Delhi

West Delhi

CC/06/728

Pradeep khanna - Complainant(s)

Versus

HDFC - Opp.Party(s)

19 Aug 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

GOVERNMENT OF NCT OF DELHI

150-151 Community Centre, C-BlockJanakPuri, New Delhi – 110058

 

                                                                                     Date of institution:23.10.2006

Complaint Case. No.728/06                                        Date of order: 19.08.2017

IN  MATTER OF

PardeepKhanna R/o 17/58 A  Tilak  Nagar,New Delhi-110018.                                                                                                                                     Complainant

 

VERSUS

1.        HDFC Bank Ltd. Auto Loan Department, J- BlockRajouri Garden  New Delhi through its  Director. 

                                                                                                  Opposite party no.1

2.        HDFC Bank Ltd.Head Office Sandoz Building, Mumbai.

                                                                                                Opposite party no.2

3.        HIM Motors,  PeeraGarhiChowk- New  Delhi.

             Opposite party no.3

ORDER

R.S. BAGRI,PRESIDENT

            Present  complaint under section 12  of the  Consumer Protection Act is filed  by Sh. PardeepKhanna named above herein the complainant against  HDFC Bank Ltd. and others  herein after referred  as the opposite parties for directions to the opposite parties to  remove  name of the complainant  from defaulter list from all places,  refund Rs. 1,10,000/-,  excessive payment 

received   by the opposite party no. 1, with interest @ 18%  from  the day the amount  became  due till realization, Rs. 1,00,000/- as compensation on account  of mental and physical   harassment , torture and  deficiency in service, Rs. 1,50,000/- towards loss of business and Rs. 15,000/-  as litigation  expenses.

            The brief relevant facts necessary for disposal of the complaint as  stated are that the complainant in December  2005  purchased  TATA Indica  car bearing  registration no. DL-4C-U-6690  from Him  Motors the opposite party no.3.   The car was financed by the opposite party no. 1 for loan of Rs. 3,46,911/-  repayable in sixty  equated  installments of Rs. 7089/- starting from 02.01.2006.  The opposite party no. 1 also disbursed Rs. 27,000/- to the complainant  for  purchase of two wheeler, Hero Honda CD Down  bearing  registration no. DL-9S-2209 in March 2006repayable  in 12 equated  installments of Rs. 2473/- starting from 05.05.2006. The complainant  paid   miscellaneous charges of Rs. 25,000/- approximately  to the opposite party no. 3 and took possession of  the car on 10.12.2005.  He also  spentRs. 25,000/- approximately on accessories   of the car.  The complainant also  paid Rs. 5,000/- towards down payment and Rs 25,000/- towards  accessories of the bike to the opposite party no. 3.  The complainant couldnot  usethe carfor eight months  as registration

 

certificateof the car was withheld  by  the opposite party no. 3  on the ground  that they received short payment of Rs. 14,000/- from  the opposite party no. 1.  The complainant received  registration  certificate of the car on 23.08.2006 when the opposite party no. 1 paid Rs. 14,000/- to the opposite part no. 3. 

            That the complainant could not use the car for about  eight months on account of non payment of Rs. 14,000/- of loan  by the opposite  party no. 1 to  the opposite party no. 3, therefore,  on asking of the opposite party no. 3 the complainant delayed  payment of three installments of the loan and on receipt of the registration  certificate of the car on 23.08.2006 on release of Rs. 14,000/- by the opposite party no. 1 to the opposite no. 3  the complainant  on 28.08.2006  paid Rs. 7,000/- as part payment of the installments due.But  the opposite party no. 1 with help  of  anti- social elements on  21.09.2006 forcibly took  away the car.  The complainant  on 22.09.2006 and  24.09.2006 sent a request through e –mails to the opposite parties  no. 1 and 2 to return the car.  The complainant was also ready to pay the balance three installments  with bouncing  and overdue  chargestotalingRs. 24,057/- due on 04.09.2006.

That on  24.09. 2006  the opposite party no. 2  informed  the complainant thatthey are not ready to accept  outstanding amount 

and demanded the payment of Rs. 3,49,389.01 total outstanding amount.  The opposite party no. 1 on  6.11.2006 also  took  away the bike  no. DL-9S-2209 forcibly.  The opposite parties no. 1  and 2 did not follow  terms of licenseof banking business, directives , notifications and guidelinesissued by Reserve Bank  of India and Ministry of Finance, Government of India and caused harassment,  inconvenience,  mental  torture and agony  and financial loss to the complainant.  The opposite parties no. 1 and 2 also put  name of the complainant in defaulters list maintained by CIBIL and up loaded   on portal  of the opposite parties no. 1 and 2 causing further mental harassment and torture to the complainant .  The complainant several times asked the opposite party no.1  to return Rs. 1,10,000/-, excess payment   received, and remove his name from defaulter list.  But to no effect.  Hence the present complaint for directions to the opposite parties  to remove  name of the complainant  from defaulter list from all places,  refund Rs. 1,10,000/- , excessive payment  received   by the opposite party no. 1, with interest @ 18%  from  the day the amount  became  due till realization, Rs. 1,00,000/- as compensation on account  of mental and physical   harassment , torture and deficiency in service, Rs. 1,50,000/- towards loss of business andRs.15,000/-  as litigation  expenses.    After notice the opposite parties no. 1 and 2  filed joint reply  taking preliminaryobjections of concealment of material andtrue facts,

complainant is not aconsumer and there is no deficiency in service on their part,therefore,  the complaint may be dismissed.  However, on meritsit is admitted that the complainant approached the opposite parties no. 1 and 2  for grant of loan for purchase ofIndica Car and entered into a loan agreement  and as per the terms and conditions of the loan agreement  and as agreed by the complainant,the opposite parties no. 1 and 2 disbursed a loan  of Rs. 3,40,000/-  to the opposite party no. 3 on request of the complainant.  The car was delivered  to the complainant  and hypothecated with the opposite parties no. 1 and 2.  The complainant  agreed to repay the loan in sixty equated  monthly installments of Rs. 7089/- starting from January 2006.  The complainant also issued post datedcheques pertaining to the monthly installments and assured that the cheques  would be encashedon  first  presentation.  But despite the undertakinggiven by the complainant several chequesissued by the complainant were returned unpaidby  banker of the  complainant and despite repeated requests and reminders  of the opposite parties  no. 1  and 2 the complainant deliberately and malafidelydid not  update the account.  Therefore, finally the opposite parties no. 1 and 2 recalled the loan facility by sending notice dated 04.09.2006 to the complainant.  But despiterecall of the loan facility the complainant neither paid the outstanding amount nor even contacted the opposite parties no. 1 and 2  and finally they were

forced to takephysical possession of the car  as   per the terms and conditions of the loan agreement.  The opposite parties  no. 1 and 2 on 21.09.2006 sent  a demand notice to the complainantof  outstanding loan  of Rs. 3,49,020/-for  release of the car.  But he did not pay the outstanding foreclosure amount  and the opposite parties no. 1 and 2 were constrained to sell the car in open market to recover the outstanding  loan  amount.  The car was sold on 04.10.2006 for sum of Rs. 2,54,000/- and  the said  amount is credited in loan account of the complainant.  There is no  unfair trade practice or deficiency in service on their part.  All other allegations of the complaint  are vehemently denied by the opposite parties no. 1 and 2 and once again prayed  for  dismissal of the complaint.

            The opposite party no. 3 also filed separate  written reply while raising preliminary objections of  maintainability of complaint, cause of action and the complaint is false and frivolous.  However, on merits asserted that the loan  was  personally  processed by the complainant and an amount ofRs. 14,000/-  had been received short by the opposite party no.3 .  Therefore, they retained lien on registration certificate of the car till the entire payment was released .  The registration  certificate of the car was  retained by the opposite party no. 3 as the opposite parties no. 1 and 2 failed to pay full amount  of the car.  The opposite parties no. 1 and2paid

Rs. 14,000/- on 02.08.2006  and on the same day the registration certificate  was given to the complainant.  There is no delay on the part of the opposite party no. 3  indelivery of registration certificate of the car and the car was being used by the complainant  during this period.  All other allegations of the complaint are vehemently denied and prayed for dismissal of the complaint.

            The complainant filed rejoinders to the replies of the  opposite parties while controverting  respective  stand taken by the opposite parties and reiterated  his stand taken in the complaint  and  once again  prayed for directions to the  opposite parties.

            When Sh. PradeepKhanna complainant was asked to lead evidence in support of  his case, he filed affidavit  narrating  facts   of the complaint.  The complainant  also relied  upon  Annexure-I  loan approval letter,  Annexure-2 loan disbursement letter with statement of  account, Annexure- - 3 invoice dated 30-03-2006, Annexure-4 repayment schedule,   Annexure-5 receipt dated 02.08.2006,Annexure-6 repayment receipt dated 28.08.2006, Annexure- 7 intimation for fullrepayment of termination  value  agreement no. 10060301,  Annexure 8 statement of account and  Annexure -9 e-mail.

             When the opposite parties were asked to lead  evidence in support of their respective version  the opposite parties tendered in evidence  affidavit of Sh. ArvindKhurana and Sh. R.K. Anand regional  manager narrating  facts of the their respective  replies.

             We have  heard  learned  counsel for the parties and  have gone through the  record carefully and thoroughly. 

             From pleadings, affidavits and documentrelied upon by the parties  it is a common case  of the parties that complainant  in 2005 purchased an Indica Car bearing  registration no. DL-4C-U-6690   and Hero Honda CD Down  bearing  registration no. DL-9S-2209 from the opposite party no 3  financed by the opposite parties no. 1 and 2.  The complainant failed to pay installments of the loan in time.  The case of the complainant  is that he was ready to pay  the outstanding  loan amount  but the opposite parties no. 1 and 2  did not agree and forcibly took away the car no. DL-4C-U-6690   and    Hero Honda CD Down   no. DL-9S-2209  and sold the same in open market.  Therefore, there  is  unfair trade practice and deficiency  in service on the part of the  opposite parties no. 1 and 2.   Hence the complainant is entitled for compensation.

            The case of the opposite parties is that  the complainant  did not pay installments of the loan in time.  Therefore, the opposite parties no. 1 and 2  presentedpost datedcheques of the complainantto his banker  for

payment of  installments of the loan.  But the cheques were bounced due to insufficiency of  funds.  Therefore, the opposite parties no. 1 and 2 send  noticeto the complainant to pay the loan installments.  But the complainant  despitel noticedid not pay the outstanding  installments.  The  opposite parties no. 1 and 2  took possession of the car.  Thereafter,  the complainant was again served with demand notice.  But the complainant neither paid outstanding loan amount nor contacted the opposite parties no. 1  and 2, therefore, the car was  sold .  Hence there is no unfair trade practice and deficiency in service on the part of the opposite parties no. 1 and 2 .

             Learned counsel for the opposite parties argued that in similar circumstancesHon’ble  National Commission in order dated 01.08.2014 passed in Revision Petition No. 2525  of 2012 titled  Rajeev Bhatia  VsIndusind Bank  Ltd. following case law  reported as  Surya  Pal Singh Vs Siddha Vinayak  Motors &Anr. 2012 (III) CPJ 4  SC,  K.A. Mathai @ Babu&Anr. Vs. KoraBibbikutty and Anr. 1996(7) SCC 212, Jagdish Chandra Nijahwan Vs. S.K. Saraf 1998 ( IX)  SLT  477,1998 (IV)  CCR 118 (SC), Charanjit Singh Chadha&Ors. Vs. SudhirMehra 2001 (VI) SLT  883,Sundaram Finance Ltd.  Vs. The State of Kerala &Anr.  AIR 1996 SC 1178, Smt. Lalmuni Devi v. State of Bihar & Ors.2001 (I), SLT 26  2001 (I) CCR 9 (SC) and  Balwinder Singh v.  Asstt. Commissioner, 2005 (V)  SLT 195 has observed that under hire purchase  agreement the financer is  owner of  vehicle and the person who  takes the loan retainthe vehicle  only as bailee/trustee, therefore, taking possession of the vehicle on the ground ofnon paymentof installmentsis  legal right of the financer.

             Similar are the facts of thepresent  compliant. The complainant failed to pay installments of the loan in time  despite notice and demand notice after takingpossession of the car and the bike.  Therefore, the opposite parties no. 1  and 2  rightly sold the car no.DL-4C-U-6690   and     bike no. DL-9S-2209 for recovery the  outstanding loan.   Therefore, there is no unfair trade practice and deficiency in service on the part of the opposite parties.

Resultantly  the complaint fails and is hereby dismissed

Order pronounced on :19.08.2017

 

• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be consigned to record.

 

 

 

(PUNEET LAMBA)                                                              ( R.S.  BAGRI )

                         MEMBER                                                                   PRESIDENT