DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Aman Sharma r/o H.No.2141, Sector 15-C, Chandigarh

…..Complainant

                  V E R S U S

1]  Bajaj Auto Finance Ltd., SCO 56, 2^nd Floor, Sector 26-D, Chandigarh (through its Managing/ Executive Director).

2]  CIBIL (Credit Information Bureau (India) Ltd., Branch Office 412-415, 4^th Floor, Tulsiani Chambers, Nariman Point, Mumbai-400021 (through its Managing/Executive Director).

                      ……Opposite Parties

CORAM:   SH.P.D.GOEL                    PRESIDENT

         SH.RAJINDER SINGH GILL           MEMBER

DR.(MRS.) MADANJIT KAUR SAHOTA     MEMBER

Argued by: Sh.Ranjan Lohan, Counsel for complainant

           Sh.Balwinder Singh, Counsel for OP-1.

Sh.N.P.Sharma, Counsel for OP-2          

PER DR.[MRS.]MADANJIT KAUR SAHOTA, MEMBER

         The complainant has filed the present complaint under section 12 of the Consumer Protection Act (as amended upto date) “hereinafter referred to as the Act”.

         In short, the facts of the case are that he availed loan of Rs.29000/- vide loan agreement No.424130399 from OP-1 for the purchase of motorcycle which was to be repaid in 18 equated monthly installments of Rs.1901/-.

       According to the complainant, OP-1 failed to present the cheques, despite ECS instruction and preferred to serve the legal notice dated 23.11.07 requiring him to pay Rs.9904/- (i.e. Rs.7604/- for 4 installments and penalty of Rs.2300/-) under the threat of criminal proceedings under sections 406, 415 and 420 IPC in case of failure to do so. The complainant replied the said notice stating therein that he had sufficient funds for encashment of the cheques but it is the OP-1 who failed to present the same despite ECS instructions and thus he could not be blamed for the same and requested for withdrawal of the notice. OP-1 again served the demand notice dated 23.01.2008 requiring him to pay Rs.8830/-. Ultimately, the complainant met the officials of the oP-1 and apprised that there is no default on his part but OP-1 failed to adhere to his request.

         The complainant further averred that OP-1 sent his name to CIBIL i.e. OP-2 in the list of defaulter without issuing any notice to him. It is the case of the complainant that when he applied for overdraft facility to M/s Kotak Mahindra, Sec.9, Chandigarh the same was declined due to mentioning of his name in the list of defaulters. The complainant served a legal notice dated 08.07.09 but to no effect. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.      OP-1 filed written statement and took some preliminary objections. The facts with regard to the advancement of loan of Rs.26,820/- for the purchase of the motorcycle in question and its repayment in 18 equated monthly installments of Rs.1901/- have admitted. It has been pleaded that three installments is due from the complainant till date including penal charges and that the due procedure as per rule was followed. It has further been pleaded that cheques issued by the complainant against installments were dishonoured due to insufficient funds. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made. 

3.       In its separate written statement, OP-2 pleaded that there is no privity of contract between the complainant and the replying OP nor the complainant is a consumer qua OP-2 as defined under the provisions of the Consumer Protection Act. It has been pleaded that the correction course of action would have been to direct the OP-1 to withdraw the said credit information by issuing a communiqué to the replying OP-2. Pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made. 

4.       Parties led evidence in support of their contentions.

5.      We have heard the learned counsel for the parties and have also perused the record. 

6.       The main grouse of the Complainant in this complaint is that due to the own fault of OP No.1, his name has appeared in the defaulters list of CIBIL, questioning his credibility. There is no default on the part of the Complainant, as OP No.1 has been very well apprized that the payment is to be made through ECS facility. So, it became the duty of OP No.1 to present the same for encashment in time, as per agreement between the parties. In this manner, OP No.1 has failed to adhere as per the terms & conditions of the agreement, referred to above and rather, kept in mounting arbitrary interest/ penalty etc. without there being any fault on the part of the Complainant. OP No.1 remained negligent in sending cheques, despite clear instructions and rather preferred to serve legal notices upon the Complainant one after the other. It is contended that the acts of OP not only brought bad name to the Complainant in the financial market due to which he suffered a lot, but also put a question mark on his credibility as borrower/ consumer.

7.       On the contrary OP No.1 averred that the Complainant entered into an agreement and at that time, he was made aware that in case of default in making payment of loan amount, he has to pay penalty and interest on the bounced cheque amount as per the terms and conditions. Most the cheques given by the Complainant were returned dishonoured by the respective banker as the Complainant was not maintaining sufficient amount in the said bank account, which clearly shows his dishonest intention. That is why through legal notices he was clarified and made aware to clear the outstanding amount with penal interest as per the Condition No. 5 & 7 of the loan agreement.  Otherwise, OP No.1 would indicate criminal proceeding for the recovery of the said amount. It was submitted that OP No.1 never sends the name of the Complainant to OP No.2. It is as per the procedure that the name of the defaulter automatically goes to CIBIL in view of the accounts statement maintained by the Bank.

8.       OP No.2 has clarified that it is a company engaged in the business of storing, retrieving, compiling, collating, collecting, processing and maintaining a data bank of credit information. Such information is applicable on all loan products; credit cards etc, because CIBIL acts as a repository of both positive and negative credit information. Therefore, a Credit Information Bureau like the OP No.2 does not require any consent or permission of borrower/ customer in the matter of exchanging information with the Banks and Financial institutions. Otherwise, the grouse of the Complainant, if any, lies upon the OP No.1, who has shared the negative credit information of the Complainant with the OP No.2, who added the said information to the available data base of CIBIL. So, the OP No. 2 cannot in its own alter/ modify or change the said information unless and until, the OP No.1 sends fresh information with regard to the present credit information of the Complainant and it was also in the knowledge of the Complainant, as well.

9.       Annexure R/1 is the application-cum-agreement form, which makes it amply clear that the payment of the loan installment was to be made through ECS.  When the payment is to be made through ECS, it was incumbent upon the OP No.1 to send the same for encashment on time. If the OP No.1 itself fails to send the cheque/ ECS for encashment, then responsibility of OP No.1 cannot be shifted upon the shoulder of the Complainant. Despite all this, by taking advantage of its own wrongs, OP No.1 kept on adding interest/ penalty. Reliance placed on Annexure R/4 by the OPs to show that the Complainant was himself at fault does not hold any water, in as much as, the said document does not carry any seal/ signatures of any of the authorized signatory of OP No.1.

10.      Sending the name of Complainant to OP No. 2, despite own negligent acts and furthermore, publicizing the name of Complainant as a defaulter in the list maintained by the OP No.2 is nothing, but a sheer negligence on the part of OP No.1 All this had not only maligned, but also tarnished the image of the Complainant, which is apparent from the fact that when he applied for an over draft limit from M/s Kotak Mahindra, Sector 9, Chandigarh the same, was declined due to mentioning of his name by the OP No.1 in the list of defaulters maintained by OP No.2. Such type of arm twisting tactics adopted by OP No.1 for recovery of loan amount without any default on the part of Complainant and malafide techniques to grab the money from innocent customers is nothing but indulgence in unfair trade practice, especially when there has been sufficient balance in the bank account maintained by the Complainant to honour the ECS/Cheque.

11.      Since neither the Complainant is a consumer, nor had hired any services of OP No.2, we are of the considered opinion that the complaint qua OP No. 2 deserves dismissal. Moreover, OP No.2 being a Credit Information Company, solely acted on the information provided by OP No.1 and, thereafter, failed to update the said information to the detriment of the Complainant. As such, OP No.2 is exonerated from any deficiency in service on its part. 

12.      In view of the foregoings, it is our considered view that the present case has a lot of merit, substance and weight and it richly deserves acceptance. Therefore, we accept the complaint and decide the same in favour of the Complainant and against the OP No.1, with the following directions:-

i]  OP No.1 is directed to issue a communiqué to the OP No. 2 to remove the name of the Complainant from the list of defaulters, forthwith, since OP No.2, cannot, on its own, alter/ modify/ change the same;

ii] The OP No.1 shall pay compensation of Rs.20,000/- to the Complainant for causing physical harassment, mental agony and lot of inconvenience.

   iii] The OP No.1 shall pay litigation costs of Rs.5,000/- to the Complainant.

13.      The aforesaid order be complied with by the OP No.1, within a period of thirty days from the date of receipt of the certified copy of the order, failing which, it shall pay the sum of Rs.20,000/- along with interest @12% per annum from the date of filing of present complaint i.e. 01.10.2010, till the date of realization, besides paying the cost of litigation at Rs.5,000/-.

14.      Certified copies of this order be sent to the parties free of charge. The file be consigned.