District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No. 362/2022.

 Date of Institution:08.07.2022.

Date of Order: 15.02.2023.

Harichander aged about 62 years son of late Shri Bane Singh R/o village Prahladpur Majra Deeg, Tehsil Ballabgarh, District Faridabad.

                                                                   …….Complainant……..

                                                Versus

1.                M/s. AU Small Finance Bank Limited Branch: Plot NO. 5-B/4, BP, Neelam Railway Road, NH-5, NIT, Faridabad- 121005 through its Branch Manager/Principal Officer.

2.                Jaswant, DSA, M/s. AU Small Finance Bank Limited, Branch: Plot NO.5-B/4, BP, Neelam Railway Road, NH-5, NIT, Faridabad – 121005. Mobile No. 7015526009.

3.                Rajeev Grover, DSA, M/s. AU Small Finance Bank Limited, Branch : Plot NO.5-B/4, BP, Neelam Railway road, NH-5, NIT, Faridabad – 121005 proprietor of M/s R.M.Automobile, Mobile No. 8810550329.

                                                                   …Opposite parties……

Complaint under section-12 of Consumer Protection Act, 1986

Now  amended  Section 34 of Consumer protection Act 2019.

BEFORE:            Amit Arora……………..President

Mukesh Sharma…………Member.

Indira Bhadana………….Member.

PRESENT:                   Sh.  D.S.Bhati,  counsel for the complainant.

                             Sh.  Rajiv Rana, counsel for opposite parties Nos.1 & .2.

                             Opposite party No.3 ex-parte vide order dated 8.9.2022.

ORDER:  

                             The facts in brief of the complaint are that  the complainant was registered owner of vehicle (Mahindra Bolero) bearing its registration No. HR-29-AP-0743 and was financed with Mahindra and Mahindra Bank Limited.  In the month of February-March 2021, the opposite party No.2 on behalf of opposite party No.1 approached the complainant telephonically and offered for re-finance of said vehicle on lowest rate of interest and on repeated calls of the opposite parties, the complainant agreed for the same and hence the opposite party No.2 visited the residence of the complainant to discuss and bifurcate the benefit of the said scheme on 09.03.2021.  The opposite parties made allurements towards benefits of rate of interest etc. and hence the opposite parties agreed to re-finance of the said loan for Rs.4,50,000/- and the opposite party No.2 obtained requisite document sof the complainant i.e. Aadhaar card, pan card, bank pass book, RC of said vehicle, 7 blank signed cheques bearing No. 083032 to 083038 and made the son of the complainant namely Krishan as co-applicant in the said loan account and also obtained signatures of the complainant and his son on  several papers (blank, printed forms etc.) and also assured that the above said loan amount should be disbursed in the bank account of the complainant.  The opposite parties got entered the  name of AU Small Finance Bank Limited in the column of hypothecation of said vehicle but did not  disburse the loan amount in the account of the complainant and for which the complainant met with the opposite party No.2 but who asked the complainant to meet the Manager of opposite party No.1 and who told that the  bank had disbursed the entire loan amount of Rs.4,50,000/- on 10.03.2021, on which the complainant told that he had not received any amount, upon which the Manager told that as per bank procedure, the loan amount should be disbursed in the account of DSA and the DSA hall transfer the said amount in the bank account of borrower and suggested the complainant to meet the opposite party No.3.  Accordingly, the complainant with opposite party No.3 and then the opposite party No.3 transferred a sum of Rs.2,00,000/- in the account of the complainant through RTGS on 29.04.2021 and allured the complainant that the remaining amount should be disbursed shortly and even after great persuasion, the opposite party No.3 issued a cheque dated 03.06.2021 for Rs.1,00,000/- which was honoured and other cheque No. 003991 dated 10.06.2021 for Rs.1,50,000/- drawn on HDFC Bank Limited, Janakuri new Delhi which was dishonored.  Thereafter, the complainant approached the opposite parties but all of them used to avoid the matter on one pretext or the other and also opposite party No.1 started receiving the EMIs for entire loan amount of Rs.4,50,000/- whereas, the opposite parties had paid only Rs.3,00,000/-. The complainant disbursed the loan of Rs.3,00,000/- on 29.04.2021 and 03.06.2021 but EMI started from 18.04.2021 on total amount of Rs4,50,000/-. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint.  The complainant has prayed for directions to the opposite parties to:

a)                reschedule the loan account for Rs.3,00,000/- (as disbursed)  and calculate the interest and EMIs on the said disbursed amount from its date.

b)                deduct the received amount in shape of  EMIs in the principal amount.

c)                provide fresh loan repayment schedule effecting from July 2021 i.e. after one month from the date of last payment of loan amount.

 d)                pay Rs. 50,000/- as compensation for causing mental agony and harassment .

e)                 pay Rs. 11,000 /-as litigation expenses.

2.                Opposite parties Nos.1 & 2  put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 & 2 refuted claim of the complainant and submitted that  the complainant had got no locus standi to file the present complaint.  The complainant had not approached this Hon’ble Commission with clean hands and had concealed the true and material facts from this Hon’ble Commission.  The complainant had availed finance facilities/finance amount to the tune of Rs.4,50,000/- and got re-finance the vehicle make Mahindra Bolero bearing its Regn. No. HR-29AP-0743 form the answering opposite party vide loan account/agreement No. 9001020323828712 for which a loan agreement dated 10.03.2021 was duly signed and executed between the complainant and answering opposite party to the present complaint.  As per the terms and conditions of the said loan agreement, the complaint was to repay the above said loan amount to the answering opposite party, in 36 equal monthly installment sof Rs.16,271/- for the above said vehicle, which was to be paid from 18.4.2021 to 18.03.2024  It was submitted that the complainant had approached the answering opposite party through DSA i.e opposite party No.3 and the complainant given written consent vide customer consent letter, hence the finance amount was deposited in the account of the dealer with the consent of the customer.   After availing the funds facility the complainant did not adhere to the payment schedule of the loan amount as per loan agreement and delay the payment of installments. As per the statement of account dated 22.07.2022, the complainant defaulted in repayment of installment of Rs.32,324/- till 30.10.2021 and other over due charges and as on date there was a total outstanding amount of Rs.3,56,349/- was due and payable by the complainant to the answering opposite party.  The answering opposite party had also issued a notice dated 30.10.2021 and the complainant was requested to deposit the same within a period of 7 days but the complainant did not make the payment of defaulted amount intentionally and deliberately and thereafter the answering opposite issued another legal notice dated 06.12.2021 to the complainant vide which the complainant was asked to deposit the total foreclosure amount of Rs.4,51,457/- with the answering opposite party bank but the complainant did not deposit the aforesaid outstanding amount, thereafter the matter in dispute referred to arbitrator as per the terms and conditions of the loan agreement and the Hon’ble arbitrator passed an order dated 07.03.2022 u/s 17 of the Arbitraiton and Conciliation Act on the application of the answering opposite party vide which the answering opposite party were duly authorized to take possession of the vehicle in question to recover the outstanding dues that instead of making the payment of the outstanding loan amount.  Opposite parties Nos.1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

3.                Notice issued to opposite party No.3 not received back either served or unserved.  Tracking details filed in which it had been mentioned that “Item Delivery Confirmed”.  Mandatory period of 30days expired.  Hence, opposite party No.3 was hereby proceeded against ex-parte vide order dated 08.09.2022.

4.                The parties led evidence in support of their respective versions.

5.                We have heard learned counsel for the parties and have gone through the record on the file.

                   To establish his case the complainant  has led in his evidence, Ex.CW1/A – affidavit of Harichand, Ex.C-1 – RC, Ex.C-2 – RC, Ex.C-3 – Account Ledge Inquiry,, Ex.C-4 – original cheque bearing No. 003991 of Rs.1,50,000/- Ex.C-5 & 6 -  IDBI Bank slip in which it has been mentioned that cheque No. 003991 had been dishonoured by HDFC Bank, Ex.C-7 – loan details, Ex.C-8 – statement details.

                   On the other hand counsel for the opposite parties Nos.1 & 2 strongly agitated and opposed.  As per the evidence of the opposite parties, Ex.R-1 – letter of authority,, Ex.R-2 – Loan application form, Ex.R-3 – letter dated 22.7.2022 regarding pre-payment/outstanding of the loan account, Ex.R-4 -  letter dated 10.03.2021, Customer Consent letter, Ex.R-5 –  interim order u/s 17 of the Arbitration and Conciliation Act, Ex.R-6 – legal notice.

6.                In this case, the complaint was filed by the complainant with the prayer to a)  reschedule the loan account for Rs.3,00,000/- (as disbursed)  and calculate the interest and EMIs on the said disbursed amount from its date. b) deduct the received amount in shape of  EMIs in the principal amount. c)provide fresh loan repayment schedule effecting from July 2021 i.e. after one month from the date of last payment of loan amount.

7.                The loan was sanctioned by opposite party No.1.  Opposite parties Nos.2 & 3 are the representative of DSA.  As per the allegations, complainant got only Rs.3,00,000/- out of Rs.4,50,000/-.  In this regard the complainant has filed his evidence  Ex.C-1 to C7 for the purchase of vehicle bearing No. HR-29-AP-0743 endorsement of HPA was endorsed on the RC vide Ex.C1.  The complainant has to pay 36 equal monthly installment of Rs. 16271/- from 18.4.2021 to 18.03.2024.  As per evidence, opposite party No.1 transferred the money in the account of their DSA.  The complainant got only Rs.3,00,000/- out of Rs.4,50,000/-.  Only DSA - opposite parties Nos.2 & 3  can charge the professional charges for their services only.  Opposite parties can’t keep Rs.1,50,000/- out of Rs.4,50,000/- which shows the malafidy of opposite parties Nos.2 & 3.  It was the duty of opposite party No.1 to disburse the money in the account of the loanee.   As per  the allegations  of the complainant, the plain papers were signed by  opposite parties Nos.2 & 3 including the consent letter vide Ex.R4 (colly). As per Ex.R2 the loan application form is photographed by some other person.  Mr Hari Chander – complainant was present in the court. The photographs of the application was not of Hari Chander S/o of Shri Bane Singh.  This fact was admitted by opposite party No.1 and he also argued at length that the application form and photograph was supplied by opposite parties Nos.2 & 3 which shows the deficiency in service by opposite parties Nos2 & 3.

8.                After going through the evidence led by the both the parties, the Commission is of the opinion that the complaint is allowed.  Opposite parties are directed to pay the balance amount of Rs.1,50,000/- and overhaul the account of the complainant -  Hari Chander.   Opposite parties are also directed to issue the NOC in favour of the complainant after getting the balance amount, if any, and adjust Rs.1,50,000/- in the Account of Hari Chander.  The opposite parties are also directed to pay Rs.11,000/- as compensation on account of mental tension, agony and harassment alongwith Rs.11,000/- as litigation expenses to the complainant.  Compliance of this order be made within 30 days from the date of receipt of copy of order.The complainant is at liberty to file criminal complaint against the opposite parties, in due course of law. Copy of this order be given to the parties  concerned free of costs and file be consigned to record room.

Announced on:  15.02.2023.                                      (Amit Arora)

                                                                                        President

                     District Consumer Disputes

           Redressal  Commission, Faridabad.

                                                       (Mukesh Sharma)

                Member

          District Consumer Disputes

                                                                                Redressal Commission, Faridabad.

                                                            (Indira Bhadana)

                Member

          District Consumer Disputes

                                                                               Redressal Commission, Faridabad.