Orissa

Kendujhar

CC/2/2017

Sudam Charan Sahoo - Complainant(s)

Versus

1. Regional Claim Manager, IndusInd Bank Ltd. - Opp.Party(s)

Sri Rashmi Ranjan Rout & Sri B.K. Lenka

12 Jul 2017

ORDER

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO 02 OF 2017

     Sudam charan Sahoo, agaed about 42 years,

    S/o- Dambarudhar Sahoo,

    At/P.O- Belabahali,

    P.S- Ghasipura,

   Dist- Keonjhar-758020…………………………………………………………………………………………..complainant

                    Vrs

     1. Regional claim Manager,

      Indusland Bank Ltd,

      Bhubaneswar, Dist- Khurda

     2. Manager Indusind Bank,

     Tower-1, One India bulls center,

     841, Senapati Bapat Marg,

     Lower parel, Mumbai………………………………………………………………………………………..O.P Parties

         Present:

       Shri Purusottam Samantara,President

       Smt. B.Giri Member(W)

 

       Advocate for complainant-Rasmi Ranjan rout

       Advocate for O.P- A.K Pattnaik & R.R Rana

 

 

    Date of filing-   09.01.2017                                                                                   Date of order-12.07.2017

  

1.    In brief - the set out of the case is that the complainant owned a vehicle (truck) bearing

 regd  No-OR-09M-6786 financed by Indusind  Bank, since 2011. The EMI as scheduled has completed in the month of march 2016.

  

  2.   The complainant as averred although loan repaid with last EMI in complete the Bank not issuing the NOC till the date. Which is  deficiency of service as the non issuance is deliberate without any  reasoned intimation. Such action arise harassment& mental agony thus making liable to pay as per the consumer protection Act 1986. Prayed proper and necessary  order may be passed in the interest of justice. Relied on RC photocopy, smart card, statement of account & affidavit.

 

  3.  On getting notice, the opposite party in appearance contested the case in contending  the case is    baseless and flagrant abuse of process of law. The case has been filed to evade legal liability and to extract under advantage from his own wrong. The fact is suppressive and concocted so not maintainable per contra, It is admitted, the Ashok Leyland tipper 251612 was extended finance under contract No- OC0054794 on dt 06.11.2009 to be repaid on before 07.07.2013 and subsequently due to non-repayment the contract was rescheduled from  OC0054794 to OCC00149D on 29.12.2011 and said loan Account got closed on dt 01.04.2016.

 

  4 . It is also said, at no point of time, no written request has been made to issue NOC as raised. Hence    no deficiency constitute to liability.

 

   5.  The present complainant is a co-borrower to the loan account No- oc0054794& occ00149D and   arbitration  award has been passed on  dt 15.07.2013 for award sum of Rs 8,20,967 and the execution case No- 110/16 is pending at district judge court, Keonjhar so in the above  circumstance, the complaint petition is not maintainable be missed with cost.

 

   6. Made reliance on W.P(s) No- 347/16, High court, Cuttack Odisha in photocopy  and statement Account in photocopies.

 

 7.  Heard both the counsels and perused the record at hand.

 

  8. perused the materials on record, the contention persists on the issue of total repayment and subsequent non-issuance of NOC to the petitioner, thus the case.

 

  9.  It is a fact , the petitioner is a guarantor to another lance and it is not stated. The dues owes to him under the contract neither paid nor relieved from his contractual responsibility.

 

10.  Further it is also revealed, the arbitration execution pending before the district court, Keonjhar and O.P s counsel resisted as the arbitration award has been passed same is binding on the parties and provision of section 128 of the Indian contract Act is attracted which contemplates- “the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise expressed in the contract.

 

   11. On such juxtaposition in our considered opinion, The complainant is equally liable and the creditor has a right to obtain a decree against the surety and the principal debtor and we placed reliance on the authority- Ram Kishan Vs stat of W.P & others ,Civil appeal No – 6204/2009 (sc)- Held-   There can be no dispute to the settled legal proposition of law that in view of the provisions of section 128 of the Indian contract Act 1872.(here in after called)the contract Act the liability of the guarantor/surety is co-extensive with that of the debtor. The creditor has a right to obtain decree against the surety and the principal debtor . The surety has no right to restrain execution of the decree against him until the creditor has exhausted his remedy against the principal debtor has paid  or not  so when both ne liable for dues  “no pending” can’t be ascertained.

 

   12. On the other hand it is also settled, after award passed by arbitrator, consumer forum cannot decide complaint -  HDFC Bank Ltd Vs Yarlgadda  Krishnamaruty  - 2013(1) CPR 129(A.P).

 

 

 

 

 

 

 

 

 

13 . So under the  above noted discussion we hold the complainant is not entitled for NOC unless the financed amount is paid back as the liability of the surety is co- extensive with that of the principal debtor. Hence the case does not hold merit and is hereby dismissed.

 

 

Copy of the Order be made available to the parties as per rule.

File be consigned to record room.

Pronounced, 12th  july   2017      

 

     I agree             

                                    

                                    

    (Smt. B. Giri)                                                                                            (Shri Purushottam Samantara)

    Member (W)                                                                                                              President                    

DCDRF, Keonjhar                                                                                                   DCDRF, Keonjhar  

   

 

                                            

           

 

                                                               Dictated & Corrected by me

 

 

 

    (Shri Purushottam Samantara)

                                                                           (President)

                                                                    DCDRF, Keonjhar

 

 

  

 

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