SRI BIJOY KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of Nomissuance of No Due Certificate and demand of illegal loan outstandings are the allegations arrayed against the Opp. Parties.
2. Complaint, in brief reveals that, Complainant to maintain his livelihood purchased a Tractor by availing a finance of Rs. 4,56,423/- from the Op- Kotak Mahindra Bank by executing an agreement on dt. 14/11/2014. As per the agreement, it was agreed between the parties that the complainant-loanee has to pay a total amount of Rs. 6,35,910/- as loan outstandings dues and the dues are to be cleared within 05/12/2014 to 5/10/2018 with 47 monthly installment @ Rs.13,530/- as monthly EMIs. It is also alleged that to clearup the loan dues and to avail the NOC complainant went to the branch office of Op-Bank and on the advise of the Op-Bank deposited Rs. 1,08,240/- on March-2018 as final payment of the loan outstandings. It is further alleged that on March-2019, complainant came to know from the statement of loan account that, Op-Bank has already received Rs. 7,84,750/- by violating the terms and condition of the agreement and Op-Bank has committed Unfair Trade Practice by accepting an illegal excess amount of Rs. 1,48,840/-. The cause of action of the instant case arose on different dates and lastly on 15/04/2019 when the staffs of the Op-Bank came to the house of the complainant and demanded illegal amount and threatened to seize the vehicle. In the complaint it is prayed that a direction may be given to Op-Bank to refund the excess payment loan amount of Rs. 1,48,840/- and to issue the NOC against the financed vehicle bearing No. OD-29-A-7556 with a further direction to not to seize the vehicle and to pay compensation of Rs. 50,000/- for mental agony and deficiency in service.
3. Upon receipt of Notice Op-Kotak Mahindra Bank Ltd (OPNo.1 to 3) appeared through their Ld.Counsel and filed written version denying the allegation of the complainant and challenge the maintainability of the complaint. Op-Bank submitting the facts it is averred that, Complainant-loanee has not followed the loan Agreement and not paid the EMIs in schedule time during the existence of the Agreement.Complainant has to pay an amount of Rs. 74,003/- as on 18/05/2019 to clearup his loan dues. It is also averred that, when complainant-loanee failed to pay the loan dues the Op-Bank has constrained to sent his agents. The Op-Bank further averred that no deficiency is service or Unfair Trade Practice has been committed and Complainant-loanee to get rid of the loan dues has foisted this false case, which is to e rejected with cost.
4. Heard the Ld. Counsels appearing for the parties. Perused the documents filed into the dispute. Copy of the loan agreement, statement of loan Account, loan schedule, payment receipt dtd. 17/12/2014 are the part of the case record. The Op-Bank challenge the maintainability of the complaint on grounds of territorial Jurisdiction, clause of Arbitration in the agreement and complainant does not fall within the ambit of Sec.2(d)(o) of C.P.Act 1986. On the otherhand, the complainant’s case is that as the agent of the Op-Bank collect the EMI’s and threatened the resposses the vehicle of the complainant at his residence, which is a part of the cause of action arose within the local limits of the Forum. It is an admitted fact that Op-Bank has sent their Agent to the complainant’s residence for certain purpose and according to us same is a part of the cause of action which arises within the territorial jurisdiction of this Forum. Also on point of ‘Arbitration clause’ the position of law is quite clear, U/S 3 of C.P.Act-1986 the complaint is maintainable inspite the clause of ‘Arbitration’ and the financing Agency i.e, the Op-Bank covers under definition of ‘service’. Hence, on question of maintainability of the complainant as raised by the Op-Bank is not sustainable and complaint is maintainable before this Forum.
The Only dispute between the parties on the present proceeding relates to final payment of loan outstandings and issuance of NOC in favour of the complainant-loanee. It is the case of the Complainant that as per the loan agreement he has to pay a total amount of Rs. 6,35,910/- to clear the loan dues, but Op-Bank has collected an excess amount of Rs. 1,48,840/-. Countering the allegations Op-Bank submit that as the complainant-loanee was not paying the loan dues on schedule time by violating the agreement, the excess amount has been collected from the complainant-loanee and as per the agreement complainant has to pay Rs. 74,003/- towards delayed payment surcharge, overdues and etc. We gone through the agreement and loan schedule, and statement of loan account, the loan schedule discloses that the said loan has to repaid within Dec-2014 to October-2018 with a monthly EMI’s of Rs. 13,530/-. The loan statement reveals that overdues charges has been imposed as per the agreement on non-payment of EMI’s on schedule time and dishonor of cheques. Hence, an amount of Rs. 74,003/- remains as outstanding dues on the complainant-loanee upto 18.05.2019 as revealed from the written version of Op-Bank. In our opinion, as per Clause-2.7 of the loan agreement the borrower is liable to pay collection charge of an amount equivalent to 1/3rd of the overdue interest and cheque dishnoured charge. The written version of the Op-Bank is silent on this aspect of the clause of the agreement, and only averred that Rs. 74,003/- is pending as overdue and other charges on loanee. Equally it is not disclosed that, the previous overdues or other charges imposed on the complainant adhers the clause or not? However, as per the version of the Op-Bank complainant has to pay Rs. 74,003/- upto 5/2019 to clearup the loan dues. Further, in our opinion no dues can be imposed on the complainant-loanee after filing of the present complaint. As we have observed earlier as per the agreement complainant-loancee is liable to pay 1/3rd of the total remaining overdues and other charges, which comes into Rs. 24,666/-. In the context of the clause of the Agreement the parties entered into the dispute should not suffer. We think it proper, if the complainant-loanee pays an amount of Rs. 20,000/-(Rs. twenty thousand only) it will solve the purpose of the parties.
Having observations reflected above, it is directed that, complainant-loanee shall pay an amount of Rs. 20,000/-(Twenty thousand) to OpNo.2 Bank and within one month of receipt of the amount the Op-bank shall issue No Due Certificate in favour of the complainant-loanee. Delay on complying the order will invite proceeding under the provisions of C.P.Act-1986.
Complaint is allowed in part on contest without any cost.
Pronounced in the open Court, this 28th day of August-2019.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
