Present :       Sri. C.T. Sabu, President

                                                            Smt. Sreeja. S., Member

                                                            Sri.Ram Mohan R, Member

30^th day of November 2022

CC 270/20 filed on 06/07/20

Complainants          :           1.        Praveen, S/o Aravindakshan, Therattil House,

                                                            Vadakkumuri, Varantharappilly .P.O,

                                                            Varantharappilly Village, Thrissur- 680 303.

                                                2.        Pushpavathy, W/o Aravindakshan, Therattil
                                                            House, Vadakkumuri, Varantharappilly .P.O,

                                                            Varantharappilly Village, Thrissur- 680 303.

                                                            (By Adv. Sunil Pailoth, Thrissur)

Opposite Party        :                       Shriram Transport Finance Company Ltd,  
                                     2^nd Floor, AB Mall, Thrissur Road, Kunnamkulam,

                                                            Branch Office, Amrithanjali Arcade, 1^st floor,

                                                            Chanthakunnu Jn, Irinjalakuda.P.O,

Thrissur- 680 121. Rep.by Branch Manager

                                                            (Ex-parte)

F I N A L O R D E R

By  Sri.Ram Mohan R, Member:

            1.Complaint in brief,  as averred:

The complaint is filed under section 12(1) of the Consumer Protection Act 1986. The 1^st complainant statedly availed a loan from the opposite party’s finance company vide Loan No IRNJL 0609200001, for the purchase of an “MGV Tipper Vehicle” bearing Reg. No. KL- 46 A 8656, the sureties for the said loan being the 2^nd complainant herein and one Mr. Nishanth. The details of the hypothecation were duly endorsed in the RC book of the vehicle. The 1^st complainant having defaulted the repayment, the opposite party initiated arbitration proceedings under OP 1064/2018 to realize the sums from the complainants and got conditional order of attachment dated 29/06/2018 passed on an immovable property of 4.05 ares owned by the 2^nd complainant in Sy No. 110/1 of Varantharappilly Village , Thrissur. Subsequently the 1^st complaint claims to have on 02/07/2018 closed the loan, paying the sum under the loan and also obtained a letter of consent from the opposite party towards cancelling the endorsement of hypothecation made in the RC book. Accordingly the endorsement of hypothecation in the RC book was duly cancelled with effect from 16/07/2018.  In spite of their being aware of the closure of the loan in question, the opposite party allegedly moved the District Court, Thrissur vide CMA 145/18 and executed the conditional order of attachment passed by the arbitrator. The complainants term this act of the opposite party illegal and allege deficiency in service on their part. A lawyer notice issued to the opposite party  statedly elicited no result. Hence the complaint.

The complainants pray for an order directing the opposite party to take steps to lift the illegal proceedings of attachment on the properties of the 2^nd complainant, apart from other reliefs of compensation and costs.

2.Notice:

            In spite of having been duly noticed by the commission, the opposite party failed to contest the complaint or to file their written version before the commission. Hence proceedings against the opposite party were set ex-parte.

            3. Evidence:

            The complainant produced documental evidence that had been marked Ext.A1 to A9, apart from affidavit and notes of arguments. Proceedings against the opposite party being ex- parte, no evidence produced on their part. 

4.Deliberation of facts and evidence of the case:

            The Commission has very carefully examined the facts and evidence of the case. Ext. A1 is receipt no. TRCHR 1807020044 dated 02/07/2018 issued by the opposite party in favour of the 1^st complainant, receiving a sum of Rs.92,000/- , under Loan No IRNJL 0609200001. Ext. A2 is copy of the certificate of registration in respect of vehicle no. KL- 46 A 8656, which bears overleaf endorsement relating to cancellation of hypothecation with effect from 16/07/2018. Ext. A3 is the warrant of attachment issued by the District Court, Thrissur in CMA (Arb) 145/2018 dated 22/07/2018. Ext.A4 is copy of the CMA (arbitration)                     No. 145/2018 filed by the opposite party before the District Court Thrissur.        Ext. A5 is the certificate of encumbrance dated 30/03/2019 issued by the SRO Kodaly, Thrissur in respect of 4 ares, 5 Sq.m. property  in Sy No.110/1 of Varantharappilly  Village for the period from 01/01/2015 to 28/03/2019.  Ext.A6 is copy of the lawyer notice. Ext. A7 and A8  comprise postal receipt and postal acknowledgment card respectivicely . Ext. A9 is certificate of encumbrance dated 28/10/2019 issued by the SRO Kodaly, Thrissur in respect of 4 ares, 5 Sq.m. property  in Sy No.110/1 of Varantharappilly  Village for the period from 01/01/2015 to 21/10/2019 .

5.Points of deliberation:

1. Whether the act of opposite party is tantamount to unfair trade practice or whether there is any deficiency in service on the part of the opposite party?
2. Whether the complainants are entitled to any compensation from the opposite party? If so its quantum? Also whether the complainants prayer relating to lifting of the attachment proceedings, warrants consideration?

(iii) Costs?

6.Point No.(i)

Ext. A1 receipt explicitly  reveals that the opposite party has received on 02/07/2018 a sum of Rs.92,000/- from the first complainant in respect of Loan No. IRNJL 0609200001, relating to Vehicle No. KL- 46 A 8656. The Endorsement overleaf Ext. A2 RC copy regarding cancellation of hypothecation  with the opposite party in respect of the Vehicle in question (KL- 46 A 8656) with effect from 16/07/2018 makes it abundantly clear that the same is endorsed pursuant to the opposite party’s letter of consent duly issued by them upon confirmation of the closure of the loan concerned. A conjoint reading of both Ext. A3 & A4 documents reveals that both relate to the opposite party’s realization of sums in the loan in respect of vehicle No. KL- 46 A 8656. Both Ext. A5 & A9 encumbrance certificates unambiguously express that the attachment made therein are in accordance with an order pursuant to Ext.A4 petition. It is pertinent to note that the endorsements of attachment in Ext.A5 & A9 documents are dated 29/09/2018 which is subsequent to the date of Ext. A1 receipt when the 1^st complainant paid the required sum towards closure of the loan concerned and also subsequent to the effective date of cancellation of hypothecation, as endorsed in Ext.A2- RC copy. The opposite party’s act of having proceeded against the complainant, in spite of their having cleared their liabilities with the opposite party, is evidently a deceptive practice which constitutes an unfair trade practice. It at the same time results in deficiency in service on their part, as well. Section 2(1)(O) of the Consumer Protection Act, 1986 unequivocally reveals that activities like banking, financing etc. fall within the definition of “Service”. In the absence of any evidence to the contrary, we find no reason to disbelieve the contentions of the complainants.

Moreover, the opposite party has neither cared to enter appearance, nor to file their written version before the commission, despite their having received the commission’s notice to that effect. This recalcitrant and neglectful demeanor of the opposite party unveils their blatant disregard to the process of law. Their failure to submit their written version before the commission, amounts to admission of the allegations leveled against them by the complainants. The Hon’ble National Commission expressed the same view by its order dated 09/10/2017 in RP 579/2017 [(2017) (4) CPR 590]. Accordingly, for the aforesaid reasons,  point no.(i) is proved in favour of the complainants.

7.Point No.(ii )

The opposite party- Finance Company’s act of having unnecessarily dragged an erstwhile debtor of theirs who cleared his liabilities with them, to court proceedings and attachment of property, is a vexatious act,  which at the same time is an abuse of the process of law, as well. The wrong doings on the part of the opposite party inflicted financial loss, agony and hardship – both mental and physical, on the complainants. The opposite party has necessarily to compensate the complainants. We are of the considered view that the complainants are entitled to receive from the opposite party, a sum of Rs.50,000/- towards compensation for the financial loss, agony and hardship – both mental and physical, they underwent. 

As far as the complainants’ prayer relating to lifting of the proceedings of attachment is concerned, the complainants may have to move the appropriate court and hence we are of the view that complainants’ prayer to that effect warrants no consideration of the commission. The complainants, are at liberty to agitate the appropriate court for remedy, if any, required in that regard. Hence Point No.(ii) is proved partly in favour of the complainants.

8.Point No.(iii )

The complainants are also entitled to receive from the opposite parties, a sum of Rs.10,000/- towards cost of litigation.

   In the result, the complaint is partly allowed and the opposite party is directed to:

1. pay the complainants a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards compensation for the financial loss, agony and hardship, they underwent, and
2. pay the complainants a sum of Rs.10,000/- (Rupees Ten Thousand only)  towards costs ,

all with 9% interest per annum from the date of filing of the complaint till the date of realization. The opposite party shall comply with the above direction within 30 days of receipt of a copy of this order.

            Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 30^th day of November 2022.

Sd/-                                                    Sd/-                                                                Sd/-

Sreeja S                                             Ram Mohan R                                             C.T. Sabu

Member                                            Member                                                        President

Appendix

Complainant’s Exhibits :

Ext.A1 is receipt no. TRCHR 1807020044 dated 02/07/2018 issued by the
              opposite party in favour of the 1^st complainant, receiving a sum of
              Rs.92,000/- , under Loan No IRNJL 0609200001.

Ext.A2 is copy of the certificate of registration in respect of vehicle no. KL- 46 A
              8656, which bears overleaf endorsement relating to cancellation of
              hypothecation with effect from 16/07/2018.

Ext.A3 is the warrant of attachment issued by the District Court Thrissur in       
              CMA (Arb) 145/2018 dated 22/07/2018.

Ext.A4 is copy of the CMA (arbitration) No. 145/2018 filed by the opposite party
             before the District Court Thrissur.       

Ext.A5 is the certificate of encumbrance dated 30/03/2019 issued by the SRO
              Kodaly, Thrissur in respect of 4ares, 5 square meter property  in
              Sy No.110/1 of Varantharappilly  Village for the period from 01/01/2015 to
             28/03/2019. 

Ext.A6 is copy of the lawyer notice.

Ext.A7&A8 comprise postal receipt and postal acknowledgment card
              respectivicely .

Ext.A9  is certificate of encumbrance dated 28/10/2019 issued by the SRO Kodaly,
             Thrissur in respect of 4ares, 5 square meter property  in Sy No.110/1  
             of Varantharappilly  Village for the period from 01/01/2015 to 21/10/2019
            

                                                                                                                                    Id/-

Member