CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 739/2007
S.K. Gautam,
S/o Late Sh. Janki Prasad,
Resident of B-141, Sukra Bazar Road,
Near Gufa Mandir, Ashok Nagar,
Shahdara, Delhi – 110093 ……Complainant
Versus
1. The Manager, HDFC Bank,
Ansals Classique Tower,
J-Block, 9th Floor, Rajouri Garden,
Delhi.
2. M/s Finance Point,
DSA – HDFC Bank Ltd.,
6 & 7, RBI Colony Market, Hauz Khas,
New Delhi – 110016. ………Opposite Parties
Date of Institution : 03.07.2007 Date of Order : 18.11.2015
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Now, in the present complaint there are only two OPs who have been mentioned as OP-1 & OP-3 in the complaint. It appears that originally impleaded OP-2 was deleted and cognizance of the complaint was not taken against him. However, the present OP-1 and OP-3 have been mentioned as OP-1 and OP-3 in the complaint. Now we shall call them as OP-1 & OP-2.
According to the complainant, he had applied for a loan for the purchase of a used car amounting to Rs.2,17,000 repayable over 48 instalments of Rs. 6122/- each with OP-1 through OP-2 in Sept. 2006. However, complainant did not get any information regarding sanction of loan till 31.10.2006. He made numerous calls to OP-2 but to no effect. On 2.11.06 he observed that an amount of Rs. 6212/- had been deducted from his salary account from HDFC Bank Ltd., Ansari Raod Branch, Darya Ganj, New Delhi towards the repayment installment of the aforesaid loan though no such loan was disbursed to him. He contacted OP-1 & 2 but did not get any information and ultimately he was told that his loan had been cancelled and there will be no further EMIs recoveries and that after regular follow up the amount of Rs. 6,112/- was also refunded to him. The complainant could not understand the whole transaction which had disturbed and stressed him. He sent a legal notice dated 12.4.07 through registered post to OP-1 claiming the return of loan documents and the post dated cheques and seeking an investigation in his complaint. OP-1 vide its letter dated 30.4.07 informed the complainant that the loan applied by the complainant was disbursed on 29.9.2006 to OP-2 with instructions to OP-2 to release the payment in favour of the complainant once all papers for transfer of ownership and/or hypothecation in favour of bank were received and found to be in order by RTO and that due to undue delay on complainant’s part for submitting RC book for transfer of ownership, Bank had no option but to cancel the loan. According to the complainant, as per clause 9(vii) of the loan agreement, contractual obligation to submit the RC was within 150 days from the date of disbursal or 60 days from the date of delivery whichever is earlier. Since the loan was never disbursed to him he was not in a position to pay to the original owner of the car and was, therefore, not in a position to get the car transferred in his name and to get the hypothecation transferred in bank’s favour and to deliver the RC as stipulated under the loan agreement. Therefore, pleading deficiency of service on the part of OPs, the complainant has filed the present complaint with the following prayers:
- That the OPs be directed to tender an unconditional apology for their wrongful and irresponsible behaviour.
- That the OPs be directed to pay a further sum of Rs. 5,50,000/- by way of exemplary damages to the complainant on account of cost of inconvenience, time wastage, mental trauma, stress, anxiety and the legal charges which the complainant herein had to undergo at an advanced age.
In its written statement, OP-1 has stated as under:
“2. At the outset it is clarified that DSAs have no authorization to act as agent of the Answering respondent, HDFC Bank Ltd., and the bank cannot be held liable or responsible for any breach of assurances rightly or wrongly made by it to the customer. The role of such DSAs, qua Bank, is confined only to facilitate application of the customer and to see that the application is in compliance with terms and conditions of a particular scheme. As a matter of fact in this transaction of facilitation DSA acts as an authorized agent of customer, in so much so even the loan amount is often routed through the account of such DSA under authorization of customer, Annexure-R-1/1.”
It is further stated as hereunder:
“However, it is further submitted that the Respondent Bank accordingly disbursed the loan amount of Rs. 2,09,853/- after deducting one advance EMI of Rs. 6122/-, valuation charges Rs. 500/-, processing charge of Rs. 250/- and stamp duty charges of Rs. 275/- on 29.9.2006 in favour of Respondent No. 2 as per the authorization of the complaint. The same is explicit from the Statement of Account Annexure R-1/2.”
It is further stated as hereunder:
“The complainant had full knowledge of disbursal of loan in his favour to the DSA, M/s Finance Point as authorized by him in this behalf on 29.9.2006 itself. As a matter of fact the complainant was in regular contact with the DSA, Respondent No. 2, and was repeatedly failing to fulfill the formalities of providing RC for getting the hypothecation done in favour of Bank. As a matter of fact, the complainant as per the information given by Respondent No. 2 after receipt of notice from the Hon’ble Forum, the complainant wanted the loan amount transfer from the A/c of DSA to his account and DSA wanted the hypothecation on RC etc. done before transferring the amount. And in this fight the complainant and the Respondent No. 2 wasted about 2 months but since the disbursement, as per the authorization of the complainant, has been made on 29.9.2006 with the Respondent No. 2 started presenting the month of December 2006 was dishonoured and bouncing charges and overdue interest etc. were levied as per the agreement. However, payment in respect of said instalment was received in cash on 12.12.2006.
It is further stated as hereunder:
“That the loan of the complainant was actually foreclosed on behalf of the complainant by reason of his failure to comply with the requirements/directions of the hypothecation of RC etc. It is utterly false that the complainant’s enquiry was not answered.
That the EMI amount of Rs. 6122/- was directed to be refunded as soon as the loan agreement was cancelled as a result of non fulfillment of the loan agreement by the complainant himself i.e. of submitting the required documents to the bank within time since owing to a very large No. of cheques being handled in each presentation cycle, upto 25 working days are required for effectuating any change in the agreed presentation schedule. And therefore the second cheque of EMI had already gone into process.”
It is prayed that the complaint be dismissed.
In its written statement OP-2 has stated as follows:
“That the role of the opposite party No. 2 is that of a facilitator. On the one hand it ensures that the application of a particular customer is in proper compliance with the guidelines for disbursal of loan under any particular scheme and on the other hand it ensures that the amount disbursed by the Bank is properly secured by way of hypothecation. And most often the loan amount is disbursed in the account of the DSA as per authorization of the customer and in case the same is disbursed to the customer without securing the same by way of hypothecation, the DSA shall be liable for the recovery of said amount from the said customer.
………………………In case of ‘Used car loan’ category, where the RC is ready in the hands of the person selling the car and normally the draft/cheque in favour of the seller is given after the documents of title of the seller, in respect of the vehicle, are produced and is sent for hypothecation. It may be noted that this being a used car there was no invoice, which could show hypothecation in favour of the Bank.
And in case, the loan amount is disbursed by the DSA to the loanee without hypothecation of the vehicle done in favour of the bank the DSA has to bear any loss suffered by the bank. And in the present case the complainant did not bring the RC from the seller so that the draft could be made in favour of the seller. As a matter of fact the complainant vehemently insisted that the loan amount be transferred in his account first and the malafide and mischievous motive of the complainant was obvious from his conduct. Smacking malafide, the Opoosite Party No. 2 insisted that RC from the seller be brought so that draft in favour of seller could be prepared, since otherwise the loan might remain unsecured and the whole liability would come onto the shoulders of the Opposite Party No. 2.
…………
Even after repeated requests for more than a month by the DSA, the loanee/complainant did not submit the RC to the DSA, Opposite Party No. 2. And ultimately the amount so disbursed on behalf of the complainant had to be refunded with interest to the Opposite Party No. 1 Bank, as is clear from the statement of Account. And the DSA, Opposite Party No. 2, suffered financial loss for the fault of the loanee/complainant.
It is prayed that the complaint be dismissed.
Complainant has not filed rejoinders to the written statements. Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Gaurav Lakhanpal, AR on behalf of OP-1 and of Sh. Raju Chauhan, AR of OP-2 have been filed in evidence on behalf of OPs.
Written arguments have been filed by the parties
We have heard the complainant in person and Sh. Raju Chauhan, Partner of OP-2 and have also perused the record.
As stated hereinabove, the complainant has not filed rejoinders to the written statements. He has also not dealt with the points raised in the written statements in his affidavit filed in evidence. A copy of the payment authorization in favour of the OP-1 Bank signed by the complainant has been filed on the record. We mark it as mark ‘A’ for the purposes of identification. In the said document, the complainant has confirmed that he had taken the delivery of the vehicle No. DL2CAB0813 and that the payment be disbursed in favour of OP-2 and balance to him. Copy of agreement for auto-loan along with schedule has been filed on the record. In the schedule, the loan amount has been authorized to be disbursed in favour of OP-2 by the complainant. It means that it is the complainant himself who had authorized OP-1 Bank to disburse the amount of loan in respect of the second car to OP-2. From the unchallenged version of the OPs made in the written statements and the affidavits of their respective witnesses and also not denied by the complainant, the copy of RC book had never been given by the complainant to OP-1 or to OP-2 at any point of time though the specific case of OP-2 is that in case of used car loan category where the RC is ready in the hands of the person selling the car, normally the draft/cheque is given in favour of the seller. Therefore, if the complainant had also taken the delivery of the said car he ought to have submitted the RC thereof to OP-1 or to OP-2. Therefore, in our considered opinion, clause 9 (vii) of the Agreement for Autoloan in question does not apply to the facts of the present case. Therefore, in our considered opinion, the complainant was himself not vigilant in pursuing the matter and suffered the loss, if any, on account of his own faults and lapses.
In view of the above discussion, we do not find any merit in the complaint. We dismiss it accordingly with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 18.11.15.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 739/2007
18.11.2015
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N. K. GOEL) MEMBER PRESIDENT
