DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.572/2012

Sh. Naveen Bhatia

S/o Sh. G.R. Bhatia

R/o 4/704, Malidu, 16, Gurgaon Road,

Gurgaon, Haryana

….Complainant

Versus

HDFC Bank Limited

(Earlier named as Centurion Bank

Of Punjab Ltd.)

Having its Branch at:

S-4, Green Park Ext.

Green Park, New Delhi- 110016

Also at:

Through its Manager/Principle Officer

Khandsa Road,

Near Sector- 10A, Gurgaon, Haryana

            ….Opposite Party

     Date of Institution   :  31.10.2012      

     Date of Order          :  06.07.2022 

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

The present complaint has been filed by the complainant seeking restraint on the OP bank from debiting the current A/c No. 06CA11051681 by debit vouchers. The complainant is seeking Rs.15,50,000/- against the OP Bank, which was earlier known as Centurion Bank of Punjab which thereafter merged with the Bank of Panjab and later amalgamated with HDFC Bank.  The complainant is seeking the directions so that his account may not be wrongfully debited by the OP Bank. It is the case of the complainant that he had a current account Bearing No. 06CA11051681 in the name of his Company M/s Axxess Tours and Travels with the Bank of Punjab, Bank of Punjab amalgamated with the Centurion Bank with effect from 24.09.2005 and thereafter this merger further merged with the OP i.e HDFC Bank Ltd. on 23.05.2008. The copy of the RBI order as Annexure-A is filed alongwith the complaint. It is the case of the complainant that he purchased a car bearing registration No. HR26X 7618 and availed car loan facility from OP Bank. He gave sixty post dated cheques each amounting to Rs.17,540/- against the loan of Rs.8,40,000/-.

It is the case of the complainant that he entrusted the respondent with the sixty post dated cheques, which were to be debited from his account no. earlier provided for the car loan Account Bearing No. 79LA12211181, however the respondent i.e. OP has illegally, arbitrarily, unauthorized, fraudulently debited the monthly installments from the current account of the complainant through unsigned debit vouchers. It is stated by the complainant that this was never an agreed term between the parties. It is also stated by the complainant that OP has charged an illegal amount of Rs.18,800/- on 11.03.2006 instead of charging Rs.1,7540/- and similarly for the month of June, 2006 two vouchers were used and were transferred twice in the said month from the account of the complainant. It is the case of the complainant that this debiting of two monthly installments for period of one month is and unfair trade practice and was serious lapse on the part of the OP in providing in services.

It is the case of the complainant that despite informing the OP about these, the OP did not take any step to remedy their action and therefore the complainant was forced to serve a legal notice on them dated 21.08.2006. Thereafter, the complainant filed a complaint before the DCRDC North, Tis Hazari on 13.08.2007, wherein an interim order dated 29.11.2007 restraining the Bank from debiting the current account in question by means of debit voucher was passed. Yet, the OP did not obey the order of the DCDRC North and continued to debit the account of the complainant. The DCDRC North passed an order on 20.07.2011 by which the complaint was ordered to be returned to be filed in the appropriate forum. The complainant has now filed the present complaint seeking a claim of Rs.15,00,000/- on account of damages for mental agony and cost of litigation being Rs.50,000/- against the OP.

On the other hand, HDFC Bank Ltd. i.e. OP has filed their reply and stated that the present complaint is frivolous, vicious devoid of merits and an abuse of the process of the law. It is stated that complainant, in order to succeed in his nefarious designs and to wriggle out from the contractual liability, is leveling false allegations against OP by suppressing material and concealing facts. It is stated that the complainant has approached this Commission with unclean hands stating distorted and inchoate facts with malafide intention of misleading this Commission and therefore the complaint is liable to be rejected. It is stated by the OP that the complainant had availed the services of the OP for commercial purpose i.e. for running his Tour and Travel Company and also availed that the vehicle loan for commercial purpose. He is stated to be holding a current account in the OP Bank and not a savings account. It is also stated that the complainant has nowhere alleged in his complaint that the vehicle was meant for his personal use or for her self employment and therefore the complainant does not fall within the purview of the definition of complainant as envisaged under the Consumer Protection Act, 1986 and therefore the present complaint ought to be dismissed. In this regard the OP has placed reliance on the following cases Western India state Motors vs. Sobhagmal Meena and Ors., 1994 (3) CPJ 110 NC and the second judgment is Birla Technologies Ltd. vs. Neutral Glass Allied Industries Ltd., 2011 (1) SCC 525. It is also stated by the OP that it is on account of the default on the part of the complainant to pay his EMIs i.e. Civil Suit No. 421/2010 titled as
HDFC Bank vs. Naveen Bhatia was instituted on 19.10.2010 and is pending adjudication before the Hon’ble court of Shri Shirish Aggarwal, Civil judge, Tis Hazari for recovering the money on account of default of the complainant in not paying his EMIs. It is stated that this complaint is nothing but an afterthought attempt of the complainant to wriggle out of his contractual liability. It is stated that there is no loss, which has accrued to the complainant and there is no quantified loss which has been explained by the complainant in his complaint. The OP has also placed reliance on Bharti Meeting Company vs. DHL World Vide Express Currier (1996) for SCC 704, wherein it was held that Forums and Commission are not entitled to modify the terms of the agreement, which have been arrived at between the parties and it is stated that since the present matter is already sub-judice before the learned Civil Judge for recovery of dues, the present complaint merits dismissal. On merits, it is stated that the complainant has failed to deposit the EMI in time as per the repayment schedule and therefore as on date, a sum of Rs.3,83,200/- is due and outstanding and payable by the complainant to the OP Bank towards the loan amount alongwith interest.  

It is further stated by the complainant that since the complainant had approached for the purpose of taking a loan. A loan cum hypothecation agreement was signed by the complainant and the Erstwhile Bank of Punjab on 28.12.2004 alongwith other relevant documents i.e. consent clause letter, irrevocable power of attorney promissory note. The loan amount was Rs.8,40,000/-, which was to be repaid with 61 installments of Rs.17,540/-. It is also stated by the OP that the complainant by taking the financial assistance, hypothecated the secured asset and placed the same with the respondent as security towards the repayment of the loan. It is stated that as per the loan cum hypothecation agreement, the vehicle (secured asset) is the first charge of the OP as a security and it is also stated in the loan agreement that in case of default a penal interest @3% p.a. and cheque/ECS dishonor charge shall be payable and the Bank shall have the right to take possession of the vehicle, in case the default continues or if the situation warrants the OP can repossess the vehicle and shall have the right to sell the same. In this regard the registration certificate of the vehicle, which is duly hypothecated in favour of the OP has been filed an Annexure-E.

It is stated by the OP that since the disbursement of the loan, the complainant has been a regular defaulter in paying his loan amount and has miserably failed to maintain financial discipline in respect to the loan agreement. It is further stated that often the representative of the OP had go to collect the loan repayment amount, which was paid after many requests made by the OP. It is stated that in this regard statement of loan Account No. 9143511 annexed as Annexure-F, is self- explanatory. It is further stated by the OP that various demand notices were issued to the complainant but the complainant deliberately avoided the payment of the loan amount, which has resulted in arrears of the loan amount. It is further stated that the OP issued a demand notice dated 20.09.2010 and thereafter a loan recall notice dated 12.10.2010 for invocation of legal proceedings in this respect and demanded the outstanding amount as well as recalling of the loan.

It is further stated that as per the RBI guidelines since the complainant failed to pay his outstanding amount, his account was declared as NPA and although OP tried its level best to negotiate with the complainant to settle the loan amount but the complainant deliberately failed to pay the amount. It is further stated that OP Bank has every right under the clauses of purchase agreement to inspect the vehicle, which was financed and also to repossess the same from the custody of the complainant, if the loan amount was not repaid regularly. However, the complainant is neither paying the loan amount nor is allowing the OP Bank to inspect the vehicle or to take possession of the vehicle. It is stated that the complainant has no right to stop payment of loan amount and at the same time enjoy and keep the possession the vehicle illegally because he is running in arrears of loan amount. Thus, he is guilty of misappropriating the public money as well as the vehicle in question.

After having gone through the entire material on record i.e evidence affidavits, written arguments and oral arguments of the parties, this Commission is of the view that there are certain issues which are being dealt with one by one.

The first issue relates to whether the complainant is a consumer. This Commission is of the view that the complainant has availed of the bank loan facility in his name therefore, the complainant can be taken to have availed the services of the OP Bank and is consequently, a consumer.

Coming to the second allegation that the present complaint is an afterthought and therefore, not maintainable as the OP had initiated a suit against the complainant. We are of the view that this allegation is without any basis as the first complaint was filed by the complainant against the OP prior to the filing of the suit.

Coming to the main allegation of the complainant is that the OP has wrongfully deducted his firm’s account whereas the car loan was availed by him in his personal name. There is no doubt that an auto loan was taken which was disbursed by the OP and availed of by the complainant. It is also observed from the material on the record that on various occasions the complainant faltered in paying the EMI and the charges which were levied on the complainant on account of late payment. It is also seen that the account of the complainant was declared NPA by the OP bank. It is also observed that though there was a auto loan agreement between the complainant and the OP bank by which the car for which the loan was taken, has been hypothecated and as per that loan agreement, the OP has the power to repossess the vehicle of the complainant and sell it to recover the dues outstanding against the complainant. It is important to note that the OP Bank has not been able to access the car and sell it to recover the dues. At the time of arguments, this question was put to the counsel for the complainant as to who has the possession of the car, it was stated that the complainant was in possession.  

It is also observed from the agreement between the complainant and the OP Bank that bank has created a charge over the vehicle financed but the same could not be sold/repossessed for reasons best known to the complainant and the OP Bank. It is also observed from the records of the civil case filed by the complainant in this Commission that the OP Bank has not really pursued their case in civil court. At the same time, it is not lost on this Commission that a few orders and not the entire order sheet pertaining to the civil case has been filed by the complainant where he was not even participating though he was fully aware of the case.  

Further, no reason has been provided by the complainant as to defaults in his loan account and no response was given by him on the notices sent by the OP Bank. It is noted that public money is at stake and therefore, in such circumstances, if the Bank has used their general power of lien over any money of the complainant which they had access to, that cannot be seriously faulted with.

Having seen all the documents on record we can safely conclude that the OP bank did not indulge in any unfair trade practice in creating a lien on the account of the complainant which was in the name of his firm, as a proprietorship firm is not legal entity and in fact on the application form of the loan, the name of the complainant is mentioned as Navin Bhatia, proprietor of Axxess Tours and Travels. This fact also becomes relevant as the complainant has confirmed that he is still using the vehicle for which he has defaulted in repaying.

We therefore find no merit in this complaint and the same is dismissed without any cost.

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.