COMPLAINT FILED ON: 30.10.2009
DISPOED ON: 01.04.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
1ST APRIL 2011
PRESENT:- SRI. B. S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT No.2552/2009
Complainant OPPOSITE PARTIES | Mr. S. Manjunath, Aged about 32 years, R/at Opposite to Collage, Budigere, Devanahalli Taluk, Bangalore – 562 129. Advocate: Sri. G. Raghu V/s. 1. Bajaj Auto Finance Ltd., C/o Planet Bajaj Show Room, 1st Floor, Opp-Tara Chambers, Near Kamal Bajaj Udhyan, Mumbai – Pune Main Road, Wakdewadi, Pune – 411 003. 2. Bajaj Auto Finance Ltd., # 29, “Anugraha”, 1st Floor, 12th Cross, Swimming Pool Extn., Sudeendra Nagar, P.G. Halli Main Road, Malleshwaram, Bangalore – 560 003. Advocate for OPs: Sri. V. Suresh & Others. |
O R D E R S
SRI. B.S. REDDY, PRESIDENT
The complainant filed this complaint U/s 12 of the C.P. Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to issue NOC and to award expenses as well as damages to the tune of Rs.51,000/- on the allegations of deficiency in service on the part of the OPs.
2. The case of the complainant to be stated in brief is that:
On 19.06.2004 complainant applied for vehicle loan from OPs, after executing hire purchase finance agreement in respect of two wheeler vehicle. According to the terms and conditions of the agreement, the complainant obtained the vehicle and it was agreed to repay the loan in 38 installments. The period of hire purchase agreement was from 2004 to 2007. According to the agreement EMI of Rs.1,370/- in 38 installments through blank cheques were supposed to be issued to the OPs which will be drawn by OPs on monthly basis. The complainant issued 38 cheques as part of repayment of loan in 38 installments and has made full payment of loan amount in the year – 2007 itself. However OPs have not given the NOC to his vehicle till date, instead OPs are telling an amount of Rs.24,200/- is still due towards full payment of the loan. According to pass book entry out of 38 cheques, 27 cheques have been drawn by OPs. The total amount paid through cheques is Rs.36,990/-. Out of remaining 11 cheques, 8 cheques were dishonoured, due to “Insufficient Funds”, one cheque with the reason “Effects Not Cleared” and another cheque with the reason “Not Drawn on Us” in the account of the complainant. One blank cheque is still with the OPs which is not presented to the bank yet. According to the hire purchase agreement, if the cheques are dishonoured for any reason, customer would be liable for fine amount of Rs.300/200 (amount based). Since complainant’s cheques were dishonoured, he was made to pay Rs.14,300/- by cash. Hence the total amount paid by both cash and cheques is Rs.51,290/- (Rs.36,990 and Rs.14,300/- by cash), while the total receivable amount was only Rs.46,980/-. Although full payment of loan amount has been made, OPs are insisting to pay Rs.24,200/- towards the full payment of the loan amount. Though the loan amount has been cleared in the year – 2007 itself, the complainant has not received NOC for his vehicle till date. OPs changed office without any intimation to the complainant. The complainant with lot of difficulty and spending a lot of time and energy found OPs address. Legal notice dated 18.07.2009 was issued to the OPs calling upon them to give NOC. Inspite of issue of legal notice OPs have not issued NOC. Hence the complaint.
3. On appearance, OPs filed version contending that the complainant is not a consumer as per the provisions of the Consumer Protection Act, as the transactions between the complainant and OPs is a borrower and financier relations. The complainant has entered into loan agreement on 19.06.2004 and availed finance of Rs.36,200/- for the purchase of vehicle CT-100. The contract period is of 36 months. Punctual payment of each and every installment is the essence of the finance agreement and the complainant has specifically agreed upon the same by signing on the loan agreement. The complainant assured that the installment cheques will be honoured as and when presented for the encashment. The complainant has failed and neglected to pay the agreed monthly installments on its due date and that as on 08.12.2009 an amount of Rs.466/- is standing due and payable towards agreed installments due and Rs.266/- towards insurance and Rs.29,100/- is standing due and payable towards agreed penal interest for the delayed payment of agreed monthly installments due. Thus as on 08.12.2009 total amount of Rs.29,766/- is due and payable by the complainant to the OPs. Since the complainant did not pay the agreed monthly installments as per the terms and conditions of the loan agreement, No Dues Certificate was not issued by OPs. There is no deficiency in service on the part of the OPs. The complainant is not entitled for any compensation. Hence it is prayed to dismiss the complaint with exemplary costs.
4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Authorized Representative of OP filed affidavit evidence in support of the defence version and produced documents.
5. Both the parties filed written arguments. The complainant filed further written arguments, explaining in detail regarding payments through cheques and cash payment made towards repayment of the loan availed. The complainant also filed estimated penalty list on 27.04.2010.
6. Arguments of the complainant side heard, written arguments was already filed by OP, hence taken as heard. Points for consideration are:
Point No.1:- Whether the complainant proved the
deficiency in service on the part of the
OPs?
Point No.2:- Whether the complainant is entitled for
the relief’s now claimed?
Point No.3:- To what Order?
7. We record over findings on the above points:
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
8. At the outset it is not at dispute that the complainant availed two wheeler vehicle loan of Rs.36,200/- on 19.06.2004 from OPs by executing hire purchase agreement. The said loan amount was repayable in 38 installments of each EMI of Rs.1,370/-. The complainant issued 38 cheques towards repayment of the monthly installments, 27 cheques were drawn by OPs, the total amount paid through cheques is Rs.36,990/-. Out of remaining 11 cheques, 8 cheques were dishonoured, due to “Insufficient Funds”, one cheque with the reason “Effects Not Cleared” and another cheque with the reason “Not Drawn on Us” in the account of the complainant. One blank cheque is still with the OPs which is not presented. Total amount of Rs.14,300/- was paid in cash by the complainant towards repayment of the loan, OP has issued receipts. The total amount repaid is Rs.51,290/- (Rs.36,990/- through cheques and Rs.14,300/- in cash).
The complainant claims that inspite of repayment of entire loan in the year – 2007 itself, OPs have not issued No Objection Certificate for his vehicle. It is stated that OPs are claiming still an amount of Rs.24,200/- as balance amount towards repayment of the loan. The total receivable amount was only Rs.46,980/-, but the complainant has paid total amount of Rs.51,290/-, OPs are falsely claiming that there is still due an amount of Rs.24,200/-.
9. In the version filed it is stated that an amount of Rs.466/- is due towards agreed installments and Rs.266/- towards insurance and Rs.29,100/- towards agreed penal interest for the delayed payment of agreed monthly installments. Thus as on 08.12.2009 total amount of Rs.29,766/- is due. Since the complainant has not paid the due amount, hence No Objection Certificate was not issued; there is no any deficiency in service on the part of the OPs.
10. In the written arguments filed by OPs, the same contention has been taken to the effect that still the complainant is due sum of Rs.29,766/-, OPs have not issued No Objection Certificate because of not clearing the entire loan amount due. Along with the written arguments OP has produced account statement and copy of the agreement executed by the complainant. That agreement copy does not contain the schedule. Hence OPs were direct to produce copy of the hire purchase agreement as per order dated 27.08.2010. Notice was also issued to produce the copy of the agreement. Inspite of service of notice OPs failed to produce the copy of the agreement. Without producing the schedule of the agreement with regard to the repayment of installments and interest to be charged and also the penal interest for defaulted installments, we are unable to find out any other material to hold that the complainant has agreed to pay any penal interest on the delayed payment of installments. For the legal notice issued through registered and post under certificate of posting which was duly served on these OPs, no reply has been sent claiming that still an amount of Rs.29,766/- is due towards penal interest payable. Only after filing this complaint OPs have come up with a version that the complainant is liable to pay penal interest on the delayed payments. OP has issued the receipts for having collected the installment amounts paid in cash with respect to the cheques which were not encashed, Annexure – B are the receipts issued by OPs. Though there is a provision to collect the penal charges in the receipts; OPs have not collected any penal charges while receiving the installment amounts except in one receipt dated 17.01.2005 in which an amount of Rs.600/- has been collected towards penal charges. Along with the written arguments of OPs, the copy of the agreement produced also contains Form No.3 in the form of pronote stating that the complainant has promised to pay sum of Rs.49,320/-. OP has worked out that total amount by charging interest and other service charges. The complainant has paid total amount of Rs.51,290/- towards repayment of the loan amount. OPs have failed to produce the schedule of the agreement in support of their contention that OP is liable to pay penal charges for the delayed payment of installments. Under these circumstances we are of the view that OPs are not justified in claiming that the complainant is still due an amount of Rs.29,600/- towards repayment of the loan. The act of OPs in not issuing No Objection Certificate inspite of receipt of the entire loan amount, amounts to deficiency in service on their part. OPs have collected the service charges while advancing the loan for purchase of the vehicle. Hence the complainant is ‘Consumer’ as defined U/s 2(1)(d) of the C.P. Act. Taking into consideration of all the facts and circumstances we are of the view that the complainant is entitled for the reliefs directing to issue No Objection Certificate in respect of the vehicle purchased. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant allowed in part. OPs are directed to issue No Objection Certificate in respect of the vehicle purchased by the complainant and pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within four weeks from the date of this order.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 1st day of April – 2011.)
PRESIDENT
MEMBER MEMBER
Snm:
