State Consumer Disputes Redressal Commission
The Proprietor,Tvs Finance And Service ... vs Ashokkumar & ... on 9 February, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.267/2012
(F.A.No.935/2011 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order made in C.C.No.41/2007 dated 26.02.2010 on the file of
the District Forum, Karur.)
WEDNESDAY, THE 09th DAY OF FEBRUARY 2022
The Proprietor,
TVS Finance and Service Limited,
4, Renga Complex,
Karur Road,
Chinthamani,
Trichy - 620 002. Appellant/2nd Opposite Party
-Vs-
1. Ashokkumar,
S/o Periyasamy,
Pudutheru, Mayanoor,
Krishnarayapuram Taluk. 1st Respondent/Complainant
2. The Proprietor,
P.L.A.Sales Corporation,
12-A, Covai Road, Karur. 2nd Respondent/1st Opposite Party
Counsel for Appellant/Opposite Party -1 : M/s.Anand Abdul & Vinodh Associates.
Counsel for Respondent-1/Complainant : M/s.A.Rajaram, Advocate.
Counsel for Respondent-2/Opposite Party-2 : Given-up.
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This appeal coming before me for final hearing on 07.12.2021 and on
perusing the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed by the appellant/2nd opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Karur made in C.C.No.41/2007, dated 26.02.2010, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Karur.
3. The 2nd opposite party suffering by an order, directing the second opposite party to return the complainant's vehicle on payment of Rs.39,672/- by the complainant, if the complainant not willing to pay the said amount and get back the vehicle, the second opposite party is directed to refund a sum of Rs.20,962/- paid by the complainant with 9% interest from the date of filing of this complaint that is from 02.11.2007 till the date of realization. Further, directing the opposite parties 1 and 2 to pay Rs.4000/- towards compensation for mental agony and to pay Rs.1000/- towards cost of this complaint to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Karur (hereinafter in short "District Forum") have preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The complainant has approached the first opposite party for the purpose of purchasing T.V.S. Victor, two wheeler for price. On 29.08.2003, the second opposite party has financed for the complainant 3 to purchase the T.V.S. Victor TN 47 K 6378 and took delivery of the same. The complainant paid a sum of Rs.16,006/- at the time of delivery of the said two wheeler. The complainant further agreed to pay the remaining amount by monthly instalments. The second opposite party received 10 unfilled blank cheques from the complainant at the time of taking delivery of the vehicle The second opposite party further received a cheque No.023490 of the Bank of India, Krishnarayapuram from guarantor, one Periasamy. The complainant paid an installment amount of Rs.480/- on 29.09.2003, Rs.1653/- on 08.10.2003, Rs.1650/- on 09.11.2003 and Rs.1,653/- on 01.12.2003 and obtained receipt for the same. Thereafter, the complainant was not able to pay the monthly installments continuously due to his illness. The second opposite party should have presented the unfilled blank cheque received from the complainant at the time of taking delivery of the vehicle for realization of the amounts towards the monthly installments when the complainant was not able to pay the monthly installments, as agreed by him. But the second opposite party did not present the said cheques for collection of money. On 03.06.2006, the second opposite party abruptly sent the henchmen or the rowdies to the home of the complainant and seized the TVS Victor of the complainant. The complainant approached the opposite parties to receive the due balance pending for the two wheeler and to return his TVS Victor. But the opposite parties did not hear the request of the complainant and the opposite party did not reply for the complainant. No proper notice was given to the complainant to pay the installment dues. Therefore, the act of the opposite parties is illegal. The complainant caused notice to the opposite party on 02.08.2006 requesting the opposite parties to receive the balance amount pending for the vehicle and to return the vehicle. The second 4 opposite party received the said legal notice. The first opposite party did not receive the notice and reply for the same. The opposite parties have seized the vehicle kept in the complainant's house with a help of henchmen or rowdies before the due period was over. Therefore, the complainant claimed a sum of Rs.10,000/- towards compensation for mental agony and prayed to direct the opposite parties to return the TVS Victor of the complainant by receiving the balance amount pending against the complainant. If not so the opposite parties are directed return the amounts paid by the complainant towards the vehicle with interest.
5. Written version filed by the 1st opposite party is as follows:- The complainant offered to purchase a TVS Victor, two wheeler motor cycle is true. The complainant had made arrangements of the financial assistant from the second opposite party at his own initiative. Therefore, the first opposite party has no role for the attempt made by the complainant on the second opposite party. The first opposite party is only the dealers for the said motor cycle. The complainant while approaching the first opposite party had voluntarily expressed his intention to purchase the vehicle and told that the second opposite party has agreed to provide financial assistance to him under Hire Purchase agreement. The complainant paid Rs.45,255/- towards costs of the vehicle and the transaction has come to an end. The first opposite party is only bound to provide after-sales-service to the complainant. The payment of money as per the agreed installments to the second opposite party is not known to the first opposite party. The handing over 10 unfilled blank cheques of Bank of India, Krishnarayapuram by the complainant belonging to one Periasamy, guarantor is also not known to the first opposite party. The first opposite party is a separate entity and it is not connected with the second opposite 5 party. The second opposite party has no connection with that of the activities carried out by the first opposite party. The payment made by the complainant to the second opposite party is not known to the first opposite party. The first opposite party is the dealer of the vehicle and the vehicle was delivered to the complainant after the entire cost of the vehicle was received by the first opposite party. It is not known to the first opposite party about the alleged issuance of the cheques and alleged commitment of default and the seizing of the vehicle. No notice has been served on the first opposite party by the complainant. The complainant managed to get back the notice sent by him as if the first opposite party has refused to receive the notice. The first opposite party has not caused any mental agony. Therefore the complaint is liable to be dismissed.
6. Written version filed by the 2nd opposite party is as follows: The second opposite party is non-banking financial company incorporated under the Companies Act.1956. The complainant entered into a loan agreement bearing No. TN 21108169 with the second opposite party for the purchase of TVS Victor bearing Regn.No.TN 47 K 6378. The amount for the said vehicle has to be paid by 24 equal monthly installments of Rs.1653/-. It is admitted that the complainant had given 10 post dated cheques for the same. The complainant was irregular in making payments towards installments even after repeated requests and demands. Therefore, the second opposite party made a repeated requests to pay the installment amounts and Rs.14,877/- was payable by the complainant as on 10.06.2004. As per the agreement, the second opposite party after giving notice was constrained to seize the vehicle on 10.06.2004. It is specifically denied that the second opposite party did not send any henchmen to threaten the complainant and 6 seized the vehicle from the complainant. It is further denied that the vehicle was seized on 03.6.2006. It is contended by the second opposite party that the TVS Victor of the complainant was seized on 10.06.2004. The date of seizure alleged by the complainant on 03.06.2006 is a fabricated date to file this complaint by suppressing the actual seizure date. As per the clause 22 of the agreement refers to arbitration wherein it is specifically agreed that any dispute between the parties shall be referred to the Arbitration of an Sole Arbitrator and the award passed by the Arbitrator shall be binding on the parties. Therefore, this Forum has no jurisdiction to entertain this complaint and the complainant is not a consumer as defined in the Act. The complaint is liable to be dismissed
7. The Learned District Forum, after taking into account of the evidences adduced by both parties, had held that the seizure of the vehicle has been effected by the second opposite party without following dictum of sending notice to the complainant. No prior notice has been sent by the second opposite party to the complainant for committing default of monthly installments by the complainant that whenever the complainant is at default in payment the second opposite party has to present unfilled blank cheques received from the complainant for collection. It is the duty of the first opposite party to usher the second opposite party asking him to send a notice to the complainant to pay default installments before seizure of the vehicle. No documentary evidence is available to show that the first opposite party has ushered the second opposite party. Therefore, the District Forum had held that the opposite parties 1 & 2 committed deficiency in service directing the second opposite party to return the complainant's vehicle on payment of Rs.39,672/- by the complainant, if the complainant not willing to pay the said amount and get back the 7 vehicle, the second opposite party is directed to refund a sum of Rs.20,962/- paid by the complainant with 9% interest from the date of filing of this complaint that is from 02.11.2007 till the date of realization. Further, directing the opposite parties 1 and 2 to pay Rs.4000/- towards compensation for mental agony and to pay Rs.1000/- towards cost of this complaint to the complainant.
8. Being aggrieved against that order the 2nd opposite party challenging it by filing the present appeal before the Principal Commission at Chennai in F.A.No.935/2011 and the same was transmitted to this Circuit Bench on the point of territorial jurisdiction, after the constitution of this Circuit Bench at Madurai and taken on file in F.A.No.267/2012.
9. While presenting the Memorandum of appeal before Principal Commission the counsel for the appellant filed xerox copy of type sets enclosing statement of accounts of the complainant and got a loan agreement. No steps was taken to file any separate application for receiving additional documents in the appeal. Originally the consumer complaint was filed in the year 2007 and the dispute between the parties remained unsettled after lapsing of 14 years. Therefore, the Commission is decided to consider those documents for taking judicial notice which are unmarked and available with records.
10. No additional evidences were adduced by both parties in this appeal before this Commission.
11. Point for consideration is:
Whether the order passed by the Learned District Forum, Karur in C.C.No.41/2007 dated 26.02.2010 is sustainable under law or not? 8
12. Point: The complainant purchased a TVS Victor, two wheeler on 29.08.2003 by paying Rs.16,006/- from the first opposite party who is the dealer for selling the two wheeler, he registered the vehicle in Registration Number TN 47 K 6378, the complainant availing the vehicle loan from the second opposite party. The complainant and the second opposite party entered into an agreement on 29.08.2003 for sanctioning of loan Rs.32,100/- the value of the vehicle is Rs.45,255/-. The complainant executed a loan agreement and promissory note and he agreed to repay the balance amount of Rs.33,611.61 ps. in 24 equal monthly instalment at the rate of Rs.1653/- the period of repayment closed on 28.08.2005. Admittedly the complainant is not able to repay the instalments due to his illness. The second opposite party received unfilled signed blank cheque leaves from the complainant for the repayment of instalments. The second opposite party also obtained security from one Periyasamy. As per the averments in the complaint the second opposite party suddenly seized the vehicle on 03.06.2006 without any prior intimation. The complainant approached the opposite parties and informs his willingness to repay the instalments and the opposite parties refused to accept the request of the complainant. Therefore, the complainant filed the consumer complaint after issuing pre suit notice, the 1st opposite party refused to receive the pre suit notice and the second opposite party did not sent any reply after receiving the pre suit notice.
13. The counsel for the appellant raised a contention that the complainant as a defaulter and defaulted in making Re-payments in time towards monthly instalments and there was a sum of Rs.14,877/- due and payable towards his loan account as on 10.06.2004. When the post dated cheques were deposited the same were returned 9 by their bankers with an endorsement "Insufficient Funds". As per terms and conditions of the agreement entered into between the complainant and second the opposite party clause 22 states that, if any default committed by the complainant towards his loan account the second opposite party has right to repossess the vehicle even without notice to the complainant. Hence, the action of second opposite party seizure of vehicle is strictly along with the line of agreed terms and conditions of the loan agreement. The District Forum specifically held that no agreement has been produced by them then the actual remedy under clause 22 of the loan agreement will come to light. The loan agreement was with the Head Office at Mumbai at the time of filing proof affidavit before the District Forum. The non filing of agreement before the District Forum is not willful or wanton but only due to the above said bonafide reason. As per clause 22 of the agreement the parties have to resolve their disputes through an Arbitral Tribunal. Hence, the Consumer Protection Act would not have jurisdiction over the said dispute.
14. The complaint himself admits the default in repayment of instalments therefore no objection was raised by the complainant with regard to the due payable of Rs.14,877/- towards the loan account. With regard to the second contention the second opposite party have not produced any documentary evidence before the District Forum to prove the cheques issued by the complainant were returned by the bankers with an endorsement of Insufficient Funds. The second opposite party enclosed the xerox copy of statement of accounts of the complainant along with typeset. In the account statement four numbers of cheques were returned for the reason of Funds Insufficient. It is the admitted case of the complainant himself that 10 he was not able to repay the instalments due to his illness therefore, there is no importance in producing the statement of accounts.
15. The next contention raised by the counsel for the appellant is that the 2nd opposite party is having the right to repossess the vehicle even without notice under clause 22 of agreement entered into between the parties. The xerox copy of loan agreement was enclosed with the typeset Article 22 in the agreement reads as follows: " Law Jurisdiction, Arbitration (a) All disputes difference and/or claim arising out of this Agreement whether during its subsistence or thereafter shall be settled arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The clause 22 only relates to jurisdictional points does not support the contention raised by the counsel for the appellant. The remedy under the Consumer Protection Act u/s 3 of Consumer Protection Act 1986 is additional relief - Act not in derogation of any other law - "The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force".
16. The next contention raised by the counsel for the appellant is acted as only as per agreement which was agreed upon by both parties. It is the duty of the 2 nd opposite party to prove those facts that they are having the right to repossess the vehicle on default in repayment. As per the agreed terms in the Event of Default was explained in the agreement in Article 13 and Lender's Rights is explained in Article 14 the Events shall constitute of a default is mentioned as follows: "13.1 "The borrower failing to repay the Loan or any fee, charges, or costs in the manner herein contained and any one of the instalments or any other amounts due hereunder remains unpaid after the date on which it is due". Under the Article 14 clause "The 11 occurrence of any/all of the aforesaid Events of Default shall entitle the Lender to intimate the Borrower that the entire sum of money and all other sums and charges of whatsoever nature, including but not limited to, interests on account of default in payment of insurance premia and on account of other taxes which would have been payable by the Borrower if the Agreement had run to its full term, have become due and payable forthwith. The Lender shall be entitled to charge an extra percentage at a rate specified in the first schedule Principal outstanding on the other amounts due, and demand that all the aforesaid amounts be repaid to the Lender immediately. The Lender may by a notice in writing at its discretion call upon the Borrower to rectify the event of Default within the period specified in such notice.
17. Clause 14.2 - Upon occurrence of an Event of Default, the Borrower shall be bound to return Asset the Lender at such location, as the Lender may designate, in the same condition in which it was originally delivered to the Borrower, ordinary wear and tear excepted the Borrower shall not prevent or obstruct the Lender from taking the possession of the Asset.
18. The above terms under the agreement indicates the lender who is the second opposite party herein intimate the payment of in time sum of money and all other sums and charges for immediate payment and their duty also caused upon the lender who is the second opposite party herein demand the default payment in writing call upon the borrower to rectify the event of default within the period of specified in such notice. Therefore, necessarily the second opposite party to issue the notice on default of repayment 12
19. The second opposite party stated in their written version that "there was sum of Rs.14,877/- was payable by the complainant as on 10.06.2004. As per the agreement the second opposite party after giving notice was constrained to seize the vehicle on 10.06.2004". The second opposite party has not produced any documents to prove the issuance of notice as per the terms of agreement demanding the defaulted payment. The opposite parties have not marked any of evidence on their side before the District Forum.
20. The Learned District Forum categorically held that no document was filed on the side of second opposite party to show that the vehicle will have to be seized for the non-payment of monthly installment before the completion of agreed 24 monthly installments the second opposite party without giving notice and seized the vehicle. The second opposite party is duty bound to asking the complainant to pay the instalments as earlier by written. The complainant has sent a notice to the opposite parties under Ex.A8 stated that he has ready to pay the balance amount for the vehicle sent the above said notice to the opposite parties by the complainant as said in the complaint which was filed on 09.10.2007. The readiness to pay the pending instalments amount has been stated in the complaint itself. No documentary evidence is available to show that the second opposite party has sent any notice to the complainant. No notice has been sent by the second opposite party to the complainant for commit the default of monthly installment before the seizure of the vehicle. Therefore, after careful consideration of all those facts the Learned District Forum passed the well reason order it does not requires any interference and the same is sustainable under law and answered accordingly for the points for consideration.
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21. In the result, the appeal is dismissed by confirming the order of the learned District Forum, Karur made in C.C.No.41/2007, dated 26.01.2010. In addition the appellant/2nd opposite party is directed to pay additional cost of Rs.2000/- to the 1st respondent/complainant in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 09th day of February 2022.
Sd/-xxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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