Haryana

Yamunanagar

CC/182/2014

Lukman S/o Nayamat Ali - Complainant(s)

Versus

Manager/Authorized Signatory,Kotak Mahindra Bank Ltd. - Opp.Party(s)

Yadbir Dhillon

09 Feb 2017

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                                Complaint No. 182 of 2014.

                                                                                                Date of Instt. 20.03.2014

                                                                                                Date of Decision:09.02.2017.

 

Lukman aged about 55 years son of Nayamat Ali, R/o village Jaidhar, P.O. Jaidhari, Tehsil Chhachhrauli, District Yamuna Nagar.

                                                                                                              ..Complainant

     Versus

 

1. Manager/ Authorized Signatory, Kotak Mahindra Bank Limited Branch SCO No. 153, 154, 155, Sector-9C, Madhya Marg Chandigarh- 160009.
2. M/s Chawla Ltd. authorized dealer of Mahindra & Mahindra Tractor, Buria Chowk Jagadhri, District Yamuna Nagar.

                ...Respondents

 

BEFORE:         SH. ASHOK KUMAR GARG …………….    PRESIDENT

                         SH. S.C. SHARMA  …………………………MEMBER

           

Present:      Sh. Yadbir Dhillon, Advocate, counsel for complainant. 

                    Sh. S.L.Kashyap, Advocate, counsel for respondent No.1.

                    Respondent No.2 already ex-parte vide order dated 20.01.2015.

           

ORDER (Ashok Kumar Garg, President).

1.                       Complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986.

2.                      Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased a tractor Mahindra DI-265 from the authorized dealer i.e. respondent No.2 (hereinafter respondents will be referred as OPs) and got it financed from the Op No.1 for a sum of Rs. 2,44,269/- vide loan agreement bearing No. TFE 42900 and CRN No. 25339060 dated 28.04.2009 which was repayable in 35 monthly installments of Rs.9100/- each. Accordingly, the complainant had paid a sum of Rs. 3,18,500/- in 35 installments including principal as well as interest. The maturity date of the loan was 20.03.2012. After that, complainant approached the Op No.1 and asked to issue NOC but the official of the OP No.1 asked to the complainant to pay Rs. 2500/- more, which was paid by the complainant. The official of the Op No.1 assured the complainant that now they will send the NOC to the complainant directly after completing the formalities. After that, complainant waited for sufficient time and again contacted the concerned official of OP No.1 but the official of the OP No.1 put off the matter on one pretext or the other and lastly, refused to issue the same. Upon which, the complainant served a legal notice dated 30.01.2014 but inspite of that OP No.1 failed to provide NOC. Lastly, praying therein that the OP No.1 is directed to issue NOC and further to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, Op No.1 appeared and filed its written statement but Op No.2 failed to appear, hence he was proceeded ex-parte vide order dated 20.01.2015. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable; the present complaint is totally false and frivolous; complainant has no locus standi to file the present complaint; complainant has concealed the true and material facts. The real facts are that admittedly the complainant has obtained a loan of Rs. 2,44,269/- and complainant purchased the tractor Mahindra Bhumiputra 265 which was hypothecated by the OP No.1 vide loan agreement No. TFE 429000 and the loan amount was repayable in 35 equal monthly installments amounting to Rs. 9100/- per month commencing w.e.f. 20.05.2009 upto 20.03.2012. The loan account was opened in the name of the complainant and OP No.1 is maintaining its account books in regular course of business. it has been further mentioned that son of the complainant namely Furkan stood guarantor/ co-borrower in the loan account of the complainant and he has also obtained a loan amounting to Rs. 3,75,403/- from the OPNo.1 vide loan agreement No. TFE-1222003 which was repayable in 24 equal monthly installments w.e.f. 10.12.2011 but he has not deposited the installments regularly as per schedule and an amount of Rs. 2,42,837.02 is still outstanding against the guarantor/co-borrower namely Furkan for which the complainant is also responsible/bound as per article 7 of the loan agreement. Until and unless his loan account is not cleared, NOC of the vehicle cannot be released to the complainant and on merit controverted the contents of the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint qua OP No.1.

4.                     In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as photo copy of account statement as Annexure C-1, Photo copy of legal notice dated 30.01.2014 as Annexure C-2, Postal receipt as Annexure C-3, Receipts of installments consisting 43 receipts as Annexure C-4 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the Op No.1 failed to adduce any evidence despite so many opportunities, hence, evidence of OP No.1 was closed by court order dated 02.06.2016. However, at the time of filing of written statement counsel for the OPs tendered photo copy of resolution as Annexure-R-1, Photo copy of loan-cum Guarantee agreement as Annexure R-2, Photo copy of payment schedule as Annexure R-3, Photo copy of statement of account as Annexure R-4, Photo copy of receipt of Sheela Motors as Annexure R-5 and R-6, Photo copy of identity card of Lukman as Annexure R-7, Photo copy of release order of vehicle as Annexure R-8, Photo copy of certificate of cover as Annexure R-9, Photo copy of proposal view alongwith installment schedule as Annexure R-10, Photo copy of insurance cover note as Annexure R-11, Photo copy of bill of tractor as Annexure R-12, Photo copy of field investigation report format as Annexure R-13, Photo copy of driving license of Furkan Ali as Annexure R-14 in support of its version.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.  

7.                     After hearing both the parties, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of OP No.1  as it is admitted case of the OpNo.1 that nothing is due against the complainant against his loan account bearing No. TFE-429000 and CRN No. 25339060. The only version of the OP No.1 is that son of the complainant namely Furkan is borrower in the loan account bearing No. TFE 1222003 in which an amount of Rs. 2,42,837.02 is still outstanding against him being borrower and the said Furkan was co-borrower in the loan account  bearing No. TFE-429000 of the complainant. So, the OP No.1 finance company has not issued the NOC to the complainant. Learned counsel for the OP No.1 draw our attention towards the account statement Annexure R-4 of Furkan and argued that as per this account statement, an amount of Rs. 2,42,837.02 is still outstanding against the said Furkan son of Lukman i.e. son of the complainant. Hence, the OpNo.1 has not issued the NOC to the complainant but this plea of the OP No.1 is not tenable as the Op No.1 has totally failed to prove that complainant Lukman was guarantor or co-borrower in the said loan bearing account No. TFE 1222003 of Furkan. Further, it is also not the case of OPNo.1 that complainant Lukman is defaulter of his loan account bearing No. TFE 429000. So, when the complainant was neither co-borrower/guarantor nor is defaulter of OP No.1, then how the OP No.1 finance company can retain/withhold the NOC in loan account bearing No. TFE 429000 of complainant in respect of tractor Bhumputra Mahindra DI-265 bearing chassis No. RAR 21473 Engine No. 21473. Further, OP No.1 has also failed to place on file any loan agreement or documents pertaining to the loan account of his son Furkan except the account statement Annexure R-4. So, in the absence of any cogent evidence, this Forum is also unable to hold that complainant Lukman was co-borrower or guarantor in any other loan account including the loan account of his son Furkan. Hence, we are of the considered view that merely that the son of the complainant namely Furkan was defaulter in his own loan account, the Op No.1 cannot withhold the NOC of the complainant. As such, the complainant is entitled for relief.

8.                     Resultantly, we partly allow the complaint of complainant and direct the OP No.1 to issue NOC to the complainant within a period of 30 days after preparation of copy of this order. OP No.1 is also directed to pay a sum of Rs. 10,000/- as compensation for mental agony, harassment and also to pay Rs. 2000/-as litigation expenses. However, no deficiency in service or unfair trade practice has been proved against Op No.2 by the complainant. Hence, the complaint qua Op No.2 is hereby dismissed. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.09.02.2017

                                    (S.C.SHARMA)                                    ( ASHOK KUMAR GARG)

                                     MEMBER                                             PRESIDENT