Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 437/19.12.2016
Ishwar Chand son of Shri Rameshwar Dayal
r/o. Plot no. 46, R-Block, Dharampura Extension
Najafgarh, Delhi - 110043 …Complainant
Versus
OP1. M/s Fullterton India Credit Co Limited
Branch Offce - 3rd and 4th floor, 1-B Pusa Road,\
Old Rajender Nagar, New Delhi-110060
Regd Office- Mech Tower, 3rd Floor,
Old No.307, New No.165, Poonmallee High Road,
Maduravoyal, Chennai - 600 09, Tamilnadu
OP2. Canara Bank,
[earlier Syndicate Bank) Najafgarh Branch,
1643 Thana Road, Opposite Police Station,
New Delhi [see paragraph 1.3 below] ...Opposite Party
Date of filing: 19.12.2016
Coram: Date of Order: 01.10.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no. 17)
1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services and of unfair trade practice on the part of OP1 that loan amount of Rs.1,50,000- taken from OP 1 was re-paid but OP1 deducted excess amount from his account and also, despite it the OP1 failed to issue 'no due certificate'. The OP2 also refused to provide relevant information, record/statement and refused to stop ECS to OP1. That is why this complaint under the Consumer Protection Act, 1986 for appropriate direction to (i) the OP1 to issue no due certificate, (ii) OP2 to stop ECS clearance of Rs.5,216/- from the account of complainant, (iii) compensation of Rs. 1 lakh against each OP in lieu of harassment, mental torture, agony and damages and (iv) costs of Rs.11,000/- besides other appropriate relief.
1.2. The complaint has been opposed by the OP1 vehemently that there is no unfair trade practice and deficiency of services, the complainant was at fault for want of payment of regular EMIs timely. There was settlement for outstanding amount in the tune of Rs. 68,000//-recoverable from the complainant, even it was also not complied by the complainant. There was no extra EMIs were collected from his account. The complainant is not entitled for any of the reliefs claimed in the complaint..
1.3 The complaint was also against Syndicate Bank as OP2, however, it stand merged into Canara Bank w.e.f.01.04.2020. The complainant had not applied for substitute of name of Canara Bank in place of Syndicate Bank. The stage of case reached for writing final order, therefore, by exercising powers under Order 1 rule 10(2) CPC, the proper name of Canara Bank is impleaded in place of erstwhile Syndicate Bank. Accordingly it is mentioned in the title of this case. The OP2 had not appeared and it was proceed ex-pare vide order dated 24.03.2017.
2.1. (Case of complainant) – In February 2013, the complainant took personal loan of Rs.1,50,000/- from OP1 vide loan account no.006825200024990 and loan was repayable in EMIs of Rs.5,216/- each w.e.f.03.04.2013. But the complainant was actually disbursed amount of Rs.1,49,950/-against loan of Rs.1,50,000/-. The complainant had paid 20 EMIs regularly but thence due of financial crises, he could not pay remaining EMIs in time. The complainant was visiting and requesting the OP1 for settlement of issue and finally on 25.03.2015, it was settled between them for an amount of Rs.68,000/-, which will be payable in installments by the complainant to OP1.
2.2. The complainant followed the settlement and paid amount of Rs.65,000/- installments to OP1 and on receipt of such amount, the OP1 asked the complainant that remaining amount of Rs.3,000/- need not to be paid and no due amount is left. But he shocked when he came to know after that payment that the OP1 was collecting EMI of Rs.5,216/- each since 03.08.2015 directly from his Bank/OP2 and it had collected extra amount of 07 EMIs despite repayment of loan and settled amount. Immediately complainant visited OP2 and informed Branch Manager of episode but OP2 asked "no due certificate" to be issued by OP1. Then, he approached OP1 for No Due Certificate but staff of OP1 refused. The OP1 is required to issue it as well as to return extra amount of 08 EMIs collected. The OP2 is also required to stop ECS of Rs.5,218/- in favour of OP1. The complainant suffered harassment, mental agony, financial losses etc. from the acts of OPs. The complainant also served legal notice dated 19.11.2016 to OPs for appropriate compliances but no result. Then this complaint is filed.
2.3 The complaint is accompanied with copies of – settlement letter dated 25.03.2015, receipts of payments made, statement of account/pass book issued by OP2, legal notice dated 19.11.2016 with postal receipt.
3.1 (Case of OP1) - The OP1 opposed the complaint vehemently by filing a written statement. The complaint is an afterthought and false, it is liable to dismissed. The complainant has approached this Consumer Fora without clean hands.
3.2. The OP1 loan had sanctioned personal loan of Rs.1,58,448/- and after deducting various valid charges (such as processing fees, stamp duty, insurance charges), the complainant was disbursed amount of Rs.1,49,950/- in his loan account, which is evident from statement of account. The loan was repayable in 48 EMI of Rs.5,218/- each. The complainant was not paying the EMIs regularly and in time, there were regular bounce of EMIs. However, the few EMIs received were in electronic form/mode, it cannot be altered. It is matter of record that the complainant had not paid all EMIs for repayment of loan.
3.3. The complainant has concealed the facts and he is giving misleading facts. There was settlement and a letter was issued to this effect for amount of Rs.68,000/- but the third installment paid was of just Rs.1000/- instead of actual agreed installment of Rs.10,000/-. The fifth and sixth installments were of Rs.13,000/- and Rs.15,000/- but the complainant paid Rs.11,000/- and Rs.10,000/- respectively; there was non-compliance of settlement letter agreed upon. The entire settlement amount of Rs.68,000/- was payable by the complainant and there was nothing to waive off Rs.3,000/- as alleged by the complainant. The OP1 also denies other allegations in the complaint of extra collection by ECS of seven or eight installments of Rs.5,216/- each or otherwise that the OP1 has not indulged in any act to be deficiency of services. The deduction of necessary charges was legal at the time of sanction of loan. The complaint is liable to be dismissed,.
3.3 The written statement is accompanied with copies of – authority letter in favour of AR/author of written statement and loan account statement.
3.4. (Status of OP2) .- The OP2 is Banker of complainant, however, it failed to appear, that is why it was proceeded ex- parte.
4.1. (Evidence)- Complainant filed his affidavit of evidence, which is on the lines of pleading with documents.
4.2. The OP1 led its evidence through its attorney Shri Pankaj Rana by filing his affidavit and documents filed with the written statement. There is no evidence by OP2 being ex-parte vide order dated 24.03.2017.
5. (Final hearing) -The complainant and the OP1 have filed their respective written arguments, which are blend of their pleadings and evidence. The parties were given opportunity to make oral submissions but none of them appeared at this stage of final hearing despite various adjournments. Therefore their written arguments will be considered to appreciate their respective case.
6.1 The rival contentions are considered, by taking into account balance sheet rival plea and evidence, then following conclusion are drawn:-
(i) It is not disputed that parties had entered into settlement dated 25.03.2015 for payment of lump sum amount of Rs.68,000/- by the complainant to the OP1. The complainant has also proved that settlement letter unilaterally signed by the OP1 and it does not bear signature of complainant.
(ii) The final settled amount of Rs.68,000/- was payable in six EMIs from 30.03.2015 to 30.08.2015. The complainant had pay Rs.65,000/- out of Rs.68,000/-, it is also not disputed.
(iii) However, the case of complainant is that remaining amount of Rs.3,000/- was waive off but OP1 opposed it. There is no proof of any fact, date, month or occasion, as to when the amount was waived off and by whom? There is no such waiver letter issued by the OP1.
Otherwise, the plea of complainant is oral against the written settlement of Rs.68,000/-. In addition, the receipts issued mentions 'part-payment'. Had any amount of Rs.3,000/- was waive off, then there would not have been last receipt of part payment issued in September 2015, which is proved by the complainant. Simultaneously, the complainant has proved service of legal notice dated 16.11.2016 with postal record and fact of waiver off of Rs.3,000/- was also mentioned but there no response to that notice to counter such facts. The OP1 was required to respond that notice but it kept silent and in the written statement it is just denial.
(iv) Thus, the conclusions (i) to (iii) establishes that complainant had paid amount of Rs.65,000/- against receipts out of settled amount of Rs.68,000/- by acted upon the substance of letter to deposit the lump sum settled amount by mode of DD or cash and none else.
(v) The complainant has also proved entries in passbook/ statement of his saving bank account no. 90732180012718, which are upto 03.10.2015 which is showing that OP1 has collected three EMIs of Rs.5,216/- each from 03.08,2015 to 03.10.2015. The total amount withdrew was Rs. 15,648/-. In fact collecting the amount of Rs.5,216/- on 03.08.2015 was prior to due date of installment on 30.08.2015 as per settlement letter.
However, since there was settlement between the parties, the OP1 had no authority to collect such amount from complainant that too modes of ECS contrary to mode of DD/cash agreed. It amounts of unfair trade practice to utilize the authority of ECS despite there was settlement, since by such settlement of the OP1, it ceases to use that mode.
(vi) The complainant asserts that amount withdrawn was of 07 or 08 EMIs after settlement schedule, however, the record proved of passbook does not reflect such record of 07 or 08 EMIs but of three EMIs, as concluded in (v) above. The statement of loan amount also shows that OP1 had received those three EMIs besides other amount from the complainant.
Thus there is unfair trade practice adopted by the OP1 towards the complainant that during receiving the settlement amount, the OP1 collected three extra EMIs by abusing the ECS authority.
(vii) The complainant has also proved his request and legal notice for issue of no due certificate, it was not considered by the OP1, it amounts to deficiency of services. Since the complainant has paid the EMIs, it makes the complainant entitled for no due certificate in respect of aforementioned loan.
(viii) The complainant could not prove that he had actually requested the OP2 to stop ECS since there is no written application or request for any point of time. The legal notice dated 19.11.2016 also does not decipher any fact as to when and how the OP2 was requested so. The complainant could not prove his case against OP2.
Since OP1 had already received the repayment of loan amount, the complainant has proved that OP2 is required to be restraint from release any amount by way of ECS from the account of complainant to the account of OP1.
6.2 In view of the conclusion drawn in sub-paragraph no. 6.1 above, the complainant has succeeded to establish his complaint against OP1 and partly against OP2. It is but natural that for want of ‘no due certificate’ it is affecting the complainant’s rights of proper CIBIL score, which matters a lot for financial relations and the present complainant suffered for it from OP1. The OP1 could issue NOC/No due certificate even after receipt Rs.70,216/- [i.e. Rs.65,000/-+ Rs.5,216/- on 03.08,2016 by ECS], which more than agreed amount of Rs.68,000/- but the OP had failed to issue 'no due certificate' despite repayment of loan and settled amount. It is deficiency of services. The OP1 had collected extra amount of Rs.12,648/- from the complainant [i.e. Rs.15,648/ less Rs.3,000/-].
6.3. The complainant deserves directions against OP1 to issue ‘No Due Certificate' and also 'to correct/upto date the CIBI score record of complainant' and to inform the complainant about certificate and correction of such CIBIL record, apart from issuing appropriate letter to this effect, in favour of complainant and refund of extra amount of Rs.12,648/-..
6.4. The complainant sought compensation of Rs.1,00,000/- against OP1 and separate compensation of Rs.1,00,000/- against OP2 besides costs of Rs.11,000/-. The circumstances are speaking themselves that both the complainant as well as OP1 are at fault since the complainant had firstly not paid the entire EMIs and when settlement took place, again the complainant had Rs.3000/- lesser than the agreed amount, he could not prove waiver of Rs.3,000/-. On the other side, the OP1 indulged in accessing ECS despite it was no more mode of payment but DD/Cash as per settlement and OP1 collected excess amount directly from the account of complainant, which it was ought to not be indulged as a fair practice. Therefore, the complainant is not entitled for any compensation from OP1. Since, there is no proof the case against OP2, thus complainant is also not entitled for any compensation against the OP2. On the same, reasons, there is no order as to cost since both parties has to participate in the prosecution and of defence of complaint.
7.1. Accordingly, this complaint is disposed off in favour of complainant against OP1 and OP1 is directed to (i) issue 'no dues certificate' for clearance of personal loan amount of account no.00682520024990 and (ii) 'to correct/update/ get it corrected the CIBIL score record of complainant' as nothing is outstanding against the complainant in respect of that account (iii) also inform the complainant about correction/update of such CIBIL record apart from issuing appropriate letter to this effect, in favour of complainant, (iv) the OP1 will refund the excess collected amount of Rs.12,648/- to the complainant and (v) the OP2 is restrained/stopped forthwith from releasing any amount or amount of Rs.5,218/- to OP1 as ECS from the saving bank account no. 90732180012718 of complainant
7.2. The OP1 is directed to comply above orders/directions in its letter and spirit within 45 days of this order. In case the OP1 does not refund the amount of Rs.12,648/- within given period, then there will be interest of6% pa from the date of complainant till realisation of amount, or OP1 does not comply with this Order, partly or otherwise, then the complainant will be at liberty to institute appropriate motion under the law. It is also clarified that present Manager of OP2 Branch (either designated at Senior Manager or Branch Manager, as the case may be) will be responsible/liable for compliances and also for legal consequences for non-compliances.
8. Announced on this 1st day of October, 2024 [अश्विन 9, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs120]
