Orissa

Cuttak

CC/155/2019

Narottam Das - Complainant(s)

Versus

Branch Manager,HDFC Bank Ltd - Opp.Party(s)

H K Mohanty

31 Mar 2021

ORDER

 

 

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

 

   C.C.No.155/2019

 Sri Narottam Das,

S/O:Laxmidhar Das,

Res. Of Kesharibhaban,Netaji Nagar,

Madhupatna,Cuttack-753010.                                                            … Complainant.

 

Vrs.

1.      Branch Manager,

     H.D.F.C.Bank Ltd.,

     Jholasahi Branch,

At:Shantiniketan Building,

Jholasahi,Choudhury Bazar,

Cuttack-753001.

 

2.      Manager,

Customer Service Centre,

H.D.F.C.Ban k Ltd.,

At:Retail Loan Centre,

C-111,Business Park,First Flololr,

Saheed Nagar,Bhubaneswar.

                                                               

3.      General Manager,

HDFC Bank Ltd.,HDFC House,

Senapati Bapa Marg,Lower Parel(West),

Mumbai,Maharashtra-400013.… Opp. Parties.

 

 

Present:               Smt. Sarmistha Nath, Member (W)

                                Sri  L.N.Dash Chaudhury,Member

                               

 

Date of filing:    19.11.2019

Date of Order:  31.03.2021

 

For the complainant          :    Sri H.K.Mohanty,,Adv. & Associates.

For the O.P No.1,2 & 3      :    Sri  N.K.Dash,Adv. & Associates.     

 

  

Smt. Sarmistha Nath,Member(W).

 

The complainant has filed this complaint before this Forum against the O.Ps for redressal of his grievances U/S-12 of the C.P.Act,1986  in terms of the prayer made in the complaint petition alleging deficiency in service provided and unfair trade practice adopted by the O.Ps.

1. The case of the complainant in short is that  on 19.11.2016 the complainant purchased a Diesel Truck (open body) for self employment bearing engine No.B591803261F63-526860, chassis no.MAT 466395G1F15891m model TATA PLPT 3118 and the Registration No.OD-05Y-4755 on hypothecation with HDFC Bank Ltd.(Loan account No.822977).  The finance amount was Rs.23,52,229/-.  The E.M.I was fixed at Rs.56,900/-.  The loan amount was repayable in 48 months starting from 20.1.2017 ending with 20.1.2021.  The complainant has already paid road tax.  The cost of the vehicle (after body building) was more than rupees 35 lakhs.  No copy of loan agreement had been supplied to the complainant by the bank.

The complainant has been granted certificate of fitness, registration smart card, good carriage permit granted by State Transport Authority, Odisha,Cuttack and computerised Emission Test Certificate from the competent authority.

The complainant has paid road tax to the Registration Authority.The complainant has been paying the instalment dues regularly but due to recession in market conditions the complainant has not been able to pay the E.M.Is regularly around the month of December,2018.The defaulted amount till 25.3.2019 was around Rs.1,50,348/-.In such a position the complainant wrote a letter to O.P No.1 on 23.3.2019 for re-phasement of loan after receipt of an advocate’s notice dt.8.3.2019.In the aforesaid notice the complainant was threatened to be recalled the entire loan amount in full i.e. Rs.15,36,869/- within 7 days, failing which the bank would interalia repossess the vehicle.Copy of notice dt.8.3.2019 and representation of the complainant dt.23.3.2019 are Annexure-1 & 2.

The complainant gave a request letter through his advocate on 27.3.2019 for rescheduling of loan account no.82297759.Copy of advocate’s reply dt.27.3.2019 of the complainant is Annexure-3.The above reply was also sent to O.P No.2 & 3 for necessary action.The letter to O.P No.2 was returned as ‘Refused’.Copies of A.D, receipts, returned envelop from O.P.2 is Annexure-4.

The complainant received another advocate’s notice/reply from Sri Manoj Kumar Panda(Advocate for the financier) interalia to clear the alleged total outstanding amount of Rs.15,36,869.32p.Copy of letter dt.11.5.2019 by HDFC bank is Annexure-5.Thereafter the complainant is receiving calls from different persons as agents of the bank threatening forcible repossession of the vehicle.The financer does not provide regular accounts.Only after much persuasion, a summary of accounts have been provided on 7.11.2019.As per the said statement, the total balance outstanding payable till 7.11.2019 is Rs.1,68,645.73p.Copy of summary accounts is Annexure-6.

The complainant has prayed for a direction to the O.P to pay Rs.12,00,000/- as compensation for mental agony for repeated threatening by the agents/officials of the O.Ps personally and over phone and to pay Rs.5,00,000/- for punitive damages and Rs.30,000/- towards cost of litigation.

2. The notice was issued to O.Ps on 26.11.2019 and they appeared through their counsel on 24.12.2019 and filed written version on 4.11.2020 and raised the question of maintainability   of the complaint that the complainant is not a consumer as he has availed credit facilities for commercial purpose.    The complainant is a chronic defaulter and he defaulted repayments within the prescribed time of several instalments.  Copy of the repayment details dt.17.10.2020 is Annexure-A.  The complainant has failed to repay the loan instalments within the stipulated time, faulted in making full payments of the amount as agreed under the contract.  The O.Ps have stated that defaulted, late and part payments by the complainant have   resulted in addition of the delayed payment charges or accrued overdue charges along with remaining balance towards the instalments.

As per the contract bearing No.82297759 dt.19.11.2016, the cost of the vehicle was Rs.25,34,700/- in which down payment of Rs.1,82,471/- was paid by the complainant and the remaining amount of Rs.23,52,229/- was financed by the O.Ps.Complainant had agreed to pay interest @ 11.58% for the loan tenure.Hence complainant is liable to pay the principal amount along with the contractual interest in 53 instalments @ Rs.56,900/- towards the contract value.The said contract value amount was to be repaid in 53 equated monthly instalments i.e. from 20.1.2017 till 20.5.2021.Complainant had agreed to pay the instalments in stipulated time, failing which complainant has further agreed to pay the delayed payment charges.Copy of the loan agreement is Annexure-B.

The complainant had applied voluntarily for the loan facility after knowing well about the terms and conditions of the loan.When the complainant approaches the O.Ps for sanction of loan, the O.Ps after due process of the required documents, the loan amount is directly paid to the dealer of the vehicle on the consent of the complainant, who deposits the down payment and other charges that is insurance premium for the 1^st year, road tax etc. with the dealer of the vehicle for the necessary to be done.

The complainant has approached the Forum with unclean hands and concealed important facts in this complaint.The complainant is a defaulter and his present outstanding is Rs.7,07,629/-, towards overdue instalmentsis Rs.5,55,600/-, towards OEI Rs.1,35,292/- and CBC is Rs.16,737/- as on 17.10.2020. The complainant has concealed the facts and complainant makes out no ground for relief under the provisions of Sec-11 of the C.P.Act.The onus lies on the complainant to show that the reliefs as contemplated under the Act can be given for the deficiency in service and there has been no unfair trade practice adopted by O.Ps.The O.Ps further averred that the complaint is totally frivolous and to evade his legal liability due towards the O.Ps, this complaint is filed and the complainant has no genuine intention to repay the loan and relationship between the complainant and the O.Ps is pursuant to the contract entered into between the parties and the parties are governed under Arbitration Act, hence the complaint may be dismissed.

3. We have heard from learned counsel for the complainant, gone through the case record and documents and found that the complainant purchased a truck for self-employment on hypothecation but no copy of loan agreement was supplied to the complainant by the O.Ps.  The complainant could not pay the E.M.Is regularly, so he wrote a letter to O.P. No.1 for rephasement of loan account.  But the O.Ps threatened the complainant to recall the entire loan amount and the vehicle would be repossessed.  Since the O.P failed to file the written statement during statutory period, so it cannot be taken into account and we are constrained to believe the uncontroverted statement of the complainant.  That the O.Ps have not supplied the copy of the agreement of accounts to the complaint which violates the norms and guidelines issued by the R.B.I from time to time.  On the other hand the financier without adhering to due procedure of law have been trying to repossess the vehicle forcibly which is unbecoming of the behaviour of bankers.  We are of the considered view that the O.Ps have adopted unfair trade practice for which they are jointly and severally liable for the same.  O.Ps relied on an order of the Hon’ble Court passed in suo-motu writ petition (civil) No.03 of 2020, which is not applicable to present case.

ORDER

      The case of the complaint is allowed ex-parte against the O.Ps. The O.Ps are  jointly and severally liable and directed to pay Rs.1 lakhs (Rupees one lakh only) to the complainant towards mental agony and  Rs.30,000/- as litigation cost  and  the complainant will pay Rs.1,00,000/-(Rupees one lakh) towards arrear E.M.I and the O.Ps will consider the prayer of the complainant for rephasement/rescheduling of loan account No.82297759 and communicate the decision to the complainant within one month from the date of receipt of the order.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 31^st day of March,2021 under the seal and signature of this Commission.

                                                                                                                                                                                        

Smt. Sarmistha Nath

Member(W)

                                                                                                                        

 

Sri L.N.Das Choudhury

Member.