DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 31st day of March 2012
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing : 28/10/2011
(C.C.No.179/2011)
P.Yusaf,
S/o.Late Hamsakutty,
Pallath House,
Mappattukara,
Kulukallur,
Palakkad - Complainant
(By Adv.K.P.Nouphal)
V/s
Manager,
Indusland Bank,
Chandranagar,
Palakkad - Opposite parties
(By Adv.R.Manikandan)
O R D E R
By Smt.BHANUMATHI.A.K. MEMBER
Facts of the complaint is as follows:
The complainant availed a loan of Rs.6,80,000/- for purchase of a bus KL-52-2733 for his livelihood. The total amount payable by the complainant was Rs.9,01,716/- including interest of the loan amount & insurance charge of the vehicle. But the complainant has paid a total amount of Rs.9,16,458/- to opposite party. On 24/2/10 the complainant approached Edappalli office of the bank for NOC. But he was informed by the bank that the cheque issued by the complainant to the SBT Cherpulacheri has not been passed. But the bank has not return the cheque. On enquiry the complainant understood that the cheque was cleared. The bank has added additional interest during the period when cheque was issued and the complainant was asked to pay an amount of Rs.1,60,000/- Then it was reduced to Rs.1,20,000/-
The complainant sold the vehicle to 3rd party on 15/7/10 for an amount of Rs.16,75,000/-. So the complainant requested for NOC. But the opposite party refused to give the same. Since he was not able to give NOC the purchaser returned the vehicle and he is not able to sell it for the earlier value. Now it is asked for Rs.13,00,000/-. So the complainant sustained a loss of Rs.3,75,000/- Complainant requested a certificate for renewing the permit and that was not given by the opposite party and he would have sustained a loss of Rs.20,000/-.
The above said acts of the opposite party amounts to deficiency of service and caused physical hardships and mental agony to the complainant. So the complainant seeking an order directing the opposite party to pay an amount of Rs.4,00,000/- alongwith interest.
Opposite party entered appearance and filed version denying the allegations put forward by the complainant. Opposite party admits that the complainant had availed a loan of Rs.6,80,000/- for purchase of vehicle KL-52-2733 and executed a loan agreement on 31/7/2006. The complainant had agreed to repay the loan amount with interest of Rs.1,57,216/- on EMI for a period of 48 months on or before 21st day of every month. The complainant had also agreed to remit the insurance charge of the vehicle which comes to Rs.64,500/-. The total amount payable by the complainant is Rs.9,01,716/- This loan agreement stipulates that the complainant is bound to pay additional interest charges for delayed or defaulted installment. Payment at the rate of 36% per annum. The complainant was not prompt in making payments. The EMIs were remitted with much delay and remitted in accrual of the additional interest charges in the loan account. As per the repayment schedule in the agreement the complainant has to remit insurance charges along with the 11th, 23rd and 35th installments. But the complainant has failed to remit the insurance amount. Hence the bank has paid the insurance premium of the vehicle on behalf of the complainant. The complainant had renewed the insurance premium only in one occasion and the same is reflected in the credit column of the loan account statement.
As on 8/8/11 a total amount of Rs.1,18,333/- was still outstanding in the loan account of the petitioner. Unless the entire dues outstanding is paid by the borrower. The bank can not be able to issue the NOC for cancellation of hypothecation.
The complainant filed a complaint before the Hon’ble Banking Ombudsman alleging the above mentioned incidents. Opposite party has filed detailed reply before the Ombudsman and Ombudsman closed the complaint.
The opposite party had no knowledge regarding the sale of the vehicle by the petitioner to the 3rd party. As per the loan agreement transferring of the vehicle without the consent of the Bank is illegal.
Another contention of the opposite party is that the loan agreement contains an arbitration clause if there is any disputes with the bank has to be referred to Arbitration and the award of the Arbitration shall be final and binding on all parties. In this issue arbitration process are initiated and it is pending.
On 14/9/11 the complainant paid an amount of Rs.60,000/- towards full and final settlement of his loan account and opposite party issued NOC dated 18/10/11 infavour of the complainant. There is no deficiency of service on the part of opposite party, complaint is liable to be dismissed with cost of the opposite party.
Both parties filed their respective affidavits and Ext.A1 – A3 marked on the side of the complainant. Ext.B1 – B5 marked on the side of the opposite party.
Heard both parties.
Issues to be considered are
1. Whether the complaint is maintainable before the Forum ?
2. Whether there is any deficiency in service on the part of opposite party ?
3. If so, what is the relief and cost ?
Issue No.1
The counsel for the opposite party put forwarded a definite contention that the present complaint is not maintainable before the Forum as the arbitration proceedings were pending as per the loan agreement clause. As the Section 3 of the Consumer Protection Act 1986 promotes that the remedies available are in addition to the provisions of any other law. The National Commission in Rohit Bajaj Vs. ICICI Bank Ltd. and Others, II 2008 271 (NC) has held that such clauses in the printed form standardized agreements does not reflect the agreement of the consumer. So the present complaint is maintainable before the Forum.
Issue No. 2 & 3
The complainant had availed a loan of Rs.6,80,000/- from opposite party on 3/8/06 for purchase of a vehicle for his livelihood. The complainant has to repay with interest of Rs.1,57,216/- on equated monthly installments for a period of 48 months. As per B4 document the last installment due date is 21/7/10. In addition to the above said amount of Rs.8,37,216/-, the complainant has to pay an amount Rs.64,500/- as insurance charges. According to the complainant all the insurance charges are paid by the complainant himself. No evidence produced to show the same. But the opposite party says that the complainant has not paid the insurance charge except one time. The other 2 installments of insurance charges were paid by opposite party. But the opposite party has not produced to prove the contention. As a bank which is run by specific rules and regulations there will be sufficient documents for their every action. But they have not produced the same.
The opposite party contents that the complainant was not prompt in making the installments payments in the due dates as stipulated in the agreement. The delay in remitting installment payments were resulted in accrual of the additional interest charges in the loan account. Complainant produced all cash receipts which is marked as Ext.A1 series as on 23/7/10 the complainant paid Rs.8,03,958/- in cash and Rs.52,500/- as 3 bank cheques. As per A2 document, which is the account statement of SBT, 3 cheques of Rs.17,500/- each was passed. Thus a total amount of Rs.8,56,458/- has been paid by the complainant as on date of 23/7/11. In fact the loan amount with interest the complainant has to pay Rs.8,37,216/- . That is the complainant paid an amount of Rs.19,242/- in excess to the opposite party bank. There after the complainant demanded for NOC. But the opposite party did not issue NOC and demanded Rs.60,000/- more. Only after the payment of Rs.60,000/- dated 14/9/11 the opposite party issued NOC to the complainant on 18/10/11.
On comparing the schedule of payment (B4) and the cash receipts (A1 series) it is true that there are some days delay in payment. The excess amount of Rs.19,242/- can be considered as the penal interest for the delay in payments. So it can be see that the amount of Rs.60,000/- paid by the complainant on the demand of opposite party is excess and the opposite party is liable to return the same to the complainant. Even after remitting the whole amount the opposite party made delay in issuing NOC. Before closing the loan amount the complainant sold his vehicle to a party that is on 15/7/10. Complainant admits that he has closed the loan amount on 23/7/10. Any how the opposite party made delay in issuing NOC and complainant may suffer mental agony.
From the above discussions we are of the view that there is deficiency of service on the part of opposite party.
In the result complaint allowed. Opposite party is directed to return the amount of Rs.60,000/- (Rupees Sixty thousand only) which is paid by the complainant in excess as per the direction of the opposite party and Rs.15,000/- (Rupees Fifteen thousand only) as compensation for the mental agony and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for whole amount from the date of order, till realization.
Pronounced in the open court on this the 31st day of March 2012.
Sd/-
Seena.H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 series– Receipts (original)
Ext.A2 – Photocopy of statement of accounts.
Ext.A3 – Photocopy of Payment schedule from 21/8/06 to 21/7/10
Exhibits marked on the side of the opposite party
Ext.B1 – Copy of complaint filed with Banking Ombudsman dtd.26/6/11
Ext.B2 – Photocopy of letter dated 8/8/11 sent to the complainant by opposite
party
Ext.B3 – Photcopy of order of bankign Ombudsman dated 23/8/11
Ext.B4 –Photocopy of loan agreement dated 31/8/06
Ext.B5 – Photocopy of Statment of accounts dtd.7/12/11
Cost allowed
Rs.1,000/- allowed as cost of the proceedings.
