By: Miss. R.K.Madanavally, Member
Facts in brief.
The complainant had purchased a new bike bearing Reg.No. KL-10Z-9868 by exchanging his old bike bearing Reg. No. KL-11-N-4452 from opposite party No.2. The new bike was delivered to the complainant on 23/11/06. For the purchasing of the above said vehicle, the complainant had availed a loan from opposite party No1 by executing an agreement. Five Cheque leaves were also given as guarantee to opposite party No1. The total amount fixed for the loan was Rs.45000/-.
According to the complainant, he had remitted Rs.40700/- towards the above loan. But the opposite party No.1 demanded additional amount from the complainant. Thereafter the complainant surrendered the above vehicle before opposite parties and opposite parties auctioned and sold the vehicle without complying proper formalities. Even after the sale of the vehicle, the opposite parties demanded an amount of Rs.55000/- from the complainant. The opposite parties neither paid the balance amount nor returned the five cheque leaves to the complainant.
Thereafter a criminal case was also filed by the opposite parties against the complainant u/s 138 of Negotiable Instrument Act. in JFCM, Nilambur,. The opposite parties had cheated the complainant and hence this complaint is filed.
By vehemently opposing the contention raised by the complainant, the opposite parties filed their version. According to opposite party No1, this Forum lacks the Jurisdiction to try the case since the Arbitration clause is there in the Agreement. They are not aware of the purchase of the vehicle from opposite party No.2. Further, the vehicle was purchased from C.A.S.H Agencies but not from CASH Motors. The amount financed for the vehicle was Rs.33,990/-, which is liable to be repaid by 36 monthly installments.
A payment chart was also issued infavour of the complainant. The issuance of the five cheque leaves, the repayment of Rs.40700/- etc. were also denied by opposite party No1.
The vehicle was put in auction after paper publication and still an amount of Rs.72334/- was due towards opposite party No1 by the complainant. The complainant was a chronic defaulter and he is liable to pay the amount.
The same pleadings were taken by the opposite party No2 also. According to them, the complainant had not purchased any vehicle from opposite party No2. The vehicle was purchased on 23/11/2006 from another person and so they have no proof or details available in respect of the vehicle. More over, it is the discretion and concurrence of terms of finance of complainant and opposite party No1 about the availing of credit facility, its repayment and norms and conditions.
The dealers have nothing to do in this regard and no involvement at all except to the extent that only if the full amount for the vehicle is received, the vehicle would be delivered to the buyer. The dealer is not a party in the agreement. It is not true that the opposite party No2 is received Rs.10,000/- from the complainant and in which 6500/- was the value fixed for his old bike and Rs.3500/- paid in cash. They had not received any cheque, they are not aware of the case pending before JFCM and opposite party No2 had not committed any deficiency in service. The complainant is misusing the legal machinery and it has to be dismissed with cost.
Now the issues arises for our consideration here in are;
1) Whether the opposite parties are deficient in service?
2) If so relief and cost?
Point No1 and 2.
The complainant had produced Ext. A1 to A4 documents. Either the complainant, or the opposite party adduced no oral evidence. The opposite party had not even submitted the counter affidavit or any single piece of document.
According to the complainant out of the total amount of Rs.45000/-. He had remitted Rs40700/-. Thereafter defaults, he had surrendered the vehicle before opposite parties and opposite parties had sold the same in auction. The auction was conducted without complying the usual formalities. At the same time opposite party No1 submitted that the sale was conducted after publication in Mathrubhoomi Daily on 29.3.11. As per the calculation of opposite party No1 Rs. 72334/- was due from the complainant. But no document or paper publication is produced to prove the same.
On perusal of Ext. A3, passbook issued by opposite party infavour of the complainant, the complainant had remitted an amount of Rs.37000/- towards the loan. Since the opposite party had not disclosed the auction details we are helpless to fix an amount and direct to pay the same to the complainant. It is a real fact that complainant was a chronic defaulter. Even though he had remitted Rs.37000/-. Towards the loan. An amount of Rs.3500/- was already paid by him at the time of exchange of the said vehicle.
Since no affidavit and documents were submitted by opposite party we are compelled to depend upon the evidence tendered by the complainant. The opposite parties ought to have submitted the auction price in their version. It is revealed that the opposite party had some vested interest by not disclosing the same. That itself shows the deficiency.
The complainant had produced 5 cheque leaves before opposite parties at the time of issuance of the loan. Out of the same one cheque was presented and criminal proceedings were pending u/s 138 of NI Act before JFCM, Nilambur.
Both the complainant and opposite parties not produced the agreement and payment chart.
Hence in the interest of Justice we are allowing the complaint in part and passing the following orders.
1) The opposite party is directed to pay an amount of Rs.10,000/- to the complainant.
2) The opposite party is further directed to return the balance 4 cheque to the complainant.
3) No order as to cost and compensation.
This order shall be complied within one month from the date of receipt of the copy of this order.
Dated this 29th day of May, 2015
K.MOHAMMED ALI , PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 : Vehicle sales invoice issued by 2nd opposite party dated 23/11/06.
Ext.A2 : Insurance certificate
Ext A3 : Photo copy of payment chart book
Ext A4 : Settlement letter issued by 1st opposite party to the complainant.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
K.MOHAMMED ALI , PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
