DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.407 of 18-09-2013

Decided on 17-01-2014

Randheer Singh aged about 45 years S/o Harbans Singh R/o Patti Saul, Village Mehraj, Tehsil Phul & District Bathinda.

........Complainant

Versus

1.Indusind Bank Ltd., Guru Kanshi Marg, Near New Bus Stand, Bathinda, through its Branch Incharge.

2.Indusind Bank Ltd., Corporate Office: Sudarshan Building, 92, (Old No.86), Chamiers Road, Chennai-600018, through its Managing Director/Chairman.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt.Vikramjit Kaur Soni, President.

Smt.Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.H.S Chauhan, counsel for the complainant.

For Opposite parties: Sh.J.S Walia, counsel for the opposite parties.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that in order to earn the livelihood for himself and his family, the complainant has purchased one Tata truck bearing registration No.PB-03R-7099, engine No.62353399 and chassis No.HVZ1296392 with the financial assistance of the opposite parties vide contract agreement No.JH004149H dated 14.11.2009, after obtaining the loan of Rs.6,30,000/- against the abovesaid vehicle. The abovesaid vehicle has been hypothecated by the complainant with the opposite parties. As per the terms of the loan agreement, the complainant has agreed to repay the loan amount of Rs.6,30,000/- alongwith interest charges of Rs.1,70,100/-, totaling a sum of Rs.8,00,100/- in 36 monthly installments to the opposite parties. The complainant has been regularly paying the amount of the installments from time to time and has cleared the entire loan account in full and final against the last installment dated 13.9.2012 and has already repaid the amount of Rs.8,07,770.80/- to the opposite parties and nothing remained outstanding against him. In the account obtained by the complainant, overdue, future due and SOH is shown as '0.00', which clearly shows that the said account has already been settled in full and final and nothing is due against the complainant. The complainant repeatedly requested the opposite parties to issue him 'No Due Certificate' in his favour regarding the loan account so that he may be able to get the hypothecation of the opposite parties cancelled from the original RC of the vehicle in question, but the opposite parties have been putting off the matter on one or the other pretext and did not issue the No Due Certificate in his favour till date although a period of more than 9 months has lapsed. The complainant has also got issued a legal notice dated 1.7.2013 to the opposite parties, but they have given the false reply to the said legal notice on dated 20.7.2013 alleging that the complainant has taken various other loans from them to purchase the different vehicles and he has committed the default in making the repayment of the loan amounts in the other loan account as such the NOC has not been issued. In this respect the complainant alleged that the opposite parties have no right to withheld the 'No Due Certificate' in respect of the vehicle in question as the loan account has already been settled in full and final. Hence the present complaint filed by the complainant to seek the directions of this Forum to the opposite parties to issue him No Due Certificate/NOC in his favour for the clearance of their hypothecation from the original RC alongwith cost and compensation.

2. The opposite parties after appearing before this Forum have filed their joint written statement and admitted that the complainant has purchased the abovesaid Tata truck, with their financial assistance vide contract agreement No.JH004149H dated 14.11.2009 after obtaining the loan to the tune of Rs.6,30,000/- against the vehicle in question. The complainant hypothecated the abovesaid vehicle with the opposite parties and their hypothecation stands incorporated in the registration certificate of the abovesaid vehicle at the time of its registration in the name of the complainant. The complainant has not purchased the abovesaid vehicle in order to earn the livelihood for himself and his family. The complainant is running the transport business i.e. commercial activities, thus he cannot be said to have purchased the vehicle in question to earn the livelihood for himself and his family. The opposite parties further pleaded that besides the loan of the truck in question, the complainant has purchased one Bolero Camper DX after taking the loan of Rs.4,92,000/- from the opposite parties and executed the agreement No.PJB00035L dated 25.8.2011 and the amount of Rs.53,445.88/- is overdue and total due amount is Rs.3,33,270.88/-; one Tata truck after taking the loan of Rs.10 lacs from them and executed the agreement No.PJB00334D dated 5.7.2012 and the amount of Rs.2,30,421.52/- is overdue and total due amount is Rs.9,13,221.52 and one more truck after taking the loan of Rs.21,65,000/- from them and executed the agreement No.PJB00126D dated 15.7.2011 and the amount of Rs.1,56,703.77/- is overdue and total due amount is Rs.12,78,553.77/- against him. Besides the above transport vehicles, the complainant has also purchased one Mahindra Goods vehicle after taking the loan of Rs.22,53,000/- from the opposite parties and executed the agreement No.PJB00335D dated 5.7.2012 and surrendered the said vehicle to them and the amount of Rs.7,36,470.43/- is outstanding against him. Thus the complainant has committed default in repayment of the loan amount alongwith upto date interest and other incidental charges in all the abovesaid accounts and has not made the payment of the outstanding amount till date to the opposite parties despite their repeated requests and demands. The complainant also stood guarantor/surety for the other persons, who have taken the loan to purchase the commercial vehicles from the opposite parties i.e. stood surety for Jagdev Singh, he has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00124D dated 14.7.2011; for Khushdeep Singh, he has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00125D dated 14.7.2011 and for Ranjit Singh, he has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00135D dated 22.7.2011, the complainant undertook that in case of failure in repaying the loan amount by the said borrowers, he would repay the outstanding amount to the opposite parties. The opposite parties further pleaded that the complainant executed the different agreements in relation to each loan and have referred Clauses 20.0, 20.1 and 20.2 i.e. Set-off and Lien. The complainant is liable to pay the dues in relation to the other loan accounts i.e. loans against other vehicles taken by him and for which he stood guarantor/surety for the repayment of the loan accounts advanced at his instance. Thus the complainant is not entitled to get NOC/No Due Certificate from the opposite parties. The opposite parties further pleaded that as the complainant is doing the commercial activities as such he is not 'consumer' under the 'Act'.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. The complainant submitted that in order to earn the livelihood for himself and his family, the complainant has purchased one Tata truck bearing registration No.PB-03R-7099 with the financial assistance of the opposite parties vide contract agreement No.JH004149H dated 14.11.2009. As per the terms of the loan agreement, the complainant has to repay the loan amount of Rs.6,30,000/- alongwith interest charges of Rs.1,70,100/-, totaling a sum of Rs.8,00,100/- in 36 monthly installments to the opposite parties. The complainant has already cleared the entire loan account in full and final against the last installment dated 13.9.2012 and has already repaid the amount of Rs.8,07,770.80/- to the opposite parties and nothing remained outstanding against him. In the account statement obtained by the complainant, overdue, future due and SOH is shown as '0.00', which clearly shows that the said account has already been settled in full and final and nothing is due against the complainant. The complainant further submitted that the opposite parties are liable to issue him the No Due Certificate (NOC), but they have not issued him the 'No Due Certificate' and to support his version he has referred the law laid down in case cited at AIR 1994(SC) 787; 2012 (III) CPJ 140; 2012 (I) CPJ (NC); 2012 (III) CPJ 701 (NC); 2011 (1) CPJ 240 (NC) and 2011 (II) CPJ 21.

6. On the other hand the opposite parties submitted that the complainant is running the transport business and having number of transport vehicles and is doing the commercial activities, as such he is not consumer. Besides the loan of the truck in question, the complainant has taken the number of loans from the opposite parties. The opposite parties have submitted in their evidence the account statements of the loan agreement vide Ex.OP1/1 to Ex.OP1/6 and the complainant has stood guarantor for the other borrowers vide Ex.OP1/7 to Ex.OP1/10. From the account statements it is clear that there is overdue in all the loans taken and the complainant is defaulter in paying the installments. As per agreement Ex.OP1/2 in sub clause 20.0 Set-Off and Lien, 20.1 Notwithstanding anything contained in this agreement, the lender shall have lien over all the assets of the borrower(s)/Co-borrower(s) and to combine all accounts of the borrower(s)/Co-borrower(s) for recovery of the lender's dues hereunder.

20.2:-It is hereby agreed and understood by the borrower that, in the event the borrower(s) defaults in payment of the installment/charges/fees, without prejudice to the right of termination, the lender shall have the right to set-off the amount in the Borrower's/Co-borrower(s) account that may be holding with the lender with the amount in respect of which the default has been committed under this agreement.

In this way, the complainant is liable to pay the huge amount to the opposite parties in different loan accounts. The complainant is liable to pay the dues in respect of the other loan accounts i.e. loans against other vehicles taken by him and for the loans he stood guarantor/surety for the repayment of the loan accounts advanced at his instance. Thus the complainant is not entitled to get NOC/No Due Certificate from the opposite parties. The opposite parties have referred the law laid down by the Hon'ble Supreme Court in case titled as Birla Technology Limited Vs. Neutral Glass & Allied Industries Limited. As per the terms and conditions of the agreement, Ex.OP1/2, the complainant is bound to clear all the loan accounts Ex.OP1/3 to Ex.OP1/6, which have been obtained by him for the truck etc. and to clear all the loan accounts, for which he stood guarantor vide Ex.OP1/7 to Ex.OP1/10. The complainant is defaulter in paying the regular installments of the other loans taken by him from the opposite parties and for the loans, he stood guarantor.

7. The objection taken by the opposite parties that the complainant has fleet of vehicles and is defaulter in other vehicles on which he has obtained the loan from them. The complainant has been plying the vehicles for the commercial purposes, hence he is not consumer under the 'Act'. As the complainant is defaulter in making the payment of other loans, hence he is not entitled to get the No Due Certificate/NOC for the truck bearing No.PB-03R-7099 (Regarding which he has filed the present complaint). A perusal of documents placed on file shows that the complainant has purchased one Bolero Camper DX after taking the loan of Rs.4,92,000/- from the opposite parties and executed the agreement No.PJB00035L dated 25.8.2011 and the amount of Rs.53,445.88/- is overdue and total due amount is Rs.3,33,270.88/-; one Tata truck after taking the loan of Rs.10 lacs from them and executed the agreement No.PJB00334D dated 5.7.2012 and the amount of Rs.2,30,421.52/- is overdue and total due amount is Rs.9,13,221.52 and one more truck after taking the loan of Rs.21,65,000/- from them and executed the agreement No.PJB00126D dated 15.7.2011 and the amount of Rs.1,56,703.77/- is overdue and total due amount is Rs.12,78,553.77/- against him. Besides the above transport vehicles, the complainant has also purchased one Mahindra Goods vehicle after taking the loan of Rs.22,53,000/- from the opposite parties and executed the agreement No.PJB00335D dated 5.7.2012 and surrendered the said vehicle to them and the amount of Rs.7,36,470.43/- is outstanding against him. The complainant stood guarantor/surety for Jagdev Singh, he has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00124D dated 14.7.2011; for Khushdeep Singh, he has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00125D dated 14.7.2011 and for Ranjit Singh, he has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00135D dated 22.7.2011.

From the above mentioned details given by the opposite parties, it is clear that in the case in hand the complainant has obtained the loan for the truck in question on dated 14.11.2009, whereas the other loans have been taken by him on dated 25.8.2011; 5.7.2012; 15.7.2011 and 5.7.2012 and he stood guarantor/surety for Jagdev Singh, who has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00124D dated 14.7.2011; for Khushdeep Singh, who has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00125D dated 14.7.2011 and for Ranjit Singh, who has taken the loan of Rs.21,90,000/- to purchase the AMW Tractor Trailer 4018 vide agreement No.PJB00135D dated 22.7.2011.

The complainant has obtained the loan for the vehicle bearing No.PB-03R-7099 on dated 14.11.2009 vide agreement No.JH004149H, whereas the other loans have been obtained after 2009. If the complainant was defaulter in paying the loan amount, the opposite parties would have the option not to grant him the loan for the other vehicles. Every loan agreement is a separate contract. The complainant has specifically mentioned that he has purchased the vehicle in question to earn the livelihood for himself and his family members. Mere financing the other vehicles or giving guarantee/surety in other loans is not sufficient to prove that he is carrying on commercial activities, no number of employees has been mentioned by the opposite parties, who are deployed for plying the above mentioned vehicles, hence the objection of the opposite parties that the complainant is defaulter in making the payment of the loans of other vehicles and is doing the commercial activities and is not consumer under the 'Act', is not tenable. However the opposite parties have other lawful means to recover the loan amount from the complainant in other vehicles

8. Further the opposite parties admitted that the complainant has paid the full amount for the vehicle in question, thus he is entitled for the No Due Certificate/NOC. The support can be sought by the precedent laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Kotak Mahindra Bank Ltd. Vs. Jumma Khan, III (2012) CPJ 701 (NC), wherein it has been held:-

“Consumer Protection Act, 1986- Sections 2(1)(g), 21(b)-Banking and Financial Institutions Services-No dues certificate-Issuance of-Transaction of both loans is different-One cannot stop 'NOC' in respect of one vehicle even if other agreement is still continuing-It appears that loan of both vehicles already stand paid as is apparent from order of State Commission-Order of directing to issue 'NOC' justified.”

Further the support can also be sought by the precedent laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Magma Fincorp Limited & Anr. Vs. Arshad Hussain, I (2011) CPJ 240 (NC), wherein it has been held:-

“Consumer Protection Act, 1986- Sections 2(1)(g), 14(1)(d), 21(b)-Banking and Financial Institutions Services-Motor Vehicle financed-Loan-Repaid-NOC not issued-Complainant financed vehicle from OP-Alleged deficiency in service-District Forum allowed complaint-State Commission upheld order of Fora below-Reduced compensation-Hence revision-Contention, non-issuance of NOC being due to outstanding dues-Not accepted-Order of Fora below upheld.”

The support can also be sought by the precedent laid down by the Hon'ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in case titled as Magma Leasing Limited & Anr. Vs. Pritam Singh, II (2012) CPJ 140 and the precedent laid down by the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi in case titled as Aar Kay Fin Lease (P) Ltd. s. Om Singh Chauhan, II (2011) CPJ 21.

9. Therefore in view of what has been discussed above we are of the considered opinion that there is deficiency in service on the part of the opposite parties. Hence this complaint is accepted with Rs.3000/- as cost and compensation against the opposite parties. The opposite parties are directed to issue the No Due Certificate/NOC for the truck bearing No.PB-03R-7099 to the complainant.

10. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

11. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

17-01-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member