BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.2 of 2017
Date of Instt. 02.01.2017
Date of Decision: 27.05.2019
Sarwan Singh aged about 73 years s/o Sh. Kabal Singh r/o House No.77A Railway Colony, Jalandhar 144001.
..........Complainant
Versus
1. Bajaj Finsev Bajaj Finance Ltd. Shop No.203, 204, 1st Floor, Sahota Commercial Complex Pvt Ltd. Jalandhar City, Jalandhar- 144001, Opp. Bus Stand, Green Park, Now At SCF 25 & 26 Ground Floor, Near Gurudwara Singh Sabha, Urban Estate Phase, Jalandhar.
2. Bajaj Finsev Bajaj Finance Ltd 4th Floor, Survey # 208/1-B Viman Nagar, Pune-411014 Through its authorized representative.
3. State bank of India, Railway Station Branch, Jalandhar Through Branch Incumbent.
4. Mehta Sales Corp. Opposite Ravi Dass School, Kishanpura Road Jalandhar Through its authorized representative.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Smt. Harleen Kaur, Adv Counsel for the Complainant.
Sh. H. S. Kohli, Adv Counsel for the OPs No.1 & 2.
Sh. A. K. Arora, Adv Counsel for the OP No.3.
OP No.4 exparte.
Order
Karnail Singh (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant was allured by the attractive and lucrative advertisements with respect to providing of loan at low rate of interest for various consumer products by the OPs, opted for loan facility in the year 2015 for the purchase of an AC, purchased from OP No.4, to the tune of Rs.18,640/-, repayable in 8 equated monthly installments each of Rs.2330/- liquidated fully to the satisfaction of financing OPs. Thereafter, the No Objection Certificate dated 12.10.2016 was also issued by OP No.1 specifically stating that there is no further amount is outstanding and payable with respect to the said loan account of the complainant. At the time of taking of the loan, a blank cheques were taken by the OP No.1 for the purpose of deducting the EMI from the pension through saving account bearing account No.10387156634 with OP No.3. That the cheque was taken as a security to ensure that EMI flew regularly and punctually and that there was no default with respect to any installment with the assurance that the said cheque will not be misused to the prejudicial and detrimental to the interest of the borrower/complainant in any manner what so ever and after the full and final settlement of the loan account by the complainant, the necessary intimation to OP No.3 would be sent to discontinue deduction of the said EMI from the saving bank account of the complainant.
2. That the complainant through his bank statement was awestruck and stunned to know that penal charges were still being deducted from his said bank account and on 05.08.2016 Rs.2189/- had been deducted from his account and credited into the account of OPs No.1 and 2 and again on 06.09.2016, amount of Rs.287.50 in respect of cheque bouncing charges, without any rhyme and reason as the loan account has been settled after full and final payment of the complainant. It is wroth while to mention here that the complainant had availed of the other loan facility at any point of time nor authorized any of the OPs for deduction of EMI in respect of any alleged new loan account as was alleged by OP No.1 on repeated enquiry about the reason for continued deduction from the saving account of the complainant. It is pertinent to mention here that the complainant had neither made any application for any fresh loan nor executed any documents for the purpose of the same. It is important and significant to mention that the complainant is completely unaware of any consumer product against which the cheque in question was unscrupulously and clandestine being misused by the OPs. The complainant has been running pillar to post to ascertain the reason for unauthorized and illegal continued deductions of EMI from his savings account even after full and final repayment of the loan amount as stated above. None of the OPs have bothered to apprise the complainant in respect of the true, exact and correct reasons thereto. The attitude and behavior of the OPs have been indifferent, callous and unfriendly towards the complainant from the beginning and then the complainant become frustrated and disappointed and thereafter, complainant got served a legal notice dated 04.10.2016 returned undelivered with the postal remarks left address. That the failure on the part of the OPs No.1 and 4 to discontinue the deduction and debiting of the savings account of the complainant has caused financial and mental harassment due to the carelessness, negligent, imperfection and rendering deficiency in service besides indulging in unfair and deceptive trade practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP No.1 be directed to discontinue the presentation of the cheque for realization to OP No.3 and further, OPs be directed to provide all the details alongwith the supporting documents in favour of possession, control and custody of the OP No.1 allegedly executed by the complainant for which the alleged EMI is being claimed and deducted from the account of the complainant on the basis of the cheque against which loan is claimed to have been taken and further OPs be directed to revert back the unauthorizedly and illegally deducted amount as EMI and all cheque bouncing charges deducted on various occasions as reflected in the statement of account and the account books of OP No.3. Since both are severally and jointly liable to refund and return the amount and further, OPs be directed to pay compensation of Rs.50,000/- for causing damages and harassment to the complainant and also OPs be directed to pay litigation expenses of Rs.10,000/-.
3. Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed joint reply, whereby contested the complaint by taking preliminary objections that the complainant has availed two loans, the first Loan Account No.4380CD09047454 and loan amount is Rs.24,960/-, Tenure 12 months, EMI's Rs.2080/- and Second Loan Amount raised by the complainant is having Loan Account No.4380CD25288159, loan amount Rs.20,500/-, Tenure 10 months, EMI's Rs.2050/- and further submitted that with regards to the loan account No.4380CD09047454, the penal charges have been waived off as the goodwill gesture and the NOC has been also issued. So, for the loan account No.4380CD25288159 in that due to some inadvertent technical error in the system and an amount of Rs.556/- was shown as some shortage amount as the same was updated as the cash receipt as against the over due charges of Rs.1500/-. However, the same has been corrected in the adjusted in the other loan, vide Loan Acccount No.4380CD09047454 and an amount of Rs.944/- has been refunded to the complainant, vide dated 18.01.2017 via NEFT mode and the same is also getting reflected in the statement of account and now, both the loan accounts stand closed in the system. It is further averred that this Forum does not have jurisdiction to entertain this complaint rather as per Clause 32 of the terms and conditions, if any dispute arises between the parties, then the same will be referred to the Sole Arbitrator and as such, the complaint is liable to the dismissed and further submitted that the complainant was not given any NOC dated 12.10.2016 as there were out-standing's in both the loan accounts and as a goodwill gesture, the penal charges have been waived off. The cheques given by the complainant for repayment of the installments, were dishonored, due to the reason the “insufficient funds”, however the same was paid in cash and there were penal charges, which were outstanding and the same has been waived off from the OP and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
4. OP No.3 filed its separate reply, whereby contested the complaint by taking preliminary objections that there is no deficiency in service and unfair trade practice on the part of the answering OP, that being so the present complaint is not maintainable and is liable to be dismissed with special costs and further alleged that there is absolutely no cause of action in favour of the complainant to file the present complaint against the answering OP. On merits, it is admitted that the complainant having saving account in its bank. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. OP No.4 also filed its separate reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable either on law or on facts and the same is liable to be dismissed with heavy cost. It is further alleged that the complainant has intentionally and deliberately concealed the material facts from the Forum and has not come to the Forum with clean hands and has suppressed the true and material facts from the Forum, therefore, complaint is liable to be dismissed and further averred that there is no case made out against the answering OP. Rather it is the complainant, who has cheated and deceived the answering OP with a pre-planed strategy and further admitted that the complainant had purchased an AC in the year 2015 from the answering OP on installments while availing the loan. However, it is pertinent to mention here that the complainant has also purchased an other AC make LG from the answering OP, vide bill No.347 dated 16.07.2016 for a sum of Rs.22,000/-. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA and supplementary affidavit of the complainant Ex.CB alongwith some documents Ex.C-1 to Ex.C-6 and closed the evidence.
7. Similarly, counsel for the OPs No.1 and 2 tendered into evidence affidavit Ex.OP/A alongwith some documents Ex.OP-1 to Ex.OP-12 and closed the evidence.
8. Similarly, counsel for the OP No.3 tendered into evidence affidavit of Branch Manager as Ex.OP3/A and one document Ex.OP3/1 and closed the evidence. On the other hand, when the case was fixed for evidence of the OP No.4, nobody has appeared on behalf of the OP No.4, despite numerous opportunities and cost and ultimately, OP No.4 was proceeded against exparte.
9. We have heard the learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for the complainant as well as case file very minutely.
10. First of all, we like to discuss the legal aspect raised by the OPs No.1 and 2 that this Forum has no jurisdiction to entertain the complaint because by virtue of Clause 32 of the terms and conditions, any dispute arises between the parties will be referred to the Sole Arbitrator, appointed by the complainant. We have considered this aspect and find that a Section-3 of the Consumer Protection Act gave an additional remedy to the consumer to file a complaint, if the arbitration proceedings are not filed, but in this case, the OPs No.1 and 2 do not allege that any arbitration proceedings are pending, if so, then we find that this Forum has jurisdiction to entertain the present complaint.
11. Coming to the main issue in dispute, the complainant alleged that he purchased AC from OP No.4 in the year 2015 for an amount of Rs.18,640/-, but as per copy of Invoice Ex.C-2 dated 29.03.2015, the value of the AC is mentioned as Rs.35,600/- not Rs.18,640/- as alleged by the complainant. It is admitted that the complainant availed a loan for repayment of the price of the said AC purchased in the year 2015, from OPs No.1 and 2 and the installments were to be paid by the complainant through cheque from the bank of OP No.3 and complainant alleged that he became stun to see the statement of account that the OPs are still deducting amount from his account on 05.08.2016 Rs.2189/- and then again on 06.09.2016 an amount of Rs.227/- in respect of cheque bouncing. The complainant alleged that a 'No Objection Certificate' was issued to the complainant on 12.10.2016 and copy of the same is available on the file Ex.C-3, in regard to loan account No.4380CD09047454, but this certificate has been denied by the OPs No.1 and 2 on the ground that an out-standing amount was due on 12.10.2016 and question does not arise to issue any 'No Objection Certificate', whenever the OP has denied the authenticity of this document i.e. 'No Objection Certificate', then it is bounded duty of the complainant to prove this 'No Objection Certificate' by calling upon the record of the OPs No.1 and 2 , but the complainant did not bother rather blindly exhibited the said document, which has been categorically contested by the OPs No.1 and 2. So, the authenticity of this document is not established and if any amount deducted by the OPs No.1 and 2 on 05.08.2016 and then on 06.09.2016, then it means that an out-standing amount of loan is still due towards the complainant.
12. Further, the complainant has concealed the material facts from this Forum by not disclosing that he has obtained two loans for purchase of two separate ACs and bill of the both ACs are available on the file, one placed on the file by the complainant himself Ex.C-2 dated 29.03.2015 and an other bill placed on the file by OP No.4, which is Ex.OP4/1 dated 16.07.2016 and as per record, the complainant availed two loan amounts from OP No.1. The first loan account No.4380CD09047454, for an amount of Rs.24,960/- and the second loan account number is 4380CD25288159, for an amount of Rs.20,500/- and both the loans has been cleared by the complainant and accordingly, No Objection Certificate has been issued by the OP No.1, which are Ex.OP-4 and Ex.OP-5, both are dated 19.01.2017. It is established on the file that the loan amount of both accounts of the complainant was cleared on 19.01.2017 and prior to that, as alleged by the complainant, any amount deducted by the OPs No.1 and 2, is not illegal rather the same is due towards the complainant as well as cheque bouncing charges were also recovered by the OPs No.1 and 2 prior to issuing of 'No Objections Certificate' i.e. 19.01.2017. So, from the over all circumstances, we find there is no solid substances in the argument put forth by the learned counsel for the complainant, therefore, complaint of the complainant is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
13. 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 Jyotsna Karnail Singh
27.05.2019 Member President
