Haryana

Panchkula

CC/293/2020

SANYA SAINI. - Complainant(s)

Versus

INDIA BULLS CONSUMER FINANCE INDIA LTD. - Opp.Party(s)

D.K SINGHAL & AMMISH GOEL.

04 Jan 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                              

Consumer Complaint No	:	293 of 2020
Date of Institution	:	24.09.2020
Date of Decision	:	04.01.2022

 

Sanya Sahni W/o Sh. Mannu Sahni D/o Sh. Naveen Sethi R/o  House No.1827, Sector-21, Panchkula-134116, Haryana.

 

                                                                        ….Complainant

Versus

1.      India Bulls Consumer Finance India Ltd.,(Formerly known as IVL Finance Ltd.) through its Managing Director, having its Registered office at M-62 & 63, 1^st Floor, Connaught Place, New Delhi-110001.

2.      India Bulls Consumer Finance India  Ltd.(Formerly known as IVL Finance Ltd.) through its Branch Manager, having its Branch office at SCO No.42-43, IInd Floor, Sector-9-D, Madhya Marg, Chandigarh-160009.

3.      M/s A-one Laundry, Village at Rajipur, Tehsil-Kalka, District Panchkula (Haryana) through its partners.

         2^nd Address:-

         House No.755, Amravati Enclave, Panchkula-134107(Haryana).

                                                                                    ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

For the Parties:    Sh.Ammish Goel, Advocate, counsel for the complainant.

                           Sh.Kamal Mor, Advocate, counsel for OPs No.1 & 2.

                           Sh.Sukhwinder Singh Chaudhary, Advocate, counsel for                   the OP No.3.

 

                                             ORDER

Satpal, President

1.               The brief facts of the present complaint are that the OP No.3 had initially availed three business loans from different financial institutions/ bank and the details of the same are reproduced here below:-

Sr.No.	Name of financial Institution/Bank	Amount	Tenure
i	India Bulls Consumer Finance Limited(IVL Finance Limited)	Rs.15,25,000/-	36 months
ii	Aditya Birla Capital Finance Limited	Rs.10,00,000/-	36 months
iii	Induslnd Bank Limited	Rs.15,00,000/-	36 months

         Out of the abovesaid three loans, OP No.3 had availed a business loan of Rs.15,25,000/- from OP No.2 which is to be repayable in 36 months vide loan account no.S000301747. However, initially, OP No.3 consisted of two partners namely Meenu Kohli & Sanya Sahni. Thereafter, on 01.04.2018, one deed of incoming of new partner and retirement of old partner was executed in which the complainant had resigned as partner from OP No.3 and accordingly, Sh.Yogi Kohlee had joined as a incoming partner in OP No.3 in place of the complainant and taken over the charge of all the liabilities of OP No.3. However, in clause no.15 of the said deed, it has been clearly mentioned that Smt. Meenu Kohli & Sh.Yogi Kohlee are fully responsible to discharge the liabilities of the OP No.3 w.e.f. 01.04.2018. After resigning of the complainant as partner from OP No.3, the complainant apprised the aforesaid position to OPs No.1 & 2 vide representation dated 19.04.2019 and thereafter, through reminder dated 09.08.2019. In the said representation & reminder, the complainant had specifically requested OPs No.1 & 2 to remove her name from the loan account of OP No.3 as co-borrower and also requested to inform TransUnion CIBIL Limited to remove her name from their official website by correcting the CIBIL record of the complainant with immediate effect, but of no avail. Since OPs No.1 & 2 had reported the name of the complainant to TransUnion CIBIL Limited due to non-payment of the loan by OP No.3 and TransUnion CIBIL Limited had also recorded the status of the complainant as defaulter on their official website. Thus, due to the said status, she has been deprived of availing any loan/financial assistance from any bank/financial institution. Moreover, the said new existing/ continuing partners of OP No.3 have already approached OPs No.1 & 2 for settlement of the abovesaid loan and accordingly, OPs No.1 & 2 had also issued a settlement letter dated 30.08.2019 in favour of OP No.3. The said settlement letter had been duly acknowledged by one of the existing partner, namely, Meenu Kohli on behalf of OP No.3 and even the said existing partners, namely, Meenu Kohli had already paid the settled amount to OPs No.1 & 2 long time back from her saving account. But,  even inspite of receipt of the settled amount from the said existing partners of OP No.3 neither OPs No.1 & 2 removed the name of the complainant  from the loan account running in the name of OP No.3 nor reported TransUnion CIBIL Limited to remove the name of the complainant from their official website by updating her CIBIL record. Apart from the aforesaid, the complainant had also sent an email to TransUnion CIBIL Limited on 23.07.2019 in which the complainant requested the said authority to remove her name from their record but of no avail. Being aggrieved by the attitude of Ops No.1 & 2, the complainant has served a legal notice to the Ops with registered A.D. on 06.01.2020 but OPs did not sent any reply of the same. Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2.               Upon notice, OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua.  On merits, OPs No.1 & 2 stated that A-one Laundry(OP No.3) availed a business loan from the Ops No.1 & 2 through its partners in which the complainant is also a partner. He was co-applicant in the said loan account. After sometime one of partner of the firm took retirement and another partner joined the firm without any information to ABFL. Further after sometime the firm stopped paying EMI’s then the Ops initiated action against the defaulter firm and its partner’s whose documents was submitted at the time of disbursal of the loan amount. After that the complainant sent a representation via post to Ops informing that she is not partner in the firm who has defaulted in making the repayment of the loan amount. Further, complainant is a co-applicant in the loan account of OP No.3 so she cannot escape her liability towards the loan amount to be repaid the said loan amount to the company as she was jointly and severally responsible to repay the said loan amount. The Ops has booked huge loss while closing the accounts of the OP No.3 and was compelled to settle the said loan account. However the said loan account was settled without prejudice to other rights and contentions of the Ops’s company. Further, this is an interse dispute between the partners of the firm in which the complainant was a partner. The dispute is contractual in nature and doesn’t fall in the ambit of the CP Act.  The complainant or OP No.3 never intimated the Ops NO.1 & 2 about their intention of creating new partnership firm nor did the Ops ever give its consent to the complainant to resign from the partnership firm. Thus, there is no deficiency in service on the part of the OPs No.1 &2 and prayed for dismissal of the present complaint.

                  Upon notice, OP No.3 appeared through counsel and filed written statement raising preliminary objections. On merits, OP No.3 stated that on 01.04.2018, one deed of incoming of new partner and retirement of old partner had been executed in which the complainant had resigned as partner from the said partnership firm. Sh. Yogi Kohlee had taken over the charge in place of the complainant and they had admitted their liability towards OP No.3, both the existing partners have been fully responsible for day to day functioning of the OP. Moreover, after resigning of the complainant from the OP, the existing partners had already repaid the above said loan, and the said fact can be borne out from letter dated 30.08.2019 and statement of account. Thus, nothing is due and payable either by the complainant or by the OP against the availed loan. Rather, inspite of receipt of the entire loan amount from the Op, OP No.2 has not been intentionally and deliberately intimating the CIBIL to delete the record of the OP including the complainant qua the availed loan from their official website. Further, the OP having no objection, in case, OP No.2 delete the name of the complainant from the loan account availed by OP no.3 by updating the CIBIL score of the complainant. Furthermore, no cause of action alleged to have been accrued and survived, against the OP also in the present complaint as the loan amount had already been paid by the OP in toto. Thus, there is no deficiency in service on the part of the OP No.3 and prayed for dismissal of the present complaint against OP No.3.

3.               To prove his case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-15 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavit Annexure R1/A along with documents Annexure R1/1 to R1/4 and closed the evidence. The learned counsel for the OP No.3 has tendered affidavit Annexure R3/A and closed the evidence.

4.               We have heard the learned counsels for the complainant and OPs No.1 to 3 and gone through the entire record including the written arguments filed by the learned counsels for complainant as well as OPs No.1 & 2 and OP No.3, carefully and minutely.

5.               Undisputedly, the complainant retired from the partnership firm, namely, M/s A-one Laundry(OP No.3) on 01.04.2018 vide partnership deed dated 01.04.2018(Annexure C-3) and Sh.Yogi Kohlee joined the said partnership firm(OP No.3) in place of the complainant. It is also not disputed that Ms. Meenu Kohli, who was the other partner of the said partnership Firm, settled the loan account no. S000301747, which is in dispute, as per settlement letter dated 30.07.2020 issued by the OPs No.1 & 2, by paying the settled amount from her saving account. The prayer of the complainant as per legal notice dated 05.01.2020/ 06.01.2020(Annexure C-13) as well as the present complaint is that her name be removed by OPs no.1 & 2 from the said loan account of the partnership firm(OP No.3) as co-partner and TransUnion CIBIL Limited (formerly known as Credit Information Bureau(India) Limited) be informed by OPs No.1 & 2 to remove her name from their official website by correcting her CIBIL record. The OP No.3 vide its reply as well as supporting affidavit(Annexure R-3/A) stated that it has no objection, in case, the OPs No.1 & 2 deletes the name of the complainant. It has specifically been stated by OP No.3 i.e. M/s A-one Laundry that by virtue of partnership deed dated 01.04.2018(Annexure C-3), the complainant has no liability vis-a-viz the loan availed by OP No.3 vide loan account no. S000301747.

6.               The OPs No.1 & 2 have refuted the claim of the complainant with regard to deletion of her name from the loan account no. S000301747, apart from merits, by raising several preliminary objections:-

                  Vide first objection, it is stated that the dispute between the partners is contractual in nature and thus, does not fall in the ambit of CP, Act, 2019. This objection is not tenable in view of the fact that OP No.3 has specifically stated that it has no objection in case, the OPs NO.1 & 2 deletes the name of the complainant from the relevant loan account and informs the TransUnion CIBIL Limited to remove her from their official website by correcting by updating CIBIL score of the complainant. Furthermore, the loan account in question has already been settled by OPs No.1 & 2 vide settlement letter dated 30.07.2020(Annexure C-8) and settled amount has already been paid by Meenu Kohli, who is other partner of the firm, namely, M/s A-one Laundry i.e. OP No.3. Therefore, the objection that there was dispute between the partners has no leg to stand and thus, rejected.

                  The next objection is that the complaint is not maintainable by virtue of Clause 16 of the Partnership Deed dated 17.11.2016 (Annexure C-2), which provides that, in case, there arises any dispute, if any, the same is liable to be referred to arbitrator. This objection is also rejected because the remedy available under CP Act, 2019 is in addition to any other remedy available under law for the redressal of the grievances of the consumer.

                  On merits, it has been stated that the complainant was jointly and severally responsible to repay the said loan account and due to the default in making the repayment of the due installment by OP No.3, the OPs No.1 & 2 has suffered a huge loss while closing the loan account of the OP No.3. This plea is not tenable as the loan was availed by OP No.3 on its letter-head, which was signed by the complainant being a partner of the said firm, namely, A-one Laundry Ltd.(OP No.3). Moreover, the availed loan has already been settled vide settlement letter dated 30.07.2020 (Annexure C-8) issued by OPs No.1 & 2 and settled amount has been paid by Meenu Kohli, the other partner of the said partner firm(OP No.3). Apart from this, it is relevant to mention here that the complainant had retired from partnership firm, namely, A-one Laundry Ltd. on 01.04.2018 and by virtue of the Clause 9 read with Section 15 of the partnership deed dated 01.04.2018 (Annexure C-3), all the liabilities i.e. past, present and future of the said firm stood transferred to the partnership firm(OP No.3)  comprising of partners, namely, Sh.Yogi Kohlee and Ms.Meenu Kohli. Furthermore, the Ombudsman, Chandigarh in Complaint no.1661 tilted as Sanya Sahni Vs. Indusland Bank involving similar question of law and facts, vide its order dated 13.11.2019 directed the concerned bank i.e. Indusland Bank to settle the matter with other partner and CIBIL score may be improved by taking up the matter with them. Further, as per uncontroverted assertions of the complainant, the said financial bank i.e.  IndusInd Bank had already removed the name of the complainant from the loan account running in the name of OP No.3 on the basis of the directions issued by the Ombudsman, Chandigarh vide order dated 13.11.2019. Furthermore, as per uncontroverted assertions of the complainant, the said bank has also intimated the said issue to the TransUnion CIBIL Limited, which had also deleted the name of the complainant from their official website. We find no valid and justifiable reason to differ with the aforementioned directions issued by the Ombudsman, Chandigarh as similar question of law and facts are involved in the present case.

         The next plea of the Ops No.1 & 2 is that the complainant had availed numerous loans from the different banks and not even a single loan had been repaid by the complainant till date and the complainant is the habitual defaulter. This contention is not based on facts as it is the specific and categorical assertion of the complainant that there is no default in the loans availed by her. The OPs No.1 & 2 have failed to controvert the said specific and categorical assertions of the complainant. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. Apart from above discussion, it would be pertinent to mention here that, admittedly, there was no default in making the re-payment of due installments qua loan account no. S000301747 so long as the complainant remained a partner of the partnership firm w.e.f 17.11.2016 to 01.04.2018. Moreover, no financial loss is going to be caused to the OPs No.1 & 2, in case, the prayer of the complainant for removing her name from the loan account no. S000301747 is conceded. Even otherwise, there is no valid justification on the part of the Ops to insist upon the continuance of the complainant with the loan account no.S000301747 as co-partner when loan account has already been settled.

7.               In view of the aforesaid discussion, we conclude that there has been lapse and deficiency on the part of the OPs No.1 & 2 while not conceding the request of the complainant for removal her name from the loan account no.S000301747 and further not informing the TransUnion CIBIL Ltd. to remove name of the complainant by correcting her CIBIL score. The present complaint is dismissed qua OP No.3.

8.               As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To remove the name of the complainant from the loan account no.S000301747 as co-borrower and immediately, thereafter, to intimate the TransUnion CIBIL Limited to remove the name of the complainant from their official website by correcting her CIBIL record.
2. To pay a sum of Rs.10,000/- to the complainant on account of mental agony and physical harassment.

3. To pay a sum of Rs.5,000/-as litigation charges.

9.               The OPs No.1 & 2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which  the awarded sum vide clause (ii) of Para No.8 above of this order shall carry an interest @9% per annum till the compliance of the order in its toto. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 04.01.2022

 

 

           Dr.Sushma Garg          Dr. Pawan Kumar Saini      Satpal

                    Member                    Member                            President

 

Note: Each and every page of this order has been duly signed by me.

 

                                              Satpal

                                             President