ORDER

(Delivered on 04/09/2015)

Per Smt. Jayshree Yengal, Hon’ble Member.

1.      This appeal  challenges  the order dated 11/01/2006 passed by the Additional District Forum, Nagpur by which  complaint  bearing No. 83/2006 is  partly allowed  directing the O.P./appellant herein to refund amount of Rs. 90,000/-  to the  complainant  and Rs. 2,000/- more  towards cost of the proceeding.

          Respondent- Mr. Chintaman Fagoji Nitnaware to be referred as   complainant and appellants – ICICI Bank Ltd. through its Branch Manger and Collection Manager to be referred as  O.P. Nos. 1 to 4 and  respondent No. 2- Ajmera Financial Services be referred as  O.P. No. 5, for the sake of convenience .

2.      Facts in brief as set out by the complainant in his complaint are as under:-,

          Complainant purchased a four wheeler  vehicle manufactured by Mahindra and Mahindra Company,  Scorpio Model, bearing registration No. MH-21/C-511 . The complainant availed financial assistance from O.P. Nos. 1 to 4 of Rs. 3,67,000/- on 01/04/2005.  The  said loan  was to be repaid in 48 equated  monthly installments of Rs. 10495/-. The complainant therefore issued 48 post dated cheques to the O.P. Nos. 1 to 4 towards repayment of loan  by installments. The complainant was regular in repayment of loan as  he used to maintain  sufficient balance in his account  for  realization of the cheque which would be  presented by the O.Ps.  It is the contention of the complainant  that  somewhere  in the month of Sept-2005 when he visited  his bank he  come to know that the O.P. had  not presented  five cheques for the month  of May to Sept-2005 and therefore the repayment  of the loan  by  the monthly installment was outstanding.  The complainant therefore contacted the O.P.  to present  the  post dated cheques which he had  given to the O.P.  every month regularly  so that  the repayment  of the loan  would not  be outstanding. It is further contented by the complainant that the O.P. with an intention to take advantage of its own wrong issued  notice  on 15/12/2005 to the complainant  calling  upon him  to  pay and amount of Rs. 52,475/- towards five outstanding EMIs  inclusive  of  delayed payment charges  and cheque bounce charges within  48 hours  from receipt of the said notice. The complainant  by its  reply to the notice  denied  any amount outstanding towards the loan account   as  it was only the O.P. who failed to present  the  cheques  issued by the complainant in his account and  further  expressed his willingness to repay the amount. The  O.P. however by letter dated 03/01/2006 informed the  complainant  that  the asset bearing registration No. MH-21/C-511  was taken into custody  for nonpayment  of  dues  despite  several reminders under the agreement.  Upon possession of the assets the loan agreement entered into by both the parties stood terminated and Rs. 4,25,857/-  was payable  towards full and final settlement of loan account. The complainant was further informed to remit the  said amount  with  overdue charges at the rate of 24% p.a.  within seven days from the date of the said letter  and  to take delivery of the asset.  In the  event of the complainant  not  repaying the  aforesaid amount  then  the O.P. would take further  action to recover the said amount.  The  complainant  repeatedly  requested the O.P. not to  take any steps  to  recover the loan amount  as  he was  willing  to repay the same and  the repayment of loan  amount  is  shown  outstanding    due to  the fault of the O.P.  as  it  failed to  present  the  cheques  issued by the complainant  regularly  in his account. As the O.P.  failed to take any cognizance the complainant filed the consumer complaint alleging  deficiency in service and sought for  restoration  of his four wheeler vehicle of Scorpio Model bearing registration No. MH-21/C-511 without  insisting on repayment of entire loan amount at one stretch and  accepting  EMI payable by the complainant  without  charging  any  interest  or  penalty.  The complainant further sought  Rs. 20,000/- as compensation towards mental harassment and torture and Rs. 10,000/- towards cost of proceeding.

3.      The O.P. resisted the complaint by filing their written version and  denied all the adverse allegation of the complainant.  The O.P. Nos. 1 to 4 have specifically submitted that  it had  regularly presented one cheque every month to the  complainant’s bank but the  cheques  for the  Month  of May -2005 to Sept-2005 were dishonoured and  as  five installments were outstanding, the O.P.  had  informed the complainant by  letter dated 15/12/2005 about  the  outstanding of amount of Rs. 52,475/-. The complainant had admitted five installments as outstanding in its reply notice . As  he  failed to   pay the  outstanding loan amount  in spite of repeated opportunity being granted to him,  the agreement  of loan  was terminated  on 03/01/2006. The O.P. denied  to have rendered any deficiency in service and   sought for dismissal of the complaint.

4.      The O.P. No. 5 denied to have rendered any service to the  complainant and therefore denied any relationship of  consumer and service provider. O.P. No. 5 specifically submitted that it  is  service provider to the O.P. No. 1 to the extent  that it forwarded the  case for availing of loan to the bank and it is  purely discretion of the bank to sanction the loan. The  agreement agreed into towards the loan transaction in between  the  person availing loan  and  the party sanctioning  the loan and therefore sought for dismissal of complaint as against him.

5.      The Forum after hearing both the  sides  partly allowed the complaint as aforesaid. The Forum has specifically held  that   five cheques  issued by the complainant  to the O.Ps.  for the months of  July to November  were dishonoured  and the O.P. had filed  documents  in support of the  said contentions. The  complainant  by order dated 19/01/2006 passed by the District Forum was granted   time of two weeks to deposit  the amount of  five defaulted installments with the O.P. and  the O.Ps. were restrained from using  or selling  the  repossessed  vehicle of the complainant.  The  complainant  failed to comply the said direction and  by application dated 14/02/2006 sought for  extension of time for depositing the  outstanding five installments of  loan account.  The Forum however,  rejected the said application. The  Forum has further held that  the  complainant had  paid amount of Rs. 1,46,930/-  till the date of filing of the complaint  and  the O.P.  had sold the  repossessed vehicle  on 20/05/2006 to  one Mr. Suresh Wadhwani for  Rs. 3,15,000/- . As the O.P. had  not issued any presale notice to the complainant  it had  rendered deficiency in service and  therefore partly allowed the complaint as  the O.P.  had received  Rs. 90,000/- more  in the  loan account of the  complainant ( Rs.1,46,930/- paid by the complainant , Rs. 3,11,000/- received by the O.P. by resale  of the vehicle  ).

6.      Feeling aggrieved by the impugned order the  O.P. Nos. 1 to 4 have preferred this appeal. The appellants have mainly challenged the impugned order on the ground  that the  amount outstanding  in the loan account  was  Rs. 4,25,857/-  and it had  recovered Rs. 3,11,000/-  after  resale of the asset. Therefore it had not  recovered any amount in excess and  the impugned order deserves to be quashed and set aside.

7.      We heard counsel for both the sides and perused the written notes of arguments filed by both the parties ,  copy of the complaint, written version  and documents filed on record by both the parties.

8.      It is proved  beyond doubt that  five installments  of EMI  were outstanding  in the loan account of the complainant due to dishonour of cheques  issued  by the respondent  to the appellant.  The  appellant .  has  repossessed the vehicle as the respondent failed to repay the loan. The  appellant  has  not  issued  any pre sale notice  to the respondent  and  the Forum has rightly  held  that  it  results into  rendering of deficient service.  It is also  proved by the documents filed on record about the statement of repayment of loan that  the respondent  has paid   Rs. 1,46,930/-  till  the date of the filing of the complaint and  the  appellant has admitted  to have  received  amount of Rs. 3,11,000/-  as a result of resale of  the repossessed vehicle. Therefore the appellant has received  total amount of Rs.  4,57,930/- towards the loan  of Rs. 3,67,000/-.  The Forum  has allowed refund of  Rs. 90000/-. We find no illegality or infirmity in the impugned order as  restoration of the repossessed  vehicle to the respondent   cannot be allowed as  it is  admitted by the appellant that it has already  resold  the vehicle  on 20/05/2006. Therefore,  in the event of the respondent being  deprived of his vehicle  the  Forum has rightly granted  refund of the  excess amount  received by the appellant in the  interest of justice.

9.      For the forgoing reasons we are of the opinion the appeal deserves to be dismissed being devoid of merit.  In the result we pass the following order.

ORDER

 i.       Appeal is dismissed.

 ii.      No order as to cost.

iii.      Copy of order be furnished to both the parties free of cost.