Haryana

Karnal

487/11

Parveen S/o Surat Singh - Complainant(s)

Versus

Mahindra and Mahindra Finance Service Ltd - Opp.Party(s)

Sh. Surinder Kumar

13 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.487 of 2011

                                                             Date of instt.: 11.08.2011

                                                               Date of decision:13.07.2016

 

Parveen son of Shri Surat Singh resident of village Seedhpur tehsil Nilokheri District Karnal.

                                                                   ……..Complainant.

                                      Vs.

1. M/s Mahindra & Mahindra Financial Services Ltd. 2^nd floor, Sadhana House, 570, P.B. Marg, Worli, Mumbai.

2. M/s Mahindra & Mahindra Financial Services Ltd. Near Bansal Motor, opposite Truck Union, NH-1, G.T. Road, near Namastey Chowk, Karnal.

 

                                                                             ………… Opposite Parties.

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri Surender Kumar Advocate for complainant.

                    Shri Vineet Rathore Advocate for opposite parties.

                    

                    

 ORDER:

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he purchased one Maruti Alto Car bearing registration no.HR55-2144 from Karnal motors, Karnal, on 30.5.2006 and got financed the same from the opposite parties. The loan was to be paid in 33 equal installments of Rs.7150/- each. He paid all the due installments to the opposite parties. After making payment of all the installments he asked the opposite parties to issue “No Dues Certificate” but the opposite party no.2 did not pay any heed to his request and postponed the matter on one pretext or the other. Ultimately, he got served legal notice dated 10.2.2011 upon the opposite parties, but the same also did not yield any result. Such conduct on the part of the opposite parties amounted to deficiency in service due to which he suffered mental pain, agony and harassment.

2.                Notice of the complaint was given to opposite parties, who appeared and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant does not fall within the purview of definition of consumer; that the complaint is not legally maintainable in the present form; that the complaint is false, frivolous and abuse of process of law; that this Forum has no jurisdiction to entertain and decide the complaint and that the complaint is not within limitation.

                    On merits, it has been submitted that a loan of Rs.2,05,000/- was advanced to the complainant for purchasing the car. The said loan was to be repaid in 35 equal monthly installments of Rs.7131/-each. The first installment was due on 30.5.2006 and the last due date for paying the installment was agreed to be 30.5.2009. The complainant also availed another loan of Rs.3,00,000/- vide agreement no.651946 dated 30.06.2007 for purchase of Tata Indica V2 car. He was required to pay the said loan in 46 monthly installments of Rs.8740/- each. The repayment track of the complainant never remained disciplined and most of the EMI’s were not paid on due date. He became willful defaulter and the loan amount became Non Performing Asset (NPA). Therefore, the opposite parties were within their rights not to issue the “No Objection Certificate” as per clause 21 of the Agreement, Provisions of Section 171 of Contract Act and General Lien of Banker’s. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2  to C37 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of Pankaj Rana Ex.OP1/A and documents Ex.OP1 to OP7 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                As per the case of the complainant he obtained loan from the opposite parties for purchasing the Maruti Alto Car and the entire loan amount was deposited by him by way of installments, but the opposite parties refused to issue the “No Objection Certificate”.

7.                On the other hand, the opposite parties have submitted that the complainant has availed two loan facilities one under agreement no.452458 for purchasing the Maruti Alto car and other vide agreement no.651946 for purchasing the Tata Indica V2 car. He had not paid the installments in respect of loan relating to agreement no.651946 and became defaulter and his loan account became Non-Performing Asset. Therefore, “No Objection Certificate” was not issued.

 8.               Learned counsel for the opposite parties laid stress on the contention that the complainant became a defaulter and his loan account in respect of agreement no.651946 became Non-Performing Asset. The opposite parties were within their right not to issue the “No Objection Certificate” in respect of the loan agreement no.452458 as per provisions of Section 171 of Contract Act and General Lien of Banker’s. In support of his contention he placed reliance upon M.Mallika Versus State bank of India and Anr. 2006 (4) CPJ 1, Narayan Pradhan Versus Syndicate Bank 2009(1) CPJ 227, Daljit Singh Rajput and Anr. Versus ICICI Bank Limited and Anr. 2009(1) CLT 603 and State Bank of Patiala Versus Narinder Pal Singh 2012(1) CPJ 352

9.                In M.Mallika’ case (supra)the complainant were partners or guarantors of loans granted to other concern and huge sums were due against them as guarantors. State Bank of India refused to deliver the documents/title deeds of mortgage properties on that account. Under those circumstances, relying upon the judgment of Hon’ble Supreme Court in case Syndicate Bank Versus Vijaya Kumar, (1992) 2 SCC 330 it was held that the bank was absolutely justified in feeling inhibited in returning the documents/title deeds as the bank was entitled to exercise its right of general lien under Section 171 of Contract Act. In Narayan Pradhan’s case (supra) the complainant was in debt and there was outstanding amount towards the loan incurred by him. Syndicate Bank withheld and set off the money in the pigmy deposit scheme of the complainant towards the said loan outstanding. It was held by Hon’ble Orissa State Consumer Disputes Redressal Commission Cuttack that by setting off the money in the pigmy deposit scheme towards the outstanding loan amount of the complainant could not be termed as deficiency in service on the part of the bank. In Daljit Singh Rajput’s case (supra) the complainant had deposited an amount of Rs.45000/-on 18.10.2008 in his savings bank account. He went to the ATM machine on 19.1.2008 to withdraw the amount, but found that the said amount had not been credited to his account and machine did not release the same to him due to insufficient funds, because the Bank had transferred the amount deposited by him to the credit card account. The bank had given notice for payment of the amount and it was clarified that the complainant should pay the amount of credit card due otherwise bank would be constrained to exercise right of lien and set off in conformity with the terms and conditions of credit card facility. Under those circumstances, it was held by Hon’ble State Consumer Disputes Redressal Commission Union Territory Chandigarh that there was no illegality on the part of the bank if the amount due to the bank in credit card was adjusted by transferring from saving bank account.  In  Narinder Pal Singh’s case (supra) over draft facility was taken by the complainant by pledging LIC policy. When the liability on overdraft account was liquidated, release of LIC policy was requested, which was denied by State Bank of Patiala on the ground of General Lien under section 171 of the Contract Act. It was held by Hon’ble National Commission that bank had General Lien over all forms of securities deposited by or on behalf of customer in ordinary course of banking business. It is valuable right of the banker and judicially recognized, in the absence of any agreement to the contrary. The LIC policy pledged in over draft could be retained as security for adjusting outstanding amount in cash credit account, as there was no contract to the contrary and right of General Lien could be exercised by the bank.

10.              In the instant case, the opposite parties have produced the copies of the statements of accounts regarding contract numbers 452458 and 651946 Ex.OP3 and Ex.OP4 respectively. Contract/Agreement no.452458 related financing of Maruti Alto Car and Contract/Agreement no.651946 was in respect of Tata Indica V2 car. The copy of agreement Ex.OP1 also indicates that the complainant availed loan facility of Rs.3,00,000/-, vide agreement no.651946 for purchasing Tata Indica V2 car and as per the schedule of the agreement dated  30.6.2007 the loan amount was to be repaid in 46 monthly installments of Rs.8740/-each. Thus, it is emphatically clear that the complainant had availed two loan facilities from the opposite parties, one for purchasing Maruti Alto Car and the other for purchasing Tata Indica V2 car. This fact could not be disputed by the learned counsel for the complainant during the course of arguments. The complainant has not rebutted the evidence of the opposite parties that he became defaulter in respect of loan agreement no.651946 and the loan account became Non-Performing Asset. Under such a situation, the opposite parties were certainly within their rights to exercise General Lien and not to issue “No Objection Certificate” to the complainant despite the fact that the amount of loan in respect of agreement no.452458 regarding purchase of Maruti Alto Car was repaid by him. The proposition of law laid down in the aforediscussed authorities relied upon by the learned counsel for the opposite parties is fully applicable to the facts of the present case. Consequently, the act of the opposite parties not issuing “No Objection Certificate” to the complainant despite repayment of the loan availed by him for purchasing Maruti Alto Car, cannot be termed as deficiency in service.

1.                As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 13.07.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member