Punjab

Ludhiana

CC/15/730

Kunal Kumar - Complainant(s)

Versus

Bajaj Finance Ltd. - Opp.Party(s)

compl.in person

19 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.730 of 18.12.2015

Date of Decision        :   19.12.2016

 

Kunal Kumar s/o Sh.Sat Pal Sofat, 57 Friends Colony, Pakhowal Road, village Daad, Ludhiana. 

….. Complainant

Versus 

1.Bajaj Finance Limited, through its Branch Manager & Regd. Office, SCO No.35, 2^nd Floor, G Block, Bhai Randhir Singh Nagar, Ludhiana.

2.Prop/Partners of M/s Nikkamal Electronics, B-1/1455/1, Thapar Plaza, Near Ram Sharnam, Hambran Road, Ludhiana.

..…Opposite parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH, BEWLI

 

COUNSEL FOR THE PARTIES:

For complainant                     :         In person

For OPs                         :         Sh.Vinod Kumar, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn off unnecessary details, the case of the complainant is that he earlier filed complaint No.CC 15/282 against Bajaj Finance and Nikkamal Electronics, but later on withdrew the same after compromise and receiving cash amount of Rs.65,000/- on 27.7.2015 in presence of Ms.Shivani Garg, Legal Manager of Bajaj Finance Company, partner of Nikkamal Electronics and etc. In that judgment, it was clearly mentioned as if nothing is due towards any of the parties now. That was confirmed in the statement signed by the complainant along with both the Ops. After that settlement, Bajaj Finance Company had not sent the clearance certificate to the complainant. Rather, they presented E.C.S.Mandate for collection of EMI of disputed loan from the saving account No.20102266875 of S.B.I.Bank, Branch S.B.S.Nagar, Ludhiana many times, despite the fact that ECS mandate as per RBI guidelines can be presented only once in a month. Complainant sent request through emails on 12.8.2015, 7.9.2015, 11.9.2015 and 5.10.2015 for projecting his grievance, but nothing was done by the Ops. Rather, letter sent to OP2 received with tag of refusal of acceptance.

2.                After giving the cash amount of Rs.65,000/- to the complainant, nothing was due and as such, loan clearance certificate should have been issued, but that is not done. Due to repeated presentation of ECS, bankers of complainant had charged Rs.20/- on every bouncing of ECS. Two times, the ECS were cleared and complainant had to deposit money from some other cheque clearance source. So, complainant claims to have suffered humiliation from the parties, to whom, he had issued the cheque. Due to issue of multiple ECS mandate, the complainant is not in position to operate the above said saving bank account properly and as such, by pleading deficiency in service on the part of Ops, prayer made for directing the Finance Company to cancel the loan account and refund the two EMI’s of worth of Rs.11,100/-. Even charges of Rs.400/- of ECS Mandate sought to be refunded. Compensation of Rs.3,95,000/- claimed along with directions to Bajaj Finance Company to stop sending the ECS Mandate for collection.

3.                In written statement filed by OP1, it is pleaded interalia as if the complainant has not approached this Forum with clean hands because he suppressed the material facts; complaint being false and frivolous merits dismissal and that the complainant has no cause of action. Besides, it is submitted that complainant availed two loans from OP1 i.e. loan account No.4260CD07467869 for Rs.50,000/- and of Rs.20,000/- bearing loan account No.4260CD05611841. Complainant earlier availed financial assistance from OP1, due to which, latter issued a card to the complainant, as per which, the complainant was entitled to get financial assistance of Rs.20,000/- by using that card. Complainant purchased one Sony LED from OP2 of make KDL-46 W700A IN5 (LED TV) N for Rs.70,000/-, out of which, Rs.20,000/- was advanced as loan on the basis of card, but separate loan of Rs.50,000/- more was advanced. At the time of availing of above said loan of Rs.70,000/-, complainant signed the Loan Term Sheet after reading and understanding the contents thereof. Even the complainant executed a Promissory note in favour of OP. Complainant is a defaulter. Complainant has cleared only one loan of Rs.20,000/- bearing account No.4260CD05611841 and NOC in respect of the same was issued. The other loan of Rs.50,000/- not cleared because an     amount of Rs.38,892/- is due against the complainant along with penal charges. Despite various requests submitted by the officials of OP1, the complainant has not cleared the loan account. Intention of the complainant is to grab huge amount from OP1. Earlier complainant filed a false and frivolous complaint bearing       complaint No.14/790 of 18.11.2014, in which, OP1 was not impleaded as respondent. That complaint was dismissed. Thereafter, complainant filed another complaint bearing complaint No.15/282 dated 24.4.2015. In that complaint, OP1 was arrayed as respondent no.2. That complaint was withdrawn by the complainant by suffering statement. Complainant is not absolved from his liability of making payment of the balance loan amount to OP1. A person seeking equity must do equity. Through order dated 27.07.2015, second complaint of the complainant was dismissed as withdrawn. Nowhere in those orders of 27.7.2015, it is mentioned that complainant will not have to pay the balance loan amount to OP1. Statement regarding waiver even was not suffered by OP1 and as such, OP1 entitled to recover the balance loan amount from the complainant.Sufferance of statement by the complainant himself regarding the settlement of dispute does not absolve him from the liability of paying the balance due amount. Motive for filing this false complaint is to pressurize  OP1 to come to the terms with the complainant and not to demand      the due amount from the complainant. It is claimed that the complainant has made misleading averment in the complaint pertaining to the judgment dated 27.7.2015. NOC regarding the loan amount of Rs.50,000/- cannot be issued until and unless, complainant clear the loan account. OP1 ready to issue NOC as and when    payment of due amount made by the complainant. Other averment of the complaint denied with prayer for dismissal of the complaint.

4.                In separate written statement filed by OP2, it is pleaded interalia as if the complaint is not maintainable; complainant has suppressed the material facts and that OP2 is not a necessary party, but despite that it is impleaded and as such, complaint bad due to mis-joinder of necessary parties. Earlier, complaint No.14/790 of 18.11.2014 filed in this Forum by the complainant was regarding the grievance that he supplied 46” LED TV, despite the fact that he placed order for purchase of 48” LED TV on 17.10.2014. In fact the complainant visited showroom of OP2 with intention of purchasing LED and he saw all the LED’s displayed in the showroom. Complainant liked one LED of 46” of Sony make and expressed desire to purchase the same and accordingly, purchased the same vide bill No.174 dated 17.10.2014. Model of LED and size virtually mentioned as KDL-46 W700A IN5 (LED TV) N in that bill. Complainant took the delivery of the said LED in showroom of OP2 itself. As there was no deficiency in service on the part of OP2 and that is why, earlier complaint No.790/14 was dismissed by this Forum vide order dated 27.5.2015. It is claimed that modus operandi of the complainant is to grab money and as such, after dismissal of the first complaint, complainant filed second complaint No.15/282 dated 24.4.2015 by impleading Bajaj Finance also as a party. In that complaint, the matter was compromised and an amount of Rs.65,000/- was received in cash by the complainant on account of lump sum satisfaction amount and nothing remained due. OP2 was not at fault and hence, OP2 did not pay any amount to the complainant. Complainant suffered statement in this regard in the Forum and desire not to proceed with the complaint. Due to those reasons, complaint was dismissed as withdrawn as per terms of order dated 27.7.2015. However, lust of the complainant was not satisfied and he again presented this 3^rd complaint, in which, no relief has been claimed against OP2. Complainant requested this Forum qua cancellation of loan by Bajaj Finance Company and refund of two EMI’s of worth of Rs.11,100/- as well as return of ECS charges of Rs.400/-. OP2 has no role to play in cancellation of the loan amount and refund of the charges etc. As complainant has already received an amount of Rs.65,000/- and as such, nothing is due as per the statement of the complainant. If the matter has already been put to an end, then filing of this complaint is just for abusing the process of law and misusing the provisions of Consumer Protection Act. No letters mentioned in para no.5 of the complaint were received by OP2. Amount of Rs.65,000/- was not paid by OP2 and as such, question of payment or any wrong on the part of OP2 does not arise. OP2 has nothing to do in the presentation of ECS or of refund of the charges of ECS.

5.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.CW1 to Ex.CW24 and thereafter, closed the evidence.

6.                On the other hand, Ms.Shivani Garg, Legal Manager of OP1 tendered in evidence her affidavit Ex.RA along with documents Ex.R1 to Ex.R3 and affidavit Ex.RB of Sh.Jyoti Parkash, Employee of OP1 along with document Ex.,R4 and thereafter, counsel for OP1 closed the evidence.

7.                Sh.Nishat Jain, Partner of OP2 tendered in evidence his affidavit Ex.RC along with document Ex.R5 and thereafter, closed the evidence.

8.                Synopsis of written arguments submitted by the complainant, but not by Op1 and OP2. Oral arguments of complainant as well as counsel for the parties heard. Record gone through minutely. 

9.                From the perusal of pleadings of the complaint as well as written statement of OP1, it is made out that complainant availed loan of Rs.20,000/- bearing account No.4260CD05611841 and of amount of Rs.50,000/- bearing account No.4260CD07467869. It is also made out from the pleadings and affidavit of complainant Ex.CA as well as of representative of OP1 Ex.RA that loan of Rs.20,000/- has been cleared and NOC in that respect has been issued by OP1. Bone of contention remains as to whether loan of Rs.50,000/- bearing account No.4260CD07467869 has been cleared or not? It is the claim of OP1 that amount of Rs.38,892/- is due against the complainant along with penal charges. So, dispute pertains to the transaction of contraction of loan of Rs.50,000/-.  Copy                    of Application Form Ex.R2 in that respect has been produced. Perusal of same reveals  as if the contracted loan of Rs.50,000/- will be repayable in 9 equated monthly EMIs, first of which to start w.e.f.2.3.2015. This is borne from the contents of loan term sheet annexed with Ex.R2. Promissory Note even was executed by the complainant under his signature in this respect and copy of same produced along with Ex.R2. Ex.R1 is the copy of statement of account of this disputed loan amount. Perusal of Ex.R1 reveals that installment of Rs.5556/- each were payable by the complainant to OP1. Perusal of Ex.CW20 reveals that first EMI of Rs.5556/- was having the due date of 2.3.2015, but the last EMI was payable on 2.11.2015. Same facts also reflected by contents of Ex.CW21, in which, mode of payment mentioned as Auto-Debit. So, from the produced documentary evidence by the complainant as well as by OP1, it is made out that the complainant himself agreed to pay EMI’s of Rs.5556/- through Auto-Debit mode. If that be the position, then OP1 was having authority to issue ECS Mandate for getting loan cleared from the complainant.

10.              Grievance of the complainant is that ECS mandate have been issued more than once in a month and same is violative of RBI guidelines. Copies of these RBI guidelines have not been produced on record. However, one thing is clear that in case, ECS mandate, during a month fails, then right of OP1 to recover the EMI during that month continues to survive, so long as the EMI not paid in that month. If that be the position, then certainly OP1 can issue more than one ECS mandate for clearance of EMI in a particular month. That right of OP1 to issue one after other ECS mandate during the calendar month survives so long as the collection of EMI does not take place.

11.              Perusal of statement of account Ex.R1 of the disputed loan amount reveals that ECS mandate issued on 5.3.2015, 6.4.2015, 7.5.2015, 5.6.2015, 6.7.2015, 6.8.2015, 5.9.2015, 6.10.2015 and 6.11.2015 failed(bounced) due to insufficiency of the funds on all these occasions. In view of failure of these mandates, certainly the complainant liable to pay cheque bouncing charges. As the given ECS mandate failed on the above referred dates and as such, for getting clearance of all 9 EMI’s, it was essential for OP1 to resubmit the ECS mandate and that is why the same has been submitted is a fact borne from the contents of copy of account statement Ex.R1. In view of due issue of ECS mandates,deficiency in service on the part of OP1 cannot be inferred at all.

12.              Perusal of order Ex.R5 passed in Complaint No.790 of 18.11.2014, decided on 27.5.2015 by this Forum in case titled as Kunal Sofat vs. Proprietor/Partners of M/s Nikkamal Electronics reveals that complaint filed by the complainant against OP2 was dismissed on ground that there was no deficiency in service on the part of OP2 in supply of 46” LED TV against alleged demand of 48” LED TV. It was held that in the bill mention regarding purchase of 46” LED TV specifically made and as such, in view of supply of the said LED TV to the complainant, deficiency in service on the part of OP2 is not there at all. When this issue has already been decided by this Forum and appeal against the same  not shown to be preferred, then in view of the principles of constructive res judicata, complainant now debarred from again agitating that matter by impleading OP2 again as party along with OP1. In holding this view, we are fortified by law laid down in case of Reliance Industries Ltd and another vs. Neera Maheshwari-III(2006)CPJ-67(N.C.). So,certainly submissions advanced by counsel for OP2 has force that agitation of the complainant through this complaint qua non submission of demanded LED TV of 48” is an abuse the process of law by the complainant to that extent.

13.              No relief actually claimed against OP2 through this complaint because function of OP2 was to supply the LED against the price amount and that was done by OP2. OP2 was not a party to the advancement of loan by OP1 to the complainant and as such, privity of contract between the complainant and OP2 in that respect was not there at all. It was for financer i.e. OP1 to recover the loan and issue NOC after recovery of the same. It was also the function of OP1 to issue ECS mandate  for recovery of the due EMIs. OP2 was not in the picture at all in matter of advancement of   loan contracted by complainant from OP1 and nor OP2 is in picture in matter of clearance of EMIs or refund of the charges on account of ECS mandate failure. So, certainly complainant has no cause of action against OP2. In view of this, complaint against OP2 certainly is misconceived. Being so, complaint against OP2 merits dismissal for want of cause of action.

14.              It is also contended by complainant that earlier compromise by Ops was arrived at with him through compromise deed Ex.CW23 and that is why he withdrew the earlier complaint NO.282/15 on 27.7.2015 after receiving cash amount of Rs.65,000/-. The said compromise deed Ex.CW23 is signed by one Jyoti Parkash by claiming himself to be the representative of both Nikkamal Electronics and of Bajaj Finance Limited. It is not at all shown by the complainant by producing any material on record that said Jyoti Parkash is competent to represent both Ops of this complaint. It is also not at all pleaded that OP1 is sister concern of OP2 or OP1 has any nexus with OP2 in the transactions of sale and purchase of LED by OP2 to the complainant or to other customers. If that be the position, then certainly Jyoti Parkash was not competent to enter into compromise Ex.CW23 on his behalf or for the benefit of both the Ops. In view of this, the compromise deed Ex.CW23 entered by one Jyoti Parkash will not bind both the Ops.

15.              Affidavit Ex.RB of said Jyoti Parkash shows that he is an off roll employee of OP1 alone. If that be the position, then Jyoti Parkash could have entered into compromise on behalf of OP1 only provided authorization for such compromise would have been given to him specifically by OP1. However, contents of affidavit Ex.RB of Jyoti Parkash shows that the complainant threatened to get his service terminated by levelling false allegations and that is why, he shelled out Rs.65,000/- to the complainant. This Jyoti Parkash claims to have paid the said amount of Rs.65,000/- to the complainant under threat and duress. Further, as per this affidavit Ex.RB of Jyoti Parkash, neither OP1 and nor any other person asked him to pay the said amount of Rs.65,000/- to the complainant. Rather, as per this affidavit Ex.RB, complainant after receiving the amount of Rs.65,000/- continued to demand more money from him, but when he expressed non-ability to pay         the same, then complainant used to harass and humiliate him by administering more threats of getting his services terminated. So contents of affidavit Ex.RB establishes as if compromise Ex.CW23 was arrived at between the complainant and said     Jyoti Parkash without indulgence of OP1 or without giving of authorization of such compromise to said Jyoti Parkash by OP1 or any of its officials. As and when, a contract/compromise arrived at by fraudulent means or under threat or duress or by exercising of coercion, then said contract is not a contract in the eyes of law as per Section 10 of the Indian Contract Act, because such contract can be arrived at with free consent and free violation of the parties alone. As allegations of coercion and threat levelled by Jyoti Parkash against the complainant and as such, intricate question of law and facts involved in this case for ascertaining the authenticity of the relied upon compromise Ex.CW23 by the complainant. Proceedings before this Forum are summary in nature. It is laid down by plethora of precedents that as and when allegations of forgery, theft or coercion levelled, then in view of the    required elaborate evidence, Consumer Fora must not  decide that controversy. Reliance for the purpose can be placed on law laid down in cases of P.N.Khanna vs. Bank of India-II(2015)CPJ-54(N.C.); Bright Transport Company vs. Sangli Sehkari Bank Ltd.,II(2012)CPJ-151(N.C.); Oriental Insurance Company Limited vs. Mani Mahesh Patel-VI(2006)SLT-436=2006(2)CPC-668(S.C.); Reliance Industries Limited vs. United India Insurance Company Limited-I(1998)CPJ-13(N.C.); M/s Singhal Swaroop Ispat Limited vs. United Commercial Bank-III(1992)CPJ-50(N.C.); Sangli Ram vs. General Manager, United India Insurance Company Limited-II(1994)CPJ-444; Harbans and company vs. State Bank of India-II(1994)CPJ-456; Ranju Devi vs. Branch Manager, State Bank of India-2015(4)CLT-131(JHK). So, in view of this, this Forum in summary proceedings cannot adjudicate as to whether really compromise Ex.CW23 was arrived at between the complainant and authorized representative of OP1 voluntarily.

16.     Documents CW4, Ex.CW7, Ex.CW9, Ex.CW11 and Ex.CW15 at the most establishes that the complainant sought information from the TransUnion CIBIL Limited qua confirmation from the relevant credit institution qua status of loan, but latter disclosed that confirmation regarding status of the disputed loan account cannot be given. Complainant even approached the Reserve Bank of India is             revealed by contents of document Ex.CW8. However, through Ex.CW8, complainant was called upon to avail remedy from the appropriate forum because the matter already pending with Consumer Forum. Complainant even wrote letters to Government of India, but Department of Ministry of Corporate Affairs through Ex.CW10 called upon the complainant to initiate necessary action on account of deficiency in service in the proper forum. This reply Ex.CW10 seems to be sent to the complainant in view of the complaint filed by him in the office of Hon’ble Prime Minister of India as revealed by contents of Ex.CW12. So, from the produced documents referred above along with Ex.CW2, it is made out that the complainant had been contacting other agencies also for getting his disputed loan account settled,    but each of the approached agencies expressed inability to redress the grievance because of pendency of this complaint or because of availability of the remedy with the complainant to approach this Forum. Ex.CW5 and Ex.CW6 are the      documents produced by the complainant to show that ECS mandate failed regarding two transactions of RS.414.56P and Rs.788/- and that is fortifies our         conclusion based on Ex.R1 that ECS mandate has to be issued by OP1 time and again for getting the EMIs amount cleared.

17.              Ex.CW1 is the copy of order dated 27.7.2015 passed in Consumer Complaint No.282 of 2015. Perusal of same reveals that the complainant suffered statement regarding compromise arrived at with OP1 after receipt of Rs.65,000/- in cash in lump sum. Complainant opted not to proceed with the complaint after receipt of said amount and that is why, he withdrew the complaint. Nowhere in this order Ex.CW1, it is mentioned that OP1 and OP2 admitted about waiver of the disputed loan amount in question. Further, in this order Ex.CW1, it is not at all mentioned that OP1 or their representative suffered any statement qua clearance of the disputed loan amount by the complainant. If that be the position, then contents of order Ex.CW1 does not at all establish that OP1 and OP2 acknowledged qua clearance of the disputed loan amount by the complainant. In view of non acknowledgement of waiver of loan in question by OP1 and OP2, self serving statement of the complainant, on the basis of which, order Ex.CW1 passed, it has to be held that Ops never waived of the balance loan amount of the complainant qua the disputed loan amount transaction of Rs.50,000/-. If inference of such         waiver on the part of Ops cannot be drawn, then certainly submission advanced by counsel for OP1 has force that the complainant will be entitled to NOC with respect to the disputed loan amount of Rs.50,000/- only after full payment of the entire loan amount along with interest. However, that amount not paid and that is why OP1 filed complaint with Judicial Magistrate as revealed by contents of Ex.CW14 and notice Ex.CW16. OP1 has right to recover the remaining EMI’s as per law and as such, action of filing of complaint Ex.CW14 establishes that OP1 never acknowledged the relinquishment of claim qua left out balance amount due qua the disputed loan account in question. In view of this, deficiency in service on the part of OP1 even cannot be inferred, particularly when contents of affidavit Ex.RA of Ms.Shivani Garg, Legal Manager of OP1 even establishes that no statement for waiver of the balance loan amount ever suffered by OP1 at the time of passing of the order Ex.CW1 dated 27.7.2015. Complainant cannot get benefit of his self serving statement qua withdrawal of complaint after acceptance of Rs.65,000/- in cash in view of denial by Jyoti Parkash of making such payment voluntarily for and on behalf of OP1.

18.              Therefore, as a sequel of the above discussion, the complaint dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

19.                        File be indexed and consigned to record room.

 

          (Param Jit Singh Bewli)                                 (G.K.Dhir)

   Member                                                          President

Announced in Open Forum

Dated:19.12.2016

Gobind Sharma.