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:
i) Yes,
ii) No,
iii) Yes,
iv) Yes,
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.

Meghanad Mahanand, son of Nitya Mahanand, aged about years, At / Po. Nilji, Ps/Tahasil- Bhatli, Dist. Bargarh. ... ... ... Complainant.

- V e r s u s -

1) Mahindra Finance, Mahindra & Mahindra Financial Services Limited, 2nd Floor, Sadhana House, 570 P.B. Marg, Worli- Mumbai-400018.


2) Mahindra Finance, Mahindra & Mahindra Financial Services Limited, Gandhi Chowk, Word No.9 (Nine), Infront of R.T.O. Office, Bargarh, Po/Ps/Dist. Bargarh.

Dt. 25/05/2009 -: J U D G E M E N T :-

Presented by Sri B.K. Pati, Member:-
The present complaint pertains to deficiency of service as provided under the Consumer Protection Act-1986, Its brief history is as follows:-


The Complainant, an educated unemployed, in order to earn his livelihood by self employment purchased a Mahindra 265 DI Tractor with Trailor bearing No. OR-17-E-7085 and OR-17-E-7086 respectively, through a hire purchase agreement with the Opposite Parties by making a down payment of Rs. 92,000/- (Rupees ninety two thousand)only and Rs. 3,80,000/-(Rupees three lakh eighty thousand)only being financed by the Opposite Parties, to be repaid by him in 48(forty eight) equal monthly installments of Rs. 13,090/-(Rupees thirteen thousand ninety)only, starting from Dt. 17/10/2007 up to Dt. 16/09/2011.


The Complainant who was regularly paying installments failed to clear up some installments owing to various factors beyond his control. On Dt. 17/05/2008 some persons engaged by the Opposite Parties, forcibly took away the Tractor and the Trailor from his threshing floor when the Complainant was absent with out any prior notice. The officers of Opposite Party No.2(two) even after being paid Rs. 10,000/-(Rupees ten thousand)only, for which they did not issued any receipt, did not release the vehicle and hence this case. The Opposite Parties had the option to present the post dated cheques issued by the Complainant to realise the installment amounts but they did not follow any legal procedure and took away the Tractor and Trailor by use of force which amounts to deficiency of service contends the Complainant. The Complainant prays for release and return to him the Tractor and Trailor bearing No. OR-17-E-7085 and OR-17-E-7086 respectively by the Opposite Parties and pay him Rs. 80,000/-(Rupees eighty thousand)only towards compensation and litigation expenses.



The Opposite Parties in their version question the maintainability of the complaint on the ground that the Complainant is not a consumer in relation the Opposite Parties with whom he has entered into an agreement on Dt. 17/10/2008 to avail of loan. The Opposite Parties also denied all the allegations made against them by the Complainant and contend that they repossessed the vehicle after following due procedure as the Complainant neglected to repay the loan installments. The Complainant being a debtor and the Opposite Parties being creditor as per the loan agreement there relationship is beyond the scope of adjudication under the Consumer Protection Act-1986. Besides the disputes should have been referred to an Arbitrator as per the terms of the agreement. The Opposite Parties denied any deficiency of service by them towards the Complainant and pray for dismissal of the complaint with cost.



Perused the complaint, the version of the Opposite Parties along with the copies of documents filed and find as follows:-

Admittedly, the Opposite Parties are financing agencies and the Complainant is a loanee of the Opposite Parties. The relationship between the Opposite Parties and Complainant being service provider and consumer, the subject matter of the Complainant is well within the scope of the Consumer Protection Act-1986 to be adjudicated upon by the Forum. The consumer has the option to knock the door of the Consumer Law Agencies even if there is provision of Arbitration under the transaction in question.


The Opposite Parties have not brought to the notice of the Forum as to what legal procedure they followed while repossessing the Tractor and Trailor from the Complainant. The Opposite Parties also could have utilized the posted cheques received from the Complainant or could have initiated a proceeding under 138 of the N.I. Act. if the cheque bounced.



The Complainant claims that he has paid Rs.10,000/-(Rupees ten thousand)only to Opposite Party No.2(two) on Dt. 17/05/2008 and requested him not to forcibly take away the Tractor and Trailor. The Opposite Party No.2(two) took the money without giving him any receipt for the same and took away the Tractor and Trailor. Two affidavits have been filed by the Complainant which corroborate his allegation. The Opposite Parties take a denial plea through an affidavit. But the fact remains that the practice of forcible repossession with the help of goons and taking money without issuing receipt are being widely resorted to by financing institutions taking law into their hands. In the present case, this Forum finds no reason to disbelieve the allegation of the Complainant.


In the light of the above fact and circumstances of the case the, Opposite Parties are directed jointly and severally, (a) to return and handover to the Complainant the Tractor and Trailor in dispute, on receipt from him the balance equal monthly installments (b) refund Rs.10,000/-(Rupees ten thousand)only to the Complainant which was received by the Opposite Party No.2(two) on Dt. 17/05/2008 or adjust the same amount with the equal monthly installments to be paid by the Complainant ( c) pay the Complainant Rs.10,000/-(Rupees ten thousand)only towards cost compensation. The order shall be carried out with in thirty days hence.

Bathipatla Chennakesavulu,
S/o. Late. B.Chennaiah,
Hindu, aged about 42 years,
D.No.19-12-134, Opp.to Mother Care School,
Bairagipatteda,
Tiruapti. … Complainant

And

1. The Manager,
Mahindra and Mahindra Finance,
No.198, Auto Nagar,
Nellore.

2. The Manager,
Mahindra and Mahindra Finance,
Tirumala Bypass Road,
Tirupati.

3. The Additional Registering Authority,
R.T.A.,
Tirupati. … Opposite parties.

ORDER

This complaint is filed under Section-12 and 14 of Consumer Protection Act 1986, to pass an order directing the opposite parties 1 and 2 to return the vehicle Commander Jeep bearing registration No.AP 03 V 8276 along with Registration Certificate and other material documents to the complainant, to pay Rs.50,000/- towards damages for causing mental agony, directing the opposite party No.3 not to effect any transfer of ownership from the name of complainant pertaining to the vehicle Commander Jeep AP 03 V 8276 to third parties and directing the opposite parties to pay the costs of the complaint.


2. The averments of the complaint in brief are :- The complainant obtained financial assistance from opposite parties 1 and 2 for purchasing new vehicle Commander Jeep under an agreement dt:18.11.2004 and the same was registered as AP 03V 8276 with the office records of opposite party No.3.
The complainant availed financial facility from opposite parties 1 and 2 to a sum of Rs.3,00,000/-. The said amount with interest is repayable in monthly installments at the rate of Rs.7,500/-. Since the date of agreement, the complainant has been paying the installments regularly. At the time of entering into agreement with the opposite parties, the complainant’s paternal uncle B.Suryanarayana stood as guarantor. Subsequently, there were some land disputes between the said Suryanarayana and the complainant. Taking advantage of the same, the said Suryanarayana colluded with opposite party No.2 and at his instance the men of opposite party No.2 forcibly took away the vehicle from the possession of the complainant in the month of January 2007 and obtained his signatures on blank papers and other documents including the Registration Certificate by alleging default inspite of regular payments. After payment of monthly installments, the complainant used to handover the receipts to Suryanarayana so that the said Suryanarayana would believe that the installments are being made properly.

The complainant made a police complaint against Suryanarayana to the Sub Inspector of Police, Sodum on 29.01.2007 and at the intervention of the police the said Suryanarayana kept quiet and some how the complainant could get back the vehicle. Once again at the instance of Suryanarayana the men of opposite party No.2 came in a body in the first week of June 2008 and took away the vehicle from the complainant forcibly on the ground of alleged default without any prior notice or intimation. The complainant has always been ready and willing to discharge the remaining loan installments at once on furnishing status report by the financier apart from surrendering possession of the vehicle to him. The complainant got issued legal notice dt:09.06.2008 calling upon the opposite parties 1 and 2 to deliver possession of the vehicle along with the final status report, so as to enable him to discharge the remaining installments and to get clearance certificate, and requesting opposite party No.3 not to effect any transfer of ownership of the vehicle to anybody without prior intimation.

The opposite parties 1 and 2 received the notice, but did not comply the same. The complainant came to know that opposite parties 1 and 2 approached opposite party No.3 and applied for transfer of registration by suppressing material facts. On 13.11.2008 the opposite party No.3 issued show cause notice to the complainant to surrender the certificate of registration for cancellation and issue of fresh registration certificate in the name of opposite party No.2. The complainant sent explanation by way of reply notice dt:25.11.2008 requesting opposite party No.3 not to consider the application of opposite party No.2 for transfer of ownership of the vehicle. The opposite parties 1 and 2 have been harassing the complainant. There is deficiency of service on the part of opposite parties who put the complainant to severe mental agony and hardship. Hence the complaint.


3. The opposite parties 1 and 3, having received the notice, remained exparte.


4. The opposite party No.2 resisted the complaint. In the written version filed on behalf of opposite party No.2, while admitting that the complainant availed finance for Rs.3,60,000/- and denying the other material allegations made in the complaint, it is inter alia stated that there is no deficiency of service on the part of opposite party No.2. The opposite party No.2 has no necessity to collude with anybody. The complainant is a chronic defaulter and never paid installments in time. The complainant has to pay the loan in 48 installments. The complainant committed default in payment of installments after October 2007.

The complainant was unable to pay the installments of October, November and December 2007 and January 2008. The statement of account reveals arrears of 12 installments and interest and delayed payments. As the complainant was unable to pay the due amount of more than one lakh, he surrendered the vehicle to the financier by letter of authorization on 05.01.2008. The opposite party issued telegram notices demanding the complainant to pay the arrears and settle the account. The complainant expressed his inability. Having no other go sale notice was issued on 06.02.2008 intimating the complainant. Finally the vehicle was sold as per the procedure on 08.02.2008. The complainant issued a sale certificate on 08.02.2008 to the company. Without any just and valid reasons the complainant caused notice in June 2008 by making false allegations, knowing fully well that the vehicle was sold by the opposite party No.2. This Court has no jurisdiction as the purpose of loan is commercial. The opposite party No.2 is not liable to pay damages, loss, compensation etc. The complaint deserves to be dismissed with exemplary costs against opposite party No.2.


5. In support of the averments made in the complaint, the complainant filed his affidavit. The complainant also filed 12 documents, which are marked as Exs. A1 to A12. Ex.A1 is xerox copy of Certificate of Registration dt:18.11.2004 issued by the Additional Registering Authority, Tirupati, in the name of the complainant. Ex.A2 is xerox copy of Certificate of Fitness dt:18.11.2004 issued by the Motor Vehicles Inspector, Tirupati, in the name of the complainant in respect of the vehicle bearing No.AP03V8276. Ex.A3 is xerox copy of Certificate of Insurance dt:24.11.2005 issued by New India Assurance Company Ltd., in favour of the complainant. Ex.A4 is xerox copy of receipt for payment of road tax by the complainant. Ex.A5 is xerox copy of complaint dt:29.01.2007 given by the complainant to the Sub Inspector of Police, Sodum Police Station. Ex.A6 is office copy of legal notice dt:09.06.2008 got issued by the complainant to opposite parties 1 to 3 and Regional Transport Authority, Chittoor. Ex.A7 is bunch of postal receipts, 4 in number. Ex.A8 are postal acknowledgements of opposite parties 1 and 2 for Ex.A6 notice. Ex.A9 are postal acknowledgements of opposite party No.3 and Regional Transport Authority, Chittoor, for Ex.A6 notice. Ex.A10 is show cause notice dt:18.09.2008 issued by opposite party No.3 to the complainant. Ex.A11 is office copy of reply notice dt:25.11.2008 got issued by the complainant to opposite party No.3. Ex.A12 is speed post receipt for Ex.A11 notice.


6. In support of the case set up in the written version, the opposite party No.2 filed his affidavit. The opposite party No.2 also filed 8 documents, which are marked as Exs.B1 to B8. Ex.B1 is statement of account maintained in the records of opposite party No.2 showing the installments received from the complainant. Ex.B2 is letter of authority dt:05.01.2008 issued by the authorized signatory of Mahindra and Mahindra Financial Services Limited. Ex.B3 is office copy of telegram issued by opposite party No.2 to the complainant on 21.01.2008 with telegram receipt. Ex.B4 is office copy of another telegram issued by opposite party No.2 to the complainant and his guarantors on 06.02.2008 with telegram receipts. Ex.B5 is Valuation Report dt:25.01.2008 on Finance Seized Vehicle AP03V8276 issued by M. Mallikarjuna Rao, Insurance Surveyor and Loss Assessor of Tirupati. Ex.B6 is No Objection Certificate (NOC) addressed by opposite party No.2 to the RTO / Insurance Company, Tirupati. Ex.B7 is Form -35, Notice of Termination of Hire Purchase Agreement in respect of the vehicle No.AP03V8276 addressed to the Regional Registering Authority, Tirupati. Ex.B8 is Sale Certificate dt:08.02.2008 issued in the name of C.V.Purushotham Rao in respect of the vehicle No.AP03V8276.


7. On behalf of the complainant and opposite party No.2 written arguments were filed and we have heard the oral arguments of counsel of both sides.


8. On the basis of pleadings of both sides, the points that arise for determination are:-

(i) Whether there is any deficiency in service on the part of opposite parties towards the complainant?

(ii) Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

(iii) To what result?


9. Point No.(i):- The brief facts of the case are:- The complainant purchased Commander Jeep in November 2004 by availing financial facility from opposite parties 1 and 2 to a sum of Rs.3,60,000/- by entering into an agreement with the opposite parties. The Additional Registering Authority, Tirupati, registered the vehicle as AP03V 8276 and issued the original of Ex.A1 Certificate of Registration. The complainant obtained the original of Ex.A2 Certificate of Fitness from Motor Vehicle Inspector, Tirupati. The complainant insured the vehicle with New India Assurance Company Ltd. and obtained the original of Ex.A3 Certificate of Insurance. The complainant paid road tax of Rs.5,640/- under the original of Ex.A4 receipt. The complainant got issued the original of Ex.A6 legal notice calling upon the opposite parties 1 and 2 to deliver possession of the vehicle with final status report so as to enable him to discharge the remaining installments. The opposite parties received the notice as seen from Exs.A8 and A9 postal acknowledgements.

The opposite party No.3 issued Ex.A10 notice dt:18.09.2008 to the complainant asking him to surrender the Certificate of Registration for cancellation and issue of fresh registration certificate in the name of the financier. The complainant got issued Ex.A11 reply notice dt:25.11.2008 to opposite party No.3. The complainant filed the complaint on 27.11.2008.




10. It is the case of the complainant that he has been regular in payment of installments, that he was handing over the receipts every month to B.Suryanarayana his paternal uncle, who stood as guarantor and that subsequently due to land disputes between him and Suryanarayana, the said Suryanarayana colluded with opposite party No.2 and at his instance the men of opposite party No.2 forcibly took away the vehicle with registration certificate from his possession in the month of January 2007 and obtained his signatures on blank papers and other documents alleging default inspite of his regular payment. It is clear from the averments made in the complaint that for the payments made by the complainant the opposite parties issued receipts.

The complainant did not produce the receipts issued by the opposite parties to show that he was paying the installments regularly without any default. The plea of the complainant that he handed over the receipts to his paternal uncle B.Suryanarayana is un-believable. The complainant filed Ex.A5 xerox copy of complaint dt:29.01.2007 said to have given to the Sub-Inspector of Police, Sodum Police Station against B.Suryanarayana. In Ex.A5 complaint it is stated that the complainant purchased Jeep on 18.11.2004 that B.Suryanarayana, the complainant’s paternal uncle who stood as guarantor took the jeep after some days saying that he will maintain the jeep and that subsequently the said Suryanarayana is claiming that the jeep belongs to him. It is further stated that the complainant took loans from others, that the said persons are troubling him and that he is unable to maintain the family.

The complainant prayed the Sub-Inspector to do justice by handing over the jeep to him. The place where the jeep could be available is mentioned as D.R.Mahal Stand. Ex.A5 falsifies the version of the complainant that the men of opposite party No.2 forcibly took away the vehicle from his possession. Ex.A5 shows that by 29.01.2007 the vehicle was in the custody of B.Suryanarayana. In paragraph.9 of the complaint it is vaguely stated that at the intervention of police, the said Suryanarayana kept quiet and some how the complainant could get back the vehicle. The complaint is silent from whose custody the complainant could get back the vehicle. It is also not stated in the complaint on which date the complainant re-possessed the vehicle.



11. In paragraph.10 of the complaint it is stated that once again the men of opposite party No.2 came in body in the first week of June 2008 and forcibly took away the vehicle from the complainant on the ground of default without any prior notice or intimation.

It is the specific case of the opposite parties that the complainant committed default in payment of installments of October, November and December 2007 and January 2008, that as the complainant was unable to pay the dues he surrendered the vehicle to the financier by letter of authorization on 05.01.2008 and that by issuing telegram notices to the complainant on 21.01.2008 and 06.02.2008 they sold the vehicle as per the procedure on 08.02.2008 and the complainant issued Sale Certificate on 08.02.2008. The complainant did not adduce any evidence to show that the men of opposite party No.2 forcibly took possession of the vehicle in June 2008. Exs. B2 to B7 produced by the opposite parties show that the opposite parties took possession of the vehicle from the complainant on 05.01.2008 and the vehicle was sold in auction and the complainant issued sale certificate. According to the opposite parties Ex.B1 is the statement of account pertaining to the loan account of the complainant. Ex.B1 does not contain the loan account No. and the name of the borrower and it only shows that loan of Rs.3,00,000/- has to be repaid in installments at the rate of Rs.7,500/- per month, and 36 installments were received through cash. Ex.B2 is the Letter of Authority dt:05.01.2008 issued by the opposite parties authorizing N.Subramanyam Reddy to take possession of the vehicle AP 03V 8276 from the complainant.

There is an endorsement to the effect that the complainant voluntarily surrendered the vehicle. Ex.B3 is the office copy of telegram sent by opposite party No.2 to the complainant informing that the complainant surrendered the vehicle and there is heavy default and asking him to come and settle the account, otherwise suitable action will be taken. Ex.B4 is office copy of another telegram dt:06.02.2008 sent to the complainant asking him to settle the account immediately. Ex.B5 is the valuation report given by insurance surveyor and loss assessor valuing the vehicle of the complainant at Rs.1,00,000/-. Ex.B6 is the letter dt:30.04.2008 addressed by the opposite party No.2 to the R.T.O/ The Insurance Company, confirming that they have no objection in removing the HP clause from the Registration Certificate / Insurance Policy. Ex.B7 is Form-35 addressed to the Registering Authority, Tirupati, signed by both the financier and registered owner of the vehicle bearing No.AP 03V 8276. Ex.B8 is the Sale Certificate dt:08.02.008. Exs. B2, B7 and B8 bear the signature of the complainant. As already stated in the complaint it is alleged that the men of opposite party No.2 at the time of forcibly taking possession of the vehicle from the complainant in the month of January 2007 obtained his signatures on blank papers and documents. Exs. B2, B7 and B8 are not blank papers.

They are printed forms. In the complaint, in the affidavit filed along with the complaint and in the vakalat, the complainant affixed his signature in English. The signatures in Exs.B2, B7 and B8 tally with the signatures of the complainant. In the additional written arguments, it is stated that the signatures on Exs.B2 and B8 are not that of the complainant. Having taking the plea that the complainant’s signatures were obtained on blank papers in the complaint, the complainant during the course of arguments came up with the version that the signatures on Exs.B2 and B8 do not belong to him probably realizing that it is un-believable that Exs.B2, B7 and B8 are brought into existence on the blank papers on which his signatures were obtained. The complainant miserably failed to prove that the opposite parties forcibly took possession of the vehicle from him in the first week of June 2008.

On the other hand, the opposite parties by producing Exs.B2 to B8 established that the complainant unable to pay the installments voluntarily surrendered the vehicle on 05.01.2008 and after giving sufficient opportunity to the complainant to settle the account sold the vehicle and the complainant issued sale certificate to the purchaser of the vehicle. The complainant by inventing the story that in the first week of June 2008 the opposite party No.2 forcibly took possession of the vehicle filed the complaint for re-possession of the vehicle. In view of Exs.B6 and B8, the opposite party No.3 issued Ex.A10 notice to the complainant. It appears the opposite party No.3 after receiving Ex.A11 reply from the complainant did not take any further action. The complainant miserably failed to establish that the opposite parties 1 to 3 committed deficiency in service towards him.

12. For the above reasons, we find that there is no deficiency of service on the part of opposite parties 1 to 3 towards the complainant. This point is accordingly answered against the complainant.

13. Point No.(ii):- In view of our finding on point No.1, the complainant is not entitled to any relief. This point is accordingly answered.

14. Point No.(iii):- In the result, the complaint is dismissed, but without costs.

Harjinder Singh son of Bahadur Singh r/o VPO Khanjarwal, Tehsil Jagraon, Distt. Ludhiana. 2nd Addess:25, 2nd floor, Surya Shopping Archade, National Road, Ghumar Mandi, Ludhiana.

Versus

1- Mahindra & Mahindra Financial Services Limited, having its Regd. Office a 2nd floor, Sadhana House, 570, P.B. Marg, Worli, Mumbai, through its authorized signatory.

2- Mahindra & Mahindra Financial Services Limited, opp. Swani Motors Workshop, G.T. Road, Dhandari Kalan, Ludhiana(BO) through its authorized signatory.

1- Complainant vide hire purchase agreement dated 31.5.2004 with opposite party, obtained finance for his Qualis vehicle bearing no.DL-7CC-6269. Under the agreement, he was to pay Rs.2.77 lacs alongwith finance charges of Rs.70200/-, total Rs.347200/- in 32 equal installments of Rs.10580/- each. Complainant was given option of repaying the loan before stipulated 32 installments and company agreed to reduce charges of prorate. It is claimed by the complainant in this complaint under section 12 of the Consumer Protection Act, 1986, that he regularly paid loan installments and cleared the entire loan before the stipulated period of 2nd January, 2007 and till 31st January,2007, an amount of Rs.20700/- was paid in excess by the complainant. Because he was required to pay Rs.347200/-, but opposite party realised Rs.20700/- in excess thereto from him.

Despite receipt of excess amount, opposite party failed to issue NOC in his favour and also failed to refund the excess amount of Rs.20700/- despite his repeated requests and demands. Consequently, was compelled to serve legal notice dated 5.5.2007 on the opposite party, despite which they failed to issue no objection certificate, nor refunded the excess amount. In reply, opposite party admitted receipt of excess payment, but never refunded the same to him, nor issued NOC. Same act of opposite party is claimed amounting to deficiency of service on part of opposite party. Hence, sought direction for doing the needful and also claimed Rs.25000/- for harassment and mental agony alongwith Rs.11000/- litigation expenses.

2- Opposite party claimed in reply that the complaint is not maintainable and that the loan was taken by the complainant for commercial purposes, so this Fora has no jurisdiction to entertain and try the complaint. The dispute qua accounts between the parties, is triable in civil court. Averred that opposite party was always ready to give NOC in his favour and conveyed message to the complainant to take NOC from branch office of opposite party. Hence, was deposited in the Fora on 23rd July, 2008. Further claimed that due to negligence of the complainant, Rs.9418/- was paid in excess by him and he was requested many times, to take back that amount, but he refused to receive the same, by demanding bigger amount.

3- Complainant in support of his case, tendered own affidavit alongwith documents in evidence and stood heard though his counsel.

4- However, no evidence was led by opposite parties despite availing number of opportunities and on 28.4.2009, none appeared on their behalf nor evidence filed, so were proceeded exparte.

5- Outrightly, we may say that the case of the complainant is fully born out from Ex.C1 statement of account, showing that excess amount of Rs.20700/- was recovered from him by the opposite party under this loan account. Amount of Rs.20700/- is credited in his account. Complainant as per account, was required to pay Rs.4,34,000/- only against which, he had paid Rs.4,54,700/-.

6- Complainant by way of his affidavit Ex.CW1/A, has sworn that he many times approached opposite party, for refund of the amount alongwith providing NOC which was not issued. His such plea in evidence, required to be accepted in totality. Because opposite party conceded all his allegations in their reply, by claiming that only Rs.9418/- excess was paid by him, which he refused to receive and also refused to receive the NOC, despite calling upon him to take the same. Such defence of opposite party is falsified from statement of account Ex.C1, as the statement so provided by opposite party to the complainant, goes to show that he had paid Rs.20700/- in excess and not only Rs.9418/-, as is the defence.

7- When complainant failed to obtain the desired documents as well as refund from opposite party, got served legal notice Ex.C2, posted under postal receipts Ex.C3 and Ex.C4 on opposite parties which they received under acknowledgement Ex.C5. But they did not comply therewith. Rather vide reply Ex.C6, denied claim of he complainant and offered only payment of Rs.10719/-.

8- There is no proof brought by opposite party on the record that they had intimated the complainant by any letter, notice or otherwise, to take NOC of the vehicle. So, it means such defence of the opposite party is illogical and illegal, without having any substance therein.

9- In these circumstances, it is apparent that opposite party had not rendered proper services to the complainant, as they failed to issue NOC in his favour despite demands and the fact that not only the entire amount and interest was paid, but also they had realized excess amount from him. Even the excess amount as demanded, they failed to refund. Therefore, opposite party certainly is proved guilty of misconduct. For such misconduct, complaint deserves to be allowed.

10- Sequel to the discussions, we allow the complaint and as a result, direct opposite party, to issue NOC in favour of the complainant and also refund him Rs.20700/- with 9% interest p.a. from the date of complaint till payment and also for causing harassment, thrusting this litigation on complainant forcibly, to pay compensation of Rs.10,000/- and litigation costs of Rs.4000/- within 30 days of receipt of copy of order

M/s. Sri Sai Dairy Product,

14-754, New Kayanikattu Street,

Rep. by its Managing Partner Sri. T.G. Suresh,

S/o. Srinivasan,

Hindu, aged about 50 years,

Having Business at D.No.14-754,

New Kayanikattu Street, Chittoor. …. Complainant

1. Mahindra & Mahindra Financial Service Limited,

Rep. by its Manager,

D.No.20-1-113,

Tirumala By-Pass Road,

Korlagunta, Tirupati.


2. A. Ravindranath,

S/o. A.V. Seshaiah,

Aged about 45 years, Proprietor,

Balaji Agencies and Industries,

Door No.11-29, Opp. Tata Motors,

Renigunta Road (Near Cotton Mill),

Tirupati. …. Opposite parties


This complaint is filed under Section 12 of Consumer Protection Act, 1986 to pass an order directing the opposite parties 1 and 2 or such others to pay a sum of Rs.1,10,600/- being the amount deposited by the complainant to the first opposite party with interest at 18% per annum from 22.03.2008; to pay Rs.3,89,400/- being the damages with future interest at 18% per annum; to pay the costs of the complaint and pass such other order or orders as the as the Hon’ble Forum may deem fit and proper in the circumstances of the case.



2. The factual matrix leading to filing of this complaint is set out as here under:

(a) The case of the complainant is that the first opposite party offered to provide Bolero-SLE Model motor vehicle to the complainant under Hire Purchase Agreement and asked him to remit 20% of the price of the said motor vehicle as initial payment and agreed to deliver the motor vehicle within a week from the date of initial payment from the complainant. Accordingly, the complainant accepted the offer and remitted Rs.1,10,600/- being the 20% of the price of the above said vehicle with the first opposite party by paying Rs.65,000/- in the State Bank of India at Puthalpattu within the jurisdiction of this Hon’ble Forum and performed his part of the contract under the Hire Purchase Agreement and also paid Rs.49,000/- in cash to the first opposite party, who collected the same at Chittoor. Though it was more than 45 days by 07.05.2008 since then complainant had remitted Rs.1,10,600/- as stated supra, the opposite parties had not choosen to deliver the vehicle by getting it registered with the R.T.A., Chittoor in the name of the complainant and by making joint application by the complainant by the complainant and first opposite party, transferring the vehicle under Hire Purchase Agreement in favour of first opposite party evidencing the first opposite party as the owner and the complainant as hirer of the vehicle. Therefore, the complainant caused a notice dated 07.05.2008 issued to the opposite parties demanding to pay in all Rs.5,00,000/- including the return of initial payment of Rs.1,10,600/- with interest at 18% per annum.

(b) The complainant further narrated in his complaint in para 3 that he was forced to engage taxies for office purpose paying at the rate of Rs.2,000/- per day as charge for taxies. The non-supply of the vehicle caused great deal of mental agony to the complainant. The second opposite party is the dealer of the vehicle. He assured the complainant that he would deliver the vehicle the moment he received confirmation of payment of 20% of the price of the vehicle. But the second opposite party had not bothered to answer the complainant on phone. After the issue of notice dated 07.05.2008 by Regd. post ack. due by the complainant, the opposite parties failed to pay the amount of Rs.5,00,000/- claimed by him to this day. So, the complainant filed this complaint as the non supply of motor vehicle and non-execution of the Hire Purchase Agreement in time amounts to deficiency in service. Hence, the complaint.

3. The first opposite party resisted the complaint and filed written version / objections and also filed affidavit in support of his case. Likewise, the second opposite party also filed written version / counter by resisting the complaint and he did not choose to file the affidavit and also written arguments.

(a) While denying the material averments /allegations made in the complaint, it is inter-alia stated that the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limini. The allegations in the complaint are all false and denied except the payment of margin money and the other allegations are not true and correct. The first opposite party is ready to provide the balance amount to the company as finance. The first opposite party gave a letter on 22.03.2008 to the complainant requesting the dealer (second opposite party) to deliver the said vehicle, but after some days, ie., on 22.04.2008, the complaint gave a letter to the first opposite party by stating that he will sort out some issues with the dealer with regard to life tax and again approach the first opposite party with invoice of the proposed vehicle. Unless the complainant selected the vehicle and produced the invoice or deliver order in the name of the company, the first opposite party cannot issue the cheque in the name of the dealer. But surprisingly, the complainant caused notice. When the first opposite party staff approached the complainant, he stated that the wanted the vehicle without the life tax.

But dealer is refusing for the same. It is only to threat the dealer, legal notice is caused and the complainant wants to take back the margin money if the dealer refused to deliver the vehicle without life tax. It is necessary to furnish Xerox copy of pass book along with letter of requisition, so as to get back the margin money. The complainant did not make any response and filed a false complaint by concealing the facts. All the documents filed by the complainant are concocted and the complainant is not entitled to any compensation or interest over the margin money as there is no deficiency of service on the part of the opposite party. The complainant has no locus standi as he is not the person to defend it. The complainant has applied for the purchase of the said vehicle for company purpose which is a commercial purpose and he is not a consumer as defined in section 2(1)(d) of Consumer Protection Act, 1986. The court has no jurisdiction to entertain the complaint. The complainant has no right to approach this Forum. The complaint is devoid of the merits and it is liable to be dismissed.

(b) The second opposite party in para 4of his written version stated that paras 3 to 5 are false and only made for the purpose of filing this complaint and at any rate the burden of proving the facts rests on the complainant only. The second opposite party further deposed in para 6 of his written version that the complainant never approached the second opposite party and the second opposite party did not have any contractual obligation with the complainant The second opposite party is unnecessarily added as a party in the complaint. It is submitted by the second opposite party that their agency is ready and willing to sell any model of Mahindra & Mahindra vehicle to the customers after receiving full payment from any quarter and for purchase of the vehicle. The second opposite party is not aware of the transactions of the complainant and the first opposite party. The second opposite party is not liable to pay any damages to the complainant. In view of the said facts in the written version of the second opposite party, it is prayed that the Hon’ble Forum may kindly be please to dismiss this complaint with costs.

4. In support of the averments made in the complaint, the complainant filed 5 documents which are marked as Ex.A1 to A5. Ex.A1 is the office copy of legal notice dated 07.05.2008 issued on behalf of the opposite parties by the complainant’s advocate. Ex.A2 consists of 2 postal receipt relating to Ex.A1. Ex.A3 is the Xerox copy of the cash receipt dated 22.03.2008 issued by the Mahindra Finance in favour of the complainant for Rs.49,100/- Ex.A4 is the Xerox copy of DD of Rs.65,000/- paid by the complainant to the first opposite party. Ex.A5 is the original cash / credit bill dated 10.05.2008 issued by Kalam Travels in the name of the complainant for an amount of Rs.90,000/-

5. In support of the averments made in written version /objections by the first opposite party, the first opposite party filed 3 documents which are marked as Ex.B1 to B3. Ex.B1 is the one leaf of letter pad dated 20.05.2008 issued by the complainant to the first opposite party. Ex.B2 is the Proposal Evaluation Form AS/FES/OTHERS issued by the first opposite party in favour of the complainant. Ex.B3 is for the acceptance of proposal letter issued by the first opposite party to the complainant and inviting him to proceed further.

6. Written arguments of the complainant and the first opposite party are filed and also affidavit in support of their case. The second opposite party did not choose to file an affidavit and he filed only written version / written statement but not written arguments in support of his version. We have heard the oral arguments at length of the both the sides. Both the parties have filed evidence in support of their case and also produced the documents which are marked as exhibits.

7. On basis of the pleadings and documentary evidence, the points that arise for determination are:-

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

2 towards the complainant?

3. Whether the complainant is entitled for the reliefs as prayed, if so to what

extent?

3. To what result?

8. Point No.1:- The basic facts of this consumer case are not disputed and hence they are not reproduced here in toto to avoid repetition. There is no dispute about the payment by the complainant to the 1st opposite party herein. The essential facts need to be focused briefly in order to decide the case. No oral evidence was let in by the parties.

(a) Main thrust of arguments advanced by the learned counsel for the complainant Sri S.R. Thygarajan before us, is that the complainant paid 20% of cost of the vehicle as margin money to the 1st opposite party and inspite of it both the opposite parties showed their deaf ear to proceed further in the matter. It resulted in mental agony and loss of money for not delivering the said vehicle to the complainant. He further argued that the first and second opposite parties are one and the same excepting the different nomenclature and also it is clear that 1st opposite party gave a letter on 22.03.2008 to the dealer to deliver the vehicle after the 2nd opposite party gave the invoice to the 1st opposite party to deliver the vehicle paying the balance amount to the dealer.

The said learned counsel for the complainant further argued that when once the 1st opposite party directed the 2nd opposite party to deliver it amounts that the hire purchase agreement completed. Then both the financer and dealer has to address a letter to RTA for an endorsement in registration certificate in favour of the 1st opposite party that the vehicle is under hire purchase agreement with opposite party. He also further argued that having received the amount as required by the 1st opposite party, failed to deliver the vehicle within one week of the payment of the margin money. The 1st opposite party failed to act in accordance with the hire purchase agreement but in the written version of the 1st opposite party gives a lame excuse for the delay in the delivery of the vehicle namely that the complainant did not choose the colour of the vehicle and failed to produce invoice.

These allegations are simply made by the 1st opposite party to believe ones. In one breath the 1st opposite party says that he gave a letter to the 2nd opposite party to deliver the letter to the complaint and it is not known how the 1st opposite party could have given a letter to the 2nd opposite party to deliver the vehicle without receiving invoice from the 2nd opposite party. In the complaint itself, the complainant did not indicate any choice of colour of the vehicle. It means that he was prepared to take any vehicle irrespective of its colour. Further 1st opposite party made a baseless allegations against complainant that there was any approach by the complainant with regard to life tax and it is only an allegation made to justify the non-delivery of the vehicle within one week.

Further the learned counsel for the complainant advanced his arguments by saying that if the 1st opposite party wanted to return the margin money he could have simply sent a demand draft to the complainant, but the 1st opposite party comes without bank pass book of the complainant with a plan that the money could not be returned as the complainant did not furnished the Xerox copy of the bank pass book to the 1st opposite party. No where, it is contemplated that a Xerox copy of bank pass book should be sent to the person to receive the margin money. The 1st opposite party violated the terms of hire purchase agreement. The very address of the 1st opposite party namely Mahindra & Mahindra Financial Service Ltd., suggest that the 1st opposite party was doing business in respect of Mahindra & Mahindra vehicles. In the last portion of written arguments of the complainant, it is disclosed that the 2nd opposite party filed his written version without any substance excepting in para 6 of written version that the complainant directly approached the dealer i.e, the 2nd opposite party and according to the contention of the learned counsel for the complainant that it becomes clear that menace of the 1st opposite party. He must have paid the total price of the vehicle to the 2nd opposite party.

The failure to reply to the notice of the complainant by the 2nd opposite party amounts that it is an admission of the facts mentioned in the complaint by the complainant. It is a chain transaction with an understanding between the opposite parties to deliver the vehicle to the complainant as and when the 1st opposite party order delivering of the vehicle to the purchaser of the vehicle. In turn the purchaser of the vehicle should enter to an agreement with 1st opposite party under the hire purchase, agreeing to pay the monthly instalments in accordance with terms of hire purchase agreement between the 1st opposite party and the complainant and take steps for transfer of the RC in favour of the dealer with an endorsement that the vehicle is hire purchased with the 1st opposite party. The learned counsel for the complainant finally while concluding his arguments by saying that the opposite parties 1 and 2 have committed deficiency in service towards the complainant and hence, the opposite parties are liable to pay as prayed for in the complaint with costs and the complaint may be allowed.

(b) On the other hand, the learned counsel for the opposite party No.1 Sri K. Ajey Kumar, vehemently argued that the complainant had taken sanctioning letter from 1st opposite party and thereafter not heard for several days for the reasons best known to him. He further argued that the 2nd opposite party informed to the complainant about the requirement with regard to payment of life tax. As per rules without paying the life tax, the vehicle shall not be released by dealer (OP No.2) to the customer / complainant herein. Thereafter, the complainant approached opposite party No.1 and requested time to settle the issue with the dealer and when the complainant was asked to furnish the copy of bank pass book with letter of requisition to get back the margin money.

The said learned counsel for the complainant further argued that the 1st opposite party is only a financier and not dealer of the vehicle. He further alleged that the complainant with an ill-motive filed this complaint before the Hon’ble Forum. Even now, the opposite party No.1 is ready to return the margin money if the complainant furnished the Xerox copy of bank pass book and request letter to return the said margin money. It is the delay on the part of the complainant in not furnishing the relevant documents to opposite party No.1 in order to get margin money. Finally, he argued that the Hon’ble Forum has no jurisdiction to entertain this complaint because the complainant is not a consumer as defined in the Consumer Protection Act, 1986 and there is no consumer dispute between the complainant and opposite party No.1. The transaction of purchase of the vehicle with the opposite party No.2 is commercial purpose. Complainant is devoid of merits and hence in the circumstances the complaint may be dismissed with costs.

Observations of the Forum

(c ) We have gone through the record and heard both parties. We have bestowed our best of consideration to the rival submissions of the parties. There should be material to hold the opposite parties are guilty of fraud or willful act or default. In AIR 1971 SC 2439, it was held that the evidence is to be judged by test of human probabilities. In AIR 1987 SC 1328 – Dalbir Singh Vs. State of Punjab – No hard and fast rule can be laid down about appreciation of evidence – it is a question of fact and each case has to decided on the facts as they stand in that particular case. Here, there is no hypothecation agreement before us to peruse the contents of it to assess the rights and liabilities of the parties. During the course of hearing of the complaint, the learned counsel for the first opposite party filed an interlocutory application number 39/2009 to receive the documents mentioned in the petition (i.e, Ex.B1 to B3) on 16.04.2009 and the same is allowed with an observation that “a complaint under Section 340 of Criminal Procedure Code can be made in to any offence referred to in clause (b) of sub-section (1) of Section 195 after recording a finding only at the stage of final disposal of the main case”.

To decide this consumer case, the relevant documents are important to fix up the liability and find out deficiency in service if any. In this regard, it is opt to mention that once parties enter into a contract then every word stated therein has to be given its due meaning which reveals rights and obligations between parties – AIR 2000 SC p.1122 M. Arul Jyothi Vs. Lajjaba. In this connection, we are of the opinion that Ex.B3 i.e., a letter dated 22.04.2008 addressed to the complainant by the 1st opposite party is crucial and deciding factor to determine this case. The contents of Ex.B3 are the cost of the vehicle is Rs.5,40,000/- and finance amount of Rs.4,30,000/-. The period is 3 years, and number of installments are 34, finance charges - 7.1% and service charges for the vehicle and non-refundable Rs.10,000/-. The initial payment as margin money is mentioned as Rs.1,10,600/-, documentation charges – Rs.2,500/-, processing fee of Rs.1,000/- and advance installment – Rs.15,341/- and total it come to Rs.1,29,441/-. “The other terms and conditions would be as per the loan agreement to be executed. You are hereby advised to sign and return the duplicate copy in token of acceptance. Kindly note that we shall not entertain any request for modifications to these terms”.

By perusing the contents of Ex.B3 it is crystal clear that both the parties after fulfilling the terms as agreed upon and after executing of hypothecation agreement, anything can be thought of, further to develop proceedings to be happened in course of time. Both parties never thought of this aspect even though they are fully aware of the contents of it before filing of this complaint before this Forum. Knowingly or unknowingly it is suppressed by the parties and this document has seen the light of the day till 16.04.2008. It should be given due weight to consider it. A document as is well known must be read in its entirety and every effort should be made to give effect to the mention of the parties. That has not been done by both the parties and did not brought to the notice of this Forum in the beginning i.e. at the time of filing of complaint and written version. But both parties are arguing and written that their rights to be protected. It is much ado about nothing. How the parties are entitled anything without having a basic document which binds the parties in case if there is a violation of it.

Coming to the aspect of Ex.B1 ie., the alleged letter addressed to the opposite party No.1 with a gap found above the signature of the complainant, how one leaf of the letter pad of the complainant passed to opposite party No.1, even on 07.05.2008 n the office copy of legal notice Ex.A1 issued by the learned counsel for the complainant on behalf of the complainant did not mention anything about it and issue of on one or two letter pad leaves are left with the opposite party No.1. The complainant did not approached this Forum with clean hands. Has he not received Ex.B3 from opposite party No.1? He who seeks equity must come to the court with clean hands. The Law of contracts deals with agreements which can be enforced through courts of law. Section 2(h) of the Indian Contract Act, 1872, provides that “An agreement enforceable by Law is contract”.

In the words Atkin, “the most usual form of agreement which do not constitute a contract are the agreements between husband and wife. They are not contracts because the parties do not intend that they should be attended by legal consequences”.

The contention of the learned counsel for the complainant and description of the theory of hypothecation agreement set up by him in describing in the written statement cannot be believed because in the absence of clear execution of hypothecation agreement and not fulfilled the contents of Ex.B3 by both the parties. Here, there is no agreement in existence between the parties to consider it. There is no intention to create legal obligations between themselves, if it is not so, why don’t first of all think about the first and foremost document at any point of time. Ex.B2 i.e, Proposal Evaluation Form is contained some particulars and it does not possess any date and signature of the parties.

But detailed bank accounts number of the complainant is very much available, what more needed to further to send margin money to the complainant by the 1st opposite party. It shows how the 1st opposite party is negligent and irresponsible to file it before us without any details as stated supra to consider it. The 1st opposite party ought to have return the margin money immediately to the complainant when there is no possibility for him to deliver the vehicle to the complainant. The complainant did not complied with all details contained in Ex.B3 and it is automatically unenforceable contract. In the absence of hypothecation agreement between the parties and other things alleged by them subsequently in their pleadings are need not be considered to arrive at a decision. There is no value in the eye of law. In the interests of Natural Justice, we are of the opinion that the complainant is entitled to get what he paid with 9% interest from the 1st opposite party. The 2nd opposite party is unnecessary party to this consumer case. Question of breach of contract does not arise at all because there is no agreement between the parties. No rights will be accrued to them as the case may be . There is no deficiency in service on the part of the 1st opposite party towards the complainant. One should not enrich at the cost of others. Law and morality are different concepts in the eye of law but its content are one and the same. So, the complainant is entitled to get margin money back from the 1st opposite party.

The Consumer Protection Act, 1986 confers equity jurisdiction on the Consumer Fora, i.e., to decide cases on the basis of Justice, equity and good conscience. To render “just and equitable” justice to the consumers is their function. The word “consumer” is defined in the Act in the widest term which includes purchaser of any goods or a person who hires or avails of any service, except for commercial purpose. If the goods are defective or if there is deficiency in service, the Consumer Fora have to pass appropriate equitable orders, de-hors technicalities of procedural law. Evidence Act, civil procedure code or such procedural laws are not made applicable to the proceedings under the Act. Even if substantive Law causes injustice, while deciding the matter, Consumer Fora are entitled to mould the relief appropriately. Where the statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of Justice, equity and good conscience.

The unique feature of the Act is only a consumer can approach the Fora and not the vendor or service provider. For rendering equitable justice, Section 14 of the Act empowers the Consumer Fora to pass an appropriate order including (i) grant of adequate compensation and (ii) punitive damages (Section 14(d)) as well as adequate costs. Law is a powerful instrument for realizing the hopes and aspirations of the people through well devised socio-economic and eco-legal changes. The Act is a landmark legislation in the history of socio-economic legislation and is directed towards public welfare and public benefits. This point is answered accordingly.

9. Point No.2:- In view of the facts and circumstances of the case and foregoing discussion, it can be said that on principles of Justice, equity and good conscience and also principles of Natural Justice, the complainant is entitled to get what he paid in fact to the 1st opposite party Rs.1,10,600/- with 9% interest from 07.05.2008 till the date of realization. He is also entitled to get the costs of the complaint of Rs.1,500/-. This point is answered accordingly.

10. Point No.3:- In the result, the complaint of the complainant is allowed in part directing the first opposite party to pay Rs.1,10,600/- (Rupees one lakh ten thousand six hundred only) with interest at 9% per annum from the date of 07.05.2008 till the date of realization and also to pay Rs.1,500/- (Rupees one thousand five hundred only) towards the costs of the complaint to the complainant within 6 weeks from the date of receipt of copy of order.

Shri Balwinder Aggarwal S/O Shri Hans Raj

R/O Near District & Sessions Judge Kinnaur

at Rampur Court Complex Rampur, Tehsil Rampur,

District Shimla, H.P.
… Complainant.

Versus

Mahindra & Mahindra Finance Services Ltd.

Office at Kachhi Ghati, Tara Devi, Shimla, H.P.

Through its Manager-cum-General Power of Attorney

Shri Jaggannath Sankhyan.

…Opposite Party

O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 11 & 12 of the Consumer Protection Act, 1986. The complainant avers that purchased a vehicle Mahindra Cab King bearing registration No.HP-06-3024, which was financed by him with the OP-Company for a sum of Rs.3,29,000/- and the said loan was agreed to be paid in 35 monthly instalments of Rs.11,797/- each. It is averred that the complainant made payment of margin money of Rs.80,000/- at the time of purchase of the vehicle. The complainant further proceeded to aver that the vehicle so supplied to him was defective one and due to that reason, the same could not be plied on the road for months together, as a result of which, he suffered huge loss. It is averred that alternate bracket was found broken, which spare part is only available with the company and not in the open market.

The complainant further proceeded to aver that despite his various requests to the OP for supplying the spare parts, his request fell unheeded, though, he continued to make payment of instalments, yet, the OP with the help of some hired persons illegally and forcibly took away the possession of the vehicle without his consent and since 19th February, 2005, the possession of the vehicle is lying with OP. Hence, it is averred that there is apparent deficiency in service on the part of the OP and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP filed reply to the complaint. In the preliminary objections it was contended that the complaint is not maintainable, and that the complainant has suppressed the material facts. On merits, it is admitted that the complainant had availed a loan facility and agreed to repay the said loan in 35 instalments comprising of Rs.11,797/- each.

It is denied that they ever agreed to provide any kind of sale services and repair of the vehicle to the complainant and further that the defective spare part was only to be replaced or changed by Mahindra & Mahindra Limited who is an authorized dealer of Mahindra make vehicles. It is denied that they had forcibly taken away the possession of the vehicle. However, it is contended that the complainant had surrendered the said vehicle to the OP and further showed his inability to make the payment of the loan amount. Hence, it is denied that there was any deficiency in service on their part.

3. Thereafter the parties led evidence by way of affidavits and documents in support of their respective rival contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case meticulously.

5. The OPs afforded finance to the complainant for purchasing a vehicle named and style as “Mahindra Cab King”. The aforesaid vehicle after purchase developed a, defect, inasmuch, as, one of its spare part named “Alternate bracket” cracked rendering the vehicle unfit, to, be plied. The aforesaid defect, as, had erupted in the vehicle, is, averred by the complainant to be comprising, a, deficiency in service and hence, it is, urged that the defect having rendered the vehicle un-pliable on the roads, caused, to the complainant, so long, as, the vehicle remained in his possession, immense, mercantile loss. The said loss, is, prayed to be compensated by awarding of damages by this Forum, in, his favour against the OP.

6. However, the OP though has not refuted the fact that it had afforded finance to the complainant for purchasing the vehicle, as detailed above, yet, it has specifically denied that the purchase of the vehicle was made by the complainant from it. It contends that the vehicle was purchased from Mahindra & Mahindra Ltd., which alone is the authorized dealer of the category vehicle purchased by the complainant, and that the eruption of the defect in it during the period of time, the vehicle remained in the possession of the complainant rendering it un-pliable on the roads, thereby, purportedly causing mercantile loss to the complainant, as sought, to be indemnified by way of complainant being awarded damages against the OP, is, contended to be hence, not burdened upon the OP, it, being not the supplier of the vehicle, rather, it having been purchased by the complainant from Mahinera & Mahindra Limited, who, is not a party, before this Forum.

7. Despite the existence of the above denial in the reply of the OP, the complainant did not take steps to implead the authorized dealer of the category of the vehicle as purchased by him and in which the purported defect erupted. The omission, to, implead the authorized dealer of the vehicle purchased by the complainant disables, us, to award relief to the complainant, for, mercantile loss, if any, which he suffered during the time when the vehicle remained, hence, unfit for its being plied on the roads, as, a result of defect having erupted in it, nor, also hence, we can award damages against the financier of the complainant, it, not being either the manufacturer of the vehicle nor the authorized dealer.

8. The further relief which the complainant asserts against the OP, is, that the OP be directed to hand over the possession of the vehicle bearing registration No. HP-06-3024 to the complainant as the OP had illegally taken, its, possession from the complainant. The OP in resisting above relief, as, claimed against it, by the complainant in paragraph 7 denied, the, fact that it had forcibly taken the possession of the said vehicle, rather, it has contended that the complainant had surrendered the vehicle to the OP and had also expressed it inability to make the payment/loan amount to the OP.

The said contention raised in paragraph 7 of the reply of the OP, has, not come to be refuted by the complainant by way of a rejoinder to it. Therefore, with, the implied willingness, as, portrayed in paragraph 7 of the reply of the OP, of, the complainant being at liberty, to, retake the vehicle which he had surrendered before it on the purported reason of his voicing an inability to make/defray the outstanding loan amount to the OP, we think, that, the interest of justice would be met in case, it is directed, that, subject, to, the complainant furnishing an undertaking to the OP to defray to it, all the outstanding financial liabilities qua the vehicle financed by the OP, the OP, shall, return the vehicle to the complainant, in, accordance with the time schedule mutually agreed interse the parties. In case, the complainant does not furnish the undertaking, in that eventuality, the OP shall be at liberty not to give the possession of the aforesaid vehicle to him.

Hardial Singh aged 70 years son of Sh. Sunder Singh, resident of village Mohamad Pura (Nawan Pind), Tehsil Malerkotla, Distt. Sangrur.

(Complainant)

Vs.

M/s Mahindra & Mahindra Financial Services Limited, Opp. Swani Motor Workshop, 1st Floor, G.T. Road, near Dhandari Kalan Railway Station, Ludhiana through its Manager.

(Opposite party)
O R D E R

1. Complainant purchased in June,2003, a tractor ( registration no. PB.60-6169) from Baba Tractors, Malerkotla for Rs. 3,40,000/- and got it financed from OP Company. He had contributed margin money of Rs.90,000/-. The loan amount advanced by the opposite party was returnable in 8 half yearly instalments of Rs.46,388/- each. Due to financial crises, complainant could not pay the entire amount of the first instalment and paid out of it Rs.30,000/- on 25.11.2003. Due to non payment of the full amount of the first instalment, opposite party took possession of the tractor and on payment of the balance amount of Rs.16,400/- of the first instalment, the tractor was released on 30.12.2003. Opposite party thereafter vide letter dated 31.12.2004 required complainant to clear the loan account or otherwise convey to sell his tractor. Thereafter, has been making payment of the instalments and used the vehicle without any interference from the opposite party.

All 8 instalments stand paid. But opposite party under threat of forcibly snatching the tractor, in all had received Rs.4,29,106/- from him. Thereby excess amount of Rs. 58,002/- was wrongfully taken from him. This act of opposite party caused mental tension and agony to the complainant as they refused to refund the excess amount taken. Such act is claimed deficiency in service on their part and by filing the present complaint under section 12 of the Consumer Protection Act, 1986, in addition to claiming refund of Rs.58,002/- sought compensation of Rs.1,00,000/-.

2. Opposite party claimed that the complainant has no locus standi to file the complaint, which is not maintainable and that this Fora has no jurisdiction to try the same. It is admitted that the complainant got his tractor financed from them and agreed to repay the loan amount in 8 half yearly instalments of Rs. 46,388/- each. But claimed that complainant failed to pay all the instalments on due dates. Under the agreement, opposite party was entitled to claim penalties due to late payment from the complainant. Loan agreement has not been infringed. Excess payment is taken under the loan agreement due to failure of the complainant to pay the instalments by due date and within time. No excess amount was illegally charged from the complainant. Hence, the complaint deserves dismissal.

3. Both the parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

4. We have heard the arguments addressed by the ld. counsel for the parties and have gone through the file, scanned the documents and other material on record.

5. Short question arises for our determination is whether the opposite party arbitrarily or illegally in contravention of the loan agreement, charged Rs.58,002/- in excess from the complainant and he consequently deserve its refund?

6. It is made out from the case of the complainant himself that he had not adhered to discipline or the schedule of payment of half yearly instalments. Payments were delayed by him. His first payment was delayed. Under the loan agreement, Ex.R.1, complainant had agreed to pay late payment charges equal to 3% per month on the amount which remained outstanding beyond due date till payment.

This condition is incorporated in condition no.2 (b) of the agreement. Ex.R.3 is statement of loan account of the complainant. This shows that he had not paid loan instalments as per schedule. Consequently, for such a reason, opposite party charged penal interest on account of delayed payment of due amount of the instalments from the complainant. Complainant in his letter Ex.CW1/E has admitted penalty for the payment of monthly instalments and even promised to pay Rs.30,728/-.

7. So, it appears that extra amount than agreed between the parties was charged from the complainant due to reasons that complainant did not pay the agreed instalments as per agreed repayment schedule. This opposite party did under the terms and conditions of the loan agreement. There is nothing that such conditions were infringed by the opposite party.

8. Therefore, in these circumstances, we find no deficiency in service on the part of opposite party, as is claimed by the complainant. Hence, the complaint being merit less is dismissed.

APPEAL NO. 140/2009.
DATE OF DECISION: 17/12/2009.

In the matter of:
1. Mahindra & Mahindra Financial Services Ltd.,

National Highway 21, VPO Bhangrotu,

Tehsil Sadar, Distt. Mandi, HP.

2. Manager, Mahindra & Mahindra Financial Service Ltd.,

Sadhna House 570, PB Market, Worli Road, Mumbai 400 018,

Through Managing Director. Appellant No1 and 2 through

Sh. Vivek Guleria, S/o Sh. B.S.Guleria,

GPA of M/s. Mahindra & Mahindra Financial Service Ltd.,

Having its office at 2nd floor, Sadhna House 570,

PB Market, Worli Road, Mumbai.
Appellants.

Versus

Sh. Chaman Lal, S/o Sh. Beli Ram,

R/o Vill. Suma Ropa, P.O. Jari, Tehsil & Distt. Kullu, HP.

Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting ? Yes.

For the Appellants: Mr. Prince Chauhan, Advocate,

vice Shri Rahul Mahajan, Advocate.

For the Respondent: Mr. Naveen K. Bhardwaj, Advocate.

O R D E R

Justice Arun Kumar Goel (Retd.), President (Oral).

1. District Forum, Kullu vide its order dated 19.2.2009 allowed complaint case No.54/2008 in the following terms:-

(i) The opposite parties are directed to adjust the sale proceeds of the vehicle towards the satisfaction of the dues by calculating its market value by deducting 40% of the amount from Rs.2,19,696/- i.e. the purchase price of the vehicle by the complainant instead of Rs.35,000/- and to refund the contribution towards the purchase price of the vehicle, if any, made by the complainant and also to adjust various amounts deposited by the complainant from time to time with the opposite parties towards the payment of the instalments after adjusting unpaid instalments till the date of seizure of the vehicle. It is further directed that the after adjustment of the amounts as aforesaid, if it is found that any excess amount has been paid by the complainant, the same shall be refunded to him.



(ii) The opposite parties are further directed to pay Rs.25,000/- on account of harassment, mental agony, pain, loss of business and Rs.2500/- as costs of litigation.”



2. Vehicle bearing registration No. HP-02K-0168 having been financed by the appellants through its Ner Chowk Branch is not in dispute. This was in the month of November, 2003. From the complaint filed it is evident that though instalments were being paid but irregularly as per the appellants. This has resulted in their getting legal notices issued through their counsel Shri Rajesh Joshi, Advocate. Vehicle was repossessed by the appellants on 20.5.2008, because according to the appellants, the respondent was in default of payment of his outstanding dues, and had failed to clear those despite notices, as well as promises made by him.



3. Now the dispute starts, because on one hand the appellants claimed that the vehicle was voluntary surrendered by the respondent. In this behalf two documents are there on the complaint filed, i.e. surrender letter dated 20.5.2008, as well as post re-possession letter dated 21.5.2008 to borrower and the guarantor in respect of the vehicle, in question. These are at pages 53 and 54 of the complaint file. On the other hand case of the respondent as projected in the complaint was, that the vehicle was re-possessed by use of force by the appellants as they had deputed 10-12 persons. Further according to him, it was re-possessed from his driver and a fake intimation regarding surrender of vehicle was given by them at Police Post, Bhuntar, on which signatures of the driver were not obtained by them. Police did not lodge the report. Respondent claims to have approached the Superintendent of Police, Kullu against the appellants’ wrongful, illegal and unwarranted acts. This resulted in causing great hardship to him because of unfair trade practice adopted by the appellants.



4. Before dealing with the contentions urged on behalf of the parties by their learned counsel in this appeal, it may be appropriate to point out that on 3.12.2007, a sum of Rs.8270/- was demanded by the appellants from the respondent that was standing against his name as per legal notice. This document is at page-42 of the complaint file.



5. It is further admitted case of the parties that a sum of Rs.4,800/- was paid by the respondent on 22.2.2008 against receipt. Leaving a balance of Rs.3,470/-. This fact could not be disputed on behalf of the appellants.

6. In the aforesaid background Shri Chauhan forcefully urged, that the allegations of the respondent that the vehicle was re-possessed by use of force illegally is without any material on record as according to him this is a case of voluntary surrender on 20.5.2008. We are unable to accept this submission. Reason being that case set out by the respondent was that it was re-possessed not from him but from his driver, whose signatures are admittedly not there on the so called surrender letter. He had alleged in the complaint, that at the time of providing finance, appellants had obtained many signatures from him on blank papers, besides having obtained blank cheques. Possibility of the so called surrender letter having been got signed from the respondent cannot be completely ruled out. As such reliance placed on it does not in any manner benefit the appellants. Likewise post re-possession letter dated 21.5.2008, also must fail in the face of the surrender letter having been not accepted by us.



7. Shri Chauhan further pointed out that the re-possession was in accordance with the terms of the loan documents subject to which his clients had provided finance for the purchase of vehicle. Therefore, no exception can be taken to it. Looking to the totality of the circumstances of this case, we are of the view that for a paltry sum of Rs.3,470/- or may be a little more, plea of voluntary surrender of the vehicle by the respondent neither appears to reason nor to logic. From the pleadings of the parties it can safely be inferred that looking to the number of persons deputed to re-possess the vehicle which according to the appellants was voluntary as per their defence, cannot be accepted in the totality of the circumstances of the case. Because there was hardly any occasion for the respondent to have surrendered the same voluntarily as claimed by the appellants.



8. Jurisdiction of District Forum to have entertained the complaint was also disputed by the appellants. In this behalf Shri Chauhan submitted that the remedy, if any, available to the respondent was in terms of the loan documents for taking recourse to arbitration. By ignoring this vital aspect of the case, District Forum below fell into error. We are unable to appreciate this submission much less uphold the same. Reason being that as per section 3 of the Consumer Protection Act, 1986 proceeding under this Act are in addition to not in derogation of any other law for the time being in force. Besides this, vehicle was re-possessed by the appellants within the territorial jurisdiction of District Forum, Kullu, therefore, part of cause of action under Section 11 of the Consumer Protection Act, 1986 arose there, is an additional ground to reject the plea of the appellants. Above all it was registered at Kullu and was plying in the said District.



9. Even if it be assumed for the sake of argument without admitting, that this is a case of voluntary surrender of the vehicle by the respondent and is further not a case of forcible re-possession of the vehicle by the appellants, even then for reason to be recorded hereinafter subsequent actions of the appellants justify the complaint has been allowed by the District Forum below.



10. In all fairness, to show their bonafide as well as to bring transparency in their action while dealing with the voluntarily surrendered vehicle, appellants in our opinion, should have got the same evaluated. Thereafter if it was to be auctioned, it should have been done after wide publicity. And after receipt of bid, notice should have been given informing the respondent of the maximum bid received and then calling upon him, to bring better buyer than the offer received by the appellants. In case the respondent failed to have done so, appellants would have been justified in confirming the sale in favour of the bidder. There is nothing on the record to show that any such steps were taken by them.



11. No other point was urged.



In view of the aforesaid discussions, we find no infirmity in the impugned order and while upholding it as passed by the District Forum, Kullu in Consumer Complaint No. 54/2008, dated 19.2.2009 this appeal is dismissed. No costs.



All interim orders passed in this appeal shall stand vacated.



Learned counsel for the parties have undertaken to collect copy of this order free of cost as per rules, from the Court Secretary.

APPELLANT : Sri. Narayan Mahato, S/o Khirod Mahato,

Vill- Gira, P.O.-Pukuria, P.S.- Jhargram,

Dist-Paschim Medinipur.

RESPONDENTS : 1. Sri. Chandan Das, Authorized Agent,

Star India Agencies, Raghunathpur,

Near (R.B.M.), P.O. & P.S.- Jhargram,

Dist- Paschim Medinipur.



2. Manager, Star India Agencies, Raghunathpur,

(Near R.B.M.) P.O. & P.S.- Jhargram,

Dist- Paschim Medinipur.



3. Branch Manager,

Mahindra & Mahindra Financial Services Limited,

Kusum Apartment, (Near LIC Board),

Inda, P.O.-Kharagpur, P.S.- Kharagpur,

Dist-Paschim Medinipur.



4. Star India Agencies (H.O.), 1A, Nazar Ali Lane,

Kolkata-700 019.

BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.


FOR THE APPELLANT : Sri. Nandalal Nayak, Advocate.

FOR THE RESPONDENTS : 2 & 4. Sri. Sandip Bandopadhyay, Advocate.

3. Sri. Samrat Sengupta, Advocate.


-ORDER-



S. Majumder, Member.



This appeal has arisen against the judgment passed by the District Forum, Paschim Medinipur, on 22.06.2009, in it’s case no-63/2008, wherein the Ld. Forum below has dismissed the complaint being barred by limitation under Section 24A of the Consumer Protection Act, 1986.



The brief facts of the case of the Complainant before the Forum below were that he purchased one Mahindra & Mahindra tractor from the OP-2 on 11.04.2006 with down payment of Rs.1,35,000/- while the balance amount payable was financed by the OP-3 to be repaid by the Complainant with interest in 58 monthly installments @ Rs.8,880/- as per loan agreement entered between them. According to the Complainant the down payment of Rs.1,35,000/- included the registration fees of Rs.14,500/- but the OP-2 failed and neglected in the matter of registration of the tractor inspite of repeated requests by the Complainant and for want of registration of the tractor he was unable to operate the same causing a huge loss to the tune of Rs.3,20,000/- to him. As such the Complainant filed the complaint petition against the OPs praying for direction upon them to pay him compensation for a sum of Rs.5,00,000/- due to financial losses suffered by him.



Being aggrieved by the abovementioned judgment the Complainant-Appellant has preferred the present appeal before this Commission contending the same facts as stated by him in the complaint petition before the District Forum. According to him the judgment passed by the Forum below is erroneous, illegal and liable to be set aside and he has prayed for allowing the present appeal.



Inspite of valid service of notice the Respondent no-1 did not present, so the matter was taken exparte against the Respondent-1.



It is evident from the record that the Forum below has dismissed the complaint due to barred by limitation as laid down under Section 24A of the C.P. Act as the Complainant has failed to approach the OPs for registration of the tractor within reasonable time after taking delivery on 04.11.2005. The Forum has further held that the claim of the Complainant for damage for not being able to operate the tractor without registration after about 3 years of taking delivery.



In my opinion the Forum has correctly observed that being financer in case of purchasing of the tractor in question by the Complainant-Appellant, the OP-3-Respondent-3 was not liable for the alleged non-registration of the tractor and in fact the Complainant has not sought for any relief against the OP-3 in the complaint petition.



During final hearing it has been argued by the Ld. Counsel for the Complainant-Appellant that he paid a sum of Rs.14,500/- for registration charge of the tractor and Rs.9,200/- for incidental charges to the OP-4 through their authorized agent OP-1. Though the OP-1 was absent on calls inspite of receipt of notice but the other Respondents-OPs did not show us any authentic document for proving the abovementioned argument as false. It is evident from the complaint petition that at the time of purchasing the tractor it was settled between the Complainant and the OP-1 that the Complainant will pay a sum of Rs.1,45,000/- as down payment and the Complainant will repay the balance amount in 58 monthly installments @Rs.8,880/- per month and as such a written estimate was made on the letter head of the Star India Agencies duly signed by the Complainant and the OP-1 in presence of the OP-2 and 3. Accordingly as per the settlement the Complainant duly paid Rs.1,45,000/- as down payment out of the total value including registration fees Rs.14,500/- and thereafter he also paid Rs.9,200/- as outstanding incidental expenses. The allegation of the Complainant is that inspite of getting the registration charge from him; the OP-1 did not take any step for registration for his vehicle in question. It is seen by me from the Xerox copy of the letter head of JBM Enterprises disclosed that the OP-1 received a sum of Rs.14,500/- for registration of the tractor and its trailer. Therefore it is clear that the letterhead used by the OP-1 for granting receipt for payment made by the Complainant to purchase the tractor and its trailer, the JBM Enterprise is the authorized dealer of the OP-4. Moreover the delivery receipt disclosed that the OP-1 as a partner of JBM Enterprise delivered the tractor and trailer to the Complainant on 11.04.2005 as authorized sale agent of the OP-4, who also admitted in their w/v that the OOP-1 is the salesman. Such admission of the OOP-4 coupled with the fact of delivery of the tractor and its trailer through the OOP-1 being a partner of JBM Enterprise suggested that the OP-1 being a partner of JBM Enterprise acted as an authorized agent of the OP-4. The receipt copy issued by the OP-1 also indicates that the Complainant paid a sum of Rs.1,45,000/- in cash to the OP-1 after calculation of the amount payable by the Complainant in cash towards the price of the tractor and trailer in question including the charge of Rs.14,500/- for registration thereof. The OP-4 has also admitted in their w/v that they received Rs.1,45,000/- from the Complainant through D.D. and cash respectively. Therefore in my view there is no doubt that the OP-1 being the authorized agent of the OP-4 received a sum of Rs.14,500/- from the Complainant for registration of the tractor and trailer purchased from the OP-4 and as such the OP-4 was vicariously liable for the deficiency in service of their agent OP-1 for not arranging registration of the tractor in question inspite of receipt of the charges. Therefore in my opinion there was deficiency in service on behalf of all the OPs except the OP-3, due to non-registering the tractor and trailer inspite of receipt of the entire amount from the Complainant and forcefully compelled the Complainant to approach before the District Forum by filing a case. I have noticed that after payment of the registration charge the Complainant made several correspondences with the OPs except the OP-3, and last effort was made from his end by issuance of the Advocate’s notice, but the OPs did not bother to take any reasonable step in this regard. Such high handedness of the OPs (except OP-3) cannot be entertained in the eye of law and the OPs should be saddled with cost and compensation. The Forum below has dismissed the complaint petition being barred by limitation holding that the Complainant purchased the tractor in the year 2005 and filed the complaint in 2008. But in my considered view that Forum has erred in holding its view as inspite of payment of the registration charge, the OPs (except OP-3) did not take any initiative to do the same and ultimately the Complainant filed the complaint before the District Forum. It is admitted fact that the Complainant purchased the tractor in the year 2005 and no case has been made out by the OPs that the Complainant approached them for registration of his tractor and paid due consideration money after lapse of two years from the date of taking delivery of the vehicle. But it is the case of the parties that as per agreement the Complainant paid the registration charge within a very short period. So such delay in non-registering the tractor by the OPs in favour of the Complainant is a glaring example of deficiency in service on their part and it can easily be termed as ‘continuous cause of action’. So the Complainant’s case cannot be termed as barred by limitation.



Going by the foregoing discussion it is ordered that the OP nos 1, 2 and 4 shall take initiative for registration of the tractor and trailer of the Complainant within a period of 45 days from the date of passing this judgment. The OP-1, 2 and 4 are directed to pay either jointly or severally a sum of Rs.3000/- towards compensation and 1,500/- towards litigation cost to the Complainant within a period of 45 days from the date of passing this judgment, in default the abovementioned amount shall carry interest @10% p.a. for the default period. In case of failure of registration the Complainant is at liberty to put the decree by filing execution case. With the above observation the appeal be allowed on contest against the Respondent no- 1, 2 and 4 with cost and compensation and dismissed against the Respondent-3 and the judgment passed by the Forum below is hereby set aside. The office is directed to send down the copy of this judgment to the Forum below and issue the same upon the recorded Advocates/Parties free of cost forthwith.

consumer case(CC) No. CC/08/263

Mohammed Kunhi
...........Appellant(s)

Vs.

The Manager
...........Respondent(s)


BEFORE:
1. K.T.Sidhiq
2. P.P.Shymaladevi
3. P.Ramadevi


Complainant(s)/Appellant(s):
1. Mohammed Kunhi


OppositeParty/Respondent(s):
1. The Manager


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER



Date of filing :25-11-2009

Date of order :08-12-2009

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

CC. No. 263/08

Dated this, the 8th day of December 2009.

PRESENT

SRI.K.T.SIDHIQ : PRESIDENT

SMT.P.RAMADEVI : MEMBER

SMT.P.P.SHYMALADEVI : MEMBER



Mohammed Kunhi,

S/o. Abdul Khader, 7/58 of Muliyar, } Complainant

Jumba House, Mulyar.Po,

Kasaragod.Dist.

(Adv.Abdul Nasir, Kasaragod)



The Manager, Mahindra Finance,

2nd floor, City Centre, } Opposite party

Bank Road, Kasaragod

(Adv. Babu Chandran.K, Kasaragod)



O R D E R
SRI.K.T.SIDHIQ, PRESIDENT



Complainant Mohammed Kunhi filed this complaint against the collection of re-possession charges of the vehicle by the opposite party from him. According to the complainant his Maruthi Alto Car bearing Reg.No.KL-14/G 6262 was never re-possessed by opposite party or his agents to penalize him with re-possession charges of Rs.4000/-.

2. According to opposite party the complainant has not paid the monthly instalments regularly. On 12-07-08 the complainant paid Rs.24,000/-towards the monthly instalment due and Rs.4000/- towards the re-possession charge and Rs.1000/- towards the traveling expenses. The amount of Rs.5000/- is collected with the consent of the complainant. They came to know about the objection only on receipt of the notice of the Forum. As per terms of agreement the opposite party is entitled to charge the traveling expenses and re-possession charges. However, they are ready to repay the amount of Rs.5000/- collected from the complainant for keeping the good business relationship.

3. The Hon’ble National Consumer Disputes Redressal Commission and the Hon’ble Supreme Court has time and again held that the re-possession of a vehicle by the financier without the recourse to law itself attracts various legal proceedings. It also amounts to deficiency in service under Consumer Protection Act. When the re-possession of the vehicle itself is illegal and constitutes deficiency in service, the collection of the re-possession charges and transportation charges is more grave and it amounts to gross deficiency in service. Therefore the opposite party is liable to compensate the complainant for the loss hardships and mental agony on account of the illegal extraction of Rs.5000/- by way of re-possession charges and transportation charge when the vehicle was actually not re-possessed at all.

Therefore the complaint is allowed and the opposite party is directed to refund Rs.5000/- to the complainant along with a compensation of Rs.2000/- and a cost of Rs.3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the amount of Rs.5000/- will carry interest @ 12% per annum from the date of complaint till payment.

consumer case(CC) No. CC/09/57

ABDUL LATHEEF
...........Appellant(s)

Vs.

BRANCH MANAGER
...........Respondent(s)


BEFORE:
1. Bindhu M Thomas
2. K.N Radhakrishnan
3. Santhosh Kesava Nath P
Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):

ORDER


THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC. No. 57/2009
Tuesday, the 19th day of January, 2010.

Petitioner : Abdul Latheef
Karottu Veedu,
Near Muslim Girls High School,
Erattupetta P.O
Kottayam.
(By Adv. P.A Muhammed Shefeek)
Vs.
Opposite parties : 1) The General Manager,
Mahindra & Mahindra Financial Services Ltd.
2nd Floor, Sadhana House,
570 PB Marg, Worli, Mumbai.

2) The Branch Manager,
Mahindra & Mahindra Financial Services Ltd.
1st Floor, Century Veetee Arcade,
Near Kottaramattam Bus Stand,
Pala P.O., Kottayam.
(By Adv. V.T Rejimon)

O R D E R

Sri. Santhosh Kesavanath P., President.

Case of the petitioner’s is as follows:
Petitioner availed a vehicle loan for Rs. 2,00,000/- from second opposite party by executing agreement of hypothecation for purchasing a Maruthi Omni Van . Petitioner purchased the vehicle for using it as a taxi vehicle as a means of his lively hood . According to the petitioner terms and conditions of the agreement were known only to the opposite parties. The loan of the petitioner was processed by the branch office then functioning at Pathanamthitta and subsequently the matter was transferred
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with the second opposite party. Petitioner states that opposite party informed the petitioner that an amount of Rs. 5110/- per month will be EMI amount towards repayment in 48 installments and will be terminated on October, 2008. Petitioner entrusted 10 numbers of blank, undated and signed Cheques to the opposite party at the time of entering into the agreement. Later, as per the request of the opposite parties, petitioner entrusted some more blank Cheques to the opposite parties. As a usual practice on the due date of R.M.I. Second opposite party sent the Cheque for collection , which were entrusted with the opposite parties, after filling up the same. According to the petitioner, opposite parties used to sent the Cheques for collection after a lapse of several days from the due date of concerned EMI. As a result, petitioner was forced to pay penal interest on account of fault committed from the office of the opposite party. Petitioner states that even after closure of the entire loan amount opposite party had not issued no objection certificate to cancel the hypothecation. Act of the opposite party according to the petitioner is a clear deficiency in service. So, he prays for direction to the opposite party to issue no objection certificate to the petitioner he claims Rs. 20,000/- as compensation. Petitioner prays for a direction to the opposite party to return blank Cheque No. 228420 and 2 bounced Cheques and other blanks papers and cost of the proceedings.
Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite parties, petitioner is not a consumer as per provisions of the act. Opposite parties in pursuance of application submitted by the petitioner and after accepting the terms by the petitioner sanctioned a loan for Rs.
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2,00,000/- on 30..10..2004. Petitioner executed loan agreement along with surety after understanding and accepting the terms and conditions. According to the opposite party the loan matter was processed at Pathanamthitta and is not transferred to second opposite party. Opposite party denied the entrustment of the blank undated Cheque to the opposite party at the time of entering agreement with opposite party. Petitioner himself had issued Cheques to the opposite party towards each EMI in respective months. The averment of the petitioner with regard to collection, filling of amount, name etc. were denied by the opposite party. Opposite party contented that petitioner is a defaulter in repayment of monthly installment of loan amount from second EMI on wards. Opposite party contented that as per the statement of accounts kept by the opposite party an amount of Rs. 13,300/- is outstanding from the petitioner. So, the opposite party is not liable to issue NOC to the petitioner. The demands paid by the opposite party is legal and there is no deficiency in service on their part. So, they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether the petition is maintainable or not
i) Whether there is unfair trade practice on the part of the opposite party?
ii) Relief and costs.
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to
A12 documents on the side of the petitioner and Ext. B1 document on the side of the opposite party.

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Point No. 1
According to the opposite party since the service availed to the petitioner is for a commercial purpose. So, petition is not maintainable. . Petitioner produced a copy of the ration card issued by the TSO. Said document is marked as Ext. A11. In Ext. A11 occupation of the petitioner is shown as coolie. So, the learned counsel for the opposite party argued that. Petitioner purchased the vehicle for commercial purpose by plying it as a taxi by appointment of paid drive this petition is not maintainable and the petitioner is not a consumer.. Petitioner produce copy of driving license issued by the licensing authority said document is marked as Ext. A1. As per Ext. A1 petitioner is licensed to driven LMV, HPMV, HBMV, MC with gear. So, inference that can be drawn is that petitioner is using the vehicle by himself exclusively for purpose of earning his livelihood by means of self employment. So, in our view petition is maintainable.
Point No. 2
According to the petitioner opposite party purchased undated signed blank Cheques from the petitioner at the time of entering in to agreement of hypothecation . Petitioner produced copy of the statement of accounts from the Federal Bank. Said document is marked as Ext. A3. From Ext. A3 it can be seen that Cheques issued by the petitioner to the opposite party are Cheque Nos. 228412, 228411, 228413, 228414, 228415, 228416, 228417, 228418, 228419 etc. So all Cheques which were presented by the opposite parties are adjacent numbers. So, inference that can be drawn is that the petitioner had entrusted blank signed Cheques with adjacent numbers to the opposite party at the time of availing the loan. From Ext. A3 it can be seen that EMI
for the Cheques are sent for collection to the petitioners bank on 14th 6th , 7th and on different days. In our view if the Cheques were kept by the opposite party they can very well sent the Cheques for collection before EMI date. From Ext. A3 it can be seen that in some months E.M.I Cheques for subsequent months E.M.I were also encashed in the previous month before the E.M.I date. From Ext. A3 it can be seen that in more or less all months at the due date of EMI there were sufficient funds in the account of the petitioner. From Ext. A4 statement of account issued by opposite party it can be seen that
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the 48th, ie. The last, installment was paid by the petitioner as per Cheque No. 542684 Dtd: 5..10..2008. Petitioner produced receipts showing payment done by the petitioner said document is marked as Ext. A5 series document. Ext. A5 receipt is for payment of the 11th installment Ext. A5 (a) is the receipt for payment of 13th installment Ext. A5 (b) and A5 (c) receipt for 25th installment. Ext. A5 (d) is the receipt for 33rd installment. Ext. A5 (e) for 45th installment. From Ext. A5 series document it can be seen that some amounts as others, A.F.C (penal interest) etc. are collected from the petitioner. Admittedly there is 48 installments. In Ext. A4 statement particular of due on 5..10..2008 is shown as ‘Zero’. Even though opposite party has a definite case that there is an amount of Rs. 13,300/- due to the opposite party they have not adduced any evidence to prove the same.
In our view the act of the opposite party in not issuing the no objection certificate after the repayment of entire loan amount and demanding excess amount for the lapse of the opposite party is a deceptive practice. So point No. 2 is found accordingly.
Point No. 3
In view of the finding in point No.1 & 2, petition is allowed and the petitioner is entitled to relief sought for. As per the order in IA 771/09 the opposite party is ordered to issue the no objection certificate and the petitioner is directed to deposit an amount of Rs. 14,000/- Since the petition is allowed, petitioner can withdraw the said amount from the Forum. Opposite parties are ordered to pay an amount of Rs. 5,000/- as compensation for the loss and sufferings caused to the petitioner. Opposite party is also directed to pay Rs. 1,000/- as cost of the proceedings to the petitioner. Orders shall be complied with within 30 days of receipt of this order.
Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 19th day of January, 2010.

dear sir


I took the loan for maruti omini 8 ster for rs 1,60,000 and from kotak mahindra prime ltd.
my loan agreement no is CF/4354566. i did forclousre for above acc. and paid the all amount at once.
they issued me noc(valid for 60 days) for cancelling the hypothecation but i could not do so.
now i am asking for new noc they said that rs 828.00 need to be paid.
plese tell me why and what for they are charging this much amont unnecessarily.
why they gave such noc valid for only 60 days as i made all payment because it is my right to have noc for unlimeted period because it is matter between the rto office and me.
thaking you
balendra kr singh
123, manas nagar
shahganj, agra
mob:09358635286

email:balendra_agra@yahoo.co.in