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2010 DIGILAW 285 (HP)

Kahan Singh v. Cholamandlam Investment Finance Co. Ltd.

2010-01-11

CHANDER SHEKHAR SHARMA, M.M.ARUN KUMAR GOEL, SAROJ SHARMA

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ORDER Mr. Chander Shekher Sharma, Member – 1. This appeal is directed against the order passed by District Forum, Mandi, in Consumer Complaint No. 45/2008, decided on 11.12.2008 whereby the complaint of the appellant was dismissed with no orders as to costs, by reserving the liberty to him to approach the civil court. 2. Facts of the case as they emerge from the record are, that appellant had got financed his vehicle, (Tempo Trax) No. HP-65-0519 from the respondent. As per schedule of agreement, the appellant was to re-pay the financed amount with interest etc. in 36 equated monthly installments of Rs. 10,626/ - to the respondent. Further averments in the complaint are, that despite making payment of all the installments to the respondent, the appellant asked for the release of the vehicle from hypothecation and to issue the No Objection Certificate (NOC). 3. In this background, complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the appellant alleging deficiency of service on the part of the respondent. 4. Respondent when put to notice resisted and contested the complaint, and its plea was that there was no deficiency of service on its part since the full payment of the installments has not been paid by the appellant. As according to it, there was default of payment and Rs. 39,532/- was still payable by him. As such question of issuing NOC in favour of appellant does not arise. 5. Appellant in the present case has filed his own affidavit in support of the complaint, besides documents. These copies of letter issued by Sanghi Hire Purchase Ltd dated 11th October, 2006 and 12th May, 2007, and receipts Annexures C-1 to C-17. Appellant has also filed rejoinder to the complaint wherein he had reiterated the stand taken by him in the complaint. 6. Respondent in support of its case filed affidavit of Mr. Hitender in support of its defence. 7. We have heard learned counsel for the parties and have also gone through the record of the case file minutely. 8. Mr. Raj Pal Thakur, learned counsel for the appellant argued, that all the 36 installments have been paid by his client and there is nothing due and payable by his client. Hitender in support of its defence. 7. We have heard learned counsel for the parties and have also gone through the record of the case file minutely. 8. Mr. Raj Pal Thakur, learned counsel for the appellant argued, that all the 36 installments have been paid by his client and there is nothing due and payable by his client. Thus non-issuance of NOC by respondent in the present case despite repeated requests made to it was a clear cut act of deficiency of service on its part. Mr. Arvind Sharma learned counsel for the respondent argued that since there was default in the payment of the installments to the tune of Rs. 39,532/- by the appellant, as such his client rightly did not issue the NOC. He thus prayed for upholding the impugned order. 9. After hearing the learned counsel for the parties, as well as after going through the record of the case, we are satisfied that the order of the District Forum below does not suffer from any infirmity. Reason being that in the present case, it is manifestly clear from the record that the appellant in support of his case has to lead evidence regarding liquidation of 36 agreed installments. He has not filed any acceptable evidence to this effect. Simple averments in the pleading will not take the place of proof. Even the loan agreement entered into between the parties has not placed on record by both the parties. Even if we ignore the statement of accounts filed by the respondent in the present case which is at pages 47 to 51 of the complaint file, still the appellant who pleaded full payment was to prove this fact. Even the receipts, Annexures C-2 to C-17 which have been filed on record depict that in all 20 installments were paid by the appellant. And as already held, liquidation of all the agreed installments has not been proved by the appellant. As such in our opinion, the respondent has rightly withheld the NOC. We may point out that District Forum below had not correctly applied the decision of the National Commission, of Vishal Roadways Vs. Economic Traders (Gujarat) Ltd., 1998 NCJ (NC) 539, as its ratio was wholly inapplicable to the facts of the present case. As such in our opinion, the respondent has rightly withheld the NOC. We may point out that District Forum below had not correctly applied the decision of the National Commission, of Vishal Roadways Vs. Economic Traders (Gujarat) Ltd., 1998 NCJ (NC) 539, as its ratio was wholly inapplicable to the facts of the present case. Appellant failed to prove full payment of the outstanding amount the case set out by him, so there was no question of dispute between the parties relating to accounts. 10. What fall from this is that this is not a case of deficiency of service on the part of the respondent as alleged by the appellant. Above all the learned counsel for the appellant could not point any evidence in support of the case set out by his client in the complaint. 11. No other point was urged. In the view of the aforesaid discussion, we find no reason to interfere with the well reasoned order passed by District Forum, Mandi in Consumer Complaint No. 45/2008, decided on 11.12.2008 and the same is upheld, leaving the parties to bear their own costs. M.R.B.