BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.83 of 2023
Date of Instt. 13.03.2023
Date of Decision: 10.10.2023
1. Sushma Chaudhary wife of Shri Satish Kumar, resident of House No.21-C, Model House, Jalandhar aged about 71 years.
2. Vishal Chaudhary son of Shri Satish Kumar, resident of House No.21-C, Model House, Jalandhar.
..........Complainants
Versus
1. Axis Bank Ltd., Regd. Office at Trishul, 3rd Floor, Opposite Sumerteshwar Temple, Law Garden, Eills Bridge, Ahmedabad, Gujrat through its Chief Managing Director.
2. Axis Bank Ltd., Branch New Jawahar Nagar, Jalandhar through its Branch Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Nakul Kohli, Adv. Counsel for the Complainants.
Sh. Sushil Mehta, Adv. Counsel for OPs.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainants, wherein it is alleged that the complainant raised a loan from the OP No.2 in order to purchase Car TATA Indica vide Loan Account No.AUR015500529969 and had been paying the installments of Rs.8665/-. Thereafter, one official of the OPs No.1 and 2 approached the complainants for one time settlement of loan account by paying of Rs.60,000/- in one installment vide letter dated 28.4.2017 and complainants accepted the offer of the bank and deposited a sum of Rs.60,000.00 towards full and final settlement on 28.4.2017, which was duly received by the official of the bank. He also certified the payment to be full and final settlement. On 4.9.2017, the OP No.2 issued No Objection Certificate alongwith Form No.35 and a letter addressed to the Regional Transport Officer, Jalandhar for cancellation of HPA which reads as under:
"This is to inform you that the below mentioned customer has paid outstanding amount towards Vehicle Loan with the Loan Account AUR015500529969 and stands closed.
Name SUSHMA CHAUDHRI
VEHICLE MAKE TATA CAT/B INDICA
REGISTRATION NO PBO8 CD 2346
ENGINE NO 475IDTI4DXYP30724 CHASSIE NO MAT608525CPE33454
We hereby state that we have no objection in hypothecation of Axis Bank Limited is removed from the said vehicle. we forward herewith the HP termination form 35 in duplicate duly signed by us for the needful".
The OPs No.1 and 2 also issued NOC on 4.9.2017. On the basis of NOC issued by the OPs No.1 and 2, the loan account in the names of the complainants stood closed. Thereafter, the complainants approached the office of the Regional Transport Officer, Jalandhar for the deletion of HPA. After verifying the record, the HPA was removed. Meaning thereby, the loan transactions finished and terminated being satisfied in full and final and agreement entered into between the parties came to an end. The complainants were stunned to know that an exparte award was procured and produced by the OPs No.1 and 2 from the Arbitrator in conspiracy with each other against the complainants without observing any procedure of law as laid down in the Arbitration & Conciliation Act, 1996 concealing the true facts of the case from the arbitrator. The complainants never consented for the appointment of Arbitrator nor received any notice during the alleged arbitration proceedings. There was no occasion for the opposite parties No. 1 and 2 to refer the dispute for Arbitrator as the account stood settled in full and final on 28.4.2017 when the complainants deposited the full and final amount with the official of the bank who acknowledged the same and further on 4.9.2017 when NOC was issued by the bank as such, all the disputes came to an end. On one hand after receipt of the full and final amount on 28.04.2017 by OP No.2, No Objection Certificate was issued on 4.09.2017 by the OPs No.1 and 2 on the basis of which Complainants applied for cancelation of HPA from the registration certificate and the Hypothecation was cancelled by the RTO on the basis of NOC issued by OPs No.1 and 2 and on the other hand, in order to harass the complainants, the OPs No.1 and 2 refer the case to Arbitration after clear of the Loan account and procured exparte award concealing the factum of clearance of loan amount and issuance of No Objection Certificate by them. On the basis of exparte award procured by OPs No.1 and 2, filed the execution application in the civil court on 23.01.2019 and after receive of the notice the complainant appeared in the case on 16.03.2019 and filed his objections on 3.8.2019 and also challenged the exparte award by filing application under Section 34 of Arbitration & Conciliation Act on 20.05.2019 specifically stating therein that the loan amount stood cleared and nothing was due and payable by the complainant. But the OPs kept on harassing the complainant. In the application under Section 34 of Arbitration and Conciliation Act, the opposite parties did not appear intentionally and in the execution, they intentionally did not file the reply of objections after granting numerous opportunities and ultimately, the opposite parties were precluded from filing the reply vide order dated 15.3.2022 and right to file the reply to the objections struck off. In this process, the opposite parties availed more than 24 opportunities and the complainant was harassed due to evasive attitude of the OPs. OPs continuously harassing the complainants from 2018. After the order of defense struck off the opposite parties did not appear for arguments. On account of the evasive attitude, the court of Shri Charanjit Arora, Additional District Judge, Jalandhar vide order dated 8.7.2022 passed the detailed order mentioned that as per the NOC all the dispute end on 2017 i.e. when bank has issued the NOC acknowledging that the total outstanding amount in respect of above said loan has been settled. Due to file of case despite settlement an FIR against the OPs is required to be issued and issued notice to show and explain cause as to why, the criminal proceedings should not be initiated against them and directed the Manager of OPs to appear on 2.8.2022. On 2.8.2022, the OPs appeared and started seeking adjournments. Ultimately, finding no alternative, the opposite parties withdrew the execution on 18.10.2022 and produced one e-mail stating therein that they have received instructions to withdraw the cases vide e-mail dated 28.9.2022 to withdraw the execution. In this manner, the OPs kept indulged the complainant in false litigation and was made to suffer and to bear the expenses in unwanted litigation besides wastage of time. It is not out of the way to mention here that the opposite parties also misused the security cheques and filed complaints under Section 138 of Negotiable Instruments act at Amritsar in order to harass a senior citizen, despite receipt of all the amounts payable by her. The complainant has been made to suffer for such a long period due to arbitrariness of the opposite parties, who misused their strong position. The opposite parties after received the whole amount and end of the loan unnecessarily harass the complainants for such a long period and file false cases in Jalandhar and the Amritsar. In the case of the Amritsar police came in locality due to which the reputation of the complainants also effects. The aforesaid act and conduct of the aforesaid OPs is clear cut negligence and deficiency in service which has caused great mental tension, harassment, loss of time and money due to aforesaid act and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a sum of Rs.20,00,000/- as damages/compensation for causing mental tension and harassment to the complainant and cost of present complaint be also awarded.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable as the complainants have suppressed material facts from this Commission and has relied on false documents and has relied on a false version. It is further averred that the present complaint is not maintainable as the complainants have suppressed material facts from this Commission, and is further liable to be dismissed on the sole ground that no cause of action has ever occurred in the jurisdiction of this Commission, as such the Commission does not have any jurisdiction to entertain the present Complaint. It is further averred that the present complaint is liable to be dismissed on the sole ground that the Complainants are not a consumer. It is further averred that the present complaint has been filed by the Complainants is nothing but an abuse of process of law and with an intention to enrich themselves by raising absolutely unjust and untenable claim and therefore the said complaint deserves to be dismissed on this ground alone. It is further submitted that the Complainants have suppressed the material facts from this Commission which even disentitles the Complainants to invoke the jurisdiction of this Commission and seek equity as allegedly claimed in the present complaint and therefore the said complaint otherwise also required and should be dismissed on this ground alone. It is further averred that in the month of July 2012, Complainants Sushma Chaudhary along with Vishal Chaudhary approached the Axis Bank Limited, Jalandhar Branch & requested for grant of auto loan for the purchase of Vehicle Make TATA Indica and also gave assurance to the Axis Bank Limited that they will abide by the terms & conditions on which loan may be granted by the Axis Bank/OPs. That the Axis Bank Limited, Jalandhar based on the aforesaid assurance given by Complainants Sushma Chaudhary and Vishal Chaudhary acceded to their request & sanctioned & disbursed a Auto Loan vide loan account number-Agreement Number AURO15500529969 amounting to Rs.3,83,000/- repayable in 60 Equated Monthly Installments (EMIs) @ 12.75% per annum. It is further averred that as per the stipulated terms & conditions as envisaged in the said Loan Agreement-Loan Cum Hypothecation Agreement, the Borrower/Co-Borrower/Guarantors were bound to repay the loan amount with interest @ 12.75% per annum there upon by way of 60 Equated monthly Installments (EMIs) of Rs.8,665/- as per the schedule of payment mutually agreed at the time of execution of the loan agreement. Further, the borrowers were bound to pay in addition of the aforesaid Equated monthly installments, overdue interest & other charges. It is further averred that contrary to the assurances and undertaking by the Complainants/Borrowers, they have failed and neglected to pay the outstanding amount to the bank as per the terms and conditions governing the schedule of the repayment within the respective payment due dates and consequently interest and other applicable charges were levied in the loan account of the complainants/Borrower/Co Borrower/Guarantors. It is further submitted that despite sufficient time and opportunity the Borrowers/complainants have failed and neglected to clear the outstanding dues against their Auto Loan Account, which were payable on demand. The Opposite parties tried their level best to recover the amount due under the aforesaid Loan Account to the defendant but the complainants Borrowers evaded paying the same. Since there was a Arbitration Clause in the Loan Cum Hypothecation Agreement executed between the complainants. The opposite parties exercising their Legal Right and remedy initiated Arbitration proceedings against the complainants and the complainants did not appeared in the Arbitration proceedings conducted by the OPs. Subsequently an Award was passed against the complainants. After the passing of the Award against the complainants, execution petition was filed on 23-01-2019, bearing Registration number/Case number 88/2019 against the complainants at the District Courts, Jalandhar, which was allocated to the court of Sh.Varun Nagpal, ADJ Jalandhar and objection petition against the award was also filed by the complainants on 20.05.2019, bearing registration number/case number 358/2019. It is further averred that during the pendency of the Execution petition filed by the OPs, it came to the knowledge of the officials of the OPs that a Fraud was committed by the Agency of the OPs whereas no payment was ever received by the bank in the loan account of the complainant. That after verification it was found that no NOC was ever issued by the OPs. It is further averred that subsequently in the month of October 2022, a compromise was arrived between the complainants and the OPs, were it was agreed that the complainants will withdraw the objection petition bearing Registration number/Case number 358/2019, filed by them and the opposite parties will withdraw the Execution petition bearing Registration number/Case number 88/2019 and on 18-10-2022, both the petitions were withdrawn on basis of statements suffered by the counsel of the complainants and counsel of the OPs and on 12-11-2022, both the petitions were taken in the Lok Adalat-IV, Jalandhar Presided over by Sh. Charanjeet Arora, ADJ, Jalandhar. Since all the litigations between the complainants and OPs were withdrawn in view of the compromise there is no question of claiming any compensation form the OPs. All the litigations pending between the complainants and the OPs came to end after passing of an Order/Award in the National Lok Adalat,Jalandhar on 12-11-2022, its order is binding on both the parties i.e. complainants and the OPS. The order passed in the National Lok Adalat cannot be challenged in any court of law. It is further averred that the OPs never received an outstanding amount from the complainants but the OPs as a goodwill gesture had withdrawn the execution petition. The copy of the offer letter, copy of the voucher and NOC are fake and bogus and were never issued by any official of the opposite parties and it's a fraud transaction. It is further averred that the present complaint is time barred and this Commission does not have jurisdiction to entertain, try and decided the present complaint. On merits, the factum with regard to obtaining loan from the OPs for the purchase of new Car by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence alongwith their affidavits.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. It is admitted fact that the complainants raised a loan from the OP No.2 for the purchase of new car. The dispute between the parties and the grudge of the complainant is that despite clearing the entire loan by way of one time settlement, the OPs are harassing the complainant by filing unwanted litigation despite the issuance of ‘No Objection Certificate’, which is allegedly the deficiency in service on the part of the OPs.
7. The OPs have denied the clearance of the loan by the complainant through one time settlement. It has also been denied by the OPs that ‘No Objection Certificate’ was ever issued by the OPs. All the facts regarding the clearing the mortgage has been denied by the OPs. It has been alleged by the OPs that the arbitration award was passed in favour of the OP as per Law and the complainant has never been harassed.
8. The complainant has proved on record Ex.C-1. Perusal of this document shows that this is regarding settlement of Axis Bank credit card/loan AUR015500529969, which is the loan account number of the complainant. It has been mentioned in this letter that the bank has agreed to accept an amount of Rs.60,000/- against the total outstanding of Rs.1,55,107.75. Ex.C-2 is the Voucher vide which the Rs.60,000/- were deposited by the complainant. Ex.C-3 is the ‘No Objection Certificate’ issued by Axis Bank on 04 September, 2017. Perusal of this document clearly shows that after the settlement of the total outstanding amount, the loan account of the complainant with the OPs stood closed and Ex.C-4 is the ‘No Objection Certificate’ and a letter written to the RTO Jalandhar, vide which it has been specifically mentioned that they have no objection if the hypothecation of Axis Bank Ltd. is removed from the banker. Ex.C-5 is the copy of RC from where the hypothecation has been removed. From all these documents, it is clear that the entire loan amount was paid. The account was settled and closed in the year 2017. ‘No Objection Certificate’ was issued on 04.09.2017 when the account was closed. Perusal of Ex.C-6 shows that the execution of the arbitration award was filed by the OP against the present complainant and the present complainant filed objections, but the reply was not filed by the OPs and the right of Axis Bank was struck of, vide order dated 15.03.2022. As per order dated 08.07.2022, the Court of Ld. ADJ passed specific order that the Bank has preferred fraudulent and false case against the JD i.e. the present complainant despite the issuance of ‘No Objection Certificate’ after settling the account after receiving the settled amount. The Ld. Court has observed that for the action and conduct of the Bank, FIR against the DH Bank is required to be registered. Opportunity was given to the Bank to present his case on 02.08.2022. The OP instead of giving reply to the notice issued by the Court gave statement that as per instructions received, the execution was withdrawn. The OP had alleged that the compromise was effected between the parties, but this fact has been denied by the complainant. As per the statement of the Counsel for the DH, the litigations qua the present complainant was filed by the Bank which also included the complaint pending under Section 138 of Negotiable Instrument Act in the Courts at Amritsar and Ludhiana. This statement clearly shows that the cases were filed by the OP in the Courts at Amritsar as well as Ludhiana when the complainant is residing at Jalandhar only. No document has been filed on record by the OP to show that the alleged cheque was issued by the complainant at Amritsar and Ludhiana.
9. As per the allegations of the complainant, the exparte arbitration award was obtained by the OPs whereas the complainant never received any notice. It has been specifically alleged by the complainant that the security cheques have been misused by the OP and in order to harass the complainant, who is senior citizen, the complaints were filed at Amritsar as well as Ludhiana. The OP in the present complaint has alleged that they never issued any ‘No Objection Certificate’ and never received any amount of Rs.60,000/- as one time settlement from the complainant. The objections were filed by the complainant before the Executing Court on 03.08.2019, but no reply to the objections were filed by the OP that no amount was received by them nor any action was taken by the OP against their alleged employee, who allegedly issued no objection certificate, to prove that they never received any amount of Rs.60,000/-. The present complaint was filed on 13.03.2016, but till 13.03.2023, no action was ever taken by the OP against the alleged act of the person, who allegedly issued the ‘no objection certificate’. Instead of taking any action, the OP started litigation harassing the complainant, who is a senior citizen by filing the complaints at different stations despite the settlement of the account. Instead of taking any action and reply to the notice issued by the Court of Ld. ADJ, the OP preferred to withdraw the execution and all litigation pending against the complainant. They never filed on record any compromise allegedly executed between the parties on the basis of which the execution was withdrawn. This is clearly mental as well as physical harassment to the complainant. Since, the bank has harassed the complainant as she had availed the services of the bank and as per the law laid down by the Hon’ble Supreme Court in Civil Appeal Nos.5204-5205 of 2022, decided on 08.08.2022, titled as ‘Arun Bhatiya Vs. HDFC Bank & Ors.’ the complainant is consumer and there is clear cut deficiency in service to the complainant on the part of OP.
10. In view of the above detailed discussion, the complaint of the complainant is partly allowed. The OPs are jointly and severally directed to pay a compensation of Rs.30,000/- for causing mental agony and harassment to the complainant and litigation expenses of Rs.5000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
10.10.2023 Member Member President
