National Consumer Disputes Redressal
M/S Muthoot Leasing And Finance Ltd. vs Mr.Sabu K on 12 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2074 OF 2013 WITH (I.A. NO.3407 OF 2013, FOR STAY) (Against the order dated 21.02.2013 in Appeal No.123/2012 of the State Commission, Kerala) M/s Muthoot Leasing and Finance Ltd. Muthoot Chambers Opposite Saritha Theatre Complex Banerjee Road Cochin - 682018 ....... Petitioner Versus Mr.Sabu K S/o Mr.Kujuraman R/o Sabu Sadanam Nellimukal P.O. Manakala, KadampanadKollam ... Respondent BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. S.S.Sobti, Advocate Pronounced on : 12th September, 2013 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Being aggrieved by impugned order dated 21.2.2013, passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (short, State Commission) Petitioner/Opposite Party No.2 has filed the present revision petition.
2. Brief facts are that Respondent/Complainant purchased an Ambassador car by executing an agreement availing vehicle loan of Rs.2,25,000/- on 10.12.2004 from the petitioner. It is stated that petitioner collected 10 post-dated signed cheques, signed blank papers and unfilled printed documents from the respondent and the sureties. It was assured by the petitioner that at the time of effecting payment of last installment of the loan amount, the documents along with no objection certificate would be returned to the respondent. The repayment of loan amount was a period of four years including interest and other charges and 47 installments @ Rs.5,500/-
each and balance of Rs.3,500/- as 48th installment commencing from 19.1.2005 to 19.12.2008. After repayment of the entire amount, the petitioner has failed to return the documents.
However, it demanded an amount of Rs.44,345/-
for issuance of no objection certificate. The act of petitioner claiming exorbitant amount and denial of issuance of termination letter resulted in mental agony and financial loss to the respondent for which petitioner is liable to compensate and also for the deficiency in service. Respondent has claimed compensation amount of Rs.15,000/- and cost apart from the documents lying with the petitioner.
3. Petitioner in its version has stated that the forum lacks jurisdiction to try this case wherein a hire purchase agreement which is holding as a bailee and does not come under the definition of consumer. Further, the dispute is covered under the arbitration clause and as such, complaint does not lie before the Consumer Forum. It is also stated that as per clause 3 of agreement, respondent had agreed to pay flat rate interest at 7.79% per annum. The allegation with regard to the 48th installment was to be paid only Rs.3,500/- is utter false and is bound by the terms of agreement. The repayment schedule along with the agreement stated that the 48th instalment was to be paid Rs.47,062/- No deficiency in service has been committed by the petitioner.
4. District Consumer Disputes Redressal Forum, Kollam (for short, District Forum) vide order dated 30.12.2011, allowed the complaint and passed the following order ;
In the result, the complaint is allowed and the opposite parties are directed to return the signed cheques and other documents obtained from the complainant in connection with sanctioning of vehicle loan account No.D.215/04 along with loan termination letter and no objection certificate of Ambassador Car bearing Reg. No.KL/3L/2862 to the complainant and to pay a compensation of Rs.5,000/- for their deficiency in service and Rs.1,000/- towards costs. The order is to be complied with, within one month from the date of this order.
5. Aggrieved by the order of the District Forum, petitioner filed an appeal before State Commission, which dismissed the same.
6. Being aggrieved by the order of State Commission, petitioner has filed the present revision petition.
7. We have heard the learned counsel for the petitioner and gone through the record.
8. It has been contended by learned counsel for the petitioner that respondent is bound by the terms and conditions of the Hypothecation Agreement and its guarantee dated 18.12.2004 and schedule of payment appended along it. Since, respondent did not pay the entire loan instalments, as such he was a defaulter. Moreover, petitioner was not a consumer and therefore, the complaint filed under the Consumer Protection Act, 1986 (for short, Act) is not maintainable.
9. District Forum in its order held ;
The specific case of the complainant is that the act of the opposite parties claiming exorbitant and unlawful amounts and denial of issuance of termination letter, no objection certificate, cheques and other documents to the complainant resulted in much mental agony and financial loss to the complainant.
Hence, there is deficiency in service on the part of the opposite parties, for which the opposite parties are liable to compensate the complainant. The opposite parties have no case that Ext.P1 card was prepared by the opposite parties at the time of executing the loan agreement. But the opposite parties have produced Ext.D1 agreement and argued that the repayment schedule attached to Ext.D1 agreement is in tally with the terms of the agreement, that as per clause 3 of the agreement, the complainant had agreed to pay interest at the rate of 7.79% flat per annum and as per the repayment schedule attached to Ext. D1 agreement, the complainant has to pay Rs.47,062/- as the last instalment and admittedly the complainant did not pay this amount, whereas the complainant paid only Rs.3,500/- which is reflected in Ext.P1. But the specific case of the complainant is that Ext.D1 agreement produced by the opposite party was unilaterally prepared by the opposite party after obtaining signature of the complainant and sureties in unfilled printed forms and without knowledge of the complainant and apart from the schedule attached to the agreement is a fabricated document subsequently prepared for the purpose of producing before this Forum. Even, though such an allegation was raised by the complainant, opposite party has not cared to examine the alleged guarantors in Ext.D1 to substantiate as to whether Ext.D1 was blank while they were affixing their signature. So also the witness who signed in Ext.D1 agreement not seen signed in the repayment schedule attached to The repayment schedule is seen written by a person at a stretch and not the one prepared earlier before issuing Ext.P1. In schedule I attached to Ex.D1 also it is seen written as instalments Rs.5,000/- each from 19.1.2005 to 19.11.2008. Installments Rs.47,062/- each from 19.12.2008. So the allegation of the complainant that it may be the one prepared in blank signed printed papers cannot be brushed aside. The instalments mentioned in Ext.D1 and the repayment schedule tally with each other upto 47th instalment. For 48th instalment in Ext.P1, the amount of hire to return is Rs.3,500/- and was remitted on 18.12.2008. But in the repayment schedule the 48th instalment seen written as Rs.47,062/-. If that be so, why the opposite party has not written the same amount in Ext.P1 creates doubt in the mind of this Forum. The opposite parties have no case that Ext.P1 was not issued by them. It is in their printed card in which their seal seen affixed. It is in evidence that the complainant had remitted the full amount shown in Ext.P1 without any default. It is true that it is a matter of pure mathematical calculation but why during preparation of Ext.P1 the opposite parties mentioned 48th installment as Rs.3,500/- and in the repayment schedule attached to Ext.D1 48th instalment as Rs.47,062/-. Why they have not splitted that amount and included in the other instalments so as to enable the complainant for easy remittance also stands unexplained. After remitting the entire instalments in Ext.P1, the complainant demanded the termination letter, no objection certificate, cheque and other documents which the opposite parties are bound to return and not to harass the complainant by creating such documents. It is argued by the learned counsel for the opposite parties that the complainant has admitted his signature in Ext. D1. It is true that he has admitted his signature in Ext.D1 but the complainants case that after getting his signature along with the signature of guarantors in blank printed forms later filled the same and produced before the Forum stands unexplained. According to us, after remitting the instalments as per Ext.P1 when the complainant requested for the issuance of the termination letter, no objection certificate, cheque and other documents, the opposite parties denied the same and created such documents and it is deficiency in service on the part of the opposite parties for which the opposite parties are liable to compensate the complainant.
10. State Commission while dismissing the appeal in its impugned order has held ;
As per the calculation appellants total amount comes to Rs.3,55,000/-. The complainant took the loan from opposite parties for Rs.2,25,000/- and already remitted Rs.2,62,000/-. The appellant collected an excess amount of Rs.37,000/- as per the repayment card. Though the agreement produced in evidence by the appellant, a copy was not provided to the respondent. The custodian of agreement being the appellant and not issued the filled up copy of the agreement to the complainant. We find in the allegation of the complainant that the agreement was signed by the complainant in blank forms. Nothing in evidence that a copy of the agreement was issued to the respondent. The respondent paid promptly on the correct dates and the excess payment in addition to the loan amount being Rs.37,000/-, we have to ignore the terms and conditions which were concealed from the respondent. Appellant being in a dominant position have all the chance to fill up the application form at their will. Attested copy of photocopy of the agreement should have been provided to the respondent who was already a party to the contract. In this case, the respondent already paid the loan amount and an excess of Rs.37,000/- and we find the claim for Rs.47,000/- is not sustainable.
11. Respondent in para 3 to 5 of its complaint filed before the District Forum has made the following averments ;
3. At the time of execution of the said agreement, the 1st opposite party had collected 10 post-dated signed cheques, signed blank papers and other documents from the complainant and kept them in their custody. It was assured that at the time of effecting payment of the last instalment of the sad loan amount, these documents, blank signed papers, unused cheques, termination letter and no objection certificate would be returned to the complainant.
4. As per the terms arbitrarily set out by the opposite parties, the said amount with interest for 4 years and other charges were to be repaid by the complainant in 47 installments of Rs.5,500/-each and balance Rs.3,500/- as 48th instalment, commencing from 19.1.2005 to 19.12.2008.
5. The complainant was very particular in making repayment of the said loan amount in time.
Accordingly, the 48th instalment of the said loan amounting to Rs.3,500/- was remitted by the complainant on 19.12.2008. Hence, entire loan amounts with interest as per the terms of the said loan agreement were remitted by the complainant in time. Thereafter, on various occasions the complainant approached the opposite parties and requested for the termination letter, no objection certificate, cheques and other documents which the opposite parties are legally bound to give to the complainant. In spite of repeated requests made by the complainant, the opposite parties failed to return the documents and demanded the complainant to remit an additional amount of Rs.44,345/- for giving the termination letter and no objection certificate.
12. In response to the above paras, petitioner in its written statement has stated ;
3. In view of the aforesaid decision of the National Commission, it is well settled that this complaint is not maintainable before this Honble Forum, and therefore, the same is liable to be dismissed as not maintainable.
4. The subject matter involved in this dispute is covered by an arbitration clause which is specifically provided as Clause 27 of the agreement. Therefore, the complaint before this Honble Forum is not maintainable.
5. Without prejudice to the aforesaid contentions, the following version is submitted in reply to the averments in the original complaint. All the averments and allegations in the complaint, except those that are specifically admitted hereunder, are false and hence denied.
13. As per reply of the petitioner, there is no specific denial to the averments made by the respondent in para 3 to 5 of the complaint thus, it amounts to admission on the part of the petitioner.
14. Further, as per case of the petitioner, respondent is a defaulter. However, petitioner has not placed on record the Statement of Account qua the respondent so as to show how many installments and total amount has been paid by the respondent in this case. It would be pertinent to point out that during the course of arguments, we had put a specific query to the learned counsel for the petitioner as to why the Statement of Account has not been filed. In response thereto, learned counsel replied that there is no necessity for filing of the same.
15. Since, Statement of Account which is very relevant for deciding the controversy between the parties, has been deliberately withheld by the petitioner, under these circumstances inference has to be drawn against the petitioner.
16. It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986 (for short Act), the scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
17. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.
The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
18. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
19. Petitioner is directed to deposit the cost of Rs.10,000/-, by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
20. Pending application, if any also stands dismissed.
21. List on 25.10.2013 for compliance.
......J (V.B. GUPTA) PRESIDING MEMBER ....
(REKHA GUPTA) MEMBER St/