Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.124/2016
Raj Kumar Sharma s/o Late Sh. K.P. Sharma,
R/o 893-Z, Type-II, Timarpur, Delhi-54 ...Complainant
Versus
The Manager, HDFC Bank Ltd.
Branch at: Commerical Complex
Opposite P.S. Pahar Ganj, New Dlehi ...Opposite Party
Date of filing: 29.03.2016
Date of Order: 14.08.2023
Coram: Shri InderJeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Vyas Muni Rai
ORDER
1.1. The instant complaint has been filed by Sh. Raj Kumar Sharma ( in short the complainant) under section 12 of the Consumer Protection Act 1986 against the Manager, HDFC Bank Ltd. PaharGanj, Delhi (in Short OP).
1.2. Complainant’s son Sh. Rohit had applied for loan for purchase of two wheeler vehicle vide loan application form dated 04.03.2011. Loan of Rs, 28000/- was sanctioned by OP on 15.04.2011 repayable in 24 equated monthly installment of Rs. 1,482/-each and complainant had issued 24 post dated cheques in favour of OP.
1.3. The OP encashed 23 cheques from the account of the complainant but it did encash 24th installment of Rs. 1,482/-.Complainant didn’t receive any information regarding dishonour of his cheque from OP. After six months, it was October 2013, when OP informed the complainant on phone that he had not sufficient amount in his bank account, therefore, OP could not encash the 24thinstallment of Rs.1,482/- as such the cheque was dishonoured. The complainant told OP that he had repaid entire amount. Then after a few days OP informed him that due to some technical problem in the bank, it could not withdrew the money of last installment. The complainant asked OP to give in writing as to what was the technical problem for not withdrawal of money from his account but he didn’t receive any response from OP till filling of this complaint.
1.4. The complainant, thereafter, also filed RTI application on 14.10.2013 but OP failed to reply the same. Not only this, OP also mentioned the name of the complainant as CIBIL bad on line (i.e. credit information Bureau of India as bad ie. Loan Defaulter) which disgraced the image of complainant in the Society.
1.5. On 31.08.2014, the collection agent of OP [i.e. M/s City Collection India Pvt. Ltd.] had approached the complainant and gave settlement letter and receipt No. 35412346 and took Rs. 1,500/- in cash for 24th the installment but OP didn’t issue NOC in favour of complainant after several requests.
1.6. The complainant himself wanted to purchase a vehicle on 15.11.2015 and when financer checked on line, it was told to the complainant that he has been shown as defaulter i.e.CIBIL bad and refused to advance any loan. The complainant immediately contacted OP and came to know that he had an outstanding sum of Rs. 618/-; complainant then presented OP the settlement letter and receipt of last installment, then officials of OP advised him to contact its recovery cell at Rajouri Garden; on reaching there the complainant was further advised to contact Mr. Deepak Rajput, at ITO branch. Complainant then met Mr. Deepak Rajput ,he was further advised to contact in OP’s bank of Paharganj Branch. The complainant being fed up with the behavior of the OP officials he deposited unjustified sum of Rs. 618/- with OP, only then, after a lot of sufferings pain and harassment, the opposite party issued NOC and loan closure report on 15.12.2015.
1.7. The two wheeler against which loan was sanctioned, was sold after delay of 03 years due to non issuance of NOC by OP, and suffered loss after selling the two wheeler. The complainant has alleged deficiency of services and unfair trade practices on the part of OP and suffered mental pain, agony, harassment apart from los to his reputation in the society.
1.8. The complainant prays for directions to OP to pay /return to the complainant sum of Rs. 618/- taken from complainant by OP; a sum of Rs. 4,00,000/- as compensation for deficient services , loss incurred for selling the vehicle after 03 years, for the loss to his reputation in the society for being declared loan defaulter by OP; apart from direction to OP to pay the complainant Rs. 20,000/- as litigation costs; any further order/ relief which Forum deem fit and proper in the facts and circumstances of the case.
1.9. Complaint is accompanied with copy of loan application dated 04.03.2011, copy of RTI application dated 14.10.2013, copy of settlement letter and receipt dated 31.08.2014, copy of NOC , copy of loan closure report.
2.1. The OP has filed the detailed reply under the signature of Sh. Rahul Kadiyan, Legal Manager being duly authorised officer of the OP. Complainant is frivolous, devoid of merit and is an abuse of process of law, suppression of material facts & it is not maintainable. The OP has acted in accordance with rules and guidelines and regulations and as per normal course of banking transactions.
2.2. Parties to the present case are governed by terms and conditions agreed between them at the time of execution of loan agreement dated 06.04.2011. The present complaint is not maintainable before this Forum in view of the Arbitration Clause in the agreement. The complainant is co- borrower and the complainant’s son namely Mr. Rohit Sharma approached OP in the year 2011 for availing loan for two wheeler for a sum of Rs. 28000/-. The OP, after verifying the financial status of the complainant as well as of his son, sanctioned the loan vide loan agreement No. 18558385 which was duly received and acknowledged by the complainant (details of the loan is given in para VIII of OP’s preliminary submissions). The two wheeler vehicle (purchased by son of the complainant) was hypothecated in favour of the OP.
2.3. The complainant never raised any objections while accepting the sanction letter as well as appropriating the disbursed amount. The parties to the contract have acted on the terms and conditions, hence, by virtue of principle estoppel, the complainant is estopped from alleging to the contrary.
2.4 As per terms of the loan agreement, the complainant was to pay 24 EMI for a sum of Rs 1482/- each with effect from 05.05.2011 to 05.04.2013. The complainant paid 23 EMI in time, however, EMI no. 24 for the month of April 2013 was dishonoured and unpaid. This fact is evident from the perusal of statement of loan account No18558385 filed with the reply. Complainant entered into settlement with OP and requested for waiver, which was accepted by the OP. As per settlement, the complainant had to pay Rs.1500/- as full and final settlement as on 31.08.2014; however, the complainant ignoring the terms of settlement but paid the amount on 10.09.2014; since the payment was not made as per settlement, hence the settlement arrived had failed and the complainant was liable to pay the outstanding amount Rs. 618/-
2.5 The complainant defaulted in payment of loan, the OP was duty bound to report/ update CIBIL about the complainant as per rule/ process in this respect; the complainant in the month of Nov 2015 approached the OP bank that he can not avail auto loan from financial institutions as his name is shown as defaulter in the CIBIL; Officer of Bank informed about an outstanding amount of a sum of Rs. 618/- and was requested to deposit the same with bank. The complainant was advised to contact ITO Branch of the OP Bank. The complainant paid Rs.618/- to the OP Bank on 28.11.2015, then the OP Bank issued NOC to the complainant.
2.6 The OP has denied that it had not given any information regarding dishonour of the cheque; the OP has also denied about filling of RTI application by the complainant; the OP has denied deficiency of services on its part and has prayed for dismissal of complaint with exemplary cost.
3. The complainant has filed rejoinder; it has been denied that the EMI No. 24 for the month of April 2013 was dishonoured and remained unpaid as alleged. The OP had filed forged and fabricated document/ statement of Loan account NO. 18558385 of its own; whereas the complainant has annexed the statement of account of his banker/SBI from which it is clear that no cheque was dishonoured in the month of April 2013; rest of the contents/ allegations of preliminary objections in reply of the OP has also been denied except the facts which are matter of record.
4. The complainant has led evidence; it is on the pattern of complaint supplemented with documents filed with complaint; the OP has filed affidavit under the signature of Sh. Rahul Kadian, Legal Manager in the OP Bank, which is also on the pattern of its reply supplemented with documents filed with reply.
5. The complainant and the OP filed their respective written final arguments and it was followed by oral submissions; the complainant argued himself and also submitted brief written submissions in ‘ Hindi’ on the date of final hearing but none appeared initially on behalf of OP for final argument , however, Mr. Ravinder, Advocate for the OP had appeared subsequently & argued on behalf of OP.
6.1 (Findings)- The complainant’s son took loan of Rs. 28000/- from OP for 24 equated monthly installment of Rs. 1482/- for purchase of two wheeler and complainant had issued 24 post dated cheques in favour of OP; The OP encashed 23 cheques but it had not encashed 24th cheque of last EMI but subsequently it dishonoured, which was informed by the OP to the complainant after six month on phone that he had not sufficient amount in account; however, complainant informed the OP that he had deposited entire amount. On enquiry from the OP, complainant was told that due to some technical problem in the bank, it could not withdraw the money for the last installment in time but the nature of the technical problem in the bank was never told/ informed to the complainant despite his requests to disclose the same in writing.
6.2 On non-receipt of the information from the OP, the complainant filed RTI application on 14.10.2013 but OP denied the receipt of any such application; the stand of the OP of non-receipt of RTI application is shadowed by the cloud because the complainant has submitted on record the RTI application dated 14.10.2013 along with postal receipt dated 15.10.2013 in original as proof, therefore, OP’s stand of non-receipt of RTI application is false.
6.3. The complainant has submitted bank statement of his SBI bank account and from the said statement if emerges that complainant had credit balance amount in his bank account which is more than the amount of Rs 1482/- last/24th EMI as his account shows credit the balance of Rs. 2,833/-, Rs.1,833/- and Rs.1,533/- on 04.04.2013,07.04.2013 and on 07.04.2013 respectively-, when last and 24th EMI was due. The said statement of account has been generated by his banker (SBI) and it is not his creation.
6.4. The OP has also proved its own generated the loan statement account and the OP’s statement of account depicts that Rs.1482/- the last installment amount was credited in its bank on 05.04.2013 (the due installment amount), its statement dated 08.04.2013 reflects that payment received (cheque number not mentioned); its statement dated 08.04.2013 also shows cheque bounced and Rs.1482/- debited and his account was still having balance of Rs. 1,482/- how the installment could be treated bounced, when Rs. 1482/- was debited from complainant’s account. This statement of account prepared & generated by OP doesn’t inspire confidence and is shrowded by cloud. Ex facie, a person may lie but the documents/ circumstances may not.
6.5. In view of discussions in para 6.3 and 6.4, it seems that settlement dated 22.08.2014 between the parties (complainant and the OP) for payment of Rs. 1500/- to be paid by complainant to the OP by 31.08.2014 depicts different story and the complainant seems to have signed the same under compulsion, as he had no option but to surrender to OP.
6.6. More so, despite facts and features narrated in foregoing Paras number 6.3,6.4 and 6.5, the OP still demanded Rs.618/- from the complainant as an outstanding amount; and he was shown as defaulter CIBIL bad. Thereafter, the complainant was forced to pay Rs 618/- to the OP bank and he was issued NOC by the OP on 15.12.2015, after causing much harassment.
6.7. The OP has placed reliance on case law Bharatikniting Co. V/s DHL World wide Express Courier” [ reported in (1996) and 4 SCC 704] wherein it was held that the Forums/ Commission can not modify the terms of the agreement, which had been arrived between the parties and when there is an acute dispute relating to facts, the Forum and Commission ought not to have gone behind the terms of the Agreement and should have instead referred the parties to the Civil Court. But ratio of this case is not applicable to the case in hand and this would not rescue the OP.
7. In view of the aforesaid discussion with reasons, the complainant has proved his case of deficiency of service and unfair trade practices on the part of the OP. Therefore, we hold that the OP is liable for the deficiency of service and unfair trade practice also entitles the complainant for refund of amount, which OP secured from complainant by creating compulsions.
8. Since deficiency of service stands proved against the OP; it held liable to pay Rs 618/- unjustified sum received from the complainant after causing much harassment to complainant.
9. The complainant seeks compensation. The facts & features of case makes him deserve for compensation but it should commensurate to the situation of harassment etc. (instead of amount involves). The complainant faced trauma, harassment, agony and inconvenience for long at the hands of OP. The complainant is a senior citizen, his problems and difficulties persisted and perpetuated for years together; he could not put himself at rest for long at the fag end of his life.
Since the last and 24th installment of Rs. 1,482/- was debited from the SBI bank account of the complainant and credited to the account of OP on due date; OP took the stand that the last cheque for 24th installment was dishonoured is motivated and managed by its own generation of its account’s statement and is also not above the board. The complainant’s RTI application seeking many information was also not responded to the complainant by OP which resulted in untold trauma to the complainant, it clearly makes out not only a case of compensation but also punitive damages, so that, the trust and delicate relation of an insurer and insured is not lost apart from to solace the complainant. The other reasons for punitive damage is that acts & deeds were done by officer of a professional insurance Company/OP, they have intentionally harassed the complainant to devise it as a way to deny valid claim of complainant. It is to be curbed so that it is not repeated with others. Thus, compensation of Rs. 10,000/- is allowed in favour of complainant and against the OP apart from punitive damages of Rs. 10,000/- in favour of complainant and against OP. It will be in the discretion of OP that punitive damages, being awarded against it, may recover it from its faulting officer/ person.
The complainant, a senior citizen, was constrained to file complaint and contested it for years, litigation cost is also quantified to Rs. 5,000/- & allowed in his favour to be paid by OP.
10. Considering the above conclusions drawn, OP is directed to pay to the complainant amount of Rs 618/- along with 7% interest p.a. (as prayed in the form of any other order/relief) from the date of filing the complaint till its realization; Rs.10,000/- of damages/compensation; Rs 10,000/- towards punitive damages; apart from Rs. 5,000/- as litigation cost.
The aforesaid amount shall be paid to the complainant by the OP within 30 days from the date of receipt of this order, failing which the amount of Rs. 618/- shall be payable with interest at the rate of 8% pa (instead of 7% p.a.). The complaint is disposed off accordingly in above terms.
11. Announced on this 14th August, 2023. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
