DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.41 of 17-02-2017

Decided on 25-07-2018

Roshan Lal aged about 45 years S/o Prem Chand R/o H.No.308, Village Patti Sawal Mehraj, Tehsil Phul District Bathinda.

........Complainant

Versus

1.Indusind Bank Limited, Guru Kanshi Marg Near New Bus Stand, Bathinda, through its Branch Manager, Legal Executive and General Attorney of the Bank.

2.Indusind Bank Limited, Corporate Office, Sudarshan Building, 92, (Old No.86), Chamiers Road, Chenai, through its Managing Director/Chairman.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Smt.Sukhwinder Kaur Member

Present:-

For the complainant: Sh.H.P.S Chauhan, Advocate.

For opposite parties: Sh.K.K Vinocha, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Roshan Lal (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Indusind Bank Limited and Others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that in order to earn the livelihood for himself and his family members, he purchased TATA Truck 4018 bearing registration No.PB-19E-5797 with the financial assistance of opposite parties vide agreement dated 27.1.2014 for a sum of Rs.4,22,000/- against this vehicle.

3. It is alleged that as per the terms of the loan agreement, the complainant agreed to repay loan amount of Rs.4,22,000/- alongwith interest charges, totaling Rs.5,23,660/- to opposite parties in 36 monthly installments. He has been regularly paying the amount of installments to opposite parties and he has already cleared the entire loan account in full and final on 8.8.2016. Nothing is due against him.

4. It is further alleged that the complainant has been repeatedly requesting opposite parties to issue requisite 'No Due Certificate' in his favour so that he may be able to get the hypothecation of opposite parties cancelled from the original registration certificate of the vehicle, but they have been putting off the matter on one or other false pretext and they did not issue 'No Due Certificate'. Opposite parties have also not returned the blank signed cheques taken as security and other documents. This act and conduct of opposite parties amount to deficiency in service.

5. It is also alleged that non-supply of 'NOC/No Due Certificate' and security cheques, caused mental agony, pains and sufferings etc. to the complainant. For these sufferings, he has claimed compensation to the tune of Rs.50,000/-. He has also prayed for directions to opposite parties to issue 'No Due Certificate' in addition to litigation expenses to the tune of Rs.20,000/-. Hence, this complaint.

6. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their written version. In the joint written version, opposite parties have raised the preliminary objections that the complainant is big transporter, having more than 5 trucks in his transport business. He has employed 10 employees i.e. drivers, helpers, conductor and Munshi etc. He is guarantor in the truck loan case obtained from opposite parties by one Randheer Singh vide loan agreement No.PJB00335-D. A sum of Rs.7,43,660/- is outstanding as disposal loss against other truck. The complainant Roshan Lal, being guarantor, is equally liable to pay this amount alongwith borrower jointly and severally with further interest in terms of loan agreements. As such, he cannot claim 'NOC' against himself regarding truck, until and unless balance outstanding against him regarding another truck is cleared. He does not fall within the meaning and scope of 'consumer' as defined under 'Act'. He has taken the loan against three other trucks bearing registration Nos.HR-38E-8614, PB-03H-6257 and PB-03M-9778 from Cholamandlam Investment and Finance Company Ltd. As such, he is big transporter and he does not fall within the meaning and scope of 'consumer'. These trucks also stand hypothecated with opposite parties and other lender respectively. The relationship between the complainant and banker is as borrower and lender. As such, the matter does not come within 'consumer dispute. Opposite parties have also quoted some case law, reference of which is not considered necessary at this stage.

7. On merits, it is admitted that the complainant had taken loan against the vehicle vide loan agreement. It is reiterated that he also stood guarantor in another loan case with borrower Randheer Singh. Clearing of loan account is not denied, but it is stated to be matter of record. In further written version, opposite parties have reiterated their stand as taken in the preliminary objections and detailed above. In the end, they have prayed for dismissal of complaint.

8. Parties were asked to produce the evidence.

9. In support of his claim, the complainant has tendered into evidence photocopy of R.C, (Ex.C1); photocopy of account statement, (Ex.C2); photocopy of legal notice, (Ex.C3); photocopy of postal receipts, (Ex.C4); photocopies of NOC, (Ex.C5 and Ex.C6); photocopy of foreclosure statement, (Ex.C7); his affidavit dated 21.7.2017, (Ex.C8) and submitted written arguments.

10. To rebut the claim of the complainant, opposite parties have tendered into evidence affidavit of Robin Arora dated 19.4.2017, (Ex.OP1/1); photocopies of loan agreement, (Ex.OP1/2, Ex.OP1/4, Ex.OP1/5, Ex.OP1/7 and Ex.OP1/8); photocopies of account statement, (Ex.OP1/3, Ex.OP1/6 and Ex.OP1/9); photocopy of circular, (Ex.OP1/10) and closed the evidence.

11. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for opposite parties.

12. Learned counsel for complainant has submitted that it is not disputed that the complainant availed the financial assistance from opposite parties. It is also not disputed that he has cleared the loan. Nothing is due against him. Copy of account statement, (Ex.C2) also proves this fact. When nothing is due against the complainant, opposite parties are under obligation to issue 'NOC'. Admittedly, they have not issued 'NOC'. Their version is that the complainant stood guarantor in the loan case of one Randheer Singh. They have produced on record account statement of Randheer Singh as Ex.OP1/9 in addition to loan agreement executed by abovesaid Randheer Singh as Ex.OP1/4. This loan agreement was executed by Randheer Singh on 28.5.2012. The complainant took the loan on 27.1.2014. The account statement, (Ex.OP1/9) proves that status of loan account of Randheer Singh was already changed w.e.f. 25.1.2013. His vehicle was repossessed on 31.3.2013 and sold. Opposite parties have also obtained award qua loan against Randheer Singh on 5.7.2013. These facts prove that opposite parties have already availed the legal remedy against Randheer Singh. When opposite parties have advanced loan to the complainant on 27.1.2014 when Randheer Singh was already defaulter, in these circumstances, opposite parties cannot withheld 'NOC'. Therefore, the complaint has been unnecessary harassed. As such, he is entitled to compensation as claimed for.

    To support these submissions, learned counsel for complainant has cited following case law:-

    i) Magma Leasing Limited & Anr. Vs. Pritam Singh, 2012(3) CPJ 140;

    ii) Kotak Mahindra Bank Ltd. Vs. Jumma Khan, 2012(3) CPJ 701;

    iii) Magma Fincorp Limited & Anr. Vs. Arshad Hussain, 2011(1) CPJ 240;

    iv) Kotak Mahindra Bank Ltd. & Anr. Vs. R. Srinivasan & Anr., 2012(3) CPJ 67.

13. On the other hand, learned counsel for opposite parties has submitted that the complainant has not approached this Forum with clean hands and he has concealed the material facts from this Forum. He has not disclosed that he owns number of trucks also and he has also availed loan from another finance company. Opposite parties have produced on record copies of agreement, (Ex.OP1/5), statement, (Ex.OP1/6), loan agreement, (Ex.OP1/7) and loan agreement, (Ex.OP1/8). These documents prove that he has also availed the loan from Cholamandlam Investment and Finance Company Limited for different vehicles. These documents prove that he holds number of commercial vehicles. He has also availed the vehicle in question for the commercial purpose. Therefore, he does not fall within the definition of 'consumer'. As such, this Forum has not jurisdiction to decide and entertain the complaint.

14. It is further submitted by learned counsel for opposite parties that of-course, the complainant has paid all the installments against the loan in question, but he also stood guarantor (co-borrower) in the loan availed by one Randheer Singh. The agreement, (Ex.OP1/4) proves that Randheer Singh took the loan and complainant Roshan Lal was co-borrower. As per Condition No.20.1 of agreement, lender has lien over all the assets of the borrower/co-borrower in his control and a right of set off against any monies from the borrower/co-borrower. Similarly, as per Condition No.20.2, in the event of borrower defaults in payment, the lender has right to set off all monies etc. and other properties of borrower and co-borrower. Therefore, a sum of Rs.7,43,660/- is outstanding against Randheer Singh and complainant being co-borrower, opposite parties have right to retain 'NOC'. There is no deficiency in service or unfair trade practice on the part of opposite parties.

    To support these submissions, learned counsel for opposite parties has cited decision of Hon'ble Haryana State Commission rendered in First Appeal No.518 of 2016, Decided on 25.1.2017 title Indusind Bank Limited and other Vs. Amrik Singh.

15. We have given careful consideration to these rival submissions and gone through the case law cited by learned counsel for parties.

16. Opposite parties have pleaded that the complainant does not fall within the definition of 'consumer'. Therefore, this point is to be decided before deciding the controversy on merits. The complainant has pleaded that he has availed the financial assistance for purpose of vehicle in order to earn livelihood for himself and his family members. The dispute is only regarding loan availed against the truck in question. Whether the complainant owns other trucks or had availed loan for purpose of commercial vehicle are not relevant to decide the controversy in this case. Since the truck in question was purchased to earn livelihood, therefore, the complainant comes within the definition of 'consumer'.

    Even otherwise, the dispute is not regarding vehicle. The dispute is only regarding issuance of 'NOC'. Admittedly, the complainant has availed the financial assistance for purpose of vehicle bearing registration No.PB-19E-5797. He has paid all the installments. Nothing is due against him in connection with this vehicle. The statement, (Ex.C2) also proves this fact. Opposite parties have claimed lien of 'NOC' on the ground that the complainant was guarantor/co-borrower in the loan availed by one Randheer Singh. As per opposite parties, a sum of Rs.7,43,660/- is due against that loan case. Opposite parties have taken shelter of Conditions No.20.1 and 20.2 of loan agreement to justify the denial of 'NOC'. For sake of convenience, these conditions are being reproduced as under:-

    “20.1) Notwithstanding anything contained in this agreement, the lender shall have a lien over all the assets of the borrower(s)/co-borrower(s) in the lender's control and a right of set off against any monies due to the lender from 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 even the borrower(s) defaults in payment of the installments/charges fees without prejudice to the right of termination, the lender shall have the right to set off all monies, securities, deposits, other assets and properties of the borrower(s)/co-borrower that is held by the lender as secured asset, against the amount in respect of which the default has been committed under this agreement or any other agreement.”

17. It is to be seen whether opposite parties are entitled to take benefit of these terms/conditions. In order to find out answers to these queries, some backdrop of facts will be relevant.

    Ex.OP1/4, is loan agreement executed by Randheer Singh. This agreement is dated 28.5.2012. Opposite parties have also produced on record account statement, (Ex.OP1/9) relating to loan case of Randheer Singh. Of-course, Roshan Lal is reflected as co-borrower. This document also shows the contract status detail. The status changed on 25.1.2013 and the vehicle was repossessed on 31.3.2013 and was further sold. The arbitration award was passed on 5.7.2013.

18. The complainant Roshan Lal has availed the loan vide agreement, (Ex.OP1/2). This agreement is dated 27.1.2014. Therefore, it is clear that on the date of agreement with the complainant, Randheer Singh and complainant (being co-borrower) were already defaulters. The truck was also repossessed and arbitration award was passed. Despite these facts, opposite parties have released the financial assistance to the complainant. In case, opposite parties were also to claim recovery from the complainant on account of outstanding loan of Randheer Singh, then they were not supposed to provide financial assistance to the complainant and they were to insist for clearance of earlier loan.

19. Keeping in view the above factual position and conditions under which opposite parties are claiming lien against 'NOC', are not applicable. Therefore, their refusal amounts to deficiency in service and unfair trade practice on their part.

20. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost against opposite parties. Opposite parties are directed to issue 'NOC' to the complainant.

21. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

22. The complaint could not be decided within the statutory period due to heavy pendency of cases.

23. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    25-07-2018

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member

     

     

    (Sukhwinder Kaur)

    Member