DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 174 of 28.06.2007<br /> Decided on : 21-08-2007 <br /> <br /> Gurmeet Singh Brar, Gali No. 7, Adarsh Nagar, Gill Patti, Bathinda, Tehsil & District Bathinda. <br /> ... Complainant<br /> Versus<br /> M/s. City Financial Consumer Finance India Limited through its Branch City Financial, Mall Road, Bathinda. ...Opposite party<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. G.S. Jhumba, Advocate.<br /> For the Opposite party : Sh. J.D. Nayyar, Advocate. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Opposite party is a Finance Company which provides loan on interest. Complainant had taken loan of Rs. 40,000/- from the opposite party on interest. Opposite party opened his account No. 543787 dated 17.4.05. Complainant alleges that he was assured that reasonable rate of interest would be charged. Account re-payment statement dated 17.4.05 was issued to him mentioning rate of interest as 29.51%. He alleges that this rate of interest is excessive. Legal notice dated 5.5.05 was sent by him to the opposite party through his counsel stating that account repayment schedule is not as per assurance given by it. He expressed his readiness and willingness to repay the entire amount of loan of Rs. 40,000/-. He was orally told by the opposite party that he should pay the installments upto Rs. 40,000/- and thereafter interest would be reasonably adjusted. Seven legal notices were sent by him to the opposite party. No reply was sent. To the contrary, opposite party issued legal notice for repayment of the outstanding amount. Replies of those notices of the opposite parties were given with the request that blank cheques be returned which were given for security purposes and that clearance certificate be also issued after taking remaining interest. He claims that he has already paid Rs. 41,706/-. Opposite party gave no reply. Opposite party has filed complaint under Section 138 of the Negotiable Instruments Act 1881 (Here-in-after referred to as Act of 1881) in the Court of Metropolitan Magistrate at New Delhi. He alleges that court at Delhi has got no territorial jurisdiction to entertain and try the complaint under Section 138 of the Act of 1881. Same has been filed to harass him. Judicial courts at Bathinda has got the jurisdiction to entertain and try that complaint. Entire loan amount of Rs. 40,000/- has already been paid by him. He is ready to pay reasonable and genuine rate of interest as allowed by Reserve Bank of India. Opposite party is deficient in rendering service. It is indulging in unfair trade practice. Due to its act, he has undergone physical and mental agony and economic loss as well. Opposite party has played fraud with him by way of preferring complaint under Section 138 of the Act of 1881 at New Delhi. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by the complainant seeking direction from this forum to the opposite party to return him 12 blank cheques issued by him in its favour; pay Rs. 10,000/- as compensation and withdraw complaint under Section 138 of the Act of 1881.<br /> 2. On being put to notice, opposite party filed reply taking preliminary objections that complaint is not maintainable; it involves intricate, complex and complicated questions of law and facts which would require detailed /elaborate trial and voluminous evidence which is possible only in regular proceedings before a civil court; complainant does not qualify the ingredients of Section 2(c) of the Act; transaction with it was commercial in nature and as such, this forum has got no jurisdiction and complainant is not consumer. On merits, it admits that complainant has availed loan of Rs. 40,000/- from it vide A/c No. 5437287 which was repayable in 30 equated monthly installments of Rs. 2317/- each. It denies that rate of interest charged from him is excessive. It has charged interest which has been mutually agreed by it and the complainant. It denies that legal notice dated 5.5.07 was received by it from the complainant. No assurance was given to the complainant to the effect that he should pay installments upto Rs. 40,000/- and thereafter interest would be adjusted reasonably. It is added by it that complainant ever gave offer that he was ready to repay the entire loan amount. Both the parties are bound by the terms of agreement as well as the repayment schedule. Allegation of the complainant that seven notices were sent, is denied. Similarly issuance of blank cheques for security purposes is not admitted. Question of issuance of clearance certificate till the total outstanding amount is paid, does not arise. Fact that complaint under Section 138 of the Act of 1881 has been filed in the Court at New Delhi is admitted. It denies that court at New Delhi has no territorial jurisdiction to try that complaint. Complainant has failed to repay the total loan amount. On 25.7.07 sum of Rs. 31,187.95 was outstanding. It refutes the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of Pay Order (Ex. C-2), photocopy of account repayment statement ( Ex.C-3), photocopy of legal notice dated 5.5.06 (Ex.C-4), photocopy of postal receipt (Ex. C-5), photocopy of legal notice dated 28.1.06 (Ex. C-6), photocopy of legal notice dated 27.10.06 (Ex. C-7), photocopy of legal notice dated 24.1.07 (Ex. C-8), photocopy of reply to legal notice dated 17.2.07 (Ex. C-9), photocopy of reply of legal notice dated 27.2.07 (Ex. C-10), photocopy of reply of legal notice dated 26.3.07 (Ex. C-11), photocopy of pay order dated 5.4.06 (Ex. C-12), photocopy of repayment receipt (Ex. C-13), photocopy of pay order dated 5.4.06 (Ex. C-14), photocopy of cheque return memo (Ex. C-15), photocopy of Summons dated 18.5.07 (Ex. C-16), photocopy of complaint U/S 138 & 142 dated 3.5.07 (Ex. C-17), photocopy of letter dated 9.1.07 (Ex. C-18), photocopy of letter dated 19.1.07 (Ex. C-19) and photocopy of Pass Book (Ex. C-20).<br /> 4. In rebuttal, on behalf of the opposite party affidavit of Sh. Vikrant Soni, authorised representative (Ex. R-1), photocopy of agreement (Ex. R-2), photocopy of Stat Card as on 8.8.07 (Ex. R-3), photocopy of application form (Ex. R-4) and photocopy of credit approval sheet (Ex. R-5) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record.<br /> 6. Mr. Jhumba, learned counsel for the complainant vehementally argued that opposite party is charging inflated rate of interest and complainant is not bound to pay it. Blank cheques were taken from the complainant for security purposes and they have not been returned. Complainant has already paid the entire loan amount of Rs. 40,000/- and that he is still ready and willing to pay reasonable and genuine interest. Various notices were issued by the complainant through his counsel, copies of which are Ex. C-4, Ex. C-6, Ex. C-8 and Ex. C-11. Opposite party did not send reply of them. Complaint has been filed by it under Section 138 of the Act of 1881 which is an abuse of process of law because the court at New Delhi has got no jurisdiction. He drew our attention to the affidavit of Gurmeet Singh, complainant which is Ex. C-1.<br /> 7. Mr. Nayyar, learned counsel for the opposite party argued that from the evidence on the record no deficiency in service or unfair trade practice on the part of the opposite party is established. Court at New Delhi is well within its rights to entertain and try the complaint under Section 138 of the Act of 1881. Complainant is bound by the terms and conditions of the agreement, copy of which is Ex. R-2. An amount of Rs. 31,187.95 was outstanding towards the complainant upto 25.7.07. Blank cheques were not delivered by the complainant to the opposite party for security purposes.<br /> 8. We have considered the rival contentions. Onus to prove averments in the complaint is upon the complainant. He is required to establish them by way of leading cogent and convincing evidence. They cannot be said to have been proved on the basis of presumptions and assumptions.<br /> 9. Fact that complainant has availed loan facility to the tune of Rs. 40,000/- from the opposite party is not in dispute. First material question for determination is about the rate of interest. Complainant alleges that rate of interest which is being charged by the opposite party as per Account Re-payment statement, copy of which is Ex. C-3 is highly excessive. Ex. R-2 is the copy of the agreement arrived at between the complainant and the opposite party regarding loan of Rs. 40,000/- taken by him. It has been signed by the complainant as well as authorised signatory of the opposite party. Both the parties are bound by its terms and conditions. This document is like a magna carta of the parties. Its terms and conditions are to be construed as they are. Nothing can be added to them or subtracted from them. In this view of the matter, we get support from the observations of their Lordships of the Hon'ble Supreme Court in the case of United India Insurance Company Limited Vs. M/s.Harchand Rai Chandan Lal 2005(1) CPR 64 (SC). According to the agreement, rate of interest agreed to be paid on the loan amount is 29.50%. When complainant has agreed to pay interest at this rate, it does not lie in his mouth that rate of interest is inflated and excessive. He cannot wriggle out of the terms of the agreement by saying that he is ready to pay interest at reasonable and genuine market rate. No document has been placed on record by the complainant showing that he is liable to pay interest at the lesser rate than the one agreed by him. Mere fact that opposite party did not give reply of notices got issued by the complainant, is no ground to hold that agreed rate of interest cannot be claimed by it. Hence, no deficiency in service on the part of the opposite party can be inferred on this count.<br /> 10. Complainant alleges that 12 cheques were given by him to the opposite party for security purposes. Opposite party denies this averment in the reply of the complaint. So far as the affidavit Ex. C-1 of the complainant on this aspect of the matter is concerned, it stands amply rebutted with the affidavit Ex. R-1. of Sh. Vikrant Soni, authorised representative of the opposite party in which he has categorically denied the issuance of the blank cheques for security purposes. Complainant claims the return of 12 blank cheques from the opposite party. Blank cheques if issued, they must have their particulars such as numbers, name of the bank in which complainant has account, his account number, name of the drawee bank etc., No such particulars of the alleged 12 cheques have been pleaded in the complaint. Complaint is vague for want of particulars of the cheques. Hence, allegation of the complainant that 12 blank cheques were issued by him has not gone beyond the stage of allegation. Even if it is taken for arguments sake although we do not subscribe to it that cheques were issued, even than, complainant cannot get relief prayed for on this point because this forum is unable to know as to which particular cheques are to be got returned.<br /> 11. Admittedly complaint under Section 138 of the Act of 1881 has been preferred by the opposite party in the court at New Delhi. Question as to whether court at New Delhi has got the jurisdiction to entertain and try the complaint may be agitated by the complainant before that court, if so advised. This forum is not competent to give direction to the opposite party to withdraw the complaint under Section 138 of the Act of 1881. If a person exercises his legal right by way of filing complaint before competent court, it does not amount to deficiency in service.<br /> 12. Complainant himself admits that he has to pay interest on the loan amount. Opposite party claims that amount of Rs. 31,187.95 was still outstanding as on 25.7.07. In such a situation, if no dues certificate/clearance certificate has not been issued by the opposite party, there is no deficiency in service or unfair trade practice on its part.<br /> 13. No Other point was urged before us at the time of arguments.<br /> 14. In the premises written above, crux of the matter is that complainant has failed to prove his case. Complaint being devoid of merits is dismissed. No order as to costs.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned. <br /> Pronounced :<br /> 21-08-2007 (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br />