BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 1^st DAY OF JANUARY 2021

CONSUMER COMPLAINT NO.1201/2018

PRESENT:                                                            

Sri.K.S.Bilagi, B.com, M.A., LL.M.….   PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….     MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.      ….        MEMBER

Vijay Raghunath

S/o M.K.Ramu,

Aged about 52 Years,

R/at No.922, 1^st Block,

BSK 1^st Stage,

Bengaluru-560050.

(Rep by Sri.K.M.Mallesh, Adv)

V/s

OPPOSITE PARTY:

1. M/s Bajaj Finance Limited,

Prestige Towers,

Residency Road,

2. Bajaj Finance Limited,
4.  

Bajaj Finsery Corporate Office,

Off Pune, Ahmednagar Road,

Aiman Nagar, Pune-411014.

(Opposite Party Rep by Sri.M.R.Dilip, Adv)        

WRITTEN BY SRI K.S.BILAGI., PRESIDENT

******

//ORDERS ON MERIT//

1. The Complainant files the complaint under Section-12 of the Consumer Protection Act, 1986 seeking the following reliefs;

1. To direct the Opposite Party to repay a sum of Rs.10,281/- to the Complainant towards the amounts illegally deducted from the account of the Complainant.
2. To direct the Opposite Party to pay a sum of Rs.1,00,000/- to the Complainant as compensation towards the negligence, deficiency in service, and for mental agony, hypertension and inconvenience caused to the Complainant.
3. To direct the Opposite Party to make necessary arrangements to remove the name of the Complainant from the CIBIL and cost of this proceedings including advocate fee, and legal charges etc., and such other reliefs. 

2. The case of the Complainant in brief is as under:

He had obtained a loan of Rs.75,000/- on 27.02.2014 from the Opposite Parties and he was paying the monthly installments.During September-2015, the Opposite Parties had sanctioned the settlement and he had agreed to pay installment of Rs.42,000/- in 6 installments from 30.09.2015 to 25.02.2016 and on 31.12.2016.Accordingly, he paid the installment amount through DD.

3. It is further case of the Complainant that the Opposite Parties having failed to keep up their promise had presented ECS for Rs.3,427/- on 23.10.2015, after settlement and got credited to their account.  The Complainant has made payment of agreed amount in 4 installment of Rs.7,000/- each and Rs.10,500/- on 29.02.2016.  However, the Opposite Parties drawn 3 EMIs of Rs.3,427/- each on 05.10.2016, 17.10.2016 and on 17.12.2016 i.e., total amount deduction of Rs.10,281, which amount to deficiency of service.  Accordingly, name of the Complainant has been shown as defaulter in CIBIL.  The Opposite Parties are liable to pay compensation and amount.  Hence this complaint.

4. In response to the notice, Opposite Parties appear and file version.

The Opposite Parties contend that the complaint is frivolous and filed with malafide intention.  The complaint is not maintainable.   The case of the Complainant is in respect to the entries in Statement of Account maintained by the Opposite Parties.  Therefore, the complaint is not maintainable.  The relationship between the Complainant and Opposite Parties is that of debtor and creditor and not Consumer and service provider.  Hence, this complaint is not maintainable.  The Complainant is not the Consumer as per Provisions of Consumer Protection Act, 1986.

5. The Complainant admits that loan of Rs.75,000/- had been sanctioned to the Complainant on 27.02.2014 for repayment of same for a period of 36 months at the rate of Rs.3,427/- per month.  But there was a settlement between the Complainant and Opposite Parties and as per the settlement the Complainant was supposed to repay Rs.42,000/- in 6 monthly installment of Rs.7,000/- per month commencing from 23^rd September 2015 to 25.02.2016.  The Complainant has failed to repay the amount as agreed by him and as per the terms of the settlement, the Opposite Parties are entitle to recover the balance amount.  The Opposite Parties also contend that the Complainant has paid only Rs.38,500/- and subsequent installment at the rate of Rs.3,427/- p.m has been deducted.  The Opposite Parties deny that they have wrongly deducted Rs.10.281/- from the Complainant.  The Complainant himself is responsible for CIBIL report.  There is no deficiency of service on the part of the Opposite Parties.  Therefore, the Opposite Parties request this Commission to dismiss the complaint.

6. The Complainant has filed affidavit evidence and relied on 17 documents.  The affidavit evidence of Opposite Parties had not been filed.  Despite sufficient opportunity granted to the Opposite Parties. Once again an application of the Opposite Parties for leading further evidence came to be allowed on 24.02.2020 by imposing cost of Rs.500/-.  Therefore, the Opposite Parties neither paid the cost nor adduced evidence.
7. Heard the arguments of Advocate for the Complainant and perused the written arguments of the Complainant.  Neither oral argument has been advanced nor written argument is filed by the Opposite Parties.   We perused the records.

8.  The points that arise for our consideration are;

1. Whether the Complainant proves deficiency of service on the part of the Opposite Parties ?

2. Whether the complainant is entitle to reliefs claimed in the complaint ?

3. What order? 

9. Our findings on the above points are as under:-

1. POINT NO.1 & 2 : Negative
2. POINT NO.3:      As per the final order for the following;

10. POINT NO.1:- The Opposite Parties had not led evidence, it does not mean that the case of the Complainant requires to be accepted.  In response to the notice, the Opposite Parties had filed version admitting the loan transaction, settlement of Rs.42,000/- and repayment of Rs.38,500/-, failure on the part of the Complainant to keep the terms of settlement and encashment of subsequent EMI from the Complainant.  
11. The initial burden lies on the Complainant to prove the deficiency of service on the part of the Opposite Parties and consider his entitlement of reliefs.

12. The Opposite Parties had made a reference of number of decisions of the different State Commission and National Commission in the version, but Opposite Parties for the reason best known to them have not produced the decisions mentioned in para 11, 17, 18 & 19 of their version.  Therefore, we have been deprived to make reference of these decisions.

13. At the first instance, we would like to refer the admitted facts, the Complainant availed loan of Rs.75,000/- by executing agreement on 27.02.2014 bearing No.4040PL01908230 and agreed to repay the amount in 36 monthly installment at the rate of Rs.3,427/-.  It is also admitted and proved from EX.17 that on 30.09.2015 as per the understanding between the Complainant and Opposite Parties.  The Complainant agreed to pay Rs.42,000/- in 6 monthly installment of Rs.7,000/-, on 30.09.2015, 30.10.2015, 30.11.2015, 30.12.2015, 30.01.2016 and 25.02.2016 at the rate of Rs.7,000/- per month.  This letter of settlement further indicates that in case payment is not deposited on or before the above date settlement offer will be treated as null and avoid and it will not be binding on BFL.  The Complainant also does not dispute that terms of letter of settlement i.e., EX.P17.  The question arises whether the Complainant complied the terms of settlement mentioned in EX.P17.

14. The Complainant reiterated the facts pleaded in the complaint through his affidavit evidence.  We carefully perused, EX.P1 to P18 relied by the Complainant.  EX.P1 is the Account Statement from 22.02.2014 to 30.01.2015.  It indicates that how the loan amount was repayable in monthly installment it does not indicate the repayment of amount subsequent to settlement.  EX.P2 to P8 have been relied by the Complainant for having repaid agreed installment after the settlement but EX.P2, P4, P7 and P8 are in respect of payment of the same amount.  Therefore, we have taken into consideration terms made under EX.P1 to P6 only.  If these receipts are taken into consideration, the Complainant has made payment of Rs.7,000/- + Rs.7,000/- + Rs.7,000/- and RS.10,500/- only i.e., Rs.38,500/- these payments are also not in accordance with the terms of settlement mentioned in EX.P17.

15. EX.P9 Loan Account Statement of the Complainant also indicates payment of seeking monthly installment at the rate of Rs.3,427/-, payment of Rs.7,000/- on 30.09.2015, payment of Rs.7,000/- on 26.10.2015, payment of Rs.10,500/- on 31.12.2015 payment of Rs.7,000/- on 16.02.2016 and payment of Rs.7,000/- on 29.02.2016.  It further indicates that the Opposite Parties had received further payment at the rate of Rs.3,427/- for the period from 08.03.2016 to 05.02.2017. But majority of the subsequent payment have been reversed due to bouncing of cheque.  On 26.02.2017 the Opposite Parties issued EX.P10 notice to the Complainant for payment of foreclosure charges of Rs.4% for service charge 15% within 7 days and after payment only NOC will be issued.  In response to this letter, the Complainant got served legal notice as per EXP11.  The notice came to be served on Opposite Parties, as could be seen from EX.P11(a) to P11(c).  EX.P12 and P13 are the account statement of the Complainant maintained by the Indian Bank, they do not help the Complainant to prove his contention.  However, EX.P14 to P16 clearly indicate that ECS cheques of the Complainant with effect from 05.10.2016 at the rate of Rs.3,427/- to 17.12.2016 for three times have been encashed.  It is the definite case of the Complainant that the Opposite Parties had recovered these three installment in all Rs.10,281/- against the terms of the settlement.

16. As indicated in the proceeding paragraphs and looking into EX.P17, P2 to P8 and Statement of Account produced by the Complainant that the Complainant failed to adhere to the terms of settlement in repayment of agreed amount of Rs.42,000/- in 6 installments.  When the Complainant himself failed to adhere to the terms of settlement, we do not find any deficiency of service on the part of the Opposite Parties for encashment and recovery of further three installment in all Rs.10,281/-.  Infact the Complainant himself has violated the terms of settlement by not paying the agreed amount in agreed installments.  Under such circumstances, the Opposite Parties are right in saying the Complainant himself is the violator.  Therefore, the Complainant is not able to prove the deficiency on the part of the Opposite Parties, recovery of Rs.10,281/- and adverse CIBIL Report against the Complainant.  Accordingly, the Complainant is not entitled to any of the reliefs.
17. POINT NO.3:-  The Complainant having failed to prove the deficiency of service on the part of the Opposite Parties and for the reason narrated in the proceeding paragraphs, the Complainant is not entitled to any of the reliefs.  Accordingly, the Complaint requires to be dismissed.  We proceed to pass the following:

-:ORDER:-

         The complaint is dismissed no cost. 

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 1^st day of JANUARY-2021)     

• M.B. SEENA )      (L.MAMATHA)         (K.S.BILAGI)    
•   

//ANNEXURE//

Witness examined for the complainants side:

Sri.Vijay Raghunath, who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Account Statement dt.30.01.2015.
2. Xerox copies of 3 Demand Drafts dt.03.02.2016, 20.10.2015 and 26.02.2016 issued by Indian Bank.
3. Receipt dt.31.12.2015, 30.09.2015, 16.02.2016, 29.02.2016.
4. Loan Account Statement dt.25.02.2017.
5. Email communication 26.02.2017.
6. Legal Notice dt.18.03.2017.
7. Postal receipts.
8. Postal acknowledgement.
9. Bank Statements issued by the Indian Bank.
10. Letter of Settlement dt.30.09.2015.

Witness examined for the opposite party side:                  

Documents marked for the opposite parties side:

1. Statement of Account.

• M.B. SEENA )      (L.MAMATHA)         (K.S.BILAGI)    
•