Date of Filing 29.05.2009

                                                                                                             Date of Disposal: 07.05.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                          …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIUR.P.MURUGAN, M.Com, ICWA (Inter), BL.,                                                           ……MEMBER-II

RBT/CC.No.18/2024

THIS TUESDAY, THE 07^th DAY OF MAY 2024

Mr.N.Saravanan,

S/o.Mr.T.M.Nithiyanandan,

Residing at old No.66, New No.74,

Karukku Main Road,

Menambedu, Ambattur, Chennai 53.                                                   ......Complainant.

                                                                                   //Vs//

1.Shivalaya Morots,

   Rep. by its Proprietor,

   16 M.T.H.Road, Saraswathi Nagar,

   Thirumullaivoyal, Ambattur, Chennai 600 062.

   Opposite to Vivekananda Vidyalaya.

2. M/s. Family Credit Limited,

    Formerly Appejay Finance,

    Credit Limited having its

    Regional Office at

    28 &30, Kodambakkam High Road,

    Nungambakkam, Chennai – 600 034,

    Opp: Hotel Plam grove (Bus Stop).

    Registered office at

    Technopolis, 7^th Floor,

    Wing “A”,Plot No.4,

    B.P.Sector V, Salt Lake, Kolkatta -700 091.                                ……Opposite parties.

Counsel for the complainant                                   : M/s.T.S.Rajmohan, Advocate.

Counsel for the 1^st opposite party                          : M/s.A.Ashokan, Advocate.

Counsel for the 2^nd opposite party                         : M/s.V.Balasubramani, Advocate.

This complaint has been filed before DCDRC, Chennai (North) as CC.No.208/2009 and transferred to this commission by the administrative order in RC.No.J1/3145/2023 dated 09.11.2023 of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as RBT/CC.No.18/2024 and this complaint coming before us finally on 15.04.2024 in the presence of M/s.T.S.Rajmohan, counsel for the complainant and M/s.A.Ashokan, counsel for the 1^st opposite party and M/s.V.Balasubramani, counsel for the 2^nd opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY Tmt. Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties  with regard to the demand and non issuance of RC book along with a prayer to direct the 2^nd opposite party to hand over the post dated cheques for the month of June, July, August and September 2008, to direct the opposite parties to hand over the RC book, to provide copy of the hypothecation agreement in full and to pay a sum of Rs.50,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

2. Complainant approached the 1^st opposite party for purchase of a two wheeler Motor Cycle “TVS Flame”.  Accordingly the vehicle colour with silver grey vide frame No.MD625BF6181C16863, and engine No.OF6C81017405 was allotted in favour of the complainant.  As per the vehicle invoice dated 12.07.2008 the cost of the vehicle was Rs.45,190/-. Complainant as per the terms of the loan agreement No.115180, amount financed was Rs.37,000/- and complainant agreed to pay the same together with interest spreading to 30 months.  The loan period commences from 05.06.2008 and was over by 05.10.2010.  As per the directive of the 1^st opposite party, the complainant paid a sum of Rs.18,500/- which includes the initial EMI of Rs.14,800/- registration and insurance costs and expenses.  The complainant was also requested by the 1^st opposite party to issue 35 post dated cheques even though the loan period was for 30 months.  When the complainant questioned, the 1^st opposite party informed the complainant that 6 post dated cheques were required for ECS clearing. Even though as per the invoice dated 12.07.2008 vide invoice No.514298 by M/s.Ramkay Agencies, Adyar, Chennai the value of the two wheeler was Rs.45,190/- still the 1^st opposite party claimed vehicle cost at Rs.49,865/- besides R.T.O. Charges Rs.350/-, Insurance Rs.975/- totalling in all Rs.51190/-.  It could been that there was a discrepancy of almost Rs.5,000/- with regard to the invoice generated by M/s.Ramkey Agencies and that of the opposite parties. Unfortunately for the reasons best known, the opposite parties fixed the sum of Rs.51,190/- and accordingly calculated a sum of Rs.18,500/- towards initial payment. The 2^nd opposite party did not present the post dated cheques, for the EMI’s initially for 3 months with an assurance that they would return back the post dated cheques.  The opposite parties further submitted that they have misplaced the cheques and they would soon retrieve the cheques. A receipt was issued on 23.06.2008 vide receipt No.5974 by the 2^nd opposite party for the subsequent instalments for July 2008 also August and September 2008 instead of presenting the post dated cheques, the opposite party collected cash, issued receipt No.6739 dated 21.07.2008, No.7379 dated 24.08.2008 and No.8121 dated 26.09.2008. Pertinently for September 2008, the complainant issued a bearer cheque which was duly collected by the opposite parties on 26.09.2008 in the name of Motikumar.  As per the procedure, the opposite parties have to issue RC book with hypothecation endorsement.  Till date the opposite parties have not delivered the original RC book with hypothecation endorsement to the complainant. Thus aggrieved by the act of the opposite parties the present complaint was filed for the reliefs as mentioned above.

The crux of the defence put forth by the 1^st opposite party:-

3. The 1^st opposite party filed version submitting that the 1^st opposite party had only suggested the details of financier and was not aware of various other transactions entered into between the complainant and 2^nd opposite party.  The 1^st opposite party was not aware of the payment of Rs.18,500/- made by the complainant and the issuance of 36 post dated cheques. The 1^st opposite party was wholly unaware of the demand made as to cost price of motorcycle over and above the invoice amount and other payments made by the complainant at the behest of the 2^nd opposite party. Question of issuance of RC book, copy of hypothecation agreement and other allegations made by the complainant in the complaint could not be mulcted on the 1^st opposite party.  Thus they sought for dismissal of the complaint.

The crux of the defence put forth by the 2^nd opposite party:-

4. The 2^nd opposite party submits that the complainant agreed and undertook to pay the instalments regularly without any default and delay.  The complainant has created hypothecation on the vehicle to secure the said loan facility.  But contrary to the said undertaking the complainant failed and neglected to pay the amount and started to commit default right from the first month onwards. It was submitted that the complainant committed default in clearing the cheques given towards clearance of the monthly instalments month on month and failed to regularise the same. Since the complainant continued to commit default the 2^nd opposite party issued several demand notice on 08.11.2008, 08.12.2008, 02.01.2009, 02.02.2009 and 23.02.2009, calling upon the complainant to regularize the instalments and intimated that they would take appropriate legal action including taking repossession of said hypothecated vehicle. As seen in the Statement of Accounts filed by the complainant it was very clear that the complainant dishonoured the cheque right from the 1^st instalment and continuously, he failed to honour the same.  It was submitted that they never failed to present the cheques. In the Statement of Accounts it was very clear that the cheques issued by the complainant were dishonoured for the reason that “Insufficiency of Funds”. Further they did not receive cash from the complainant as alleged by him and the same was raised only with intend to cover up his latches in payment of instalments and escape from the clutches of law for his default.  It was false to state that the complainant maintained the sufficient balance in his account from the month of September 2008 and that the 2^nd opposite party failed to present the cheques.  Admittedly the complainant started to dishonour the cheques right from the 1^st instalment that is 05.06.2008 and he continuously dishonoured the cheque for the month of July, August and September 2008 and hence the averments of the complainant that he maintained sufficient balance in the month of August 2008 was totally false and against the Statement of Accounts filed by him. Since the default continued and the complainant failed to regularize the instalments, left with no other option but 2^nd opposite party has to repossess the vehicle as per the terms and conditions of the loan agreement. The 2^nd opposite party charged the interest rate only as per the terms and conditions of the Loan Agreement and RBI regulations.  Thus they sought for the dismissal of the complaint.

5. On the side of the complainant proof affidavit was filed with documents marked as Ex.A1 to Ex 10. On the side of 1^st opposite party proof affidavit was filed but no documents were produced.  On the side of 2^nd opposite party proof affidavit was filed along with document marked as Ex.B1.

Points for consideration:-

1. Whether the complaint allegations as to the loan repayment demands by 2^nd opposite party and non issuance of Registration Certificate Book has been successfully proved by the complainant?
2. If so, to what relief the complainant is entitled?

Point No.1:-

6. In the first round of litigation, the 2^nd opposite party who was the financier remained exparte and did not participate in the proceedings.  After setting aside the exparte order, the matter was remanded back for fresh disposal.

7. The 1^st opposite party submitted that they were no way responsible and answerable for the complaint allegations as they merely introduced the financier to the complainant.

8. The 2^nd opposite party submitted that the complainant availed finance facility for purchase of the vehicle to the tune of Rs.37,000/- to be repaid in 30 EMIS together with the interest, an amount of Rs.1488/- per month agreeing to the terms and conditions.  The complainant also created hypothecation on the vehicle for the said loan.  However, contrary to the undertaking the complainant failed to pay and committed defaults.  The cheques given by the complainant failed to honour resulting in issuance of several demand notices.  When the complainant failed to regularize the loan repayment the vehicle was repossessed.  Thus it is submitted by them that they did not commit any deficiency in service as alleged by complainant but acted only according to the terms and conditions of Loan Agreement.

9. On appreciation of the entire pleadings and materials submitted by both parties, the factum of purchase of the vehicle from 1^st opposite party out of the finance advanced by the 2^nd opposite party was not disputed by either of the parties. However, the issue relates to the repayment of the loan EMI’s.  The loan was obtained by the complainant by accepting to the terms and condition of the financier/2^nd opposite party.  However, the vehicle was repossessed for defaults committed by the complainant. It is the case of the complainant that inspite of issuing cheques (post dated cheques), the 2^nd opposite party insisted for cash payment which was made by the complainant.  No proof was submitted by the complainant in support of the said allegations.  However, on perusal of the Statements of Accounts filed by 2^nd opposite party it is seen that though first instalment starts from 05.06.2008 on 09.06.2008 cheque bouncing charges of Rs.300/- was levied.  Further it was also found that on several other dates cheque bouncing charges Rs.300/- and overdue charges of Rs.31/- levied on several dates.  If the version of complainant that only on request of 2^nd opposite party he made cash payment, no necessity arises for the 2^nd opposite party to levy cheque bouncing charges and overdue charges. In such circumstances, it is to be presumed that as the post dated cheques got bounced, the complainant was constrained to pay the EMIS in cash.  When, the complainant had accepted the terms and conditions for obtaining the loan, he could not now contend that the financier/2^nd opposite party is coercing and demanding illegally the due amounts from him.  The 2^nd opposite party had stated that they issued several notices to the complainant to regularize the loan account which the complainant failed to do.  Thus, when he failed to regularize the loan, the 2^nd opposite party repossessing the vehicle could not be termed as illegal and against terms and conditions of the Loan Agreement.

10. Further, when the vehicle was under hypothecation, the original documents would only be in the custody of the financier which was the usual practice.  Hence, complainant could not allege deficiency in service and unfair trade practice against opposite parties for retaining the original RC Book.  In the said circumstances, we conclude that the complainant had failed to prove the complaint allegations. Thus we answer the point accordingly in favour of the opposite party and as against the complainant.

Point No.2:-

 11. As we have held above that the opposite parties had not committed any deficiency in service the complainant is not entitled any reliefs from the opposite parties.

In the result, the complaint is dismissed.  No order to costs.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 07^th day of May 2024.

      -Sd-                                                     -Sd-                                                         -Sd-

MEMBER-II                                        MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

List of documents filed by the 2^nd opposite party:-

      -Sd-                                                          -Sd-                                                   -Sd-

MEMBER-II                                              MEMBER-I                                      PRESIDENT