BEFORE THE  CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 30^th day of November 2017

                                                                                       Filed on : 24.03.2015

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                              C.C.No.208/2015

                                   Between

                                               O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant is a registered owner of Mercedes Benz car bearing reg. No. PY 01 BP 2766.  The above car was purchased with 50 lakhs financial assistance from the opposite party- Axis Bank Ltd. The complainant has agreed to repay Rs.50 lakhs with 9.47% interest in 36 equally monthly installment of Rs.1,58,850/- from 15.01.2012 to 15.12.2014.  The complainant paid the 1^st EMI in advance in December 2011 and the 2^nd EMI on 15.01.2012. Thereafter, the complainant had signed the form electronic clearing service mandate of the opposite party for debiting Rs.1,58,850/- from the OD account 0224081000000768 of the complainant with the South Indian bank Ltd. Kalamassery branch. As per the said ECS mandate the opposite party was allowed to debit Rs.1,58,850/- from 15.02.2012 to 15.11.2014 for 34 months.  On 21.03.2012, the complainant had received a letter from the opposite party in which it was mentioned that due to the clerical mistake in the entry in ECS format happened on the side of the opposite party, the ECS Request was dishonored and hence they also requested to furnish a fresh ECS mandate. The opposite party acknowledged their mistake and promised that the cheque bounce and overdue charges will be waived off. Accordingly the complainant had given fresh ECS mandate cheque No. 401102 and 401103 both drawn on South Indian Bank Kalamassery Branch for Rs.1,58,850/- each as against the EMI payment of 15.02.2012 and 15.03.2012. The same was encashed by the opposite party on 13.04.2012.  The opposite party again approached the complainant stating that they could not encash the EMI ECS requests of 15.04.2012 and 15.05.2012.  Accordingly he had given cheques nos. 401114 and 401113 both drawn on the South Indian Bank Ltd. Kalamassery Branch for Rs.1,58,850/- each.  The same was encashed by the opposite party on 26.05.2012.   The complainant was assured by the opposite party that timely encashment of EMI through ECS request. Therefore the complainant had maintained sufficient balance in his OD account with the South Indian Bank, Kalamassery for encashing the ECS mandate. On 03.04.2013 when the complainant had obtained statement of the loan account from the opposite party for income tax return purposes, it was found that the cheque bounce charges and overdue charges amounting to Rs.46,401/- as on 31.2013 had not been waived off.   Hence, the complainant immediately informed the opposite party through a letter on 16.04.2013 to correct their mistake.  As per the ECS mandate its tenor of 34 EMI’s of Rs.1,58,850/- matured on 15.11.2014.  The ECS mandate requests on 15.02.2012, 15.03.2012, 15.04.2012, 15.05.2012 and 15.06.2012 were dishonored due to the fault on the part of the opposite party.  They were cleared by the complainant forthwith on intimation.  Hence in November 2014, the complainant requested for the No Objection Certificate from the opposite party for cancellation of hypothecation as shown in the RC book of the vehicle.  To the utter shock and dismay of the complainant the opposite party issued a letter dated 26.11.2014 demanding an amount of Rs. 49,331/- as overdue charges. The complainant issued a letter to the opposite party and demanded the details of the overdue charges amounting to Rs.49,331/-. The complainant received a letter from the opposite party on 19.02.2015 stating that they had already waived off Rs.16,694/- and an amount of Rs.49,331/- was to be paid by the complainant for closing the car loan account, whereas the opposite party had failed to give a statement as to how Rs.49,331/- is due from the complainant.  The opposite party threatened the complainant that the status of the complainant will be intimated to CIBIL as a ‘defaulter’.  The illegal demand for Rs.49,331/- as overdue charges in the car loan account by the opposite party for no fault  on the part of the complainant and  the threat of the opposite party to report the status of the complainant as a ‘defaulter’ to CIBIL amounted to deficiency in service, negligence and unfair trade practice on the part of the opposite party. Thus, the complainant is before us seeking direction against the opposite party to issue the ‘No Objection Certificate’, against the loan taken in respect of the car of the complainant bearing Registration No.PY 01 BP 2766 without insisting of payment of Rs.49,331/- and also to direct the opposite party not to report the status of the complaint as a ‘defaulter’ in the car loan account to M/s. Credit Information Bureau (India) Ltd. The complainant is also sought for compensation and costs of the proceedings from the opposite party. Hence this complaint

2)       Version filed by the opposite party is as follows:

The opposite party contended in their version that the above case is not maintainable either in law or on facts. The complaint is bad for non-joinder of necessary parties. The averments in the para 4 of the complaint are substantially correct. However it is clarified that it is the responsibility of the customer to the loan account to ensure payment of the EMIs within time and the fact that ECS mandate is given to the opposite party does not absolve the customer from his responsibility in ensuring payment of the instalments on the due dates.  The allegation of the complainant that the ECS bounce had happened on account of mistake on the opposite party is untrue. The same had happened due to the mistake on the part of the complainant’s Bank where the bounces had taken place.  The ECS payments due on 15.02.2012 and 15.03.2012 which got bounced and were paid by the complainant only by the cheques given to the opposite party Bank on 13.04.2012 and realized only on 18.04.2012 in local clearing.  It may be noted that the opposite party has given value-dating as of 13.04.2012 for these payments.  The EMI payments due on 15.04.2012 and 15.05.2012 got bounced and were substituted by the complainant on 26.05.2012 and realized by the opposite party Bank on 26.05.2012 and got cleared on 29.05.2012.  Here also the Bank had given value-dating of 26.05.2012.  On account of the delay in payment of instalments and the bounces as stated above, there accrued overdue charges and bounces charges and the opposite party Bank had also given a waiver on account of these charges.  However, it may be pointed out that the EMI due on 15.06.2012 whose ECS got bounced and was paid by the complainant only on 18.09.2013 resulting in overdue charges for 15 months was the prime reason for over-dues to the extent of Rs.46,401/- as on 31.03.2013 as alleged by the complainant here.  Here again the bank had given waiver of bounce charge and one month’s overdue charges.  The demand for waiver of overdue charges for the remaining 14 months was found to be unreasonable and the delay was totally intentional and deliberate and hence the opposite party - bank was not agreeable to its waiver.  Opposite party has thus in total waived off an amount of Rs.16,694/-.  It is totally untrue that the complainant has come to know about overdue chares to the tune of Rs.46,401/- only on 31.03.2013.  The complainant was very well aware of the ECS bounce immediately on each bounce and the complainant had intentionally avoided payment.  As stated above, the overdue charges were primarily owing to late payment on the bounce of EMI due on 15.06.2012 which was paid only on 19.09.2013. It is not correct that the complainant paid ECS bounce of 15.06.2013 being Rs.1,58,850/- on 31.07.2013. In fact this payment is for bounce of ECS of 15.07.2013. As explained above the opposite party waived the OD charges and bounce charges on a/c. of the late payments of the EMIs. The NOC was reduced only to the extent to Rs.49,331/- which is the result of the over-dues as stated above with accumulated interest. As on date there is an overdue Rs. 49,331/- in the loan account and NOC can be issued only on closing the loan a/c. including the over-dues. The complainant deliberately failed to honour the ECS bounce and it is untrue that there is any mental agony or loss of reputation and the complainant is not entitled to get any compensation. The complainant is a wealthy businessman and has deliberately avoided payment of the over-dues which amount he is liable to pay for the reasons stated above.  As regards credit information Bureau India Ltd., it is system-driven and if the account turns irregular the same would be captured by the CIBIL and Bank will not be able to help it. There is no deficient service happened on the side of the opposite party and hence the opposite party prayed that the complaint may dismissed with costs.

3)       Evidence in this case consists of proof affidavit filed by the complainant and he was examined as PW1. Exbt. A1 to A7 were marked on the side of the complainant.  No oral evidence adduced by the opposite party.  Exbt. B1 to B3 were marked on their side.

4)       Issues came up for considerations are as follows

1. Whether the complainant has proved any deficiency in service on the part of the opposite party?
2. Whether the opposite party is liable to issue the Non Objection Certificate for the disputed vehicle loan of the car with bearing the Reg. No. PY1 BP2766 without insisting for payment of Rs. 49,331/- to the complainant?
3. Whether the opposite party is liable to pay compensation and costs of the proceedings to the complainant?

5)       Issue No. (i) and (ii)

According to the complainant he had availed a vehicle loan from the opposite party for purchasing his Mercedes Benz car bearing reg. No.PY 01 BP 2766. The opposite party sanctioned an amount of Rs. 50 lakhs to the complainant for purchasing the above said vehicle. The complainant had agreed to pay Rs.50 lakhs with 9.47% interest in 36 weekly monthly instalment of Rs. 1,58,850/- from 15.01.2012 to 15.12.2014 and he had paid the 1^st month instalment in advance in December 2011 and the 2^nd EMI on 15.01.2012. Thereafter, the complainant signed an electronic clearing service mandate of the opposite party for debiting EMI amount from the OD account of the complainant with the South Indian Bank, Kalamassery. As per the said ECS mandate, the opposite party was allowed to debit EMI amount of Rs.1,58,850/- for the period from 15.02.2012 to 15.11.2014 ie for 34 months. The EMI payment of 15.02.2012 and 15.03.2012 were dishonored due to the clerical mistake in entry in ECS format from the side of the opposite party. The above said EMI en-cashed by the opposite party on 13.01.2012 through cheque No. 401102 and 401103 respectively. Subsequently, EMI ECS of 15.04.2012, 15.05.2012 and 15.06.2012 were dishonored.  The complainant paid the above said dishonored EMIs on 13.04.2012 and 30.07.2013.  The opposite party assured the complainant that they did not charge any penal interest or cheque bounce in chance for the above said EMIs. But he had obtained the statement of loan account and he could understand that the cheque bounce charges and overdue charges amounting of Rs.46,401/- as on 31.03.2013 had not been waived off. The complainant immediately by letter dated on 16.04.2013 informed the opposite party to correct their mistake. The opposite party assured him that they would rectify the mistake. But the opposite party did not honour their promise and the opposite party issued a letter dated 26.11.2014 demanding an amount of Rs.49,331/- as overdue charges.  The complainant requested for the No Objection Certificate to the opposite party for cancellation of hypothecation but they repeatedly demanding overdue charges.

6)       Exbt. A1 registration certificate of the Mercedes Benz car bearing reg. No. PY 01 BP 2766 shows that the vehicle was registered on 03.01.2011 by the name of the complainant. Exbt. A2 letter dated 21.03.2012 issued by the opposite party to the complainant stated that “ECS presented for Loan a/c. (AUR008100407115) for Benz has been returned due to clerical mistake in entry in ECS format presented from our side.  We here by request to provide us with new ECS mandate for loan repayment.  Cheque bounce and overdue charges will be wavied off as the mistake is from our side”. Exbt. A3 letter issued by the complainant to the opposite party dated on 16.04.2013 shows that the complainant demanded to the opposite party that waiver off the cheque bounce and overdue charges at the earliest. Exbt. A4 demand letter issued by opposite party to the complainant on 26.11.2014 and demanded an amount of Rs. 49,331/- for overdue charges to the disputed vehicle loan account. Exbt. A5 letter dated 07.01.2015 shows that the complainant requested the statement of accounts from the opposite party regarding the disputed vehicle loan. Exbt. A6 e-mail communication from the opposite party clearly stated that they were unable to process the overdue and bouncing charge waiver request of the complainant and further they mentioned that they had already waived off an amount of Rs.16,694/-.  They also requested to make the payment of overdue of Rs. 49,331/- to close the disputed loan account.  Exbt. A7 authorization letter dated 07.11.2015 shows that the complainant had authorized Mr. K.J.Tomy for appearing and give evidence for this case on behalf of the complainant.

7)       The opposite party contended in their version and argued that the ECS bounces had happened due to the mistake on the part of the complainant’s bank M/s. South Indian Bank Ltd., Kalamassery Branch, and not on the part of the opposite party. The complaint is bad for non-joinder of necessary parties M/s. South Indian Bank Ltd., Kalamassery Branch. The opposite party has produced copy of the electronic service dated 22.03.2012 marked as Exbt. B1 shows that the complainant sighed ECS mandate to the Manager of M/s. South Indian Bank Kly and instructed that, “allow opposite party to debit” an amount of Rs. 1,58,815/- to every month from 15.04.2012 to 15.12.2014 for the disputed vehicle loan amount. Exbt. B2 copy of the bounced cheque dated 15.04.2014. Exbt. B3 copy of the accounts statements dated 20.09.2016 regarding the disputed vehicle loan a/c.  Counsel for the opposite party vehemently argued that the dishonored ECS EMI dated 15.06.2012 was paid by the complainant dated on 18.09.2013 ie., after lapse of more than 1 year and the opposite party bank charged interest for the delay in payment of EMI. The complainant has deliberately failed to honour the ECS bounce and it is there is any mental agony or loss of reputation and hence the complaint is not entitled to get any compensation. The opposite party had never failed to give quality service to the complainant.  No deficiency in service happened on the part of the opposite party. The opposite party has the power to charge overdue and cheque bounce charges.

8)       We are accepting the contention of the Counsel for the opposite party that the complainant’s Bank M/s. South Indian Bank Ltd., Kalamassery Branch is a necessary party in this case. We have gone through the exhibit A2 Letter issued by the opposite party to the complainant it is clearly admitted that there are some clerical mistake happened on their side.  The Exbt. A2 letter pointed out that some deficiency in service happened on the part of the opposite party.  In short, on the basis of the Exbt. A2 letter, we find that there is some deficiency in service ensued on the side of the opposite party.   Therefore, we are of the opinion that the opposite party is liable to waive the entire overdue and ECS dishonored charges in respect of the disputed vehicle loan account of the complainant and to provide ‘No Objection certificate’. The opposite party is also directed to ensure that not to report the status of the complainant as a ‘defaulter’ to CIBIL regarding the disputed vehicle loan account.  Thus, we find that the issue No.(i) and (ii) are in favour of the complainant.

9)       Issue No. (iii)

The complainant had suffered a lot of inconvenience, mental agony and financial loss due to the deficiency in service on the part of the opposite party. Hence the opposite party is liable to compensate the same. We award an amount of Rs.3,000/- towards compensation and Rs.2,000/- towards costs of the proceedings to the complainant.

In the result we partly allow the complaint and direct as follows:

1. The opposite party is directed to waive an amount of Rs.49,331/- demanded as overdue charges and to issue Non Objection Certificate to the vehicle loan of the complainant in respect the vehicle bearing registration No. PY1 BP 2766 to the complainant.
2. The opposite party shall also take necessary action for not to report the status of the complainant as a ‘defaulter’ to CIBIL in respect of the disputed vehicle loan account. 
3. The opposite party shall also pay an amount of Rs.3,000/- towards compensation along with Rs. 2000/- towards the costs of the proceedings to the complainant.

The above order shall be complied with, within 30 days from the date of receipt of this order, failing which the compensation amount shall carry interest @12% p.a. from the 31^st day of the receipt of a copy of this order till the date of realization.

Pronounced in the open Forum on this the 30^th day of November 2017.

                                                          Sd/-Sheen Jose, Member

                                                          Sd/-Cherian K. Kuriakose, President

                                                                    Sd/-Beena Kumari V.K., Member

Forwarded by Order

Senior Superintendent

Date of Despatch   :

          By Hand      :

          By Post       :

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:         

Depositions  :

          PW1  :         Tomy K.J

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