Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that in the year, 2017 the complainant had purchased a commercial vehicle bearing registration no.PB-29X-4588 with the financial assistance of Rs.29,52,440/- from Opposite Parties vide loan account no.82657635. The said loan amount was payable to the Opposite Parties in 45 monthly installments of Rs.76,858/- each by the complainant and the same was to be cleared upto 20.03.2021. In the month of August, 2021, the said loan account of the complainant was closed as the complainant repaid the entire loan amount alongwith interest. After the clearance of the aforesaid loan amount, the complainant immediately approached the Opposite Parties and requested them to issue NOC & Form 35 to remove the hypothecation from the RC of the vehicle and also requested them to return the blank signed papers/stamps/pronote and blank signed cheques to him which were retained by the Opposite Parties at the time of sanctioning of loan as security. But the Opposite Parties flatly refused to issue the aforesaid documents to complainant. Due to the negligence and deficiency in service on the part of Opposite Parties, the complainant was harassed mentally as well as physically. Alleged that the aforesaid act of the Opposite Parties is illegal, unwarranted and uncalled without any rhyme and reason. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to issue NOC/No Due Certificate & Form 35 to remove the hypothecation from the RC of the vehicle bearing no.PB-29X-4588 in respect of loan account no.82657635 and also directed to return the blank signed papers/stamps/pronote and blank signed cheques to complainant.
b) To pay an amount of R.2,00,000/- as compensation on account of mental tension, harassment and agony.
c) To pay an amount of Rs.18,000/- as costs of complaint.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complainant has concealed material facts from this Commission as well as from Opposite parties, therefore, the complainant is not entitled to any relief. The complainant has concealed the fact that he also had availed other commercial vehicles loans of Bharat Benz 4928T Body vide loan no.82845830, loan amount Rs.29,68,076/-, EMI Rs.77,196/- loan tenure 45 months and for 3 Axle 40 FT vide loan no.82845833, loan amount of Rs.6,00,000/-, EMI Rs.15,065/- loan tenure 45 months from Opposite parties and he had been a defaulter in said loan accounts and last payment was received on dated 31.03.2021. Total aggregate dues in both loan accounts are Rs.20,78,040/-. Claimed that the complainant has approached the Opposite parties bank with a request for commercial vehicle loans and had signed the loan agreement after reading the terms and conditions governing the loan. It was agreed that complainant will pay the due amount towards his loan accounts on time and if there is delay in payments of dues then the bank will be contractually and legally entitled to charge the interest on the delayed payment. As such, complainant was fully aware of the levy of late fees, finance charges and taxes against the commercial vehicle loans from the very beginning. Loan was disbursed to the complainant after complainant fully understood the terms and conditions of loan agreement and accepted same to be binding on him. The said outstanding amounts against the commercial vehicle loans are well within the knowledge of complainant and guarantor Mr.Manjit Singh same has been communicated to him orally as well as by sending notices at the address mentioned in the record of the bank. The complainant committed willful default and is very irregular from very beginning towards payment of dues to the Opposite parties bank in regard to his loan accounts. The Opposite parties have sent various reminder letters and reminders by way of telephone calls at registered number of the borrower/complainant. The complaint is bad for non-joinder of necessary and proper party of Mr.Manjit Singh who stood as guarantor in commercial vehicle loan account of complainant is not been made party. In loan availed by complainant there is arbitration clause in which award is already been passed on dated 07th Jan, 2023 and award amount is Rs.15,71,634/- in loan account no.82845830. Further submitted that the Opposite parties bank had right of lien and set-off and in terms of said right with the Opposite parties Bank the present complaint filed by the complainant raising objection on non-issuance of NOC is liable to be dismissed with costs. Further submitted that as per clause 19 of the ‘commercial vehicle loan agreement’ the Opposite parties bank has a right to Set-off and lien in respect of all or any of the Borrower’s liabilities to the Opposite parties Bank. Further submitted that as the complainant availed two more loan facilities apart from the vehicle in question in this complaint and he is defaulter in other two loan accounts, as detailed above, so he is legally and contractually not entitled to NOC/NDC from the Opposite parties and Opposite parties bank is entitled to continue its charge on the hypothecated assets until complete repayment of loan dues. The complainant does not disclose any detail which shows that bank has done anything contrary to the terms and conditions agreed at the time of availing commercial vehicle loans. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C4.
4. To rebut the evidence of the complainant, Opposite Parties tendered in evidence affidavit of Sh.Savinder Singh, Manageer-Legal, HDFC Bank Ex.OPs/1 alongwith copies of documents Ex.OPs/2 to Ex.OPs/7.
5. We have heard the counsel for the parties and also gone through the documents placed on record.
6. The availing of the loan for an amount of Rs.29,52,440/- for the purchase of vehicle bearing registration no.PB-29X-4588 from Opposite Parties is not disputed.The said loan amount was to be paid by the complainant in 45 monthly installment of Rs.76,858/- each and the same was cleared by the complainant is also not disputed. However, the main allegation of the complainant is that despite clearing of the loan amount, the Opposite Parties failed to issue NOC & Form 35 to complainant for removing the hypothecation from the RC of the vehicle and also failed to return the blank signed papers/stamps/pronote and blank signed cheques. On this, the stand of the Opposite Parties is that complainant also availed two other commercial vehicles loans of Bharat Benz 4928T Body vide loan no.82845830, loan amount Rs.29,68,076/-, Emi Rs.77,196/- loan tenure 45 months and for 3 Axle 40 FT vide loan no.82845833, loan amount of Rs.6,00,000/-, Emi Rs.15,065/- loan tenure 45 months respectively from Opposite parties and he had been a defaulter in said loan accounts and total due amount in both the loans is Rs.20,78,040/-, so complainant is not entitled to NOC/NDC from the Opposite Parties and to prove this fact, they placed on record Ex.OPs/4 and Ex.OPs/5 (Statement of other loan accounts of complainant). Further ld. Counsel for the Opposite Parties contended that Opposite parties bank had right of lien and set-off and in terms of said right in respect of all or any of the borrower’s Liabilities to the Opposite parties Bank and relied upon the clause 19 mentioned in document Ex.OPs/3 Agreement for Loan and Guarantee.
7. From the perusal of the documents Ex.OPs/4 and OPs/5 it is quite evident that complainant is defaulter in his other two loan accounts bearing nos.82845830 and 82845833. Moreover we have perused Agreement for Loan and Guarantee document Ex.OPs/3 which clearly states as under vide clause 19 under the heading Set-Off and Lien
“each of the Bank and the Relevant Entities shall have the specific and express right to without notice to and without consent of the Borrower, set-off transfer sell, realize, adjust, appropriate all such amounts in all accounts/ (whether prematurely or upon maturity as per the Bank’s discretion), securities amounts and property as aforesaid for the purpose of realizing or against any of dues in respect of any of the Liabilities whether ear-marked for any particular Liability or not, combine or consolidate all or any of accounts of the Borrower/Guarantor and set-off any monies, whether of same type or nature or not.”
From the above facts and circumstances, we are of the view the demand raised by the complainant with regard to issuance of NOC without clearing the outstanding amount in other two loans is not genuine and legal especially when the bank in question has already exercised its power under clause 19 of the ‘Agreement for Loan and Guarantee’ under the heading Set-Off and Lien. For the above opinion, we are also guided by the judgement of Hon’ble Supreme Court in the case of Syndicate Bank Vs. Vijaya Kumar reported as (1992)2 SCC 330, wherein it has been held,
“ ….by mercantile system the Bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is a valuable right of the banker judicially recognized and in the absence of an agreement to the contrary, a Banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customer’s debit balance”.
8. Hence, the complaint of the complainant is hereby dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced on Open Commission
