Haryana

Ambala

CC/15/2022

Sh Naresh Kumar - Complainant(s)

Versus

Mahindra & Mahindra Financial Services Ltd - Opp.Party(s)

In Person

03 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	15 of 2022
Date of Institution	:	10.01.2022
Date of decision	:	03.10.2023

 

Sh. Naresh Kumar aged 60 years s/o Sh. Raj Kumar r/o village Durana, Tehsil and District Ambala.

……. Complainant

                                                Versus

Mahindra & Mahindra Financial Services Ltd., 2nd Floor, Sudarshan Towers, Above Indian Overseas Bank, Cross Road No.1, Ambala Cantt - 133001

….…. Opposite Party

Before:         Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member.

 

Present:-     Shri Prem Sagar Sharma, Advocate, counsel for the complainant.                                                                                                                     Shri Puneet Sirpaul, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To issue NOC/No Dues Certificate to the complainant in respect of hypothecation of Tractor No. HR01-AR-7574;
2. To pay Rs.20,000/- as compensation on account of deficiency in service and causing mental pain, agony and harassment to the complainant.
3. To pay Rs.10,000/- as litigation expenses.                                                                                                                                                                                                   OR                                                                                                                                                                  Grant any other directions which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant is a farmer and to purchase tractor for cultivation, which is the only source of income of his livelihood and his family, he got financed Tractor No. HR01-AR-7574 from the OP on 28-10-2017. At the time of financing Tractor of complainant, the OP obtained advance cheques of all the installments, processing fees etc. All the cheques given by the complainant against the installments were duly encashed by the OP without any default and as such the whole of the financed amount stood received by the OP along with interest. However, when the complainant asked the OP for release of NOC/No Dues Certificate in his favour, the officials of the OP demanded more amount and ultimately, refused to issue NOC/NDC.  When all efforts of the complainant went in vain, he got served a legal notice dated 09-08-2021 upon the OP to issue the NOC/ NO Dues certificate but to no avail.  Hence, the present complaint.
3.           Upon notice, the OP appeared and filed written version and raised preliminary objections to the effect that this Commission did not vest with territorial jurisdiction to entertain the present complaint; the relationship between the complainant and the OP is pursuant to the contract entered into between the parties; the  complaint is not maintainable;  as per clause of the agreement entered into between the parties hereto; all disputes, differences, claims and questions whatsoever arising out of this agreement shall be referred to the sole arbitrator; the present complaint is baseless and fragrant abuse of process of law; the complainant has not approached with clean hands etc. On merits, it has been stated the complainant had availed loan from the OP and signed the agreement after understanding all the terms and conditions. An amount of Rs.4,50,000/- was released to him, which was repayable in eight half yearly installments. The complainant was a willful defaulter from the very beginning and did not pay the installments in time and an amount of Rs.8756 is still pending against the complainant as delay charges and as such, in the absence of payment of the said amount, the question of issuing of NOC does not arise at all. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with cost.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure C-A, alongwith documents as Annexure C-1 to C-5 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP tendered affidavit of Azad Kumar, POA, Mahindra and Mahindra Bank, Ambala as Annexure RW1/A alongwith documents Annexure R-1 and R-2 and closed the evidence on behalf of the OP.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by not providing NOC/NDC despite the fact that the entire loan amount stood repaid by the complainant to the OP, the OP is deficient in providing service. 
7.           On the other hand, learned counsel for the OP submitted that the complainant was a willful defaulter from the very beginning and did not pay the installments in time and an amount of Rs.8756 is still pending against the complainant as delay charges and as such, in the absence of payment of the said amount, the question of issuing of NOC does not arise at all.    
8.           The first question that falls for consideration is as to whether this Commission has territorial jurisdiction to entertain and decide this complaint? It may be stated here that since the complainant is a resident of Ambala, which falls under the territorial jurisdiction of this Commission as such, this Commission has territorial jurisdiction to decide this complaint in view of Section 34 (2) (d) of CPA 2019 and therefore, objection taken by the OPs in this regard is rejected.
9.           Coming to the objection taken by the OPs  with regard to Arbitration, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
10.           The next question which falls for determination in this case is, as to whether, the complainant is liable to pay any more amount to the OP to get the NOC/NDC in respect of the loan account or not?. It is coming out from the record i.e. from repayment summary dated 28.10.2017, Annexure R-2 that the complainant had availed loan amount of Rs.4,50,000/- from the OP against the tractor in question, which was repayable in 8 installments of Rs.77,200/- starting from December 2017 to June 2021. It is also clearly coming out from the document Annexure R-2 that though the complainant had repaid the entire 8 installments of Rs.77,200/- starting from December 2017 to June 2021, yet, some installments were paid after some delay, as reflected in documents Annexure R-2 as a result of which, delayed interest was levied to the tune of Rs.8756/-. In its written version and during arguments also, it has been contended by the OP, through its counsel, that since there was delay in making payment of the installments qua the loan account in question, therefore, complainant was liable to pay interest of Rs.8756/-. It may be stated here that complainant has not raised any objection regarding levying of interest of Rs.8756/- for the delay, as reflected in document, Annexure R-2, by way of filing rejoinder or otherwise. Under these circumstances, when it is clearly coming out from the record that there were some defaults on the part of the complainant while repaying the said loan installments, therefore he cannot wriggle out from the liability of paying delayed interest on the same. Thus, if the OP did not issue the NOC/NDC in respect of the vehicle in question, in the absence of receipt of amount of Rs.8756/-, it cannot be said that the OP is deficient in providing service.
11.           In view of the aforesaid discussion, we hereby dismiss the present complaint being devoid of merits. However, complainant is at liberty to obtain the NOC/NDC, in respect of the vehicle in question from the OP, on making payment of Rs.8,756/-, to the OP. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.