Haryana

Yamunanagar

CC/178/2011

Gorakh Nath S/o Gaya Parshad - Complainant(s)

Versus

Fullerton India Credit Company Ltd. - Opp.Party(s)

P.K.Kashyap

14 Feb 2017

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                    Complaint No. 178  of 2011.

                                                                                    Date of Institution03.03.2011

                                                                                    Date of Decision:14.02.2017

 

Gorakh Nath aged about 54 years son of sh. Gaya Parkash, resident of 8/2 B.B.M.B. Colony, Khera, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                ..Complainant

Versus

Fullerton India Credit Company ltd. Near Old Rampura Police Post, Adjacent to Bikaner Sweet House, Jagadhri Road, Yamuna Nagar through Branch Manager/Authorized Signatory.

                                                                                                             ..Respondent.

 

BEFORE:         SH. ASHOK KUMAR GARG …………….    PRESIDENT

                         SH. S.C. SHARMA  …………………………MEMBER  

 

Present: Sh. P.K.Kashyap, Advocate, counsel for complainant.

               Sh. Nalin Gupta, Advocate, counsel for respondent.

 

ORDER   

1.                     The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 praying therein that the respondent (hereinafter respondent will be referred as OP Company) be directed to issue  NOC of the loan of the complainant and also directed to waive of the entire interest and other charges, if any, and also to pay compensation as well as litigation expenses.  

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant was intended to take loan and he after fulfilling all the formalities of the OP Company had taken the loan to the tune of Rs. 45,000/- from the OP Company and started repaying the same but the OP Company started demanding excessive rate of interest instead of settled rate of interest. Under the compelling circumstances, the complainant asked the OP Company in the month of August 2010 that he wants to clear the entire loan amount in one time then the official of the OP Company told that as on 31.08.2010 a sum of Rs. 32,595/- are due towards the complainant. Accordingly, the complainant by taking the loan from the Citifinancial Consumer Finance India Ltd.  (because their rate of interest was less than the OP Company) had paid the loan amount to the tune of Rs. 32,595/- vide cheque of ICICI Bank Limited, which had been duly acknowledged by the OP Company on 31.08.2010 vide receipt No. 3571303. In this way, the complainant has cleared the entire loan amount of the OP Company and requested him to issue the NOC then the official of the OP Company stated that the same would be issued lateron after realization of the said cheque. Thereafter, the complainant approached the OP Company after 15 days and requested them to issue NOC but they instead of doing needful stated that the said cheque has not been credited in their account till date. Upon which, the complainant visited the office of the Citifinancial Consumer Finance India Ltd. (hereinafter referred as Citifinancial Company) who stated that cheque has been encahsed and they started charging interest from the complainant on the loan sanctioned by them. After that, complainant approached regularly to the official of the OP Company but they did not issue the NOC rather they are charging interest on the loan account inspite of foreclosure of the said loan account. Not only this, the complainant was astonished when he had received a notice dated 04.12.2010 from the OP Company to pay Rs. 30,859/- whereas nothing had remained due towards the OP as the complainant has already cleared the entire loan amount on 31.08.2010. So, there is a deficiency in service and unfair trade practice on the part of the OP Company. Hence, this complaint.

3.                     Upon notice, OP Company appeared and filed its written statement by taking some preliminary objections such as the present complaint is not maintainable; the present complaint is false and frivolous and has been filed just to harm and harass the OP Company; the present complaint is bad for non-joinder of necessary parties and on merit it has been admitted to the extent that a loan of Rs. 45,000/- was provided to the complainant as per loan agreement dated 08.05.2008 which was repayable in 48 equal monthly installments of Rs. 1631/- each. Further, it has also been admitted that Rs. 32,595/- was outstanding against the complainant on 31.08.2010. Further, it has also been admitted that complainant approached the Citifinancial Company. for transfer of loan from the OP Company and Citifinancial Company issued a cheque of Rs. 32,595/- dated 30.08.2010 of the ICICI Bank Ltd. in favour of the OP Company. After that, the OP Company deposited the said cheque with ICICI Bank on 31.08.2010 but till date no amount was credited in the account of the OP Company by the ICICI Bank rather there was not debit of Rs. 32,595/- from the account of the Citifinancial Company. Since 31.08.2010, OP Company is approaching the local ICICI Bank and enquired about the abovesaid cheque but the ICICI Bank gave false reply dated 30.05.2011 in which they stated that no such cheque was deposited. So, the complainant is liable to pay the outstanding dues of the loan amount i.e. Rs. 32,595/- plus interest from 30.08.2010. It has been further mentioned that this fact was well within the knowledge of the complainant even then the complainant intentionally and deliberately has not impleaded the Citifinancial Finance Company and ICICI Bank as necessary parties. Lastly, it has been stated that as the outstanding amount of Rs. 32,595/- upto 30.08.2010 due has not been cleared by the complainant, hence the OP Company has not issued the NOC and prayed for dismissal of complaint.     

4.                     To prove the case, learned counsel for the complainant tendered into evidence short affidavit of complainant as Annexure CX and documents such as photo copy of receipt dated 30.08.2010 issued by Citifinancial Consumer Finance India Ltd. as Annexure C-1, Photo copy of counter part of the voucher for deposit of cheque in ICICI Bank as Annexure C-2, Photo copy of receipt of cheque issued by the OP Company to the complainant as Annexure C-3, Photo copy of legal notice dated 04.12.2010 issued on behalf of OP Company to the complainant as Annexure C-4 and closed the evidence on behalf of complainant.

5.                     On the other hand, learned counsel for the OP Company tendered into evidence photo copy of loan agreement as Annexure R-1, Photo copy of schedule of installments as Annexure R-2, Photo copy of promissory demand note as Annexure R-3, Photo copy of credit approval memo as Annexure R-4, Photo copy of letter issued by ICICI Bank Ltd. dated 30.05.2011 as Annexure R-5, Photo copy of e.mail as Annexure R-6 and R-7, Photo copy of cheque issued by ICICI Bank amounting to Rs. 32,595/- as Annexure R-8 and photo copy of e.mail dated 21.05.2011 as Annexure R-9 and R-10.

6.                     In additional evidence, counsel for the OP Company examined one witness namely Sh. Ashish Bassi, Senior Officer, ICICI Bank, Yamuna Nagar as RW1 and closed the evidence on behalf of the OP Company.

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

8.                     It is not disputed that complainant obtained a loan to the tune of Rs. 45,000/- from the OP Company i.e. Fullerton India Credit Company Ltd. and there was balance to the tune of Rs. 32,595/- as on 31.08.2010 towards the complainant. It is also not disputed that complainant obtained a fresh loan from the Citifinancial Company and handed over a cheque bearing No. 071340 dated 31.08.2010 of Rs. 32,595/- issued by the said Citifinancial Company to the OP Company which is duly evident from the copy of receipt dated 30.08.2010 Annexure C-1 and photo copy of counter part of Bank slip Annexure C-2 and receipt issued by the OP Company to the complainant dated 31.08.2010 Annexure C-3.

9.                     The only grievances of the complainant is that he cleared his loan amount of Rs. 32,595/- which was due against him as on 31.08.2010 vide cheque bearing No. 071340 dated 30.08.2010 (Annexure R-8) drawn on ICICI Bank, Yamuna Nagar after obtaining the fresh loan from the Citifinancial Company but despite that the OP Company has not issued the NOC to him. Learned counsel for the complainant draw our attention towards the copy of receipt (Annexure C-1) issued by Citifinancial Company and further counter part of the Bank Voucher vide which the cheque was deposited in the ICICI Bank (Annexure C-2) and receipt issued by the OP Company (Annexure C-3) vide which the complainant deposited the cheque with the OP Company. Learned counsel for the complainant argued at length that when the complainant had already handed over the cheque of Rs. 32595/- as full and final payment against his loan which was due against him as on 31.08.2010 then the OP Company was duty bound to issue the NOC to him. Further, learned counsel for the complainant argued that if the cheque was not encashed due to reason whatsoever then the OP Company could initiate action against the ICICI Bank or Citifinancial Company who issued the cheque in favour of OP Company and there was no fault of the complainant. Learned counsel for the complainant further argued that OP Company never informed to the complainant that the cheque issued by the Citifinancial Company. was not encahsed and lastly prayed for acceptance of complaint as there was no fault on the part of complainant.

10.                   On the other hand, learned counsel for the OP Company argued at length that as the OP Company did not receive the payment of the cheque, hence the complainant is liable to pay the outstanding dues of the loan amount i.e. Rs. 32,595/- alongwith interest from the date of 30.08.2010 till realization. Learned counsel for the OP Company draw our attention towards the statement of PW1 Sh. Ashsih Bassi Senior Officer of the ICICI Bank recorded on 09.02.2011 and argued that this witness has specifically admitted in his statement that as per record, the payment of cheque bearing No. 071340 amounting to Rs. 32,595/- was stopped by the drawer i.e. Citifinancial Company. Further, learned counsel for the OP Company draw our attentions towards the loan agreement Annexure R-1 to R-4 and letter dated 30.05.2011 Annexure R-5 issued by the ICICI Bank and copy of E.mails Annexure R-6 and R-7 and argued that from the perusal of these documents, it is duly evident that OP Company has not received any payment against the cheque from the Citifinancial Company on behalf of complainant and lastly, prayed for dismissal of complaint.

11.                   After hearing both the parties, we are of the considered view that although the complainant had handed over a cheque of Rs. 32,595/- drawn on ICICI Bank after taking fresh loan from the Citifinancial Company to the OP Company to repay the entire loan amount of the OP Company on 31.08.2010 which is duly evident from the copy of letter issued by Citifinancial Company Annexure C-1 and Photo copy of Bank slips Annexures C-2 and C-3 but as per statement made by the official of the ICICI Bank, the payment of the said cheque was stopped by the drawer i.e. Citifinancial Company and the OP Company could not receive the payment on behalf of the complainant. After perusal of the copy of e-mails Annexure R-6, R-7 and R-9 it is also clear that cheque in question was either misplaced in the hands of the ICICI Bank or in the hands of the OP Company as on the one hand ICICI Bank has stated in letter dated 30.05.2011 (Annexure R-5) that “they have checked their record and confirmed that the cheque bearing No. 071340 dated 31.08.2010 amounting to Rs. 32,595/- has not been received at their end” whereas in the same letter in third para official of the ICIC Bank has mentioned that “ we confirm that said cheque was stopped payment by drawer on 14.01.2014”. The same facts have been disclosed by the witness Sh. Ashish Bassi Senior Officer, ICICI Bank in his statement recorded on 09.02.2017 as RW1. Meaning thereby that, the ICICI Bank has taken contradictory plea just to save their skin from their liability. Overall it is clear that OP Company has not received the payment against the said cheque bearing No. 071340 issued by the Citifinancial Company and no step was taken by the complainant to resolve the matter in dispute between the banks. Even, the complainant has failed to place on file or to prove that he ever approached to the Citifinancial Company to clarify the matter or to issue fresh cheque in favour of the Op Company. The present complaint was filed on 03.03.2011 and since then complainant never tried to summon the record of the Citifinancial Company to prove that he made the payment of fresh loan taken by him from the said Citifinancial Company. Even, the complainant has not impleaded the Citifinancial Company as party in the present complaint due to the reason best known to him. The matter involved in the present complaint is complicated in nature and needs elaborate evidence in respect of facts which cannot be decided in a summary manner before the Forum. Hence without commenting on the merit of the case, we are of the considered view that the Civil Court is the best platform to decide such type of cases and the complainant is not entitled to get any relief from this Forum.

12.                   Resultantly, in the circumstances noted above, the present complaint of the complainant is hereby dismissed with liberty to approach the Civil Court as per law, if so advised. Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583.The Assistant is directed to return the original documents, if any, to the complainant after retaining the photo copies of the same on the file. Copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.   

Announced in open court 14.02.2017.           

                                   

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

                                                                                                DCDRF,YAMUNANAGAR

 

 

 

                                                                                                (S.C.SHARMA)

                                                                                                MEMBER