conclusion that the Opposite Party-Financier have refused to return those cheques and also refused to issue No Due Certificate. On the other hand, their contention is that the above request would be considered only if the loan is settled fully. From the evidence on record, it is revealed that there is nothing in writing regarding the request of the Complainant for the return of those five blank cheques and for the issuance of that No Due Certificate, till a Notice dt.11/11/2008 a copy of which is made available in evidence, is issued by the Counsel of the Complainant. Further, as revealed in evidence, the Opposite Parties have chosen to cause a reply to that notice and that the said reply is dt.22/11/2008. In that reply also, the Opposite Parties have referred to the balance amount, which according to them is due from the Complainant and that they are ready and willing to issue the No Due Certificate and return the five blank cheques provided, that balance amount is paid. However according to the Complaint, there could not have been any such balance. Regarding this aspect, we shall discuss in detail while discussing point No.3.
Suffice it to say, in the above situation, the question of limitation has lost its importance and it has to be held that this Complaint is not hit by the Law of limitation. Accordingly, this point is answered.
8. POINT NO 3(a):-The Complainant has made available a copy of the Account Extract as maintained by the Opposite Parties for the period from 17/11/2003 up to 14/12/2004. It is an Extract not in full, but in part. Admittedly, the loan is availed in the year 2001 itself and it was required to be closed by the end of 2004, as per the Terms and Conditions. However, the Opposite Parties have made available an Extract of the Statement of Account for the period starting from the very inception, till 29/02/2004. As revealed in the Agreement referred to above, the down payment was Rs.1,15,000/-and a sum of Rs.5,600/- has been claimed as documentation and other charges. As per that Agreement, the Opposite Party is the Owner of the vehicle and the Complainant is the Hirer.
As per the said Agreement, the hirer shall pay the monthly hire charge of Rs.7,400=00/- to the Owner for a period of 30 months. The schedule of that Agreement reveals that the Hire Agreement Value is Rs.2,22,000=00/- and that the 1st payment was due on 30/09/2001 and the last payment was due on 28/02/2004. Even according to the Complainant, the sanctioned loan amount was Rs.1,70,000=00/- and according to the Complainant, he has paid the entire amount due touching that loan. When we peruse the copy of the Statement of Account made available by the Complainant, we find an entry at the end of that statement to the effect that the closing balance as on 31/03/2006 was zero. As against the debit column, Rs.2,22,000=00/- is shown. Under the Credit head the same amount of Rs.2,22,000=00/- is shown and the balance due is shown as Zero. In a juxta-position, we have to see the copy of the Statement of Account made available by the Opposite Parties. In that Statement, the total amount due has been shown at Rs.2,22,000=00/- and the total amount received is also shown at Rs.2,22,000=00/-. However just below that entry, we find a recital that AFC Net Balance was at Rs.35,195=15 as on 04/02/2009. How exactly that figure was arrived at, has not been explained by the Opposite Parties.
They simply contend on the other hand that the Complainant was required to pay the instalments (monthly hire) and that as per the said Agreement, he was liable to pay the delay payment charges in case of delay. Nodoubt, in the said Agreement, we find a recital to the effect that the Owner has the right to demand and charge an amount equal to 3% per month on each instalment of hire charge or part thereof that remains un-paid as late payment charge calculating the same from the date when the instalment or hire charge became payable, till payment is made. It is true, the Statement of Account made available by the Opposite Parties discloses that the Complainant was not regular in paying the instalments or hire charges. However, the Statement does not disclose the calculation of that late payment charges as and when it was so charged, if at all to be charged. On the other hand, that figure of Rs.35,195=15 has cropped up all of a sudden on 04/02/2009. As already stated, this Complaint is filed on 08/12/2008 itself. What we mean to say is, there is no clarity in that Claim. (b) That apart, if really the Complainant as Borrower and Hirer under the said Agreement was due any amount, then how it was shown by the Opposite Party-Financier in their Statement so provided to the Complainant that as against the date 31/03/2006, the balance was shown as Zero ?.
Admittedly, there was no payment at all by the Complainant after 13/12/2004 in respect of that transaction. Ofcourse, it is the very contention of the Complainant that the amount due and payable touching that loan was fully paid by 13/12/2004 itself and for that reason, the Opposite Parties had chosen to so recite that closing balance as on 31/03/2006 was zero. If at all it was a wrong entry, the Opposite Parties ought to have explained the same. But they have no explanation to offer in that regard. That apart, even if the Complainant was due any amount touching that loan, whey the Opposite Parties did not take any step by calling upon the Complainant to make that payment or by initiating any Legal action against the Complainant ?. Why the Opposite Parties have remained silent for all these years right from 2004 to 2008 ?. The genuineness of the Statement of Account made available by the Complainant is not questioned by the Opposite Parties. Secondly, there is no clarity regarding the alleged amount due in the Statement of Account made available by the Opposite Parties. According to us, the Opposite Parties had an obligation to explain the above situation to the satisfaction of this Forum and they have failed to do so. It is significant to note that in the very Statement of Account made available by the Opposite Parties, it is recited that the financed amount was Rs.1,70,000/- and the finance charges was Rs.52,000/- and the total Agreement value was Rs.2,22,000=00/-.
It is further recited that the 1st instalment date was 30/09/2001 and the last instalment date was 29/02/2004. Therefore, the fact remains that the agreed amount to be repaid was Rs.2,22,000=00/- and the Complainant has repaid the same.
Ofcourse as stated supra, there were some defaults in payment of instalments, as per the said Agreement, Nodoubt, the Opposite Parties as Owner there-under can demand the late payment charges incase of default. However, from the tenor of the said Agreement, it is probable to inform that it is not mandatory to so demand. More so, there is no material on record by way of evidence that the Opposite Party-Financier as Owner had so demanded the late payment charges from the Complainant at any time prior to the date of that Statement of Account made available which is dt.04/02/2009. If really the Opposite Party was serious in recovering the same, certainly there would not have been such a Statement of Account as provided to the Complainant showing that the balance was nil as on 31/03/2006. Further, even after causing reply Notice dt.22/11/2008, the Opposite Party-Financier have not initiated any action against the Complainant for the recovery of the alleged amount. Wherefore in the circumstances, there is a reason to infer that the Opposite Parties have adopted hide and seek. On the other hand, it is the case of the Complainant that no sooner that loan amount is cleared, he requested the Opposite Parties to return those five blank cheques along with a No Due Certificate and since they dodged, he was constrained to cause a Legal Notice as stated supra and ultimately file this Complaint.
Ofcourse, the Complainant could have filed this Complaint much earlier. Even then, in the light of the circumstances stated supra, there is reason to hold that with an oblique motive the Opposite Parties failed to return those five blank cheques and to provide a No Due Certificate touching that loan in favour of the Complainant. It is needless to say that such a No Due Certificate is very much an essential to delete with the hypothication entry in the concerned Registration Certificate and also for the transfer of Registration Certificate touching the vehicle if necessary.
(c) Wherefore in the circumstances, we are of the considered opinion that the non-issuance of No Due Certificate and also non-return of the concerned five blank cheques to the Complainant by the Opposite Parties amounts to deficiency of service within the purview of the Consumer Protection Act, 1986. Accordingly, this point is answered.
9. POINT NO 4:- Nodoubt, the Complainant has also sought for compensation apart from the relief touching those five blank cheques and No Due Certificate. However as already stated, the conduct of the Complainant for having remained silent during all these years, has dissuaded us to award any compensation to the Complainant. Nodoubt, he is entitled for the custody of those five blank cheques and also for the No Due Certificate in the given situation. However, he is not entitled for any other relief as a result of his own Commissions and Omissions. Accordingly, this point is answered against the Complainant. 10. POINT NO.5:- In the result, we proceed to pass the following:
O R D E R
The Opposite Parties are directed to return the five blank cheques referred to in the Complaint to the Complainant and also directed to issue a No Due Certificate in respect of the loan in question to the Complainant. The Opposite Parties are granted 30 days from this date to comply this Order and report compliance.
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