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Cholamandalam Investments and Finance Co. Ltd. v/s M/s Sana Silks and Sarees

    First Appeal No. 805/2004 (Arisen out of Order Dated null in Case No. of District)

    Decided On, 13 January 2011

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE SHRI. S. CHANDRAMOHAN NAIR MEMBER & THE HONOURABLE SRI. M.K. ABDULLA SONA MEMBER

    For the Appellant : Sri. Philip.T.Varghese, Advocate. For the Respondent : ---------



Judgment Text

SHRI.M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by the CDRF, Malappuram in OP.105/2003 dated:27-08-2003. The appellant is the opposite party who prefers this appeal under the order of the Forum below and directed the opposite party to refund a sum of Rs.3,23,000/- together with interest at the rate of 12% per annum from 6/4/2003 till realization and cost of Rs.3000/-. The respondent is the complainant. In short the complainant availed financial assistance on the security of his car KL10-M 4463 from the opposite party. An amount of Rs.3,23,000/- was paid, the balance payable in February 2003 is Rs.2,49,250/- which was tended by a demand draft and was not accepted by the opposite party. On the other hand, they seized the vehicle on 30/3/2003. The balance amount as on 1/4/2003 is only Rs.2,34,000/- which the complainant is willing to pay, as the opposite party is not willing to receive the amount, complaint was filed for re-delivering the vehicle or in the alternative for return of Rs.3,23,000/- with cost.

2.The opposite party entered appearance on 2/7/2003 the case was adjourned to 24/7/2003. On 28/7/2003 they filed their written version and they contended that the matter had to be referred for arbitration under Sec.8 of the Arbitration and Conciliation Act, 1996, in view of clause 23 of hire purchase agreement. The opposite party sought time for production of the agreement executed by the parties. However the matter was heard on 23/7/2003 itself and passed the above impugned order.

3.On this day this appeal came before this commission for final hearing, the counsel for the appellant is present. There is no representation for the respondent/complainant. The counsel for the appellant argued on the grounds of the appeal memorandum that they were not given any opportunity to produce their loan agreement before the Forum below. Again the counsel for the appellant submitted that the Forum below allowed the amount of Rs.3,23,000/- together with interest at 12% and cost of Rs.3000/- without even appreciating the claim of the complainant. The complainant’s case is that they paid Rs.3,23,000/- to the complainant, the balance amount of Rs.2,49,250/- they produced a DD but the opposite party did not accept this DD. The opposite parties seized the vehicle on 30/3/2003 according to the complainant the balance is Rs.2,34,000/- is outstanding and the complainant is not having any case about the seizure of the vehicle whether it is legal or illegal. But we are seeing that the opposite party’s version did not contain any of the grounds of the appeal memorandum. In the version their only one contention that the Forum below is not having jurisdiction to entertain this case. There is a clause for the arbitration as per the Arbitration and Conciliation Act, 1996. But this contention is not legally sustainable as per Sec.3 of the Consumer Protection Act, the Forum have the jurisdiction to entertain this complaint as per additional powers. It is a settled position as per the decision of the Supreme Court and National Commission. This is the view taken by this commission and unless any other contention is put forward in the version there is no scope for interference in the order passed by the Forum below. But the submission of the counsel for the opposite parties is that the Forum below did not give an opportunity to the appellant to produce the loan agreement and marked it as a document is reasonable. The finding body is expected to give reasonable opportunity to either parties to adduce their evidence and they can pass orders on the strength of the evidence. It is the settled principle of law. The amount ordered by the Forum below is also without perusing the accounts. The counsel for the appellant submitted that the case may be remanded back to the Forum below for giving opportunity to adduce the loan agreement and further evidence.

4.We are seeing that it is a fit case to remand back to the Forum below for giving an opportunity to the appellant to adduce their evidence. It is necessary for the interest of justice. But the appellant and the opposite party only have the liberty to adduce fresh evidence only. Both parties are not having any liberty to amend their complaint and the version already filed by them. With this direction this appeal is allowed on the terms of cost of Rs.1000/- payable to the complainant by the appellant/opposite party.

In the result this appeal is allowed accordingly. This order is subject to the payment o

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f cost of Rs.1000/- to the complainant by the appellant/opposite party. The office of this commission is directed to send back the case file to the Forum below immediately and the Forum below is also directed to dispose of the case as early as possible after giving notice to the respondent/complainant and the appellant/opposite parties. The points of the appeal answered one by one and discussed on the strength of the evidence and argument submitted by the counsel for the appellant accordingly.
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