By Smt. Beena. M,  President (In charge):

This is a complaint filed under section 12  of the Consumer Protection Act 1986.

           2. Brief facts of the case are as follows:-  The case of the Complainant is that he approached 2^nd Opposite Party for taking loan facility for purchase of a Yamaha SZ-X model Motor Bike valued Rs. 56,020/-.  Accordingly, the 2^nd Opposite Party sanctioned a loan of Rs. 42,000/- to the Complainant on 16^thJune 2012.  As per the instructions of the 2^nd Opposite Party, the Complainant had deposited 10 post-dated blank cheques leaves (one cheque book), copies of R.C of Yamaha Motor Bike No. KL-12 G-6486, Insurance Certificate, Fitness Certificate and Tax receipt with the 2^nd  Opposite Party.  As per the terms and conditions of the hypothecation agreement,    the Complainant had to pay 23 equal monthly installments commencing from 15^thJuly2012 and the subsequent installments payable on every 15^th  day of every succeeding month and the last installment was to be paid on May 15, 2014.  As per the repayment chart given by the 2^nd Opposite Party, the Complainant has remitted all the 23 installments on the due date without any default to the 1^st Opposite Party through 2^ndOpposite Party.  Since the Complainant has fully repaid the loan amounts, the Opposite Party No. 2 has to return signed blank cheque leaves deposited to the Opposite Party No.2. The Opposite Party No.2 has promised to deliver the No Objection Certificate (NOC) for cancellation of the hypothecation endorsement in the Registration Certificate of the vehicle. The Complainant has been persistently contacting Opposite Party No.2 at its office for getting the loan clearance certificate and NOC to be submitted before the R.T.O.   But Opposite Party No.2 has been giving lame excuses.  Finally Opposite Party No.2 has orally informed the Complainant to approach the office of Opposite Party No.3 at Kochi.  The Complainant submits that the name or particulars of Opposite Party No.3 Bussan Auto Finance India Pvt Ltd, Arun’s Chamber, Mamangalam,  Edappally, South Kochi is not known to the Complainant at all. On the other hand, the loan transaction was with Opposite Party No. 1 & 2 at its Sulthan  Bathery Branch. The Complainant states that Opposite Party No.3 could be the subsidiary or associate or accomplice of Opposite Party No.1 dealing with vehicle finance.  At any rate the Opposite Parties No.1, 2 & 3 are jointly and severally liable to deliver the clearance certificate, NOC (No Objection Certificate) for cancellation of hypothecation charge in the prescribed format regarding the Complainant’s Yamaha Motor Bike, model SZ-X No. KL-12 G-6486 to be submitted to R. T.O, Wayanad District at Kalpetta. The Opposite Parties No.1 & 2 have deliberately omitted, neglected and defaulted in delivering the clearance certificate and NOC for cancellation of hypothecation charge in the prescribed format regarding the Complainant’s Yamaha Motor Bike, model SZ-X No. KL-12 G-6486 to the Complainant.   This act or omission is deficiency in service, cheating and fraudulent act on the part of the Opposite Parties No. 1 & 2.  Since the 2^nd Opposite Party has orally instructed the complainant to approach the 3^rd Opposite Party for redressal of the injury and grievance, the complainant has impleaded the 3^rd Opposite Party also in the array of Opposite Parties.  The Complainant has suffered heavy loss and hardship due to the acts of Opposite Parties.

3. Complainant has issued registered lawyer notice dated 08.08.2018 to the Opposite Parties No.2 and 3 which had been delivered to the said Opposite Parties.  The Opposite Parties have not responded to the Complainant in spite of the registered notice dated 08.08.2028.  The Opposite Parties are jointly and severally liable to deliver loan clearance certificate, NOC (No Objection Certificate).  Hence this complaint.

 4. Upon notice, all the Opposite Parties appeared and version filed. The contentions of First and Second Opposite Parties are as follows:

 5. The Opposite Parties admitted that the Complainant has availed a loan towards the vehicle KL.12.G.6486. They denied the statement of Complainant that as per the instructions from the Second Opposite Party, the Complainant had given 10 post dated cheques.  The Opposite Parties also deny  that the Second Opposite Party has returned the Complainant, signed blank cheques after repayment of the loan in full and the First and Second Opposite Parties have not taken any steps to cancel the hypothecation endorsed in the RC book.   The Opposite Parties submit that the Complainant has already discharged the loan liability pending towards the First and Second Opposite Parties.  It is learnt that the hypothecation against the loan liability is created in favor of the Third Opposite Party. Therefore, it is the Third Opposite Party’s responsibility to cancel the hypothecation.   It is also learnt that the Complainant never approached the Third Opposite Party for cancellation of hypothecation and to the resultant issuance of No Objection Certificate. The Opposite Parties submit that the above complaint is bad for misjoinder of parties and they are totally unnecessary parties to the proceedings and they have nothing to do with the matter in issue.  Therefore the 1^st and 2^nd Opposite Parties prays to dismiss the complaint against them with compensatory cost.

          6. The 3^rd Opposite Party also filed version and submitted their contentions as follows:-  The Opposite Party  is neither a subsidiary nor associate nor accomplice of the Opposite Party No. 1 & 2 and have no relationship with Complainant and Opposite Party No. 1 & 2. Further, the Complainant never approached them and had not received any legal notice of Complainant. The Opposite Party is neither authorized nor liable to give 'No Objection Certificate’ (NOC) to the Complainant because we haven’t financed the vehicle of the Complainant. However, they issued 'No Loan Certificate’.  That, there has been no business or any other relationship between Complainant and the Opposite Party. Further the Opposite Party states that there is no 'Deficiency in Service’ on the part of the Opposite Party as alleged by the Complainant and the complaint is liable to be dismissed along with cost.

          7. On behalf of Complainant, his chief affidavit was filed and examined as PW1.  The documents produced were marked as Ext A1 to A7. 1^st and 2^nd Opposite Party submitted that they have no oral evidence. 

8. Heard, the arguments on both sides.

9. Now the point for consideration is:

1. Whether there is any deficiency in service on the part of Opposite Parties?
2. If so, what relief?

10. According to the Complainant, he got financed his Yamaha SZ-X model motor bike bearing No. KL-12.G.6486 from 1^st through 2^nd Opposite Party and the same was hypothecated with them and endorsement to this effect was made by RTO on the RC of the vehicle. Further according to the Complainant, he has paid the entire loan amount without any default but the Opposite Party is not issuing NOC which is necessary for removing the endorsement regarding hypothecation. The Complainant cleared the liability with the Opposite Parties gave them installment amount as per the chart given.  The 1^st Opposite Party even after receiving the entire due amount was not ready to give the no objection certificate to the Complainant.

11. The 1^st and 2^nd Opposite Parties are admitting that, the Complainant availed loan from them to purchase the vehicle bearing registration No. KL-12.G.6486 and also admitted that the Complainant had paid all the installments.  When the Complainant approached the 1^st and 2^nd Opposite Parties for NOC, they were refused to issue NOC stating that the hypothecation against the loan liability is created in favor of third Opposite Party, so the 3^rd Opposite Party is responsible for the cancellation of hypothecation.  Since there is an entry of the hypothecation by the Opposite Party on the RC, the Complainant is unable to sell his vehicle in question and the market value of the same is decreasing day by day. Here even though the endorsement in the RC is in the name of 3^rd Opposite Party, since the finance was taken from the 1^st and 2^nd Opposite Parties, the responsibility to take steps to cancel the endorsement in the RC is on the First and Second Opposite Parties.  As financiers the 1^st and 2^nd Opposite Parties should have realized that the endorsement in the RC was wrongly recorded and should have corrected it at the time of issuing RC. This has not been seen done by the first and second Opposite Parties.  This act of the Opposite Party is clear deficiency in service. The First and Second Opposite Parties are bound to compensate the Complainant for not taking necessary steps to issue the NOC despite paying the entire loan amount.

12. In the result the complaint is partly allowed and the First and Second Opposite Parties are directed to do all  that are necessary to cancel the endorsement on RC of vehicle No. KL-12.G.6486 and the 3rd Opposite Party is directed to issue certificate stating that they haven’t advanced any loan in respect of vehicle No.      KL-12.G.6486 and they have no objection in cancellation of the hypothecation in the original RC. Here,  the Complainant has no dealings with the 3^rd Opposite Party, there is no liability to the 3^rd Opposite Party to indemnify the Complainant.  Therefore 3^rd Opposite Party is not liable to pay Compensation and cost.  The RTO is also directed to consider the matter and take steps to cancel the endorsement of hypothecation from the RC considering the NOC of 1^st and 2^nd Opposite Parties and the letter of 3^rd Opposite Party.  The 1^st and 2^nd Opposite Parties are further directed to issue loan clearance certificate and also pay Rs.10,000/- (Rupees Ten Thousand only) as compensation and Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings. 

The above order shall comply within 30 days from the date of receipt of this order.  If the Opposite Parties fail to comply the order within 30 days, the total amount shall carry interest at 9% p.a. 

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the day of  5^th   July 2024.

            Date of filing:13.05.2019.                                                          

PRESIDENT (I/C):  Sd/-

                                                                                                MEMBER  :          Sd/-

APPENDIX.

Witness for the Complainant:

PW1.           Musthafa.                                 Complainant.                          

Witness for the Opposite Parties:

Nil.      

Exhibits for the Complainant:

A1.         Copy of Letter.                             

A2.        Copy of Certificate of Registration.

A3.       Copy of Repayment Schedule.                 dt:05.07.2012.

A4.        Repayment Acknowledgement Chart.

A5.        Copy of Lawyer Notice.                          dt:08.08.2018.

A6.        Postal Receipts.                   

A7.       Agreement.                                               dt:30.04.2018.                        

Exhibits for the Opposite Parties:

Nil.

                                                                        PRESIDENT (I/C):  Sd/-

                                                                                                                                                             MEMBER    :      Sd/-