Delhi

StateCommission

A/08/773

MANAGER HDFC BANK - Complainant(s)

Versus

G.C. KHOSLA AND OTHERS - Opp.Party(s)

12 Jul 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments: 12.07.17

           Date of Decision:     14.07.17

First Appeal No. 773/2008

In the matter of:

1. The Manager

HDFC Bank

Amandeep Building

K.G.Marg. New Delhi

 

2. Shri S.K.Chopra

DSA (Direct Selling Agents) HDFC

City Car Gallary

E-15, Kailash Colony Market

New Delhi-48                                                                                     Appellants

                       

 

                                                                        VERSUS

            Shri G.C.Khosla

            H.No. 11

            Pocket- 19H

            Sector-7

            Rohini, New Delhi.                                                                             Opposite Party

 

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes

2. To be referred to the reporter or not? Yes

SHRI O.P.GUPTA

JUDGEMENT

          Challenge in the present appeal is to order dated 11.03.08 passed by District Forum, New Delhi in CC No.81/06.  District Forum allowed the complaint and directed OP 1/appellant to pay Rs. 80,000/- to the complainant which was the excess amount collected by OP 1 through recovery agent/ OP 2. It further directed OP 1 to pay Rs. 50,000/- to the complainant on account of mental agony and harassment and Rs. 10,000/- towards cost of litigation. The case of the complainant/respondent No.1 herein was that he applied for loan of Rs. 4,50,000/- against mortgaging his vehicle No. DL3CB3434.  The bank issued loan of Rs. 5,52,500/-in excess  the amount applied by the complainant. Direct sales agents are the persons appointed by the bank to facilitate door to door loan delivery system launched by bank. OP No. 2/respondent No. 2 herein was direct sales agent.  OP 1 bank disbursed the amount without knowledge of the complainant.  Complainant got the knowledge only when he had to pay higher amount to the bank to obtain No Objection Certificate.  Since the complainant had to settle the amount and stop cycle of interest, with understanding that bank would refund the excess paid, complainant repaid the entire loan consideration.

2.       OP 1 filed WS pleading that complainant applied for used car loan through DSA/OP 2.  The loan was sanctioned for a period of 36 months each installment being Rs. 20,730/- p.m. Total amount of Rs. 5,31,770/- was disbursed by OP 1.  OP 1 disbursed remaining amount of sanctioned loan in favour of sub-DSA/car circle, Rs. 40,000/- was debited on 01.06.02, Rs. 50,000/- on 22.06.02 and Rs. 470/- was debited on account of pay order charges, Rs. 170/- were debited on account of registration transfer charges.  Thus total payment of Rs. 5,42,170/- was disbursed by OP 1 to the complainant.

3.       Both the parties filed evidence.  After going through the material on record the District Forum found that loan agreement was of Rs. 4,50,000/-.  Entire calculation by OP is based upon loan amount of Rs. 5,12,500/-.  Thus there was a basic dispute of the amount of loan applied and amount of loan sanctioned.  Both the said figures could be ascertained authentically only from loan agreement which remains with the lender as per practice.  The loan agreement was not filed and OP 1 intentionally kept the same in his possession. Withholding of the material piece of evidence must result an adverse inference being raised against OP 1 to the effect that if OP 1 produced the said agreement, it would have gone against OP 1.  Obviously OP 1 was playing hanky panky with the complainant and was found to cheat him of his amount who was in need of the amount to purchase a used car signed every document including transfer title to the car. OP 2 was recovery agent who played material role and who gave cheque of Rs. 4,50,000/- to the complainant. The complainant had been overcharged, OP 2 was hand in glove with OP 1.  Rs. 40,000/- was paid by OP 1 to car circle vide cheque dated 01.06.02, Rs. 50,000/- was paid to Shri Vivek Gaur by OP 1 vide cheque dated 22.06.02.  There was no explanation about deficiency either with OP 1 or with OP 2 as to for what purpose and in what condition the said amount has been paid.

4.       The District Forum further found that loan amount never exceed cost/sale price of mortgaged vehicle and loan is paid to the actual payee and not to three different persons on three different days.  OP 2 flouted all  ‘norms’, OP 2 was trying to overlook excess calculation from complainant without  realising that it could not charge amount in excess of loan amount without any justification or rationality.  The same amounts to deficiency in service by OP 1.  Complainant had overpaid Rs. 80,000/- to OP 1.

5.       Respondent No. 1 put in appearance through his counsel.  He filed reply to appeal.  Later on he stopped appearing and has been proceeded exparte.  Respondent No. 2 was served by publication in Hindustan (Hindi) dated 05.03.16 and Hindustan Times dated 05.03.16.  He did not put any appearance and has been proceeded exparte.

6.       We have gone through the material on record and heard arguments advanced by counsel for appellant. She did not file the loan agreement despite observation of District Forum.  She could not explain any reason as to why loan agreement is being withheld.

7.       Copy of cheque in favour of ICICI Ltd. A/c Summit Aviation Pvt. Ltd. Loan  A/c  bearing No. 656483 dated 30.05.2002 for Rs. 4,50,000/- has been filed by the respondent alongwith his reply in appeal.  The same is placed at page 10.  This lends support to the plea of the complainant that he got loan of Rs. 4,50,000/- only.

8.       The complainant also explained in his reply filed in appeal that he had paid 11 EMIs @ Rs. 20,730/- amounting to Rs. 2,28,030/- in August 2003.  He cleared the entire loan amount by paying Rs. 3,41,000/- for which appellant issued letter dated 18.08.03 which is Annexure R-5 to the reply and is placed at page 9 of bunch of reply.  Thus he has paid Rs. 5,69,030/- to the bank.

9.       Complainant also mentioned in his reply that cash receipt issued by the seller of the car in his favour is Annexure R/3 to the reply and is paced at page/11.  The same shows that total amount of price of car was Rs. 4,70,000/- out of which he received Rs. 4,50,000/- through pay order No. 656483 dated 30^th May, 2002 issued by Bank of Rajasthan Ltd./predecessor in interest of ICICI Bank.

10.     On the basis of material available on record we have no hesitation in holding that  appellant did not sanction Rs. 5,52,500/-and did not disburse the same to complainant.  The complainant was paid Rs. 4,50,000/- only.  Rest of the amount has been shown as having been paid to three different persons on three different days, on what basis and why is not clear.

11.     The appellant has not disputed that it has recovered Rs. 80,000/- in excess from complainant/respondent No. 1.  It has tried to justify the recovery.

12.     Any how  directions to pay compensation Rs. 50,000/- for mental agony and harassment and Rs. 10,000/- as cost of litigation is highly inflated and not sustainable. Hence the said directions are set aside. 

13.     To sum up the appeal is accepted in part,  appellant is directed to pay Rs.80,000/- to complainant which is the excess amount collected by  appellant. Appellant will also pay interest @ 6% from the date of complaint in 2006 till refund of the amount to the complainant.

          Copy of the order be sent to both the parties free of cost.

          One copy of the order be sent to District Forum for information.

 

(ANIL SRIVASTAVA)                                                                         (O.P.GUPTA)

     MEMBER                                                                                    MEMBER(JUDICIAL)