Complaint filed on: 06-03-2023

                                                      Disposed on: 24-08-2023

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 24^th DAY OF AUGUST 2023

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LL.B., MBA., MEMBER

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

Consumer Complaint No.32/2023 

Mr.Mohammed Nawaz S/o Safeer

Major by age, Park Mohalla,

Sira Town Park Mohalla – Near

Old Govt. Hospital, Sira,

Karnataka – 572 137.

(By Smt. Prathima .L, Advocate)

V/s

1.       The Manager, Bajaj Finserv,

          Sira, Tumkur – 572 137,

          Karnataka.

2.       The Managing Director,

          Bajaj Finserv, 6^th Floor,

          Off-Pune-Ahmednagar Road,

          Viman Nagar, Pune-411 014.

(Served – Absent)

:O R D E R:

BY SMT.NIVEDITA RAVISH –  LADY MEMBER

This complaint is filed by the complainant Under Section 35 of Consumer Protection Act, 2019 against the Opposite Parties to direct them to pay a sum of Rs.25,00,000/- as compensation and to remove the loan default and write-off reported to CIBIL against the complainant and to clear his CIBIL, credit records and further prays to direct the OPs to pay cost of the legal proceedings and such other relief as the Commission deems fit to grant.

2.       Opposite Party No.1 is the Manager, Bajaj Finserv, Sira, Tumkur (hereinafter called as OP No.1) and Opposite Party No.2 is the Managing Director, Bajaj Finserv, Viman Nagar, Pune (Hereinafter called as OP No.2).

3.       It is the case of the complainant that, the OPs are non banking finance company and the complainant is customer of OPs as he had taken a personal loan of Rs.1,16,000/- in the year 2018 under loan account number:5X3RPL68587961 and was very prompt in repayment of EMI of Rs.3,871/- every month.  The recovery agents of OP No.1 used to collect cash and were not issued any receipt, but the OP No.1 sent SMS only regarding collection of monthly EMIs and the OP No.1 never sent any monthly statement nor due statement to the complainant causing inconvenience and confusion to the complainant.  The complainant closed the said loan in 2020 and no due certificate was issued as of 16.06.2020.  Subsequently, after keeping the complainant in dark regarding the above loan account by not sending the statements, the complainant requested to give loan pending statement as on June 2020, to which the OP No.1 did not respond and continued to harass the complainant to pay the money and close loan, unable to bear the harassment complainant asked the OP what had to be done to close the loan account, to which the OP No.1 verbally told the complainant that there was an overdue of Rs.40,000/- and once complainant pays the said amount, they shall be closed the loan.  Thereafter the complainant arranged Rs.40,000/- and paid the amount to OP No.1 on 16.06.2020 in the office of Bajaj Finserve, Sira and complainant demanded payment receipt and also No due certificate from the OP No.1, but he was not given these two documents and was told by the OP No.1 that the complainant shall get an OTP on his registered mobile number and once he shares the OTP to the caller, his loan account shall be closed, trusting the OP No.1, the complainant promptly share the OTP and subsequently after this episode, the complainant stopped getting calls from the OPs in relation to the recovery of dues against the above mentioned loan account number, which such being the situation, the complainant in good faith believed loan to be settled and did not press for cash receipt for cash payment of Rs.40,000/- nor did he ask for the loan closure letter. 

3(a)   The complainant further submitted that for a period of more than two years, there were no calls nor claims from the OPs in relation to the loan account No.5X3RPL68587961, but when the complainant applied for a business loan of Rs.20,00,000/- in Canara Bank, Sira Branch in November 2022, the complainant was told by the bank officials that his CIBIL records were very poor because of default in payment of personal loan and an amount of Rs.81,259/- was overdue and Rs.1,58,364/- as finally written off against the complainant’s name.  Thereafter, the complainant started making calls to Bajaj Finserv and after lot of enquiries and request was able to get No Due Certificate as on 16.06.2020 in relation to loan account Number:5X3RPL68587961 in December 2022 and then sent emails and letter to the OPs stating that they have wrongly shown loan and default against the complainant’s name in CIBIL, the complainant was sent a mail from Ms.Sushma Kumar on 6^th January 2023 stating that Loan account No:5X3FRPGA461270 pending against the complainant in Bajaj Finserve.  Subsequently, the complainant was informed that this loan account number 5X3FRPGA461270 in the name of complainant was booked on 16.06.2020 after sharing his OTP, which at that time, the complainant was told that this OTP was for closure of his existing loan, in the same mail, the complainant was told that the charges were made known to the complainant at the time of sharing OTP and at the same time the loan agreement and EMI details were shared to complainant is false, as the complainant received statement of account only in January-2023.   The complainant had never approached Bajaj Finserv for this loan of Rs.82,603.13 and this has been done fraudulently by obtaining the OTP from the complainant assuring the complainant that this OTP was for closure of earlier loan after taking Rs.40,000/- in cash from the complainant.  It is further submitted that the OPs have not made any efforts to recover any EMI w.r.t. loan A/c No.5X3FRPGA461270, as the OPs well aware that this is a fraudulent transaction and the fraudulent loan was written off and reported to CIBIL without the complainant’s knowledge, thereby causing huge loss to the complainant, as he could not any loan from other banks.  It is further submitted that after communication sent by complainant regarding complainant’s name in CIBIL, as an afterthought and to cover up their fraudulent actions, the OPs issued Loan Recall Notice for loan Account number 5X3FRPGA461270 datedL11.01.2023 shwoing total outstanding as Rs.2,09,544/- and this irresponsible, fraudulent action of the OPs has totally damaged the complainant and left him worthless and this amounts to fraudulent practices, forgery, deception and deficient services. 

3(b).  The complainant further submitted that this negligent, fraudulent, forgery act and deficient services of the OPs in creating a fake loan account in complainant name and reporting write off in CIBIL, the complainant who is a reputed trader from minority community is unable to lead a dignified and comfortable life because of financial problem as a result of non-availability of line of credit from financial institution, because of the action of the OPs in relation to creating fake loan accounts in complainant’s name, has caused huge problem, inconvenience, mental agony to the complainant.  Hence, the complaint.

4.       In spite of service of notice, the OPs remained absent.

5.       The complainant has filed his affidavit evidence and marked the documents at Ex.C1 to C7. 

6.       We have heard the arguments of complainant.  None appears for OPs in spite of sufficient time was granted.  Hence, posted for orders.

7.       The points that would arise for determination are as hereunder:-

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

2. Is complainant entitled to the relief sought for?
8.        Our findings on the aforesaid points are as under:

Point No.1: Affirmative  

Point No.2: Partly Affirmative, as per the final order

                   for the following;

:REASONS:

9.       The counsel for the complainant has argued that the complainant has taken a personal loan [Flexi Hybrid Loan] of Rs.1,16,000-00 in the year 2018, vide loan account number 5X3RPL68587961 and was made the repayment of EMI of Rs.3,871-00 every month. Ex.C2/copy of the CIBIL report proves that the complainant taken a personal loan vide loan account No.5X3RPL68587961 and it was closed.  Further, counsel for the complainant has submitted that, the OPs have never sent any monthly statement nor due statements to the complainant and thereby caused inconvenience and confusion to the complainant and it amounts to deficiency of services.  But the complainant has not produced any document to show that he had approached the OP to collect the loan account statement for loan account No.5X3RPL68587961 since 2018.  Further, the counsel for the complainant has submitted that the complainant has closed the loan account Number 5X3RPL6587961 in the year 2020 and the OP has also issued the No Due Certificate (NOC) on 16.06.2020.  Ex.C1/Copy is the NO DUES CERTIFICATE produced by the complainant proves the same.  Further, the complainant argued that, when complainant paid Rs.40,000/- due amount pertaining to loan account No.5X3RPL68587961 to OP No.1 on 16.06.2020 by cash, the OP No.1 has not given any receipt to the cash paid and also not issued no due certificate, but the OP No.1 has told that the complainant shall get an OTP on his registered mobile number and once he shares the OTP to the caller, his loan account shall be closed; trusting the OP No.1, the complainant promptly shared the OTP to the concerned caller.  Further, counsel for the complainant has argued that after sharing the OTP by the complainant, the complainant stopped getting calls from the OPs in relation to the recovery of dues against the loan account Number 5X3RPL68587961 and the complainant in good faith neither asked cash receipt for Rs.40,000-00 nor ask for loan closure letter.  Further, counsel for complainant has argued that after two years, the complainant came to know that his CIBIL records were very poor when he approached Canara Bank for business loan of Rs.20,00,000-00 in November-2022 and the officials of Canara Bank were told that the CIBIL records of complainant was very poor because of default in payment of personal loan obtained from the OPs.  Further, the counsel for the complainant has argued that the OPs have reported an amount of Rs.81,259-00 as amount overdue and Rs.1,58,364-00 as finally written written-off against the complainant’s name.  Ex.C2/copy of the CIBIL records produced by the complainant is reflecting in Acct 6, as, Lender – Bajaj Finserv, account type Personal loan, account number – 5X3FRPGA461270, Ownership – Individual, Date reported – 31.10.2022, Account status – SF/WD/WO/SET/RES, Date opened – 16.06.2020, Sanction Amt/Highest credit – 82,603, Current Balance – 82, 603, Amount over due – 81,259.  Further, in the page number 6 of 9 of Ex.C2, it is mentioned same details with addition of details of Total write – off, Amt – As Rs.1,58,364-00 and Principal Write-off as Rs.1,58,364-00.  As per Ex.C2/copy of the CIBIL record and Ex.C4/copy of the commercial cum most important Terms and conditions (“MITC”) OPs have sanctioned the loan of Rs.82,603.13 to the complainant on 16.06.2020.  But counsel for the complainant has argued that, the complainant has not wanted the loan and he has sent OTP to close the earlier loan and not for new loan.  But on perusing the Ex.C4, the loan for Rs.82,603.13 was sanctioned to the complainant after submitting the OTP.  It is the responsibility an individual to check the details about any matters before sending/sharing the OTP.  Once an individual sends/shares the OTP, he has bound by particular transaction.

10.     Further, the counsel for the complainant has argued that the OPs have fraudulently created the loan account No.5X3FRPGA461270 and OPs have never sent any SMS regarding EMI or due amount about the said loan.  The OPs have not appeared before this Commission and not denied the allegation made by the complainant.  Further counsel for the complainant has argued that the complainant has sent a mail to the OPs about the loan account which was not taken by the complainant.  Ex.C3/copy of the mail sent by the OPs reflecting that, complainant has sent mail to inform to OPs about loan sanctioned in account number 5X3FRPGA461270 was not belongs to the complainant and Ex.C3 also reveals that OPs have confirmed that the loan was booked on 16.06.2020 after sharing the OTP from the complainant.  Further counsel for the complainant has argued that the OPs have sent loan recall notice with over thought after enquiring about loan through mails from the complainant.  On perusal of Ex.C7/copy of the loan re-call notice reflecting the date as 11.01.2023.  By comparing Ex.C7 and Ex.C3, the Ex.C3 reflecting date:06.01.2023 and Ex.C7 reflecting date:11.01.2023.  Hence, it is establishes that, the OP has sent loan recall notice to the complainant after enquiring about loan account number 5X3FRPGA461270 through mail to the OPs from the complainant. 

11.     On perusal of Ex.C4/copy of the commercial cum most important Terms and Conditions (“MITC”), it is reflecting the details in first part as, loan sanctioned by the lender to the borrower in Rs.82,603.13 and in number 3 of second part – loan and payment details, it is mentioned as, 3. Loan Disbursement Mode (A) Account Transfer (RTGS/NEFT/IMPS) (i) Bank name CANARA BANK LTD., (ii) Type of Account – Savings, iv) A/c holder name as per bank account – MOHAMMED NAWAZ v) Bank account No. – 0587101036005.  As per Ex.C4, the OPs have disburse the loan amounts of Rs.82,603.13 on 16.06.2020 to the account number 0587101036005 pertaining to the complainant in CANARA BANK.  But on perusal of Ex.C8/copy of the pass sheet details for A/c 0587101036005 from 15.06.2020 to till August 3^rd  2023, the amount of Rs.82,603.13 was not credited by the OPs on 16.06.2020 or not credited on any date in the said account number.  Further, on perusal of Ex.C5/copy of the loan account number 5X3FRPGA461270 it reveals that, the OPs have tried to collect the EMI installments.  This act of the OPs reveals that the OPs were tried to collect the EMI installments of loan which was not disbursed to the complainant.  Further, the OPs have sent loan recall notice to the complainant for the loan which was not disbursed to the complainant and this act of the OPs amounts to deficiency in service and also unfair trade practice on the part of OPs.   For this unfair trade practice, OPs are liable to pay punitive damages.

12.     The complainant prays for a sum of Rs.25,00,000-00 as compensation.  But the complainant has not produced any document to show that the complainant is entitled for compensation for Rs.25,00,000-00.   When the loan amount has not been disbursed from the OPs, the OPs have no right to report to the CIBIL about non disbursing loan.  As per Ex.C2, the OPs have reported about loan account number 583FRPGA461270 for an amount of Rs.82,603-00 which was not disbursed to the complainant.  When any individual has running any business or work for his livelihood by taking loans in different banks, the CIBIL report affects on his life and job.  False CIBIL report sent by the OPs may affect badly on the job of the complainant.  Considering the same, the ops are liable to pay the compensation of Rs.10,000-00 and punitive damages of Rs.10,000-00 to the complainant  and the OPs are compelled the complainant to approach this Commission.  Hence, the OPs are also liable to pay litigation cost of Rs.10,000-00 to the complainant.  Further, the OPs are liable to remove the details of loan default and write-off reported to the CIBIL against the complainant and to clear the complainant’s CIBIL, credit records pertaining to loan account No.5X3FRPGA461270.  Accordingly, we pass the following:-  

:ORDER:

The complaint filed by the complainant is allowed in part with costs.

It is directed that OP Nos.1 & 2 shall remove the details of loan default of loan account No.5X3FRPGA461270 and write-off reported to the CIBIL against the complainant.

Further, it is directed that OP Nos. 1 & 2 shall jointly and severally pay the compensation of Rs.10,000-00, punitive damages of Rs.10,000-00 and litigation cost of Rs.10,000-00 to the complainant.

Further, the OP Nos. 1 & 2 are jointly and severally directed to comply the above order within 45 days from the date of receipt/knowledge of this order.

Furnish copy of this order to both parties at free of cost.