DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.468 of 12-10-2010 Decided on 16-02-2011
Rajesh Kumar s/o Sh.Vijay Kumar, aged about 46 years, r/o opposite Dr.Tirlok Clinic, Water Works Road, Mansa now Gali No.10/2, Guru Gobind Singh Nagar, Bathinda. .......Complainant
Versus
Kotak Mahindra Prime Ltd., SCF-49, Phase-I, Urban Estate, Bathinda, through its Branch Head/Branch Manager. ......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Sh.Amarjeet Paul, Member. Present:- For the Complainant: Sh.Ish Kumar, counsel for the complainant. For Opposite parties: Sh.Sanjay Goyal, counsel for the opposite party. ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as 'Act'). The brief facts of the complaint are that the complainant has availed car loan of Rs.4,81,000/- from the opposite party vide agreement No.CF-3272313 against his car bearing registration No.CH-03W/0789 and as per repayment schedule, the complainant has to pay the aforesaid loan alongwith interest in 35 monthly installments, out of which first 17 monthly installments were of Rs.19,000/- each and next 18 monthly installments were of Rs.13,050/-each. First installment was payable in the month of June, 2006 and the last installment was payable in the month of April, 2009 and the complainant issued 35 post dated cheques, drawn on ICICI Bank Ltd. in favour of opposite party. The said vehicle is hypotheticaed with the opposite party. The complainant continuously paid the installments for one year. The official of the opposite party approached the complainant in the month of May, 2007 and offered the complainant another loan of Rs.3,80,000/- on lesser interest as against the earlier/first loan and further allured the complainant that they would not debit the complainant any extra charges on account of penal interest, legal expenses, overdue charges, foreclosure charges etc. and further allured the complainant that in case of foreclosure, the complainant would be provided discount on the remaining interest amount. The complainant availed second loan of Rs.3,80,000/- from the opposite party vide agreement No.CF-3914079 against his aforesaid car. As per repayment schedule, the complainant has to pay the aforesaid loan alongwith interest in 36 monthly installments out of which first 12 monthly installments were of Rs.19,479/- each and next 12 monthly installments were of Rs.11,689/- each and remaining 12 monthly installments were of Rs.7,793/- each. First installment was payable in the month of July, 2007 and the last installment was payable in the month of June, 2010 and the complainant issued 36 post dated cheques, drawn on ICICI Bank Ltd. The aforesaid car was already hypotheticated with the opposite party on account of earlier loan and also with regard to second loan. In the year 2008, some dispute has arisen between the complainant and his banker ICICI Bank Ltd. as his banker has started extra charging from the complainant, so he stopped transacting with the said bank and the complainant contacted the official of the opposite party namely Mr. Vijay Joshi, Branch Head/Branch Manager/Executive conveying about his dispute with his banker and further requested not to deposit the cheques issued by him for clearance and offered other cheques of his another bank and also showed his willingness to pay the monthly installment in cash to which the official of the opposite party conveyed that the complainant need not to worry and further conveyed that their official would collect the monthly installments from the complainant in cash. The official of the opposite party namely Nirmal Singh started visiting the complainant and collecting the monthly installments and the complainant started giving his installments in cash. Since then, the complainant has been regularly making the monthly installments of both the aforesaid loan accounts. The complainant has already cleared the first loan in the month of Sept.,2009 and thereafter, the complainant requested the opposite party for the issuance of clearance certificate/No Due Certificate to which, the opposite party postponed the matter with the pretext that same would be issued after the clearance of the second loan account. Thereafter, no official of the opposite party visited the complainant to collect the last installment of Rs.7,793/- pertaining to the second loan account due in the month of June, 2010 rather he received message from the opposite party that approximately an amount of Rs.70,000/- is due against the complainant against both the aforesaid loan accounts and conveyed the complainant to deposit the amount due, failing which the car of the complainant would be taken into possession by the opposite party. The complainant has deposited all amounts except the last installment of Rs.7,793/- on account of second loan account and further showed his willingness to deposit the last installment of Rs.7,793/- subject to issuance of NOC/No Due Certificate and issuance of Form No.35 for the clearance of hypothecation entry. The complainant on 26.06.2010, wrote a letter to the opposite party and demanded the statement of account and NOC/No Due Certificate and Form No.35. The opposite party issued statement of accounts of both the loan accounts on 10.08.2010 which shows that the first loan account has already been cleared and Rs.7,793/- is due against the second loan account which the complainant is ready to deposit. 2. The opposite party on the other hand filed its written statement and pleaded that the complainant took two loans from the opposite party vide loan No.3272313 and defaulter of Rs.17,504/- and with regard to loan No.3914079, defaulter of Rs.40,662/- and in both the loans, the complainant executed the loan agreement in favour of opposite party after understanding its content whereas the complainant also acknowledged to make payment of Rs.350/- per cheque as dishonor charges and would pay delay payment charges @ 3% and agreed to make payment of other charges as per the schedule. In loan No.3914079 out of 36 cheques issued by the complainant, 29 cheques have been dishonored and in loan No.3272313, 14 cheques out of 34 cheques have been dishonored and the complainant in order to avoid the payment of these charges, taking false plea that he had some dispute with his bank and had their been any dispute of the complainant with his bank, then the complainant would have issued cheques of some other bank or would have issued the instructions of stop payment but the complainant had never informed the opposite party to do so. The complainant is liable to make payment of cheque bouncing charges and penal interest and one installment is pending from principal amount. As per account statement dated 11.11.2010, an amount of Rs.40,662/- is payable by the complainant in loan No.3914079 and in loan No.3272313 out of 34 cheques, 14 cheques have dishonored and Rs.17,504/- is payable. The complainant is defaulter in both the loans. 3. Parties have led their evidence in support of their respective pleadings. 4. Arguments heard. Record alongwith written submissions submitted by the parties perused. 5. The learned counsel for the complainant has submitted that he had availed two loans, one in the month of April, 2006 for Rs.4,81,000/-from the opposite party vide agreement No.CF-3272313 against his car bearing registration No.CH-03W/0789. He had to repay the aforesaid loan amount alongwith interest in 35 monthly installments out of which, first 17 installments were of Rs.19,000/- each and next 18 monthly installments were of Rs.13,050/- each. He had issued 35 post-dated cheques, drawn on ICICI Bank Ltd. of monthly installments of the respective amounts. The complainant got second loan in the month of May, 2007 for Rs.3,80,000/- on lesser interest as against the earlier/first loan. On the allurement that no extra charges of account of penal interest, legal expenses, overdue charges and foreclosure charges etc. would be charged from him. Further, in case of foreclosure, the complainant would be provided discount on the remaining interest amount. The second loan was also taken by the complainant against the same car bearing registration No.CH-03W/0789 and as per repayment schedule, the complainant has to repay the aforesaid loan alongwith interest in 36 monthly installments, out of which first 12 monthly installments were of Rs.19,479/- each and next 12 monthly installments were of Rs.11,689/- each and remaining 12 monthly installments were of Rs.7,793/- each. The complainant had issued 36 post-dated cheques, drawn on ICICI Bank Ltd. of monthly installments of respective amounts in favour of the opposite party. The said car was hypothecated with the opposite party on account of earlier loan and also with regard to the second loan. The learned counsel for the complainant has further submitted that in the year 2008, some dispute has arisen between the complainant and his banker ICICI Bank Ltd as his banker has started charging the complainant with extra charges, so he stopped transacting with his banker. The complainant approached Mr.Vijay Joshi, Branch Head/Branch Manager/Executive of the opposite party conveying about his dispute with his banker. The said official told the complainant that the official of the opposite party would visit him for collecting the monthly installments in cash. One Nirmal Singh, official of the opposite party started visiting the complainant and collecting the monthly installment from the complainant in cash. Since then, the complainant had been regularly paying the monthly installments of both the aforesaid loan accounts in cash. The complainant had already cleared the first loan in Sept.,2009 and requested the opposite party for the issuance of clearance certificate/No Due Certificate to which the opposite party postponed the matter on the pretext that the same would be issued after the clearance of the second loan account. No official of the opposite party has visited the complainant to collect the last monthly installment of Rs.7,793/- pertaining to the second loan account due in the month of June, 2010. The complainant received a message from the opposite party that approximately, an amount of Rs.70,000/- is due against the complainant with regard to both the aforesaid loans. The complainant had further submitted that only the last monthly installment is due against him of Rs.7,793/- on account of second loan account and he is ready to deposit the same. On 26.06.2010, the complainant wrote a letter to the opposite party and demanded the statement of account and NOC/No Due Certificate and Form No.35. The opposite party issued statement of accounts of both the loan accounts on 10.08.2010 and first loan had already been cleared and Rs.7,793/- is due against the second loan account which the complainant is ready to deposit. 6. The learned counsel for the opposite party has submitted that the complainant is defaulter of both loans, for loan No.3272313, he is defaulter of Rs.17,504/- and with regard to loan No.3914079, he is defaulter of Rs.40,662/-. The complainant has duly signed the agreement after understanding its terms and conditions that he would make the payment of Rs.350/- per cheque as dishonor charges and would pay delay payment charges @ 3% interest and also ready to pay the payment of other charges as per the schedule and in loan No.3914079 out of 36 cheques issued by the complainant, 29 cheques have been dishonored and in loan No.3272313, 14 cheques out of 34 cheques have been dishonored. The opposite party further submitted that he would have issued cheques of some other bank or would have issued the instructions of stop payment but the complainant had never cared to do so. 7. Admittedly, the complainant had taken two loan, vide loan No.3914079 and loan No. 3272313 for Rs.4,81,000/- and Rs.3,80,000/- respectively against the car bearing registration No. CH-03W/0789. 8. A perusal of Ex.C-2 shows that the complainant had written a letter dated 26.06.2010 to the opposite party i.e. Kotak Mahindra Prime Ltd., Bathinda requesting for issuance of NOC and Form No.35 which is reproduced as under:- “I have taken a car PL Loan agreement No.3914079 dated 30 May, 2007. My last EMI to be paid. Due to some problem in my ICICI Bank A/c. I have started giving cash payment to the collection person ( for which that time your employ Mr.Vijay Joshi has committed me that no further charges will have to be paid by me). So, I am requesting you to please look into this matter and send me a letter of payment of this EMI and full charges waiver which your collection person are asking to pay. I will pay the last EMI as soon as, I get this letter.” A copy of this letter was duly replied by the opposite party. A further perusal of account statement Ex.C-3 shows that the total amount of Rs.7,72,650/- has been paid by the complainant and balance is zero. This statement is regarding the loan account No.3272313. Ex.C-4 is regarding the statement account No.3914079. A perusal of this statement shows that the total loan paid was for Rs.7,71,439/- and balance Rs.7,793/-. These two loan accounts proves the version of the complainant to be correct. 9. The opposite party has placed on file the personal loan agreement Ex.R-5 regarding loan No.3914079. The complainant had agreed to pay Rs.350/- as charges of dishonor of cheque of every dishonor and cheque collection charges of Rs.500/- per cheque and cheque swap charges as Rs.500/- per swap. The complainant had already agreed to pay rate of late charges/compensation @ 3% per month. Ex.R-5 which is Personal Loan Agreement with regard to agreement No.3914079. A perusal of statement of account Ex.R-3 shows that the opposite party has charged Rs.500/- per cheque as cheque dishonor charges dated 12.06.2008; 16.07.2008; 02.09.2008; 19.09.2008; 18.10.2008; 14.11.2008; 13.12.2008; 14.01.2009; 16.02.2009; 17.03.2009; 23.04.2009; 18.05.2009; 22.06.2009; 18.07.2009; 21.08.2009; 17.09.2009; 26.10.2009; 25.11.2009; 12.12.2009; 23.01.2010; 19.03.2010; 27.03.2010; 07.04.2010; 07.05.2010; 07.06.2010 and 27.10.2010. In this way, on all these cheques, the opposite party has charged Rs.500/- cheque dishonor charges, whereas the agreement for dishonoring the cheque was of Rs.350/- per cheque. Hence, this is violation of terms and conditions on the part of the opposite party which has been agreed between the parties. Besides this, the opposite party has imposed overdue interest charges. The opposite party has charged Rs.500/- per cheque as cheque dishonor charges for 26 cheques. Similarly, the opposite party has charged Rs.500/- as cheque dishonor charges on 10 cheques with regard to loan agreement No.3272313, in total, the opposite party has charged Rs.500/- per cheque on 36 cheques, Rs.150/- has been charged extra on these cheques. As the installments were paid in cash through the agent of the opposite party, the opposite party has wrongly charged the cheque dishonor charges. Hence, they are not liable to charge any dishonor charges. Further, the installment was taken by the agent of the opposite party and deposited by him directly, in such circumstances, the opposite party is also not liable to charge penal interest and overdue charges for delayed payment. 10. The complainant has paid full loan amount to the opposite party with regard to loan agreement No.CF-3272313 and defaulter of one installment of Rs.7,793/- with regard to loan agreement No.3914079. The agent of the opposite party has never approached the complainant to collect the same. Hence, there is deficiency in service on the party of the opposite party. Therefore, this complaint is accepted with Rs.3,000/- as cost and compensation. The opposite party is free to collect the last installment of Rs.7,793/- only and to issue him No Due Certificate/Clearance Certificate and Form No.35. The parties are directed to do as under:- The complainant will deposit Rs.7,793/- within 30 days to the opposite party from the date of receipt of this order. The opposite party from the receipt of amount of Rs.7,793/-, will issue No Due Certificate/Clearance Certificate and Form No.35 within next 15 days. The compliance regarding the cost will be done within 45 days from the date of receipt of copy of this order. The compliance of full order will be done within 45 days from the receipt of copy of this order.
11. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. ' Pronounced in open Forum 16-02-2011 (Vikramjit Kaur Soni) President
(Dr. Phulinder Preet) Member (Amarjeet Paul) Member |
