DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 317 of 19.11.2008 Decided on : 20.5.2009 <br /> <br /> Parshotam Lal Bansal S/o Sh. Jethu Ram Bansal, aged about 58 years, R/o Ward No. 9, Near Govt. Senior School, Bhucho Mandi, District Bathinda. <br /> .... Complainant<br /> Versus<br /> <br /> 1.Kotak Mahindra Prime Ltd., SCO 121, IInd Floor, Feroze Gandhi Market, Near Bhaiwala Chowk, Ludhiana through its Incharge/Chief Executive Officer/Authorised Person.<br /> 2.Kotak Mahindra Prime Ltd., SCO-60, Phase-I, Model Town, Bathinda through its Branch Manager/Incharge/Authorised Person <br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. George, President <br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the complainant : Sh. Sunder Gupta, Advocate<br /> For the opposite parties : Sh. Sanjay Goyal, Advocate<br /> <br /> O R D E R.<br /> <br /> GEORGE, PRESIDENT:- <br /> 1. Sh. Parshotam Lal Bansal has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') against the opposite parties with the allegations that he availed the facility of loan of Rs. 2,00,000/- from opposite party No. 2 in the month of December, 2002 vide loan agreement No. 42302493/01 which was repayable in 60 equal monthly instalments of Rs. 4,325/- each commencing from December, 2002 to November, 2007. The complainant repaid the total amount of Rs. 2,59,500/- i.e. the loan amount of Rs. 2,00,000/- plus Rs. 59,500/- as interest against the loan. The complainant issued post dated cheques of each instalment of Rs. 4,325/- each in favour of the opposite parties out of his bank account No. 21795 drawn on Oriental Bank of Commerce. All the cheques so issued by the complainant were duly honoured and the amount was received after the clearance of the entire loan plus interest amount. The complainant approached opposite party No. 2 for issuance of Clearance Certificate/No Objection Certificate regarding the clearance of loan amount and regarding no objection for the removal of hypothecation entry from the registration certificate of his car bearing No. PB-03K 1516. However, opposite parties paid no heed to his requests. Ultimately, the complainant sent a letter to opposite party No. 2 requesting them to issue the requisite No Objection Certificate, but it was also not honoured. The complainant before that received letter dated 21.12.2007 from the Chief Executive Officer of Kotak Mahindra Prime Ltd. whereby the complainant was appreciated for the repayment of the loan well within limit and as a honour, he was further offered a personal loan of Rs. 1,08,125/- against the aforesaid car. <br /> 2. The complainant suddenly received letter dated 22.1.2008 from the opposite parties whereby he was told that one of his cheque bearing No. 799997 of November, 2006 for Rs. 4,325/- has been lost. Therefore, the complainant was required to deposit the said amount or issue another cheque in lieu thereof. The complainant contacted opposite party No. 2 and apprised the factual position, but they did not pay any heed to his requests. The complainant made all out efforts to apprise the opposite parties that all the post dated cheques issued are shown to have been debited from his account and he has no liability to pay further sum, but the opposite parties did not agree to his request. <br /> 3. The complainant made all out efforts to get the No Objection/Clearance Certificate from the opposite parties in order to enable him to sell his car after the clearance of the loan amount, but he could not do so because opposite party No. 2 did not issue him No Objection Certificate. <br /> 4. The complainant has sought direction to be issued to opposite party No. 2 for the issuance of No Objection Certificate/Clearance Certificate in respect of aforesaid vehicle and also he has claimed damages to the tune of Rs. 50,000/- on account of mental tension, agony and on account of decrease in the price of the car and an amount of Rs. 5,000/- as litigation expenses.<br /> 5. The opposite parties contested the complaint by raising preliminary objections that there is no deficiency in service on their part; complainant has no locus-standi and cause of action to file the present complaint against them; he is not consumer within the meaning of the Consumer Protection Act and the complaint requires to be adjudicated upon only through the civil court; this Forum has no territorial jurisdiction to try and decide the complaint and the complainant has concealed material facts and therefore, complaint is liable to be dismissed. On merits, the facts mentioned in the complaint are denied and it has been asserted that since one of the cheque of the complainant could not be encashed, for that reason, No Objection Certificate was not issued. The opposite parties called upon the complainant to make the payment of one instalment of Rs. 4,325/-, but the same has not been paid till date.<br /> 6. The complainant and opposite parties in support of their respective assertions have led their evidence. The complainant filed his affidavits Ex.C.5 & Ex.C.9 and tendered documents such as letter dated 5.12.2007 Ex.C.1, letter dated 21.12.2007 Ex.C.2, demand notice dated 22.1.2008 Ex.C.3, repayment schedule report Ex.C.4, statement of account of complainant Ex.C.6, letter Ex.C.7 of the complainant addressed to the Chief Executive Officer of Kotak Mahindra Prime Ltd., Mumbai about the encashment of cheque No. 799997 dated 1.11.2006 cleared by the banker of the complainant on 11.11.2006 and statement of account dated 25.10.2006 Ex.C.8 of Kotak Mahindra Prime Ltd. in respect of complainant car finance alongwith collection of the cheques issued by the complainant in favour of the opposite parties in respect of his car loan finance from November, 2002 to November, 2007(three leaves).<br /> 7. To controvert the evidence of the complainant, opposite parties have brought on the record affidavit Ex.R.1 of Sh. Vijay Kumar, Manager of Kotak Mahindra Prime Ltd., Bathinda and also statement of account Ex.R.2 regarding encashment of the cheques issued by the complainant (eight leaves).<br /> 8. We have heard both the counsel for the parties and perused the entire record of the case carefully<br /> 9. The complainant through his affidavit Ex.C.5 has proved that he took loan from the opposite parties and as per the terms of his loan agreement, the loan amount alongwith interest i.e. Rs. 2,00,000/- plus Rs. 59,500/- as interest was payable in 60 equal monthly instalments of Rs. 4,325/- each commencing from December, 2002 to November, 2007. As per his affidavit Ex.C.5, he handed over 60 post dated cheques to opposite parties which were regularly honoured through his account and this fact was acknowledged by opposite parties vide letter dated 21.12.2007 Ex.C.2. The complainant vide letter dated 5.12.2007 Ex.C.1 requested the Branch Manager of Kotak Mahindra Prime Ltd., Bathinda that he has made payment of all the instalments of his car loan and the last instalment of loan payment was made on Ist November, 2007. Therefore, he may be issued No Objection Certificate at the earliest. This letter was replied to by the opposite parties vide letter dated 22.1.2008 Ex.C.3 wherein opposite parties have shown their inability to issue No Objection Certificate as one of the cheque bearing No. 799997 dated November, 2006 for an amount of Rs. 4,325/- was lost and it was not credited to in their account. The complainant in his affidavit Ex.C.5 urged that as per the bank statement of his account, the cheque was cleared by his bankers in favour of the opposite parties and despite his repeated requests, No Objection Certificate was not issued. Lastly, complainant wrote letter Ex.C.7 making it clear to the opposite parties that cheque No. 799997 dated 1.11.2006 alleged to have been lost/misplaced, has been cleared/paid by the bankers of the complainant in the credit of the opposite parties's account on 11.11.2006 and therefore, No Objection Certificate may be released in his favour. In support of his assertions, he has brought on the record the details of the cheques he issued alongwith the details of the cheques honoured in the account of the opposite parties. The statement Ex.C.8 reveals that a total sum of Rs. 2,59,500/- has been credited in the account of the opposite parties in respect of the car loan account of the complainant and no cheque remains unpaid. The claim of the opposite parties that the credit of one cheque till date has not been given to the opposite parties and the complainant is in default of one instalment of Rs. 4,325/- is not proved on the record. <br /> 10. Sh. Vijay Kumar, Manager of Kotak Mahindra Prime Ltd., Bathinda in his affidavit Ex.R.1 has not given any details of the cheque which was not infact encashed or credited in the account of the opposite parties. In the demand letter dated 22.1.2008 Ex.C.3, the number of the cheque which was allegedly not credited/encashed has been given as 799996 for the month of November, 2006, whereas as per the statement of account Ex.R.2 filed by the opposite parties reveals that cheque No. 799997 which was initially dishonoured in November, 2006 was later-on honoured and the credit of Rs. 4,325/- was given in the account of opposite parties. As per this statement, in December, 2006 another amount of Rs. 4,325/- has been shown to have been received in the account of the opposite parties, but the number of the cheque is not even. Otherwise also, it is not a disputed fact that complainant handed over post dated cheque No. 799997 to opposite parties and it was in the custody of the opposite parties. The opposite parties were required to get the same encashed in November, 2006 and thus, there was no liability on the part of the complainant as he had no role to play for the encashment of the said cheque. The statement of account Ex.R.2 (eight leaves) brought on the record does not reveal any default or bouncing or non-encashment of post dated cheques of the complainant. The statement of account Ex.C.8 reveals at Sr. No. 47 and 48 that cheque No. 799996 and cheque No. 799997 for an amount of Rs. 4,325/- each were credited on due dates and a total amount of Rs. 2,59,500/- was regularly and punctually paid in 60 instalments in the account of the opposite parties and same amount stands debited in the account of the complainant. Thus, there appears no scope for missing credit of any period. <br /> 11. That it appears from the perusal of letter dated 21.12.2007 Ex.C.2 issued from the office of opposite parties to the complainant wherein opposite parties have appreciated the complainant for his regular EMI payments and as a gesture of honour, complainant was offered a facility of easy pre-approved personal loan of Rs. 1,08,125/- on his existing car loan. It is highly surprising that after writing letter dated 21.12.2007 Ex.C.2, opposite parties on receipt of request for the issuance of No Objection Certificate from the complainant, raised a demand vide letter dated 22.1.2008 Ex.C.3 for an amount of Rs. 4,325/- in respect of lost cheque bearing No. 799997 for November, 2006. If there would have been no encashment of cheque No. 799997 for November, 2006, opposite parties would not have sent letter dated 21.12.2007 Ex.C.2 for appreciation of the complainant for his regular EMI payments.<br /> 12. From the entire record of the case and evidence as has been referred to above, it appears that the opposite parties have not acted bonafide while responding to the request of the complainant to issue No Objection Certificate in respect of his car after payment of the entire loan plus interest by the complainant. The action of the opposite parties thus definitely, fall within the ambit of “deficiency in service”, as a result of which, complainant has to suffer mental agony, unnecessary harassment and also for the reason that he could not sell his car to potential buyers for want of No Objection Certificate from the opposite parties. <br /> 13. We, accordingly, proceed to allow the complaint and direct the opposite parties to issue No Objection Certificate/Clearance Certificate to the complainant and also in addition to that, to pay an amount of Rs. 5,000/- as damages to the complainant on account of mental tension, agony, unnecessary harassment and also for diminishing the value of his car for delaying the sale of the same which has definitely resulted in the decrease of the price of the car. <br /> 14. We further direct that opposite parties shall also be liable to pay an amount of Rs. 1,000/- as litigation expenses. <br /> 15. The compliance be made within one month from the date of receipt of copy of this order. <br /> 16. The counsel for the parties have undertaken to get the copy of the order from the office.<br /> 17. The file be indexed and consigned.<br /> <br /> Pronounced ( George )<br /> 20.5.2009 President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br /> (Amarjeet Paul)<br /> Member<br /> <br /> 'bsg'