Complaints filed on: 19-02-2024

                                                      Disposed on: 09-08-2024

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

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DATED THIS THE   9^th DAY OF AUGUST, 2024

::P R E S E N T::

   SMT.G.T.VIJAYALAKSHMI, B.Com, L.L.M, ….....PRESIDENT         

  SMT.NIVEDITA RAVISH, B.A., L.L.B. (Spl).,.. .LADY MEMBER

CONSUMER COMPLAINT No. 28/2024

       Sri. Venkatesh K.S,   

       S/o. Sannanarasaiah,  

       Aged about 46 years,

       Adalagere Village and Post,

       Nitturu Hobli, Gubbi Taluk,

       Tumkuru District.  

……….Complainant

      (Sri. T.Govindaraju, Advocate.,)

V/s

The Manager,

TATA Motors Finance Ltd,

S.S.Puram Main Road, 1^st Main Road,

Near Bapuji Nursing Home,

Tumkuru District.

        (Opposite Party Smt.Meenakumari, T.E, Advocate.)

                                              ::O R D E R ::

SMT.NIVEDITA RAVISH, LADY MEMBER

          This complaint filed by the complainant Under Section 35 of Consumer Protection Act, 2019 against the opposite party (herein after called as OP) to direct them to issue No Objection Certificate pertaining to loan obtained by the complainant, to provide related documents and to pay Rs.2,15,000-00 towards damages/compensation.

2.       It is the case of the complainant that, the complainant has obtained the loan of Rs.3,48,448-00 (Three Lakhs Forty Eight Thousand Four Forty Eight only) from the OP to purchase vehicle, TATA AC GOLD Reg No.KA-06-AA-9473 THROUGH Prerana Motors Co Ltd. The OP has provided/released the loan on 02-04-2020 in loan account No.5003371753 in 35 installments as Rs.10,720-00 per installment up to 02-02-2023. The complainant has paid all installments without fail.     The OP has collected extra amount of Rs.965-00 towards stamp charges, Rs.6,545-00 for insurance, Rs.4,340-00 for document charges and Rs.3,897-00 for health improvement/insurance. Though the OP has collected extra amount. The OP has been asking the complainant to pay sum more amounts towards loan. Though after paying all installments towards the loan the OP has not issued to No Objection Certificate

 (NOC) towards the above said loan, nor provided documents to related to the vehicle. Though complainant got issued legal notice on               19-05-2023, the OP has not complied and replied that, the complainant should pay legal and other charges to the OP. Hence, this complaint.

3.   After issuing of notice by this Commission, the OP has appeared before this Commission through their counsel and filed version.  

4.   In the version, the OP has submitted that the complainant has suppressed the true material facts and complaint is not maintainable. Further OP is submitted that Consumer Commissions have not jurisdiction with the cases with nature of accounts. Further admitted that, the complainant entered into hypothecation agreement for purchase vehicle and availed loan of Rs.3,64,195-00 with repayable amount of Rs.3,97,957-00 on 29-02-2020 with agreement/contract No.5003371753 out of contractual amount of Rs.3,97,957-00, the complainant has paid total amount of Rs.3,73,258-00 in 42 availed installments. But there is overdue amount of Rs.35,055-63 is due as on 22-03-2024.  Though after issued loan recalling notice dated 21^st August 2023, the complainant showed ignorance and willfully became a defaulter and aggrieved by the

act of the complainant, the OP issued a reference letter dated               29-08-2023 to the Sole Arbitrator for adjudication of the dispute. But complainant has not appeared before Sole Arbitrator and remained           ex-parte and Sole Arbitrator passed an award dated:31-10-2023             by allowing the claim of the OP. Further OP has submitted that, in view of the award passed by the Sole Arbitrator, this Hon’ble Commission will be precluded from exercising its jurisdiction in the matter as it is based under Res Judicata, and hence the present complaint is not maintainable. Hence prays for dismiss the complaint with cost and compensatory cost.

5.  The complainant has filed his affidavit evidence with 47 (forty seventeen) documents which are marked as Ex.C-1 to Ex.C-47.           One Shri. Shanmukappa Pujari , Manager, Legal of the OP has filed his affidavit evidence on behalf of OP with four documents, which are marked as Ex.R-1 to Ex.R-4.

6.       We have heard the arguments of both counsels with written arguments filed by the OP and points would arise for determination as follows:

1. Whether the complainant proves deficiency in service on the part of OP?

2. Is complainant is entitled to the relief sought for?

7.        Our findings on the aforesaid points are as under:

Point No.1: In the  Negative,   

Point No.2: As per final order for the below

:R E A S O N S:

 Point No.1 &2 :-

8.   The counsel for the complainant has argued that, the complainant availed loan from OP through Prerana Motors Company Ltd to    purchase vehicle TATA AC GOLD Reg.No.KA-06-AA-9473 and availed the loan of Rs.3,48,448-00 on interest of 0.99 paise under katha No.5003371753. The loan is payable in to 35 installments from 2-4-2020 to 2-2-2023 by paying Rs.10,720-00 per installment. Ex.C-5/copy of Release order produced by the complainant explaining as contract No.0000005003371753, RO dated:29-02-2020, Model No.ACE GOLD CACE GOLD), amount payable by us Rs.3,48,448-00.                    Further Ex.C-11/copy of contract details and repayment schedule dated:2-6-2020 reflecting that, No of installment  as  35 installment.    The counsel for the complainant argued that the complainant has paid totally 35 installment s without fail and totally paid Rs.35 x 10,720-00    = 3,75,200-00. To prove the same the complainant has produced      Ex.C-15 to Ex.C-47/copies of receipt of the paid installments. Further counsel for the complainant has argued that, OP has collected Rs.965-00

 for stamp charges Rs.6,545-00 for insurance, Rs.4,340-00 for  document charges and Rs.3,897-00 for health and wellness  from complainant. The complainant produced the Ex.C-5 to prove the same, but it is letter written by OP to the Prerana Motors. The complainant has not produced any receipts for the above said amounts collected by the OP. Further counsel for the complainant submitted that, though after paying the all installment of the loan the OP has not issued No Objection Certificate as per request of the complainant and the complainant got issued legal notice  on 19-05-2023. Ex.C-2/copy of the legal notice and postal receipt establishing the same. Further  counsel for the complainant has argued that, the OP has replied to the legal notice on 28-10-2023 as there is due of legal  and other charges payable by the complainant. To prove the same the complainant has produced the Ex.C-3/copy of reply notice issued by the OP dated:28-10-2023.

9.    Per contra, the counsel for the OP has argued that, the complaint which involve with accountability is not maintainable before the Consumer Commissions and to prove the same, the counsel for OP relied upon the citations of the Hon’ble National Commission in Ashoka Layland  Finance  Ltd,  V/s. Himanshu  S Thumar II (2005) CPJ 491.  

But facts and circumstances of the above citation is different from the present case. The Hon’ble Supreme Court of India, New Delhi, in Civil Appeal No.5204-5205 of 2022 (arising out of SLP (C) No.29765-29766 of 2019) Arun Bhatiya V/s. HDFC Bank and others, dated: August 8^th 2022, it is held that, “a person who avails of any service any bank will call under the per view of the definition of the ‘Consumer’ under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act”. In the present case, the OP has operates under the control of RBI which is doing or the lending activities. Also, Sec. 2 (42) of the Consumer Protection Act at 2019 clearly mentioned that, banking, financing comes under the “Service”.  Hence it is considered that the present complaint is maintainable before the Consumer Commissions.

10.    Further counsel for  OP has argued that,  whereas  admittedly the complainant entered into hypothecation agreement for the purchase of the commercial vehicle and availed the loan  of Rs.3,64,195-00 with a repayable amount of Rs.3,97,957-00 which includes finance amount Rs.3,64,195-00 and finance charges of Rs.33,762-00 on 29-02-2020. Ex.R-3/copy of contract details produced by the OP reflecting the same.  Further  counsel for the OP has argued  that, out of contractual amount of

 Rs.3,97,957-00 the complainant has paid total amount of Rs.3,73,258-00 in 42 availed installments. But there is overdue amount of Rs.35,055-63  as on 22-03-2024. To prove  the same OP has produced  Ex.R-3/copy of the account statement  dated 22-03-2024 which is the annexure of    Ex.R-3  reflecting  that, there is balance of Rs.24,694-62 in contract value (sub total), legal expenses of Rs.3,357-10, overdue charges     (ODC charges) Rs.6074-00, Retainer charges Rs.929.84 and totally Rs.35,055-63 is payable balance. Further counsel for the OP has argued that, when the complainant default in paying contractual amount the OP has issued loan recall notice on 21-08-2023. But complainant showed his ignorance and willfully became defaulter and aggrieved by this, the OP has issued reference letter dated:29-08-2023 to Sole Arbitrator DEEPA V GURAV. Further the Arbitration proceedings case No.TMFSL/9/438 of 2023 proceeded. But the complainant has not represent the case and Sole Arbitrator passed the award dated:31-10-2023, Claim of the claimant Company for Rs.25,536.77 allowed and also grant a sum of Rs.7,000-00 towards claim of the legal proceedings. To prove the same OP has produced the Ex.R-4/certified copy of Arbitration Award dated:31-10-2022. Further counsel for OP has contended that, in view of the award issued by Sole Arbitrator, this Hon’ble Commission will be

precluded from exercising its jurisdiction in the matter as it is barred and Res Judicata. To establish the same, the OP counsel  has relied upon the judgment passed  by Hon’ble National Consumer Commission,          New Delhi, in installment supply Limited- V/s. Kangra Ex-Service man Transport Co & another reported in (2007) I CPJ 34, and M/s. Megma Fincorp Limited  V/s. Gulzar Ali  reported  in (2016) 2 CPJ 231. But Hon’ble Supreem Court of India in Civil Appeal No. 6500-6501 of 2023 (Arising out of Slp ( c) No 4849-4850 of 2023) Smt. M.Hemalatha Devi and Others, V/x. Udayslr, it is held  that, “the Sole Arbitrator don’t have the jurisdiction on the Consumer Disputes which is not arbitrable. The proceedings before the Sole Arbitrator would  not stop the complainant to approach  the Consumer Commission even though the case was first filed for arbitration  by the opposite party”.  Hence we have considered that, the present case is not barred by the  Res Judicata. Further counsel for the OP has argued that, when there is due of Rs.35,055.63 as on      22-03-2024 then without recovery the same amount the question does not arise to issue the NOC to the complainant.

11.   We have go through the Ex.C-12/copy of repayment schedule which is reflecting that there is 35 installments from 02-04-2020 to            02-02-2023. Further  we have compared the Ex.C-15 to Ex.C-47 receipts

of the paid amount. The Ex.C-15 reflecting that the complainant was paid amount on 2-7-2020. The complainant has failed to produced receipts of installments of 2-4-2020 and 2-5-2020. As per Ex.C-11 and Ex.C-12 the due  date to pay installment is 2^nd of every month, but as per Ex.C-22,   C-26, C-27, C-31, C-32, C-34, C-37, C-38, C-40, C-41, C-43, the complainant paid amount with delay of 2,1,13,2,3,1,2,2,2,1 and 1 days respectively. Therefore when the complainant paid installment with delay, it carries interest with principal amount. Ex.R-3/copy of contract details produced by the OP has reflecting contract change history, which is tenure of installments as 42 as per amendment category. Point clause No.23 of Ex.R-2/copy of Loan-cum-Hypothication-Gurantee Agreement explaining about amendment and  point  No.25 of Ex.R-2 explaining about  Records of Loan.  When the complainant agreed with the terms and conditions  of the loan, then he should bound by the same. As per annexure of Ex.R-2 the contract value is Rs.3,97,957-00 and the total amount paid as per Ex.C-15 to  C-47 is calculated as Rs.3,75,320-00. Therefore it is considered that there is due still to pay towards the loan and without paying the due amount, the complainant has not eligible to get the NOC from the OP. Hence we do not find any deficiency of service  on the part of the OP in not issuing the NOC  to the complainant.

Hence the complaint is liable to be dismissed.  Further it is the duty of the OP to issue the NOC after receiving the due amount from the complainant. Accordingly, we proceed to pass the following:-  

                                                 :O R D E R:

The complaint filed by the complainant is dismissed without cost.