Kerala

Idukki

CC/286/2016

Chandran Pilla - Complainant(s)

Versus

Managing Partner Kohinoor Hire Purchasing Company - Opp.Party(s)

Adv.Sijimon K A

31 Oct 2019

ORDER

DATE OF FILING :20/10/2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of October 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

CC NO. 286/2016

Between

Complainant : Chandran Pillai, S/o Raghavan Pillai,

Thusharam House (Parvathimandiram),

Balagram, Sanniyasioda P.O., Panackal City,

Pampadumpara Village, Udumbanchola Taluk,

Idukki District.

(By Adv: Benny Joseph)

And

Opposite Party :1 . Kohinoor Hire Purchasing Co. Tom's Park,

Perumbavoor – 683 542,

Represented by its Managing Partner.

(By Adv: V.K.Shaji)

2 . Mujeeb T.K., S/o Konthalan,

Thannickal House,

Kunthakk Kara, Karikkodu Village,

Thodupuzha Taluk, Idukki District.

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case of the complainant is that,

 

Complainant purchased a second hand autorickshaw from the second opposite party on 07/06/14 for a total sale consideration of Rs.1,30,000/-. Out of this complainant paid Rs.60,000/- by cash on the same day of purchase and the balance sale consideration of Rs.70,000/- retained as finance liability and the complainant agreed to be paid it with interest to the first opposite party by 18 monthly installments @ Rs.5,000/-. The second opposite party agreed to be availed the loan amount from the first opposite party for the realization of Rs.70,000/- and at the time of execution of the vehicle agreement, the opposite

(Cont....2)

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parties jointly colluded together and clandestinely obtained signatures on some printed and other papers from the complainant towards the security for the due repayment of the agreed finance amount with interest. After the purchase, the ownership of the vehicle is changed in favour of the complainant on 05/08/14. The first opposite party did not given any finance repayment chart to the complainant with ulterior motives and the complainant did not receive any amount by way of cash or cheque from any of the opposite parties towards finance of the said vehicle.

 

Complainant further averred that the entire finance amount was availed and received by the second opposite party and the second opposite party told the complainant that the complainant is liable to pay only Rs.70,000/- and its future interest opposite parties also collected two blank cheques from the complainant. The first payment of sale consideration Rs.60,000/- was paid at Kattappana and the balance payment of 15 installments are orally agreed are given to the first opposite party by cash transfer. As such from 23/09/14 to 05/02/16, the complainant remitted Rs.74,840/- to the first opposite party and the balance 3 installments of Rs.15,000/- has to be paid. When the complainant approached the first opposite party with the balance amount, the first opposite party refused to issue the NOC, by saying that the second opposite party received more amount from the first opposite party and he failed to repay it so far and penal interest are also pending. Complainant further averred that he is not liable to pay any amount exceeding Rs.70,000/- to the first opposite party which if any was given to the second opposite party without his consent or knowledge.

 

Complainant further contented that on 06/10/16, the agent of the opposite parties tried to take forceful possession of the vehicle and this attempt was failed by the timely intervention of local people. It is also stated that the first opposite party misused the cheque by writing a very huge amount and presented it before the bank. This act of the opposite parties are gross deficiency in service as well as unfair trade practice. Against this the complainant filed this petition seeking relief such as to restrain the opposite parties from repossessing the vehicle having Registration No.KL/05AF/1533, and from realizing default and penal interest and other unnecessary charges. Further direct the opposite parties to pay cost.

(Cont....3)

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Upon notice the first opposite party entered appearance and filed detailed reply version. Even though the notice from this Forum served to the second opposite party, the second opposite party failed to appear before this Forum and resisted the allegation leveled against them.

 

In their version the first opposite party contented that this Forum is having no jurisdiction. Since this opposite party is having no branch office at Idukki district. The first opposite party further contented that they are not aware of the second opposite party. Only to attract jurisdiction of this Forum the second opposite party is made as a party in this complaint, and the second opposite party is not a necessary party in this complaint.

 

The first opposite party further contented that, complainant availed a hire purchase loan of Rs.1,00,850/- from opposite party company on 19/06/14 and agreed to repay it in 24 monthly installments @ Rs.4,960/-. But the complainant remitted 15 installments @ Rs.5,000/- per months. So, the complainant is liable to pay 9 more installments as agreed by him. The opposite party approached the complainant directly and through notices for the payment of the balance loan amount. At last on 15/10/16, the complainant approached the first opposite party in their office and settled the matter for Rs.39,000/- and issued a cheque for that amount. Since the cheque was bounded, the opposite party initiated legal proceedings against the complainant.

 

The first opposite party further contented that they have no relationship with the second opposite party and the allegation that this opposite parties along with the second opposite party received two blank cheques as security from the complainant is totally false and hence denied. This opposite party issued loan to the complainant upon the noting of hire purchase alone as security.

 

The aim of the complainant is only to evade from the legal proceeding initiated by the opposite parties for recovery of the cheque amount. Neither the first opposite party or any one under them has not initiated to confiscate the autorikshaw as stated in the complaint. Under the above circumstances, the complaint is not maintainable herein and is liable to be dismissed with cost of this opposite parties.

(Cont....4)

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On the part of the complainant, complainant and one. Jenib J.Kachapilly, Senior Manager, Federal Bank Ltd., Perumbavoor Branch were examined as PW1 and PW2 respectively. Documents such as copy of sale agreement dated 07/06/2014, copy of RC book, copy of driving license, copy of contract carriage permit, copy of insurance policy, copy of receipts, copy of legal notice dated 25/11/16, copy of reply notice dated 30/12/16, copy of AD card marked as Ext.P1 to Ext.P9. True copy of the cheque dated 19/06/14, and its back side, produced by the PW2 are marked as P10(a) and P10(b). after verifying the original cheque with copy it is returned to the PW2.

 

From the opposite parties side produced document such as copy of loan agreement, copy of loan ledger, copy of statement of accounts and copy of cheque dated 15/10/16 illegally issued by the complainant to the opposite parties. These documents are marked as Ext.R1 to Ext.R4 respectively. In addition to it one C.V.Jose was examined as DW1.

 

Heard both sides,

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

 

The Point:- We have heard the counsels for both parties and had gone through the records.

 

It is an admitted fact that the complainant purchased a second hand autorickshaw having Registration No.KL 05AF/1533 from one Mujeeb who is arranged as the second opposite party, on 07/06/14 for Rs.1,30,000/-. As per Ext.P1 vehicle sale agreement on the same day, the complainant given Rs.60,000/- to the first opposite party as part payment. In their agreement complainant specifically agreed that balance sale consideration shall be arranged through a higher purchase company.

 

 

(Cont....5)

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As per the averment and deposition of the complainant, who was examined as PW1, the first opposite party is an agent of the second opposite party and at the time of executing the sale agreement the first opposite party obtained signature of the complainant in printed and blank paper, in order to sanction the vehicle loan. In addition to it the complainant happened to issue a signed blank cheque as demanded by the first opposite party as security towards the vehicle loan. The learned counsel for the complainant argued that complainant availed a loan of Rs.70,000/- only from the first opposite party company and agreed to repay it in 18 installments along with interest @ Rs.5000/- per month. He remitted 15 installments.

 

At the same time the evidence such as loan agreement, loan ledger etc produced by the first opposite party shows that, they sanctioned an amount of Rs.1,00,850/- to the complainant. As per Ext.R3 the bank account statement of the first opposite party company, they issued a cheque in the name of the complainant for Rs.1,00,850/- on 19/06/14. But the learned counsel for the complainant denied this and he vehemently argued that no such cheque was received by the complainant from the first opposite party company. On perusing the document it is seen that the cheque was issued from the Federal Bank Ltd., Perumbavoor Branch of the first opposite party company. This transaction is totally denied by the complainant. For establishing his version, as per the request of the complainant, the Manager of Federal Bank, Perumbavoor was called for adducing evidence along with the cheque in issue. The manager was examined as PW2. He produced the cheque having No.10127404, for an amount of Rs.1,00,850/- drawn in favour of the Chandranpillai. By producing the documents the PW2, manager specifically deposed that the cheque was presented by one C.V.Jose and he received the cash from the counter. More over the signature which bears on the back of the cheque is not tallying with the signature of the face of the cheque. That means some body put the signature of the complainant on the back of the cheque and received money from the bank for and on behalf of the complainant.

 

On an overall evaluation of the evidence on record the Forum is of a considered view that the first issue put forwarded by the first opposite party is regarding the issue of jurisdiction. Here except the simple contention in the

(Cont....6)

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reply version no evidence is adduced by the first opposite party to convince the Forum that none of the transaction is occurred within the jurisdiction of this Forum. At the same time on perusing Ext.P1 the vehicle sale agreement the prime document of this issue, it is seen that both the parties of this agreement is residing within the jurisdiction of this Forum and as per this document part sale consideration is done within the jurisdiction of this Forum. Further the first opposite party has not a case that the complainant approached them directly and executed R1 loan agreement in their office at Perumbavoor. Even though the opposite party admitted the sanction of vehicle loan and related issue, the first opposite party miserably failed to state the place of execution of documents. At this juncture, Forum is only to believe the version of the complainant that he entrusted the signed printed and blank papers to the first opposite party with in the jurisdiction of this Forum. Hence issues of jurisdiction is found in favour of the complainant.

 

Then regarding the issues of vehicle loan. Here the deposition of PW2, the bank manager is very relevant. He categorically deposed that the cheque which was issued in favour of the complainant by the first opposite party was en cashed by one C.V.Jose and the signature which bears back of the Ext.P10(a), P10(b) cheque differs with the signature which bears the face of the cheque.

 

Then C.V.Jose was examined as DW1. He filed proof affidavit stating that he is the managing partner of the first opposite party company. In the proof affidavit and deposition, the witness has not stated anything related to the encashment of the cheque which was issued by the first opposite party in the name of the complainant.

 

On going through the entire materials on record, the Forum found that an amount of Rs.1,00,850/- granted to the complainant by the first opposite party by way of vehicle loan, and the managing partner of the first opposite party himself en cashed the cheque and received the money as per the deposition of PW2 and Ext.P10(a) and P10 (b). The first opposite party has not a case that they given the loan amount to the second opposite party, who is entitled to get the balance consideration. As per the Ext.R1, they sanctioned a vehicle loan of Rs.1,00,850/- and they themselves encahsed the loan amount. This act of the opposite parties

(Cont....7)

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cannot be acceptable and digestible. More over the first opposite party has not produced any document to convince the Forum that they given the loan amount to the second opposite party, the person who sold the vehicle to the complainant and entitle to get the balance consideration. Opposite parties also miserably failed to adduce any evidence to convince the Forum that under what ground they sanctioned an amount of Rs.1,00,850/- instead of Rs.One Lakh or like a round figure. It is very clear that DW1, none other than the managing partner of the first opposite party, put the signature of the complainant, back of Ext.P10 cheque and encashed the cheque amount. This act of the first opposite party is gross deficiency in service as well as clear instance of unfair trade practice. Hence the sanction of Rs.1,00,850/- as the loan amount cannot be believable and hence the Ext.R1 and Ext.R2 cannot be admissible. On the basis of above discussion Forum is of a considered view that the act of the first opposite party is sanctioning of the vehicle loan of Rs.1,00,850/- instead of Rs.70,000/- as averred by the complainant is suspicious and doubtful and cannot be sustainable.

 

Under the above circumstances the Forum found that the first opposite party has committed gross deficiency in service and unfair trade practice in this matter. Hence the complaint allowed. The first opposite party is directed to close the loan account of the complainant by receiving Rs.15,000/- as the balance due installments from the complainant. Opposite party is further directed to pay cost of Rs.5,000/- to the complainant for the unfair trade practice that they followed in this matter within 30 days from the date of receipt of this order, failing which this amount shall carry 12% interest from the date of default till its realization.

 

Pronounced in the Open Forum on this the 31^st day of October, 2019.

 

Sd/-

SRI. S. GOPAKUMAR (PRESIDENT)

Sd/-

SMT. ASAMOL P. (MEMBER)

 

 

 

(Cont....8)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 -K.R.Chandranpillai

PW2 - Jenib J.Kachapilly

On the side of the Opposite Party :

DW1 - C.V.Jose

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of sale agreement dated 07/06/2014

Ext.P2 - Copy of RC book

Ext.P3 - Copy of driving license

Ext.P4 - Copy of contract carriage permit

Ext.P5 - Copy of insurance policy

Ext.P6 - Copy of receipts

Ext.P7 - Copy of legal notice dated 25/11/16

Ext.P8 - Copy of reply notice dated 30/12/16

Ext.P9 - Copy of AD card

Ext.P10(a) & P10(b) - True copy of the cheque dated 19/06/14, and its back side,

produced by the PW2

On the side of the Opposite Party :

Ext.R1 -Copy of loan agreement

Ext.R2 -Copy of loan ledger,

Ext.R3 -Copy of statement of accounts

Ext.R4 -Copy of cheque dated 15/10/16 illegally issued by the complainant to the

opposite parties.

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT