Haryana

Yamunanagar

CC/127/2015

Amrik Singh S/o Didar Singh - Complainant(s)

Versus

Indusind Bank Ltd. - Opp.Party(s)

Deep Chand Singla

21 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                          Complaint No.127  of 2015.

                                                                                          Date of institution: 10.04.2015

                                                                                          Date of decision: 21.04.2016

 Amrik Singh aged about 63 years son of Sh. Didar Singh resident of village & P.O. Nihal Garh, Tehsil Ponta Sahib District Himachal Pardesh.                                                                                                                                                     …Complainant.

                                                Versus

1. Indusind Bank Ltd. Jagadhri Road Near Telephone Exchange Tehsil Jagadhri, District Yamuna Nagar, through its Branch Manager.   
2. Indusind Bank Ltd. Door No. 69, Ishwar Dham Street, Old Mahabalipuram Road, Muthamiz Nagar Karapakam, Chennai ( Head Office) through its Chairman/M.D.                                                                                                                                                                                                                                   …Respondents.   

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. D.C.Singla, Advocate, counsel for complainant.   

              Sh. G.S.Reen, Advocate, counsel for OPs.   

 

ORDER

1.                     Complainant Amrik Singh has filed the present complaint under section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant owned and possessed a vehicle bearing registration No. HP-17B-7916 make Tata Motors Ltd. bearing chassis No. MAT 466417B5G12439 and used to ply the vehicle in question to earn his livelihood. He got  financed the said vehicle from the OPs in the year 2011 having loan account No. HDY-00081D and paid every installment in time as per statement given by the OPs and has now made full and final payment alongwith interest etc. on 10.03.2015 as is clear from Deposit/ Receipt dated 10.03.2015 issued by the OP No.1. The complainant after depositing the loan amount, demanded No Dues Certificate alongwith Form No.35 and six blank cheques from the OPs but the OPs are putting off the matter on one pretext or the other and lingering on the same. The complainant requested the OPs to supply the abovesaid documents to the complainant as he has paid all the dues of loan of the vehicle in question but the bank has not paid any heed to the genuine request of the complainant. Thus, the bank has failed to discharge its duties towards the complainant by not returning the said documents to him despite repeated requests of complainant which is a gross negligence and deficiency in service on the part of OPs and complainant has suffered a great mental loss as well as physical harassment which cannot be compensated in any terms. Lastly prayed that OPs be directed to issue No Dues Certificate alongwith Form No.35 and to return the six blank cheques and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs Bank appeared and filed its written statement by taking some preliminary objections such as this Forum has got no jurisdiction to try and decide the present complaint as the complainant got financed the vehicle from the Ops having its branch office at Delhi and the loan agreement was executed regarding this at Delhi. The subject vehicle is registered at Ponta Sahib ( H.P) and the complainant is also resident of village Nihalgarh, Tehsil Ponta Sahib (H.P), so no cause of action has arisen in the jurisdiction of this Forum. The present complaint is also not maintainable as Amrik Singh complainant has purchased the commercial vehicle TATA 1613 for commercial use for which he availed the finance facility from the OPs bank vide loan agreement No. HDY000123D alongwith this he has concealed the material facts from this Forum that he has another commercial vehicle TATA LPT 3118 which is also financed through OPs bank vide agreement No. HDY 00081D which itself proves that the complainant has not availed the services of the OPs Bank for the purpose of earning of his livelihood by means of self employment whereas it is apparent that complainant is the well established transporter engaged in the business of transportation having various commercial vehicles. Therefore, the present loan was taken by the complainant for purchasing a commercial vehicle for commercial purpose. The loan agreement entered into between the parties provided for “ Events of Defaults”, in which acts on the parts of the hirer/borrower cum loanee is defined as defaults and also contained the clause of “ Lender’s rights” in which the rights of the company is defined in case of default of the present complainant. As per clause 20.0, 20.1, 20.2 and clause 4.2.7, the OPs Bank has a lien over all the assets of the complainant and has every legal right to hold No Objection Certificate as per RBI guidelines till the clearance of all the liabilities by the complainant. As per the aforesaid guidelines of the RBI, NOC pertains to the loan account No. HDY00081D cannot be issued unless the aforesaid other loan account got regularized or get settled. It has been further stated that the present complainant does also exist through one another loan contract No. HDY000123D and the present complaint is stood as a co-borrower in another loan account No. HDY00026E. In the loan account bearing No. HDY00026E, a huge amount is due and payable by the complainant and the main borrower, therefore, the OPs Bank has filed a petition under section 9 of Arbitration Act at Rohini, Court Delhi and an arbitration award has been passed for an amount of Rs. 7,71,491/- with interest at the rate of 18% per annum from 31.10.2012 till realization against the main borrower and present complainant. It has been further stated that the present complainant is also stood as co-borrower in another loan account No. HDY 00015E and in this loan account huge amount and other charges are due and payable by the complainant and the main borrower and on merit it has been admitted that the complainant is the registered owner of vehicle bearing registration No. HP-17B-8586. Rest contents of the complaint have been denied and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.  

4.                     To prove his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents as Annexures C-1 to C-5 and closed evidence on behalf of complainant. However, counsel for the complainant in additional evidence tendered original receipts of installments as Annexure A to M.             

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Yudhvir authorized representative and Power of Attorney Holder of OPs bank as Annexure RW/A and documents such as Photo copy of loan agreement  bearing No. HDY0081D alongwith payment schedule as Annexure R-1, Photo copy of invoice of vehicle as Annexure R-2, Photo copy of loan agreement bearing No. HDY000123D alongwith payment schedule as Annexure R-3, Photo copy of Arbitration Award passed against agreement No. HDY00026E as Annexure R-4, Photo copy of account statements of HDY00015E as Annexure R-5  and closed the evidence on behalf of OPs Bank.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

7.                     From the perusal of account statement Annexure C-2 and C-3, it is clear that nothing is due against the complainant for the loan agreement bearing No. HDY 00081D in respect of vehicle bearing registration No. HP-17B-7916 for which this complaint has been filed. Even learned counsel for the OPs gracefully admitted this fact that nothing is due against this loan agreement/account bearing No. HDY00081D against the complainant. It is also not disputed that complainant requested the OPs Bank  for issuance of clearance Certificate (NOC) alongwith Form No. 35 and also to return the six (6) blank cheques.

8.                     The only plea of the OPs Bank is that as the huge amount of Rs. 7,71,491/- alongwith interest up to 31.10.2012 was due in loan account bearing No. HDY 00026E and the some amount was also due in loan account bearing No. HDY 00015E against main borrower and co-borrower Amrik Singh i.e. complainant which is evident from the account statement Annexure R-5, so, the OPs Bank have not issued NOC in respect of vehicle bearing No. HP-17B-7916 in loan account bearing No. HDY0081D because the OPs Bank has lien on the other property of the complainant alongwith main borrower. Learned counsel for the OPs draw our attention towards arbitration award (Annexure R-4) passed for recovery of Rs. 7,71,491/- against main borrower and co- borrower i.e. complainant. Further learned counsel for the Ops argued that complainant is running the business of transporter and running the vehicles for commercial purpose after getting finance on vehicle from the OPs Bank which is evident from the loan agreements Annexure R-1 & R-3. Further, complainant got financed the vehicle vide loan agreement executed at Delhi and also resident of Ponta Sahib (H.P), even the vehicles were registered with the Registering Authority Ponta Sahib (H.P), so this Forum have no jurisdiction to entertain and try the present complaint, but the arguments advanced by the counsel for the Ops is not tenable as it is not the case of the OPs Bank that the main borrower in the defaulting loan account are not paying the installments of that loan and account of the main borrower and co-borrower have been declared as NPA. Further, the Ops Bank has not filed any copy of proceedings/ steps taken against the main borrower as well as co-borrower Amrik Singh i.e. complainant for recovery of remaining loan amount in another loan account. It is not disputed that alleged loan amount was not due against the main borrower in the loan account bearing No. HDY 00026E and HDY 00015E but the same is secured by hypothecation of the respective vehicles against which that loan had been granted to the main borrower and co-borrower. Even, the Ops bank have right to recover the alleged remaining loan amount, if any, by adopting legal process in the competent court of law by filing civil suit/ recovery suit alongwith application under section 38(5) of CPC ( i.e. Attachment before judgment). But no such step has been taken by the OPs Bank against the main borrower and the co-borrower i.e. complainant, so, we are of the considered view that the OPs Bank has prolonged the matter due to reasons best known to them and has illegally withheld the NOC in respect of the vehicle bearing No. HP-17B-7916 in loan account bearing No. HDY 0081D.

9.                     Further, the second plea of the OPs Bank is that this Forum has got no territorial jurisdiction to entertain and try the present complaint and the matter in dispute is out of purview of the definition of Consumer as the complainant is running the vehicles financed from the OPs Bank for commercial purpose, is also not tenable, as the complainant has made the payments of installments through recovery agent at Yamuna Nagar which is evident from the copy of receipts Annexure A to M. So, in our view partly cause of action has arisen at Yamuna Nagar. Moreover, the OPs bank i.e. OPs No.1 & 2 have filed their joint written statement and defending the case on merit and the OPs Bank has its branch at Yamuna Nagar. Although the agreements Annexure R-1 & R-3 may be executed at Delhi, even then it cannot be said that Forum at Yamuna Nagar have no jurisdiction due to the reasons stated above and the same view has been held in case titled as Yovraj Shori (Dr) & Others Versus M/s Premium Acre Infratech Pvt. Ltd. & Another, 2015(3) CLT page 565 Chandigarh. Lastly arguments advanced that the complainant is running the business of transporter for commercial purpose is also not tenable as the matter in dispute is relates to for issuance of NOC after paying the loan amount, so, it cannot be said that the complainant is engaged in the business of refinance after getting the finance from the OPs Bank for earning profit etc. and the same view has been held in case titled as M/s Suraj Tiles P. Ltd. Versus M/s Grain Processing Industries India P. Ltd. & Others, 2015(3) CLT page 270. 

10.                   In the circumstances noted above, we are of the considered view that the OPs bank is playing unfair trade practice and there is also a deficiency in service on the part of OPs Bank by not issuing the NOC in respect of vehicle bearing No. HP-17B-8586 vide loan account No. HDY-00081D despite the entire repayment of loan amount.

11.                   Resultantly, we partly allow the complaint of complainant and direct the OPs Bank to issue No Dues Certificate alongwith Form No.35 to the complainant and also to return six blank cheques to him or not misuse the same. The Ops Bank are also directed to pay a sum of Rs. 5,000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law.  Copies of this order be sent to parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.21.04.2016.

 

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

 

                                                                                    (S.C. SHARMA )

                                                                                     MEMBER.