Jammu and Kashmir

Jammu

CC/536/2017

GHANISHYAM - Complainant(s)

Versus

HINDUJA LEYLAND FINANCE - Opp.Party(s)

SUSHMA SHARMA

10 Nov 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.:               148/DFJ         

 Date of  Institution   :  08-08-2017

 Date of Decision      :    25-10-2018

 

Ghanishyam

S/O Tulsi Dass,

R/O Dharmsal,

Tehsil Kalakote,Rajouri.

                                                                                                                                                Complainant

     V/S

1.Hinduja Leyland Finance Limited,

  Through its Managing Director,

Registered Office No.1 Sardar Patel Road,

Guindy Chennai-600032.

2. Hinduja Leyland Finance Limited,

  Through its Branch Manager,

   C-37 Sainik Colony,Ist Floor,

   Near Nishan Showroom Katra By Pass Road,

     Jammu.

                                                                                                                                                                Opposite parties

CORAM:-

                  Khalil Choudhary   (Distt.& Sessions Judge)  President

                   Ms.Vijay Angral                                                -  Member

                  Mr.Ghulam Sarwar Chauhan                             -   Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Sushma Sharma,Advocate for complainant, present.

Nemo for OP1.

Mr.Koshal Parihar,Advocate for OP2,present.

 

                                                                         ORDER.

 

                   Grievance of complainant lies in short compass, in that complainant said to have purchased a tractor for personal use from Tawi Tractors and for that purpose complainant availed loan of Rs.2,50,000/-on 31-01-2013 from OP on hypothecation of his tractor-DI-01745 and had executed loan agreement under Contract No.PJCGJA00020 ad as per terms and conditions of the agreement entered between the parties, the loan sanctioned is repayable in 36 monthly instalments alongwith interest, but the OP has not provided the copy of loan agreement to him, despite repeated requests. Allegation of complainant is that the OP had taken advance blank cheque bearing No.470371 to 470375,cheque bearing No.35751 to 35753 and cheque No.035754 to 035786 from him  for repayment of loan amount on,30-01-2013 against proper receipt(copy of receipt is annexed as Annexure-A)That as per terms and conditions of agreement repayment of loan commenced on 01-03-2013 till Ist February,2016,OP Company  withdraws the instalment from the account of complainant on the first week of every month through advance cheque taken by the OP from complainant and withdrawal of instalment from the account of complainant by OP is reflected in the account statement.(Annexure-B)Complainant further submitted that in the month of August,2015 OP through phone call instructed him to furnish fresh cheque as advance cheque issued by him are lost/misplaced by the OP Company,he requested the Ops to give him in writing cheque number lost/misplaced by the OP so that complainant stopped the payment of those cheque before issuing fresh cheque,but OP pay no heed to his request and kept on insisting him to pay fresh cheque.Further allegation of complainant is that when he updated his pass book,he came to know that four instalments have been withdrawn from his account,so he issued four new cheques to OP amounting to Rs.37,692/-which amount was duty withdrawn by OP.It is pertinent to mention here that to the utter shock of complainant,the OP kept on withdrawing instalments from his account, which shows that no chque was ever lost by the OP.That in the month of October,2015 the Ops issued notice to him to clear the pending dues within three days of the receipt of notice failing which the Op shall seize the vehicle of complainant despite of the fact that OPs have regularly withdrew the instalment from his account and if any instalment is not withdrawn that is due to negligence of OP as no cheque of complainant ever be dishonoured by the bank.(copy of notice is annexed as Annexure-C).That the complainant has unofficially taken account statement from the office of OP company which shows that the entire instalment was withdrawn by the OP well in time and in total OP has withdrawn 29 instalments from his account and has taken Rs.10,000/-cash from him and rest of the instalment was deliberately not withdrawn by the OP with ulterior motive to harass the complainant and extract more and more money.As per terms of agreement the loan account of the complainant is deemed to be closed in Februarym2016 but OP after sleeping over the matter for one year again issued notice dated 19^th January,2017 alleging the account of complainant is overdue by Rs.81,082/-and instructed him to clear the due within three days failing which the vehicle of complainant be seized(Annexure-D,E.Complainant further submitted that he again approached OP company  and requested them to provide detail of unpaid instalment so that he clear the due because the loan amount has been repaid well in time, but OP refused to provide detail of loan account/repayment which amount to deficiency in service by the OP.Complainant vide letter dated 18-12-2016 and Ist February,2017 time and again approached OP to return the unused cheque so that he be able to clear the dues, but the OP neither returned the cheque not provide the detail of loan account of complainant and this act of OPs constitutes deficiency in service.

              Notices were sent to the OPs alongwith copies of complaint through registered covers with acknowledgment due and as per record the notices were received by the Ops, but they did not choose to represent their case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act, however,L/C for OP2 Mr.Koshal Parihar appeared on behalf of OP2 filed his valalatnama and sought time to file written version,but failed to file written version within statutory period, so their right to file written version was closed vide order dated 27-09-2017

            The complainant adduced evidence by way of duly sworn his own affidavit and affidavit of Jagmohan Sharma.The complainant has placed on record copy of receipt, copy of statement of account, copy of notice and copies of communications exchanged between the parties.

                     We have perused the case file and also heard learned counsel appearing for the complainant.

              Briefly stated case of complainant is that he said to have purchased a tractor for personal use from Tawi Tractors and for that purpose complainant availed loan of Rs.2,50,000/-on 31-01-2013 from OP on hypothecation of his tractor-DI-01745 and had executed loan agreement under Contract No.PJCGJA00020 ad as per terms and conditions of the agreement entered between the parties, the loan sanctioned is repayable in 36 monthly instalments alongwith interest, but the OP has not provided the copy of loan agreement to him, despite repeated requests. Allegation of complainant is that the OP had taken advance blank cheque bearing No.470371 to 470375,cheque bearing No.35751 to 35753 and cheque No.035754 to 035786 from him  for repayment of loan amount on,30-01-2013 against proper receipt and as per terms and conditions of agreement repayment of loan commenced on 01-03-2013 till Ist February,2016,OP Company  withdraws the instalment from the account of complainant on the first week of every month through advance cheque taken by the OP from complainant and withdrawal of instalment from the account of complainant by OP is reflected in the account statement.Complainant further submitted that in the month of August,2015 OP through phone call instructed him to furnish fresh cheque as advance cheque issued by him are lost/misplaced by the OP Company, he requested the Ops to give him in writing cheque number lost/misplaced by the OP so that complainant stopped the payment of those cheque before issuing fresh cheque,but OP pay no heed to his request and kept on insisting him to pay fresh cheque.Further allegation of complainant is that when he updated his pass book, he came to know that four instalments have been withdrawn from his account, so he issued four new cheques to OP amounting to Rs.37,692/-which amount was duty withdrawn by OP.It is pertinent to mention here that to the utter shock of complainant,the OP kept on withdrawing instalments from his account, which shows that no chque was ever lost by the OP.That in the month of October,2015 the Ops issued notice to him to clear the pending dues within three days of the receipt of notice failing which the Op shall seize the vehicle of complainant despite of the fact that OPs have regularly withdrew the instalment from his account and if any instalment is not withdrawn that is due to negligence of OP as no cheque of complainant ever be dishonoured by the bank.That the complainant has unofficially taken account statement from the office of OP company which shows that the entire instalment was withdrawn by the OP well in time and in total OP has withdrawn 29 instalments from his account and has taken Rs.10,000/-cash from him and rest of the instalment was deliberately not withdrawn by the OP with ulterior motive to harass the complainant and extract more and more money. As per terms of agreement the loan account of the complainant is deemed to be closed in Februarym2016 but OP after sleeping over the matter for one year again issued notice dated 19^th January,2017 alleging the account of complainant is overdue by Rs.81,082/and instructed him to clear the due within three days failing which the vehicle of complainant be seized. Complainant further submitted that he again approached OP company  and requested them to provide detail of unpaid instalment so that he clear the due because the loan amount has been repaid well in time, but OP refused to provide detail of loan account/repayment which amount to deficiency in service by the OP.

                 The complainant in his affidavit and affidavit of Jagmohan Sharma have supported the averments of the complaint. There is no evidence on record produced by other side to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainant, it appears that the complainant has succeeded in proving his case as narrated by him in the complaint. The complaint is fully supported by the affidavits of complainant, so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments contained in complaint. This is a case of deficiency in service. The OPs despite service of notice, sent by the Forum through registered cover has not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the Ops  in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OPs omits or fails to take any action to represent their case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OPs omits or fails to taken any action to represent their case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant.

                    In addition complainant has also supported the allegations contained in the complaint by duly sworn his own affidavit and affidavit of Jagmohan Sharma, which are corroborative of the facts contained in the complaint. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by OPs.

                     Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and Ops are directed to pay to the complainant the excess amount received by them  alongwith interest @ 7% per annum till its realisation.The complainant is also entitled to compensation of Rs.5000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/-.The OPs shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties free of costs. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                     Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

   25-10-2018                                                                       Jammu.

 

Agreed by                                                               

                                                                            

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member