Punjab

Ludhiana

CC/15/212

Vijay Sharma - Complainant(s)

Versus

Axis Bank Limited - Opp.Party(s)

Swaranjeet Singh

27 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 212 of 27.03.2015

Date of Decision          :   27.01.2016

              

Vijay Sharma son of Sh.Piare Lal resident of 1481, Phase-II, Urban Estate, Dugri, Ludhiana.

….. Complainant

Versus

Axis Bank Limited, Auto Loan, Surya Tower, 108, 2^nd Floor, The Mall Road, Ludhiana through its Branch Manager.

 

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Swaranjit Singh, Advocate.

For Op                           :         Sh.Sachin Goyal, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                          Complainant Sh.Vijay Sharma, filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act’) against OP, by claiming that he got financed a Maruti Ritz Car bearing registration No.PB-10-DV-1415, for a sum of Rs.4,75,000/- from OP and thereafter, purchased the same. That car was hypothecated with OP and endorsement in that respect was even got recorded in the records of D.T.O., Ludhiana. Complainant claims to have paid the entire amount due under the said account on 16.01.2015. The said account was closed on 16.01.2015 because nothing remained payable. Thereafter, complainant requested OP to issue no due certificate by releasing the hypothecation. Though OP is under obligation to release the hypothecation of the car and to issue Form No.35A immediately, but despite that same has not been done. A legal notice dated 9.3.2015 was also issued through registered post through counsel to OP for calling upon them to release the hypothecation and to issue the Form No.35A, but OP sent false and frivolous reply dated 13.3.2015. OP has committed unfair trade practice towards the complainant and that is why by pleading deficiency in service also, compensation of Rs.40,000/- for mental agony, physical harassment and financial loss sought along with litigation expenses of Rs.10,000/-. Even directions sought to OP to issue ‘No Due Certificate’.

2.                On appearance, Op filed written statement by pleading interalia as if the complaint is not maintainable because there is no deficiency in service on the part of OP; complainant himself is a defaulter of bank because lacs of amount are due against him. The car loan was closed by the complainant on 16.01.2015, but the complainant has defaulted in making the payment of outstanding dues of Rs.4,03,605/- pertaining to credit card No.4718 6000 0126 4557, qua which, demand notice was sent by the OP on 12.12.2014. That demand notice was followed by legal demand notice dated 15.12.2014 for calling upon the complainant to pay the total outstanding due towards above said credit card. However, the complainant has not paid any heed to the request of OP. The said account of the credit card is linked to NPA account case. OP has a ‘General lien’ for withholding NOC with respect to the car in question because default committed by the complainant in making payment towards the account of the credit card facility. That lien is exercised in view  the clause 31 of the Card Member Agreement. Even as per Section 171 of Indian Contract Act, the said lien is exercisable by the OP and the same has been duly exercised. OP is not under  obligation to issue form No.35A unless and until liability of debt not discharged by the complainant due towards    Op. There is no unfair trade practice adopted by the officials of OP. No cheating is committed by the officials of OP. Complainant is not entitled to any compensation. Each and every other averment of the complaint denied by praying for dismissal of the complaint with costs.

3.                Complainant to prove his case tendered his affidavit Ex.CA along with documents Ex.C1 & Ex.C4 and thereafter, counsel for complainant closed the evidence.

4.                On the other hand, counsel for OP tendered in evidence affidavit Ex.DA of Sh.Deepak Dhiman, Manager/Authorized Signatory of OP along with documents Ex.D1 & Ex.D2 and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of parties, but oral arguments alone advanced. Records gone through minutely. 

6.                It is vehemently contended by counsel for the complainant that car loan admittedly had been cleared and as such complainant is entitled to receipt of no due certificate along with Form  No.35A. Certainly, OP admitted in para no.3 of written reply that car loan was closed by the complainant on 16.1.2015, but at the same time, it is claimed that the complainant has defaulted in making the payment of outstanding dues of Rs.4,03,605/- pertaining to credit card No.4718 6000 0126 4557 regarding which, demand notice was duly sent on 12.12.2014 as well as legal demand notice dated 15.12.2014 was also sent. So even if clearance of the car loan admitted by OP, but despite that they are claiming that bank has  lien over the hypothecated car so long as the outstanding dues on the credit card referred above has not been cleared. In support of those assertions besides affidavit Ex.DA of Sh.Deepak Dhiman, Manager, copy of notice sent through courier Ex.D2 has been produced for establishing that right of lien claimed. Copy of statement of account of complainant has been produced on record as Ex.C3=Ex.D1 by both the parties. Perusal of the same even reveals that the car loan amount has been paid.

7.                Copy of certificate of registration of the car bearing registration No.PB-10-DV-1415 has been produced on record as Ex.C4 by the complainant, perusal of which reveals that complainant is owner of the said car.As per clause No.31.1 of Card Member Agreement of OP, the bank has right to lien/set off in general against the property of assets (both moveable and immovable) in possession of the bank from time to time, including, but not limited to amounts lying in the fixed deposits and/or in other accounts with the bank, property, assets (both moveable and immovable), securities, stocks, shares, monies, and the like of the Primary Card Member. As the car in question was hypothecated with the bank and as such, the same is a moveable asset in possession of the bank. In view of above referred clause 31.1 of the Card Member Agreement, the bank certainly has lien over the said car owned by the complainant, so long as the due amount of the debt on the credit card not paid.

8.                Section 171 of the Indian Contract Act,1872 also provides that bankers, in the absence of a contract to the contrary can retain as security for a general lien      of account any goods bailed to them. In view of that section, it is laid down in case Syndicate Bank vs. Vijay Kumar-AIR 1992 SC 1066 that in mercantile system, the bank has a general lien over all forms of securities of negotiable instruments deposited by or on behalf of the customers in the ordinary course of banking business. Further, as per ratio of this case, the bank has liability to adjust from the proceeds of the two FDR’s towards the dues to the bank and if there is any balance left that would belong to the depositor. So, the bank’s right of lien has to be accepted. In holding this view, we are fortified by law laid in case Smt.K.S.Nagalambika vs. Corporation Bank, AIR 2000 Kant 201. In this case, complainant has not pleaded or proved that there is a contract which denudes Op bank to exercise the general right of lien. In view of that certainly, the bank as per clause 31.1 of the Card Member Agreement read with Section 171 of the Indian Contract Act,1872, has right of lien over the hypothecated car, even though car loan has been cleared, because of non-payment of credit card membership dues. So long as those dues are not paid, complainant certainly is not entitled to no due certificate or to Form No.35A. So, there is no deficiency in service on the part of OP. Rather, it is the case, in which, the complainant wants to shirk liability qua the dues of credit card and as such, complaint merits dismissal with costs of Rs.1000/- payable by the complainant to OP because the complainant has filed this complaint by suppressing the fact of outstanding dues on credit card membership.

9.                Therefore, as a sequel of the above discussion, the present complaint dismissed with costs of Rs.1000/- payable by the complainant to OP. Payment of costs be made within 30 days from the date of receipt of copy of order. Copy of order be supplied to the parties free of costs as per rules.

10.                        File be indexed and consigned to record room.

 

                                      (Sat Paul Garg)                            (G.K.Dhir)

                                   Member                                            President

Announced in Open Forum

Dated:27.01.2016

Gurpreet Sharma.