Kerala

Idukki

CC/9/2021

Benny Thomas - Complainant(s)

Versus

Kottak Mahindra prime ltd - Opp.Party(s)

Adv: Jijo Joseph

05 May 2023

ORDER

DATE OF FILING :21.1.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  5^th  day of  May, 2023

Present :

                   SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.9/2021

     Between

Complainant                                       :        Benny Thomas, S/o. Thomas,

                                                                   Kochuparambil House,

                                                                   Nathukallu, Kattappana,

                                                                   Idukki.

(By Adv: Jijo Joseph)

        And

Opposite Party                                    :         The Manager,

                                                                   Kotak Mahindra Prime Ltd.,

                                                                   Thadikkaran Centre,

                                                                   4^th Floor, Palarivattom,

                                                                   Ernakulam.

(By Adv: Babichen V.Geroge)

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

          1. This case originates from a complaint filed under Section 35 of the Consumer Protection Act of 2019 (the Act, for short).  Complaint’s case is briefly discussed hereunder :

 

          Complainant is a lawyer practicing before Kattappana Courts.  1^st opposite party is manager of Ernakulam branch of Kotak Mahindra Prime Ltd., a non-banking finance concern.  In August 2012, complainant had approached opposite party for availing a vehicle loan.  However, opposite party had informed him that as per their policy, financial assistance is not granted to lawyers and policemen.  Hence complainant had taken the required vehicle loan in the name of his wife, he being the guarantor of the same.  Complainant had given signed cheques, 59 in number, for the purpose of payment of loan instalments.  These were paid correctly upto 48^th instalment inclusive.  Thereafter due to financial stringency, complainant was unable to pay remaining instalments.  Earlier, when payment was regular towards vehicle loan, complainant was given 3 personal loans on the security of the vehicle.  In connection with these loans, complainant had given signed cheques, 6 in numbers, for each loan.  Upon default in repayment, one of the blank cheque given by complainant was filled up by opposite parties and presented for payment, which was dishonoured.  Hence opposite party had                                                                                                                (cont….2)

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initiated proceedings for prosecuting the complainant under Section 138 of NI Act.  While so, complainant had sold the vehicle in August 2018 and closed the loan.  Accordingly, he was given a termination letter by opposite party for effecting changes in RC of the vehicle.  Though grant of loan was immediately informed to CIBIL authorities by opposite parties, it had failed to inform clearing of the loan by complainant.  Due to this, CIBIL rating of complainant had come down.  He was unable to take further loans. Though he had the need  to take an education loan for his son, he was unable to do so, owing to low CIBIL rating.  Even after expiry of 6 months from closure of loan, nothing was done to restore CIBIL rating of complainant.  On 14.7.2020, complainant had sent a lawyer notice to opposite party asking them to inform CIBIL authorities within 7 days regarding closure of loan. On 8.9.2020, a reply notice was issued by opposite party raising  untenable contentions.  In the meanwhile, a cheque case was filed against complainant numbered as CC No.9763/19, before JFCM Court at Ernakulam in connection with the dishonoured cheque mentioned above.  On 25.1.2020, a post card issued in the name of complainant was handed over to him by his grocery shop owner whereby he was informed to appear before National Lok Adalath dated 1.2.2020 for settlement talks.  This post card was seen by public who had come to the shop.  Due to this, complainant had suffered      ignominy and defamation.  Opposite party had no right to file cheque case since the loan was already paid off by complainant.  Closure of the loan was done in August 2018.  Yet, steps were not taken by opposite party to inform CIBIL authorities, due to which complainant’s CIBIL rating could not be restored to its original position.  All these has caused mental agony and financial loss to complainant.  There is  deficiency in service from the side of opposite party on account of  aforesaid facts.  Hence complainant prays for grant of compensation amounting to Rs.1 crore for deficiency in service and litigation costs of this case.

 

          2. Opposite party had appeared and filed written version.  Its contentions are briefly discussed hereunder :

 

          According to opposite party, complaint is not maintainable in law or upon facts.  It is true that complainant had availed a vehicle  loan in the name of his wife amounting to Rs.4,30,000/-, repayable with interest in 60 monthly instalments.  1^st instalment was due on 18.10.2012 and last instalment was to be paid on 18.11.2018.  Monthly instalment amount was Rs.10,019/-.  Though complainant had promptly repaid the instalments without delay, initially, subsequently he had committed default and  the account became NPA.  Complainant had also availed 3 personal loans upon security of vehicle loan mentioned above.  It is incorrect to say that  opposite party had intimated CIBI authorities with regard to loan granted to complainant on the date of availing of loan itself. Grant of loan from banks and NBFCs will be automatically reflected in CIBIL statements. Operation of loan account is under strict scrutiny of CIBIL authorities and  default  in  repayment   will  immediately  affect CIBIL  score  of  borrower.                                                                                                                           (cont….3)

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Complainant was a chronic defaulter of his vehicle and personal loans.  Due to this, his CIBIL rating was lowered.  He had committed default in 13 instalments in repayment of his personal loans as per agreement CF 8487678.  At the time of closure, a huge amount was pending from complainant towards different loans availed by him and his wife.  He approached opposite party, bargained with them and availed discount of Rs.28,684/-.  Since complainant had availed discount for clearing the dues, his CIBIL score was lowered on this count also.  Complainant had suppressed the fact that the loans were closed after availing discount.  Opposite party has given due reply to the lawyer notice issued by complainant.  Cheque case was filed when the loan repayment was defaulted.  Once NOC was issued, necessary steps were taken to withdraw the case also.  It stands withdrawn now.  Delay in withdrawal was due to Covid pandemic owing to which functioning of courts were effected.  Opposite party was not liable for issuance of notice for appearance in Lok Adalath. When loan was closed and NOC was issued to complainant.  There is no deficiency in service or unfair trade practice from the side of opposite party.  Complaint is baseless and flagrant abuse of process of law.  It is to be dismissed with costs.

 

          3. After filing of written version, opportunity was granted to both sides for taking steps.  Thereafter, case was posted for evidence.  On the side of complainant, he himself was examined as PW1.  Exts.P1 to P6 were proved by him.  Subsequently, his evidence was re-opened and Exts.P7 and P8 were further admitted without formal proof.  Thereafter complainant’s evidence was closed.  RW1, legal manager of Kotak Mahindra was examined from the side of opposite party.  Exts.R1 to R7 were proved by him.  Thereafter evidence was closed and both sides were heard.  Lengthy arguments were addressed by the learned counsel for complainant.   He had extensively dealt with the pleadings contained in his complaint and also evidence tendered by him.  Exts.P6 to P8 in particular were referred to, by him as he had mainly challenged filing of cheque case and its belated withdrawal despite closure of loan by him.  He had also voiced his grievance with regard to lowering of his CIBIL rating, which was not restored to its former position despite clearing of the loan.  Learned counsel for opposite party submitted that system in the bank, upon making of relevant entries with regard to payment, automatically passes all data through system itself to CIBIL authorities.  In otherwords, both systems are connected and hence no separate data entry is necessary for informing CIBIL authorities.  Lowering of CIBIL score was due to default in loan repayment and availing of discount for clearing the loan dues.  Such lowering cannot be set right by subsequently clearing the loans.  Hence contentions, that CIBIL score was not set right, cannot be sustained.  So also, sending of Ext.P5 from court to complainant whereby he was requested to appear in Lok Adalath cannot be attributed as any act  from the side of opposite party amounting to deficiency in service.  Cheque case was filed when loan was in default.  It is incorrect to say that the case was filed after closing the loan.  Subsequent delay in court proceedings,  was probably caused by Covid pandemic                                                                                                                   (cont…4)

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situation.  While going by the proceedings of the court, it can be seen that withdrawal was allowed at the first posting itself after numbering and transfer after case was taken on file by transferee court. There is no deficiency in service from the side of opposite party.

 

          Thus, these are the rival contentions.  Now the point which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether there is deficiency in service from the side of opposite party ?

3)  Whether complainant is entitled for the reliefs prayed for ?

4)  Final Order and costs ?

 

4. Point Nos.1 to 3 are considered together :

 

          According to complainant, opposite party had failed to intimate CIBIL authorities in time with regard to closure of loan, due to this, CIBIL rating remained lower and he was unable to avail education loan for the purpose of his son due to which he had suffered mental agony and financial loss.  Secondly, opposite party had filed a cheque case against him in connection with default of loan which was not withdrawn despite its closure.  Loan was closed in August 2018.  Thereafter complainant had sent Ext.P4 lawyer notice to opposite party, requesting him to intimate closure of loan to concerned authority.  Lawyer notice is dated 14.7.2020.  This was received by opposite party.  Yet instead of intimating CIBIL authorities, a reply notice was sent wherein untenable contentions are raised.  Thirdly, there was delay in withdrawal of cheque case.  This has also caused much financial loss and mental agony to complainant.  All the three instances mentioned above are of deficiency in service according to learned counsel for complainant.

 

          We are constrained to disagree with the learned counsel for the following reasons:

 

Main dispute raised is regarding the vehicle loan. Admittedly, loan was availed by wife of complainant. May be complainant, her husband, was instrumental in facilitating the loan and he may have  utilized loan money for his purposes also, but the fact remains that his wife is the borrower and he is only her guarantor in the eyes of law. Default by his wife in repayment will only affect her CIBIL score as borrower and not that of complainant. He has not filed this complaint in representative authority.

 

Coming to the contentions advanced, though complainant has pleaded that the loans were subsequently closed after sale of car in August 2018, he has not disclosed that closure was after availing discount from opposite party.  According to learned counsel for opposite parties,  default in loan repayment and closing loan account by settlement                                                                                                                   (cont….5)

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after availing discount will  affect the credit rate of the customer.  On both counts, credit score will be lowered despite clearing of the loan subsequently by customer.  These contentions are well taken.  Evidence of complainant tendered during cross examination contains relevant admissions in this regard.  It is not disputed that default in loan repayment and clearing of loan account after availing discount will affect credit rating of customer.  Able counsel was unable to point out any guideline or regulation on the basis of which CIBIL authorities functions whereby CIBIL rating of the customer is to be hiked up upon clearance of his liability after availing discount subsequently.  It was also contended by learned counsel for opposite parties that banking system is linked with that of CIBIL authorities.  Entries made in the account by system are automatically received in the system of CIBIL also as both are interlinked.  Change in CIBIL ratings are maintained by system. Hence there is no question of informing CIBIL authorities about closure of or default in loan. It is contended by complainant that change in CIBIL score was not reflected immediately. However, as mentioned earlier, there is nothing to show that credit rating of complainant would improve even if he commits default in repayment and thereafter bargains for and obtains a discount to close the loan and then closes it a reduced amount. Hence we are not convinced that by closure of loan, CIBIL rating of the complainant should improve automatically and that delay in effecting change in credit rating was owing to any act of omission or commission from the side of opposite parties. 

 

Next contention is with regard to filing of cheque case.  During his cross examination, complainant would depose that cheque case was filed in December 2019 whereas loan was closed in August 2018.  He would also submit that there was delay in withdrawing complaint also.  These contentions are also not tenable.  Firstly contentions taken that cheque case was filed after closure of loan are factually incorrect.  Exts.P7, P8, R4 and R5 disclose that cheque case was initially filed before JFCM (Special Court to try NI Act), Ernakulam on 13.4.2018.  Special Court had numbered the complaint as CMP 4925/18 which was subsequently taken on file as CC 9763/19 of that court and then made over to JFCM  I Ernakulam, on 22.7.2021 (advancing hearing suo moto                on 19.1.2021).  JFCM 1 Ernakulam had  adjourned the case by notification to 25.10.2021, 4.12.2021 and again to 14.12.2021.  On the adjourned date itself case was disposed of under Section 257 of CrPC upon grant of leave withdrawal of complaint.

 

          As mentioned earlier, case was filed on 13.4.2018 when loan was in default.  Even according to complainant, he had cleared his liability only in August 2018.  Court proceedings after filing of cheque case are reflected from the exhibits mentioned above.  We find no inordinate delay in seeking withdrawal of complaint from the side of opposite party.   Making over/transfer  of the case by the transferee court had consumed much time that is  from 2018 to 2019.  It was thereafter transferred / made over to JFCM I Ernakulam.  Posting was given with an interval of nearly 7 months.  There is nothing                                                                                                              (cont….6)

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to show that opposite party had sought time for filing withdrawal or for any other reason.  Hence on factual premises also the contentions will not lie.   As far as cheque bouncing case is concerned, offence is complete when the person who had issued the cheque fails to clear the liability within the grace period after receipt of statutory notice or rather after service of statutory notice.  The aggrieved person that is the holder of the cheque has no role in taking cognizance of the offence apart from filing complaint.  After cognizance is taken, it is for the Court to decide whether leave is to be granted to withdraw the complaint or not.  Complainant in a cheque case can only seek leave for withdrawal and cannot  withdraw the case by himself.  Granting leave to withdraw a criminal complaint, being within the discretion of court, complainant in this case cannot claim that the case will be withdrawn as of right after closure of loan subsequently.  No such agreement is admittedly executed between them.  Hence the said contention is not legally sustainable also. 

 

3^rd contention taken is sending of Ext.P5 post card from JFCM I Ernakulam whereby complainant was called upon  to Lok Adalath for settlement of cheque case. Handing over of post card to grocery shop owner by post man could be only upon authorization of shop owner by complainant, as he has no case otherwise. Complainant now grieves that his reputation was affected as post card was seen by public frequenting the grocery shop. These contentions do not even appear to be lawful. We would only say that ordinarily, customers of grocery shop owner will be interested only in transacting their business with him and not in post cards received or seen in his shop. That apart, we fail to understand how the opposite party would be responsible for sending of post card from JFCM I Ernakulam seeking settlement of case at National Lok Adalath.  Resultant loss of reputation, if any, could not be blamed upon opposite party. There is no deficiency in service on this count either.

 

For the reasons mentioned above, we find that complaint cannot be maintained on facts. There is no deficiency in service. Complainant is not entitled for the reliefs prayed for.

Point Nos.1 to 3 are answered accordingly.

 

Point No.4:

 

          In view of our findings mentioned above we are of the view that the complaint deserves only a dismissal.  We find no reason to withhold the costs due to opposite party

 

                                                                                                                (cont…..7)

 

 

 

 

 

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under the given circumstances.  Hence complaint is dismissed with costs of Rs.2000/- payable to opposite party by complainant.  Parties shall take back extra copies without delay.

 

                    Pronounced by this Commission on this the   5^th  day of May, 2023

 

 

   SRI. C. SURESHKUMAR, PRESIDENT

 

 

 SMT. ASAMOL P., MEMBER

 

 

SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Benny Thomas.

On the side of the Opposite Party :

DW1        -   Mahesh Krishnan.

Exhibits :

On the side of the Complainant :

Ext.P1      -   Copy of RC of the vehicle.

Ext.P2      -   Letter from Public Information Officer, RTO, Idukki.

Ext.P3      -   Statement of Account of the loan.

Ext.P4      -   Copy of legal notice issued by complainant dated 14.7.2020.

Ext.P4(a)  -   Postal receipt.

Ext.P4(b)  -  AD Card.

Ext.P5       -  Post card.

Ext.P6       -  Reply for legal notice.

Ext.P7       -  Case details from JFCM (NI Act), Ernakulam.

Ext.P8       -  Copy of complaint filed by opposite party before JFCM (Special Court to try

                   NI Act cases), Ernakulam.

On the side of the Opposite Party :

Ext.R1     -  Dishonoured cheque.

Ext.R2     -  Copy of cheque return advice.

Ext.R3     -  Copy of demand notice issued by opposite party dated 16.3.2018.

Ext.R4     -  Case details from the Court.

Ext.R5     -  Case record kept by the advocate of opposite party.

Ext.R6     -  Copy of statement of account of the loan.

Ext.R7     -  Certified copy of circular resolution passed by opposite party.