O R D E R Sri. Santhosh Kesavanath P., President. Case of the petitioner's is as follows: The petitioner availed a loan for the purchase of a Maruti Zen Car from the first opposite party. The total loan amount availed was Rs. 2.25 lakhs as per the loan agreement. The entire instalment has to be paid in 36 instalment amounting Rs. 7482/-. The first opposite party collected 36 cheques drawn on the 4th opposite party bank. The -2- 2nd and 3rd opposite party are the agents of the first opposite party. According to the petitioner he had cleared the loan as agreed in February, 2004 and requested the first opposite party for issuance of NOC. But no action was taken by the first opposite party so the petitioner approached the second and 3rd opposite parties. But they have not issued the NOC. So, on 27..5..2005 the petitioner issued a lawyers notice to the opposite parties. In reply to the notice the first opposite party informed that NOC cannot be issued to the petitioner because, instalment for April 2002 is due and the said amount accumalated as Rs. 20561/- is due from the complainant. The petitioner states that he has repaid the entire loan amount and no amounts as claimed is due to the first opposite party. So the petitioner states that the act of non issuance of NOC and demand of Rs. 20561/- amounts to deficiency in service. According to the opposite party due to the negligent act of the opposite party the petitioner was not able to sell his car and purchase a new one. This caused a loss of Rs. 25,000/- to the petitioner. So the petitioner prays for an order directing the opposite parties 1 to 3 to issue NOC immediately and also he claims compensation in the tune of Rs. 25,000/- from the opposite parties along with cost of the proceedings. First opposite party filed version contenting that the petition is not maintainable before the Forum and according to the opposite party the case is in the nature of the settlement of account so it is not maintainable before the consumer Forum and acompetent Civil Court only has jurisdiction to determin the question involved in this case. According to the opposite party 36 cheques given by the petitioner has to be encashed but cheque for the month of February, 2004 was not encashed. As per the -3- statement of account as on 2nd August 2006, there is an arrear of Rs. 23036.99 along with its interest and penal charges. The non insurance of NOC was due to the arrear of loan instalment. So according to them there is no deficiency in service. They also deny claim put forth by petitioner with regard to loss of Rs. 25000/-. So the first opposite party prays for a dismissal of the petition with their costs. The second opposite party entered appearance and filed version contenting that the petition is bad for mis- joinder of parties and second opposite party is not a necessary party to the present complaint. The second opposite party contented that they are not aware of the transaction involved in between the loan account maintained by the first opposite party. The duty of the second opposite party is only to locate customer and collect documents for processing loan. So they pray for dismissal of the petition with their costs. The 3rd opposite party entered appearance and filed version contenting that the petition is bad for mis- joinder of parties and second opposite party is not a necessary party to the present complaint. The second opposite party contented that they are not aware of the transaction involved in the loan account maintained by the first opposite party. The duty of the second opposite party is only to locate customer and collect documents for processing the loan. So, they pray for dismissal of the petition with their costs. 4th opposite party entered appearance and filed version contenting that the petitioner has no cause of action against the 4th opposite party and the averrments in the petition are not known to them they contented that the petitioner has maintained savings -4- bank account with them and several transaction through the account still continue. The 4th opposite party contented that they were not aware above the dealings between the petitioner and other opposite parties. So, they prayed for a dismissal of the petition with their costs. Points for determinations are: i) Whether there is deficiency in service on the part of the opposite parties? ii) Reliefs and costs. Evidence in this case consists of affidavit filed by both parties Ext. A1 to A5 documents on the side of the petitioner and Ext. B1 documents on the side of the first opposite party. Point No. 1 The material question to be decided in this case is whether there is any dues outstanding to the first opposite party. According to the petitioner there was no dues outstanding. The first opposite party contented that the EMI for April, 2002 is due and the said amount is accumulated as Rs. 20561/-. The petitioner filed a petition as IA- 7/07 for directing the first and 4th opposite parties to submit the statement showing the number, date, the amount, date of encashment and the details of all 36 cheques issued by the petitioner and was encashed by the first opposite party and drawn at 4th oppopsite party.The first and 4th opposite parties has not filed any documents even after issuance direction from the Forum so we are of the opinion that an adverse inference can be drawn against the first opposite party. Further, more the opposite party has produced copy of the statement of account with regard to the loan transaction the said document is marked as -5- Ext. B1. The opposite party has not produced any positive evidence to prove that the cheque issued for the month of April, 2002 has been dishonoured. No dishonoured cheque, no dishonour memo is produced before the forum to prove their contension otherthan the computer print of statement of accounts made by them. Moreover the opposite parties had not made any claim to the petitioner with regard to the alleged due before or at the time of closing of the loan in February, 2004. So we are of the opinion that claiming of an amount of Rs. 20561/- at a belated stage, after closing of the loan, is a clear deficiency of service. So, point No. 1 is found accordingly. Point No. 2 In view of the findings in point No. 1, petition is to be allowed and petitioner is entitled to reliefs sought for. In the result, The first opposite party is ordered to issue no objection certificate to the petitioner. Even though there was no evidence adduced by the petitioner to prove loss and sufferings, without saying, what had happened would definitely caused much hard ship and sufferings to the petitioner so we fix the compensation as Rs. 5000/-. The first opposite part is ordered to pay Rs. 5000/- as compensation to the petitioner. The first opposite party is also ordered to pay an amount of Rs.1000/- as cost of the proceedings. The order shall be complied with within 30 days of this order. Dictated by me transcribed by the Confidential Assistant, corrected by me and -6- pronounced in the Open Forum on this the 30th day of June, 2008.
......................Bindhu M Thomas ......................Santhosh Kesava Nath P
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