| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.230 of 08-08-2017 Decided on 21-06-2018 Jaswinder Singh aged about 48 years S/o Pala Singh R/o Village Bhodipura, Tehsil Phul, District Bathinda. ........Complainant Versus HDB Financial Services Limited, Goniana Road, Bathinda, through its Branch Manager/Incharge/Authorized Representative. .......Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Smt.Sukhwinder Kaur Member Present:- For the complainant: Sh.Sandeep Kumar, Advocate. For opposite party: Sh.Sunil Kumar Khurana, Advocate. ORDER M.P Singh Pahwa, President The complainant Jaswinder Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite party HDB Financial Services Limited (here-in-after referred to as opposite party). Briefly put, the case of the complainant is that he took loan of Rs.12 lakhs from opposite party to purchase the vehicle/Tata LPS-4018 bearing registration No.PB-03X-7611. He got the vehicle hypothecated with opposite party and he started making the payment of EMIs. He has already repaid the entire loan amount alongwith upto date interest. Nothing is due or outstanding against him. It is alleged that opposite party has failed to issue requisite 'No Due Certificate' in favour of the complainant. He has been repeatedly requesting opposite party to issue 'No Due Certificate' in his favour so that he may be able to get the hypothecation of opposite party cancelled from the original R.C of the vehicle, but to no effect. It is further alleged that on 13.6.2017, complainant sold the vehicle to Mohinder Pal S/o Mukand Lal R/o Village Bhagta Bhaika, District Bathinda for the total sale consideration of Rs.15,00,000/- and received an amount of Rs.6 lakhs in cash from him and handed over him physical possession of the vehicle. The balance amount of Rs.9 lakhs was to be received by the complainant after handing over the original R.C of the vehicle alongwith 'No Due Certificate' from opposite party up to 30.6.2017. It was also agreed that in case of default on the part of the complainant in procuring 'No Due Certificate' within one month, he will be liable to repay an amount of Rs.6 lakhs alongwith damages/compensation of Rs.2,00,000/-. As opposite party failed to issue 'NOC' in favour of the complainant, he was forced to repay an amount of Rs.6 lakhs alongwith damages/compensation of Rs.2 lakhs to Sh.Mohinder Pal as per terms of the agreement dated 13.6.2017. As such, the complainant has suffered huge loss of Rs.2 lakhs only due to the non-issuance of 'No Due Certificate' by opposite party. He also could not sell his vehicle, although he was in need of money. It is further alleged that without getting hypothecation cancelled, the complainant is unable to dispose off/sell the vehicle and he is suffering from great mental tension, agony, botheration, harassment and financial loss. He also got issued the legal notice dated 10.7.2017 to opposite party through his counsel, but opposite party failed to give any response and to issue 'No Due Certificate' in favour of the complainant. Ultimately, two days back, opposite party refused to issue 'No Due Certificate'. On this backdrop of facts, the complainant has claimed Rs.3,00,000/- on account of mental tension, agony and botheration etc. and Rs.5500/- as litigation expenses. He has also prayed for directions to opposite party to issue 'No Due Certificate'. Hence, this complaint. Upon notice, opposite party appeared through its counsel and contested the complaint by filing its written version. In the written version, opposite party has raised legal objections that the complaint is not maintainable in its present form. The complainant has not come to this Forum with clean hands. He has intentionally suppressed the true and correct facts from this Forum. The complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, it is not denied that the complainant took loan of Rs.12 lakhs. It is also not denied that the complainant has paid due amount, but it is stated to be matter of record. It is further version of opposite party that the complainant is guarantor in other so many loan cases. As per terms of the agreement, no guarantor can escape from his liability unless and until all other loan accounts are cleared. As such, at that time 'No Due Certificate' could not be issued to the complainant. After clearance of the other loan accounts, the complainant never approached opposite party to obtain any 'No Due Certificate'. The version of the complainant regarding transaction with Mohinder Pal is denied for want of knowledge. All other averments of the complainant are denied. In the end, opposite party has prayed for dismissal of complaint. The matter was posted for evidence of the complainant. Before producing evidence by the complainant, opposite party provided 'No Due Certificate' and Form No.35. The complainant received these documents on 27.10.2017, but without prejudice to right to compensation. Parties were asked to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 20.11.2017, (Ex.C1); photocopy of legal notice, (Ex.C2); Postal receipt, (Ex.C3); photocopy of account statement, (Ex.C4); photocopy of receipt, (Ex.C5); agreement, (Ex.C6) and closed the evidence. To rebut the claim of the complainant, opposite party has tendered into evidence affidavit of Vikash Verma dated 29.1.2018, (Ex.OP1/1); photocopy of loan detail, (Ex.OP1/2); photocopies of loan agreement, (Ex.OP1/3, Ex.OP1/5, Ex.OP1/7, Ex.OP1/9 and Ex.OP1/11 to Ex.OP1/13); photocopies of account statement, (Ex.OP1/4, Ex.OP1/6, Ex.OP1/8 and Ex.OP1/10) and closed the evidence. We have heard learned counsel for parties and gone through the file carefully. Learned counsel for complainant has submitted that it is not denied by opposite party that the complainant has already cleared the loan. Nothing was due against the complainant. Therefore, opposite party was under obligation to issue 'No Due Certificate'. The complainant was unable to sell the vehicle without getting 'No Due Certificate' . He has also placed on record one agreement, (Ex.C6). Vide this agreement, he agreed to sell the vehicle to one Mahinder Pal. The remaining payment of Rs 9 lac was to be received within one month after completing the formalities. It was also agreed that in case, the complainant failed to complete the formalities, he will be liable to refund Rs.6 lakhs and to pay penalty of Rs.2 lakhs. He has suffered this loss only due to deficiency in service and unfair trade practice on the part of opposite party. Although, opposite party has supplied 'No Due Certificate' after filing of the complaint, but the complainant is also entitled to compensation for loss suffered due to fault on the part of opposite party. He is also entitled to cost of litigation. It is further submitted by learned counsel for complainant that the complainant has also got served notice, copy of which is Ex.C2. In case, opposite party was having any right to retain 'No Due Certificate', opposite party was to make clear its position by replying to the notice. Therefore, adverse inference is to be drawn against opposite party for this reason also. As such, the complaint be accepted in terms of reliefs as prayed for. On the other hand, learned counsel for opposite party has reiterated his stand as taken in the written version and detailed above. It is further submitted by learned counsel for opposite party that the complainant has not approached to this Forum with clean hands. He has concocted the false story. Admittedly, he has repaid the loan qua the vehicle in question, but opposite party has pleaded in the written version that the complainant was guarantor in number of other transactions. Opposite party has also filed list of linked loans. The complainant has tendered his affidavit, (Ex.C1) in evidence after filing written version by opposite party. In this affidavit, he has nowhere denied from having stood guarantor in other transactions. Opposite party has also placed on record agreements and account statements, (Ex.OP1/3 to Ex.OP1/13). The agreement, (Ex.OP1/3) relates to the vehicle in question. As per Clause 20.2 of agreement, opposite party is having a lien on all property and assets of borrower and guarantor. Therefore, opposite party was justified to withhold 'No Due Certificate' till other loans wherein the complainant was guarantor, were cleared/regularized. Therefore, there is no deficiency in service on the part of opposite party. It is further submitted by learned counsel for opposite party that the complainant has set up the false story regarding sale of vehicle by producing the copy of so called agreement, (Ex.C6). Admittedly, the vehicle was hypothecated with opposite party. The complainant was having no authority to dispose off the vehicle till it is hypothecated. There is nothing on record to prove that the complainant ever disposed off the vehicle or a sum of Rs.2 lakhs have been paid by him as penalty. This agreement is dated 13.6.2017. The complainant was to complete the formalities after one month from the agreement i.e. after 13.7.2017. He has also relied upon legal notice, (Ex.C2). It is dated 10.7.2017. There is no reference of any sale agreement in this notice. It is rather mentioned that the complainant wants to dispose off the vehicle thereafter and in absence of 'No Due Certificate', he is unable to get hypothecated cancelled from the original R.C. Therefore, his version regarding sale of vehicle stands belied from the legal notice also. Opposite party has already supplied 'No Due Certificate' and other relevant documents. The complaint has already become infructuous and it be dismissed with cost. We have given careful consideration to these rival submissions. The controversy lies in very narrow compass. The complainant has availed the loan against hypothecation of his vehicle. He has admittedly repaid the loan. Opposite party has not issued 'No Due Certificate' till filing of complaint. Its version is that the complainant was guarantor in various other loan transactions. The list was enclosed with the written version. Thereafter the complainant has tendered his affidavit, (Ex.C1) in evidence. In his affidavit, he has not denied having guarantor in other loan cases. Opposite party has also placed on record loan agreements with account statements of Jagtar Singh, (Ex.OP1/3), Jagseer Kumar, (Ex.OP1/5 and Ex.OP1/7), Sikander Singh, (Ex.OP1/9) and Jaswinder Singh, (Ex.OP1/12 and Ex.OP1/13). The agreement, (Ex.OP1/11) is regarding the loan case of the complainant in question. In all these agreements, Clause 20.2 is as under:- “Until the ultimate balance owing by the Borrower or Guarantor(s) to HDBFS has been paid or satisfied in full HDBFS shall have a lien on all property and assets of the Borrower and/or the Guarantor(s) from time to time in the possession of HDBFS and a charge over all stocks, shares and marketable or other security from time to time and get any or all of them registered in the name of HDBFS or its nominees whether the same be held for safe custody or otherwise including, but no limited to the dematerialized shares or other securities of the Borrower(s). Held by HDBFS as a depository participant.” A perusal of aforesaid Clause reveals that opposite party was having lien in all property and assets of the borrower and guarantor. Therefore, opposite party was justified to withhold 'No Due Certificate' till the loans wherein the complainant was guarantor, were cleared/regularized. Moreover 'No Due Certificate' has already been provided to the complainant after filing of complaint. He has accepted 'No Due Certificate' without prejudice to right to compensation. Now, it is to be seen whether the complainant has suffered any loss as projected by him or not. It is his version that he agreed to sell the vehicle to one Mahinder Pal and received earnest money of Rs.6 lakhs. The documents were to be completed within one month thereafter. The agreement is dated 13.6.2017. The documents were to be completed after 13.7.2017. As the vehicle was already under hypothecation, the complainant was not having any right to sell the vehicle before cancellation of hypothecation. There is no other evidence to prove receipt of earnest money of Rs.6 lakhs. There is no evidence for refund of Rs.6 lakhs and penalty of Rs.2 lakhs. The complainant has placed on record copy of legal notice dated 10.7.2017. As per agreement, he was to complete the formalities after 13.7.2017. Even assuming that he was to complete the formalities within month i.e. upto 13.7.2017. He was to disclose this fact to opposite party in the legal notice, but there is no reference of this agreement/transaction dated 13.6.2017. It is rather mentioned that the complainant wants to dispose off the vehicle. In the absence of 'No Due Certificate', he was unable to get the hypothecation cancelled from the original R.C. This fact rather shows that complainant was aware of the fact that before selling the vehicle, hypothecation was to be got cancelled. Notice also belies the version of the complainant that he agreed to sell the vehicle and he has suffered loss of Rs.2 lakhs. From all angles, the conclusion is that no deficiency in service or unfair trade practice are proved on the part of opposite party. Consequently the complaint is hereby dismissed without any order as to cost. The complaint could not be decided within the statutory period due to heavy pendency of cases. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 21-06-2018 (M.P Singh Pahwa) President (Jarnail Singh) Member (Sukhwinder Kaur) Member
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