| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.28/13 Mr. Rajan Dhawan S/o Late Shri Asa Singh Dhawan R/o4529, DLF Phase-4 Gurgaon, Haryana. .…Complainant VERSUS HDFC Bank Ltd. D-23, Defence Colony New Delhi. ….Opposite Party Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Date of Institution:17.07.2013 Date of Order : 26.12.2023 President: Ms. Monika A Srivastava Complainant has filed the present complaint seeking direction to the OP to issue NOC/No Dues Certificate pertaining to car, direction to OP to strike off all CBC (Cheque bouncing charges) and LPP (Late Payment charges) levied on his loan account, sum of Rs.1 Lakh as compensation for gross deficiency in service along with the interest @ 24% per annum and Rs.25,000/- as legal expenses. - It is the case of the complainant that he took a car loan for a sum of Rs.7,22,170/- in the year 2005 from the OP which was payable in sixty EMIs of Rs.14,330/-. The complainant had handed over sixty Posted Dated Cheques (PDCs) payable at Central Bank of India, Ashoka Hotel. It is further stated by the complainant that commencing from July 2005, 16 cheques amounting to Rs.14,330/- each were duly honoured by the complainant’s banks and which was been reflected in the loan account statement issued by the OP and marked as Annexure-A.
- It is the case of the complainant that he shifted his residence from Defence Colony to DLF Gurgaon in the year 2006 and the factum of change of residence was duly intimated to the OP as the complainant wished to discontinue operation of the account at Central Bank of India, Ashoka Hotel from where he had issued the PDCs.
- It is further stated by the complainant that he orally requested the OP not to present remaining 44 PDCs with his bank at Ashoka Hotel which was agreed to by the representative of the OP to collect remaining EMIs (fresh cheques/cash) from his residence in Gurgaon and sought return of the remaining uncashed PDCs.
- It is the case of the complainant that the representative of the OP started collecting the cheques/cash for remaining EMIs from the complainant’s residence in Gurgaon and receipts were issued by the representative of the OP which are annexed as Annexure B (colly).
- It is stated by the complainant that on numerous occasions, he requested for the return of the remaining 44 PDCs and requested the representative of the OP not to present the uncashed PDCs but it was informed by the representative of the OP that the same are not being presented and would be returned to the complainant only after the payment of all the remaining installments.
- In July 2010, 28th payment of the final instalment of the EMI was made to the representative of the OP in cash and the complainant asked the representative for return of the remaining uncashed PDCs. He was then informed that one of the officials of OP will bring the uncashed PDCs. It was also agreed that the OP will issue a No Dues Certificate and NOC along with the promised 44 uncashed PDCs.
- It is stated that in June 2011 it came to the knowledge of the complainant that the OP while accepting the cheques/cash from the complainant’s residence in Gurgaon, was concurrently presenting the remaining uncashed PDCs which led to the dishonouring of the cheques and OP kept debiting the account of the complainant with Rs.34,414/- as LPP and CBC charges which was grossly illegal, arbitrary and unjustified. It is stated when by the implied consent of the OP the representative of the OP regularly came to the residence of the complainant to collect the EMI on a monthly basis.
- It is the case of the complainant that after not receiving any intimation, legal notice sent to the OP, the complainant visited the HDFC Loan Recovery Office wherein the officials bargained with the complainant and agreed to waive off 50% of the charges levied on the complainant’s bank account. Complainant was directed to pay Rs.17,000/- and in return NOC would be granted.
- In reply to the legal notice, the OP accused the complainant for making regular payment of the EMI and denied receiving any request from the complainant in relation to non-presenting of the uncashed PDCs. Copy of the legal notice is annexed as annexure-D.
- It is stated that as per the loan account statement dated 22.12.2011 all 44 cheques reflected as dishonoured stands paid by the complainant to the representative of the OP in cash as and when it fell due. It is the case of the complainant that the account statement clearly shows all EMIs as paid and the claim of the OP for CBC and LPP charges are uncalled for.
- In its reply, the OP has taken the objection that the complaint is frivolous, vexatious, devoid of merits and abuse of process of law. It is stated that the complainant wants to wriggle out from his contractual liability by levelling false allegations and by suppressing material and correct facts. It is also stated that there is no deficiency of service on the part of the OP as no iota of evidence is placed on record to prove the averments made by the complainant.
- It is denied by the OP that the complaint ever requested for not presenting the 44 PDCs. It is further stated that the complainant had to approach Retail Asset Branch of the OP and only after a written application and payment of requisite fee and providing fresh PDCs, the old PDCs is swapped with new one and/or not presented for encashments. There was no written request from the complainant. OP does not deny auto loan being granted in terms of the disbursement report dated 28.06.2005 the loan amount was disbursed. It is stated that the complainant was aware of the terms/tenure of the auto loan which was received without any objection and demur by the complainant and therefore by principle of estoppel, the complainant is estopped from alleging to the contrary.
- It is also stated that complainant being an old and educated customer was well aware of the tenure of the loan, its terms and conditions as detailed in the loan agreement. It is stated as complainant has failed to deposit the EMIs in time as per the repayment schedule and therefore, in order to avail the equity jurisdiction he ought to do equity himself by paying the admitted due to the OP.
- It is further stated that as per Article 2 of the Auto Loan Agreement, the OP has right to levy/charge additional interest (Aricle 2.3) and on dishonour of the EMI cheque, the OP has right to charge flat charges (Article 2.5) and therefore the allegations of the complainant that levying of these charges is illegal and amounts to unfair trade practice is wrong and incorrect.
- OP has placed reliance on the judgment in Bharti Knitting Company vs. DHL World Wide Express Carrier (1996) 4 SCC 704 wherein it was held “………the Forum and the Commission should not go behind the terms of the agreement and should have instead referred the parties are not entitled to modify the terms of the agreement which have been arrived at between the parties…..”. It is further stated by the OP that the complainant has not quantified loss suffered by him.
- It is denied by the OP that the complainant informed the OP about closure of his bank account or requested the OP not the present the PDCs. It is stated that onus was on the complainant to get his PDCs swapped.
- In his rejoinder, the complainant has mostly denied the allegations made by the OP in its reply and have stated that the OP has malafidely denied that it had no knowledge about the request of the complainant to not present the 44 PDCs as it is contrary to the fact that the official of the OP came regularly to the residence of the complainant to collect the EMI and issued the receipt to the complainant.
- The complainant has also denied that he was informed of the procedure for swapping the PDCs. Complainant has placed reliance on the judgment of the Hon’ble SCDRC, Kerala passed in the Catholic Cyrian Bank vs. Thomas 1996 (3) CPR 305 complainant has also relied on the judgment in Haji Mohd. Ishaq vs. Mohd. Iqbal & Mohd. Ali (1978) 2 SCC 493 stating that it was an implied contract between the complainant as well as OP. Complainant has also placed reliance on the judgment passed by the Hon’ble SCDRC Rajasthan in Assam Import Agency Vs. Chief Manager UCO Bank 1997 (3) CPR 314. It is stated that never during the terms of the loan repayment from 2006 to 2010 was the complainant ever informed of CBC and LPP charges being levied on him.
- Both the parties have filed their respective evidence affidavits as well as written submissions. This Commission has gone through the entire material on record. It is seen that the complainant is a chartered accountant and has himself stated that he has an experience of over 30 years in the finance sector. It is incomprehensible that a person of complainant’s standing would not know that mere verbal request for collection of amount of PDCs pertaining to EMI would not amount to changing of mandate given by the complainant earlier which was given by providing EMIs.
- It is also strange that the complainant’s cheque of EMI were dishonored regularly and at regular intervals the amount was collected from the residence of the complainant and receipts were being issued without any mention of CBC or LPP charges being imposed on it.
- This Commission is of the view that there is contributory negligence from the side of the complainant and therefore, the complaint ought to be dismissed.
Copy of the order be given to the parties as per rules. File be consigned to the record room. Order be uploaded on the website. | |
