Punjab

Ludhiana

CC/15/309

Harjit Kaur - Complainant(s)

Versus

Ludhiana Central co-Operative Bank Ltd - Opp.Party(s)

Vishal tiwari Adv.

28 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 309 of 06.05.2015

Date of Decision          :   28.12.2016

 

Harjit Kaur w/o Late S.Jasbir Singh, r/o 3675/9, Model Gram Extension, Ludhiana.

….. Complainant

Versus 

M/s The Ludhiana Central Co-operative Bank Limited, Civil Lines Branch, Ludhiana through its Manager.

..…Opposite party

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Vishal Tewari, Advocate

For OP                           :       Sh.Vajinder Paul Sharma, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn of unnecessary details, the case of the complainant is that he availed financial loan for Swift VDI BS-III car bearing engine No.1169666 and Chassis No.398817 and bearing registration No.PB-10-CR-1900 under HPA/Lease Agreement from OP. 60 cheques were issued to OP including one cheque of Rs.11,525/-. 59 equated monthly installments (EMI’s) of Rs.8752/- were payable. Loan was sanctioned and thereafter, the complainant has been honouring the cheques without any default on her part. However, in the month of December 2011, OP called upon the complainant to deposit 5 installments for repayment of the loan because five cheques as were given by the complainant to OP stood lost by OP. Complainant paid amount of Rs.43,760/- to OP on 26.12.2011 vide cheque No.32008023. One cheque of Rs.11,525/- and 33 cheques of Rs.8752/-, but one cheque of Rs.43,760/- have been honoured. Complainant called upon OP for ascertaining whereabouts of the 21 cheques and got knowledge as if those cheques have been misplaced. OP has been penalizing the complainant for no fault. Complainant repaid an amount of Rs.3,44,101/- through cheques as referred above. Amount of Rs.1,83,792/- remains to be payable by the complainant to OP, but OP showing as if an amount of Rs.2,58,653/- is outstanding in the account of the complainant because of penal charges also. Complainant has been calling upon  OP time and again to hand over the remaining cheques because she is willing to pay the actual amount of Rs.1,83,792/-, but OP is adamant in claiming that an amount of Rs.2,58,653/- is due. Complainant claims to have never been at fault in paying the EMIs,  on presentation of cheque by the OP in the bank of                  the complainant. OP levelled defamatory allegations against the complainant. Earlier to complaint was filed by the complainant, which was withdrawn on 10.2.2015 due to some technical defect. Right was given to the complainant to file fresh complaint. By pleading deficiency in service on the part of OP, return of the 21 un-cleared cheques, illegally detained by the OP along with compensation for mental harassment of Rs.20,000/- and litigation expenses of Rs.5000/- claimed. Even directions sought against OP to arrange for the waiver of the illegal amount of Rs.74,861/-, as claimed by OP.

2.                In written statement filed by Op, it is pleaded interalia as if complaint is not maintainable being false and frivolous; this Forum has no jurisdiction to try such case; complainant has misstated the facts before this Forum; complaint has been filed with ulterior motive in order to avoid payment of the penal interest and for getting more time for repayment of the loan amount; this Forum has no jurisdiction to try and entertain this complaint because complainant after availing vehicle loan, committed default in making repayment of the installments. Complainant failed to adhere to the financial discipline of the bank and that is why OP issued letter dated 23.03.2015 for calling upon the complainant to deposit the balance amount. Admittedly, after availing the loan, complainant issued one cheque of Rs.11,525/- and loan amount was repayable in monthly installment of Rs.8752/-. It is denied that the complainant issued 60 cheques to OP. There is no rule, as per which, OP has to obtain advance cheques against installments in loan amount and as such, all allegations regarding issue of 60 cheques by the complainant or of misplacement of 21 cheques denied  one by one each. Admittedly, the complainant has deposited a sum of Rs.3,44,101/- as per detail given in the complaint. However, an amount of Rs.2,58,653/- is outstanding against the complainant as on 31.12.2015 and the same is duly reflected in the statement of account. Penal interest has been charged by the bank as per bank rules. Complainant cannot get benefit of her own wrong of not depositing the installments in time. Each and every other averment of the complaint denied by praying for dismissal of the complaint. Further, prayer made for imposing heavy cost on the complainant.

3                 Complainant to prove her case tendered in evidence her affidavit Ex.CA along with documents Ex.C1 to Ex.C3 and thereafter, her counsel closed the evidence.

4.                On the other hand, counsel for OP tendered in evidence affidavit Ex.RA of Sh.Kamleshwar Kaushal, Branch Manager of OP along with documents Ex.R1 & Ex.R2 and then closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                Admittedly, the car loan was availed by the complainant and payment of Rs.3,44,101/- has been made by the complainant to OP. Bone of contention remain as to whether amount of Rs.1,83,792/- outstand against the complainant or amount of Rs.2,68,653/-outstands against the complainant upto 31.12.2015. In copy     of statement of account Ex.C3, amount of Rs.2,58,653/- shown to be outstanding due towards the complainant in the vehicle loan in question upto 6.1.2015. In copy of statement of account Ex.C2 produced by the complainant, it is shown that EMIs of Rs.8752/- each were deposited by the complainant with OP until 19.6.2012 and thereafter, no amount was deposited. An amount of Rs.43,760/- was deposited by the complainant on 26.12.2011 and as such, this statement of account Ex.C2 shows that the complainant herself committed default in regular payment of EMIs because after going through copy of agreement of loan Ex.R1(Ex.R1), it is made out that contracted loan of Rs.3,90,000/- payable in five years in equal monthly installments. This agreement Ex.R1 is of date 10.10.2008 and as such, first EMI was payable w.e.f.10.11.2008. Being so, loan was repayable in entirety upto 10.11.2013. However, as referred above, EMIs upto 5.7.2012 alone paid and as such, certainly default committed by the complainant in not paying the EMIs as stipulated through loan agreement Ex.R1. Being so, submissions advanced by counsel for Op has force that OP entitled to charge penal interest. Clause 5 of loan agreement Ex.R1 specifically provides that rate of interest shall be charged @12.50% per annum and penal interest will be charged in case of default in repayment. That repayment has to be as per clause 3 of Ex.R1, but regular EMIs not paid and that is why, even as per admission of the complainant, an amount of Rs.1,83,792/- at least is outstanding against the complainant. In view of applicability of clause of charging the penal interest, the calculations made by the complainant are not true and there is nothing on record to suggest that copies of statement of loan account Ex.C2 and Ex.C3 are incorrect and as such, certainly the amounts mentioned in Ex.C3 are due from the complainant.

7.                As per Section 171 of the Indian Contract Act, 1872, Bankers has lien to retain as a security for a general balance of account, any goods bailed to them. This lien of OP as banker extends to the retention of the cheques even, so long as the outstanding loan amount is not cleared because the submitted cheques (if any) are the goods bailed by the complainant in favour of the OP. So long as lien of OP over the alleged submitted cheques is there, complainant not entitled to seek return thereof and as such, prayer made for seeking return of 21 un-cleared cheques is against the provisions of Section 171 of the Indian Contract Act, 1872.

8.                If the complainant is ready to pay the balance outstanding amount, then it must pay the same with penal interest as per stipulation contained in clause 5 of Ex.R1. Only after clearance of the loan amount, complainant can seek return of the bailed goods including cheques (if any) and as such, complaint for seeking return of the cheques is pre-mature.

9.                Therefore, as a sequel of the above discussion, we do not find any deficiency in service on the part of OP and as such, complaint dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

10.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:28.12.2016

Gurpreet Sharma.