District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.144/2020.
Date of Institution: 16.03.2020.
Date of Order: 13.02.2024.
M/s. Mada Education Private Limited Registered office at : K-641, lane W-12B, Sainik Farm, New Delhi – 110 062. Through its Director Shri Bharat Sharma.
…….Complainant……..
Versus
1. M/s. HDFC Bank, Branch Office at:5R/2, Near Badshah Khan Chowk, NIT, Faridabad, Haryana-121001 through is divisional/Branch Manager/Principal Officer.
2. M/s. HDFC Bank, Corporate Office At: Ist floor, C.S.No.6/242, Senapati Bapat Marg, Lower Parel, Mumbai – 400 013, through its director/Managing Director.
3. Nath Motors Pvt. Ltd., Plot NO.5B, Sector-15A, Crown Plaza Mall, Mathura road, Faridabad – 121001 through its Managing Director/Director.
…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. Manoj Yadav, counsel for the complainant.
Sh. Rajiv Rana, counsel for opposite parties Nos.1 & 2.
Opposite party No.3 given up vide order dated 13.08.2020.
ORDER:
The facts in brief of the complaint are that the complainant had purchased a Honda Amaze SMT (i-vtec) Petrol Car bearing Registration no. DL 3C CL 8981, Chassis No. MAKDF153AHN211076, Engine No. L12B35122819 on 17.01.2017 from the respondent no.3. At the time of selling the said vehicle to the complainant, the respondent no.3 introduced the complainant to respondent no.1. The respondent no. 1 along with respondent no.3 offered a scheme regarding the finance of the above said vehicle to the complainant where the complainant agreed to purchase the above said vehicle and to take the offered financial scheme. At the time of purchasing the above said vehicle the Ex- showroom price was Rs. 5,99,000/- and out of rupees 5,99,000/- the complainant had deposited Rs. 1,99,000/- as the down payment of the above said vehicle to respondent no.3 and remaining amount of rupees 4,00,000/- had been financed by the respondent no.1 vide agreement number 44955459 dated 17.01.2017 at the rate of interest 9.35% per annum for the period of 24 months and the loan amount to be paid back by the complainant in 24 monthly installments of rupees 18,340/- each . Out of 24 installments, the complainant had regularly paid 20 installments on time, but due to some financial problems the complainant did not paid remaining four installments on time to the respondent no.1. Thereafter the respondent no.1 had approached the complainant in September 2019 and offered him a settlement offer for the remaining amount of four installments and the complainant agreed to settle the loan amount and as per the settlement offer of HDFC Bank Loan no. 44955459 the complainant had paid full and final amount of rupees 40,000/- to respondent no.1 on 30.10.2019 against the loan no. 44955459 . After depositing the full and final amount of rupees 40,000/- against the loan no. 44955459, the complainant had been requested several times to the respondent no.1 regarding the issuance of "NOObjection Certificate" against the loan agreement no. 44955459but the respondent no.1 had refused to accept the legitimate request of the complainant and told the complainant that the " No Objection Certificate” had been issued by their head office i.e. respondent no.2, thereafter the complainant approached the respondent no.2 but the respondent no.2 had vehemently refused to issue the "No Objection Certificate" to the complainant . The complainant had already paid full and final amount against the said loan account no. 44955459 but the respondent no. 1 & 2 have not issue "No Objection certificate" to the complainant, which was necessary for the complainant to remove hypothecation from his vehicle registration certificate. The complainant sent legal notice dated 02.08.2018 to the opposite party but all in vain. 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) Issue No Objection certificate against Loan agreement No. 44955459 dated 17.01.2017 by the opposite parties Nos.1 & 2.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) 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 this Hon'ble Forum did not have territorial jurisdiction to try and entertain the present complaint as no cause of action had arisen within the territorial jurisdiction of this Hon'ble Forum since the complainant not residing within the jurisdiction of this Hon'ble Forum. Further the execution of the agreement and payment of subsequent installments all had happened beyond the territorial jurisdiction of this Forum. Therefore, with profound respect it was submitted that this Hon'ble Forum did not have the territorial jurisdiction to entertain this compliant. The complaint did not fall within the definition of Section 2(1)(d)(1) of the Consumer Protection Act 1986 (Act) In any manner whatsoever. In fact, the complainant had availed the vehicle loan in the name of the company for commercial use, hence not fall within the definition of 'consumer' in any manner whatsoever he did, under the Consumer Protection Act. The complainant had not approached this Hon'ble Forum with clean hands and has concealed the true and material facts from this Hon'ble Forum .It was submitted that the complainant had availed a funds facility as vehicle/car loan for vehicle make Honda Amaze SMT bearing its Engine No. L12835122819, chassis No. MAKDF153AHN211076 and bearing its Registration No. DL-3C-CL-8981 to the tune of Rs.4,00,000/- from the answering respondent vide Auto loan account no. 44955459 and for which a loan agreement dated 17.01.2017 was duly signed and executed between the parties to the present complaint As per terms and conditions of the said loan agreement, the complainant was to repay the above said loan amount to the answering respondent, in 24 equal installments of Rs 18.340/- each and the first installment was to be paid from 07-02- 2017 and the last installment was to be paid on or before 07-01-2019. After availing the funds facility the complainant always remained irregular in making the repayment of the loan amount to the answering respondents and defaulted in installments from the very beginning. The officers of the respondent also visited personally to the complainant and requested him to make the payment of the outstanding amount to the respondents, but the complainant always made excuses on one pretext or the other. Thereafter the matter was referred to the Sole Arbitrator and reference notice was also issued to the complainant in the present complaint and the Hon'ble Arbitrator had issued notices to both the parties but the complainant did not appear before the Arbitrator intentionally to avoid liability on their part and finally the Arbitrator passed an arbitration award dated 21.05.2019 for an amount of Rs. 84,751/- along with interest and cost and the answering respondent also filed a Criminal complaint under section 138 NI Act which was still pending before the CMM, Dwarka Court, New Delhi. It was further submitted that the above said auto loan account was settled between the parties and as per settlement the settled amount of Rs. 40,000/- was paid by the complainant to the answering respondents and accordingly the auto loan account/agreement of the complainant had been closed by the answering respondents and NOC has been hold due to huge default in business loan as per terms of the loan agreement and settlement letter dated 30.10.2019. The complainant concealed the true and material facts from this Hon'ble Court intentionally and deliberately with a view to avoid his legal liability, that in fact the complainant had also availed fünds facility to the tune of Rs. 1,000,000/- as business loan from the answering respondent vide loan account no. 46323490 and for which a loan agreement dated 30.03.2017 was duly signed and executed between the parties to the present complaint. As per terms and conditions of the said loan agreement, the complaint was to repay the above said loan amount to the answering respondent, in 36 equal installments of Rs 34,960/- each and the first installment was to be paid from 04-05-2017 and the last installment was to be paid on or before 04-04-2020. After availing the funds facility the complainant always remained irregular in making the repayment of the loan amount to the answering respondents and defaulted in installments from the very beginning. The officers of the respondent also visited personally to the complainant and requested him to make the payment of the outstanding amount to the respondents, but the complainant always made excuses on one pretext or the other. The complainant had malafide intention from the very beginning and did not make the payments of monthly installments timely and delayed the payments of the answering respondent intentionally and as on 23.07.2020 there was a huge amount of Rs. 8,70,424/- was due and payable by the complainant on account of installments and other overdue charges as per statement of account maintained by the answering respondent. Instead of making the payments of pending dues to the answering respondent the complainant filed the present false and frivolous complaint just to avoid legal liability on his part on one pretext or the other. Moreover the cheque issued by the complainant in the business loan had been bounced due to insufficient funds and for which the answering respondent has filed a criminal complaint U/section 138 NI Act before the court of JMIC, Faridabad which is fixed on 19.09.2020 for issuance of summons to the complainant in the present complaint, which clearly shows the dishonest and malafide intention of the complaint. Therefore as per the terms and conditions envisaged in Clause 17 of the loan agreement, the complainant was bound to clear all the outstanding dues if he had availed more than one loan facility for issuance of NOC. Opposite parties Nos. 1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Shri Manoj Yadav, counsel for the complainant has made a statement that “I want to give up opposite party No.3 because he left his given address without any instruction.” Accordingly, opposite party No.3 was given up from the array of the opposite parties vide order dated 13.08.2020.
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.
6. In this case the complaint was filed by the complainant against opposite parties– HDFC Bank & ors. with the prayer to: a) Issue No Objection certificate against Loan agreement No. 44955459 dated 17.01.2017 by the opposite parties Nos.1 & 2. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, affidavit of Shri Bharat Sharma, Director of M/s. Mada Education Pvt. Ltd. registered Office at: K-641, Lane W-12b, Sainik Farm, New Delhi , Ex.C1(2 pages, Cash/bank receipt dated 11.01.2017, ex.C-2 – Car Loan Agreement, Ex.C-3 – statement of account,, Ex.C-4 settlement offer letter dated 30.10.2019 , Ex.C-5 – statement of transaction , -Ex.C6- letter dated 21.10.2020 under RTI, Ex.C7 – reply letter dated 10.11.2020 under RTI Act
On the other hand counsel for the opposite parties strongly agitated and opposed. As per the evidence of the opposite parties Ex.R-1 – Loan application form, Ex.R-2 – loan agreement,Ex.R-3 – statement for the period 15.03.2017 to 23.07.2021, ex.R-4 Arbitration award.
7. In this case, the complainant had availed a funds facility as vehicle/car loan for vehicle make Honda Amaze SMT bearing its Engine No. L12835122819, chassis No. MAKDF153AHN211076 and bearing its Registration No. DL-3C-CL-8981 to the tune of Rs.4,00,000/- from the answering respondent vide Auto loan account no. 44955459 and for which a loan agreement dated 17.01.2017 was duly signed and executed between the parties to the present complaint . As per terms and conditions of the said loan agreement, the complainant was to repay the above said loan amount to the answering respondent, in 24 equal installments of Rs 18.340/- each and the first installment was to be paid from 07-02- 2017 and the last installment was to be paid on or before 07-01-2019. After availing the funds facility the complainant always remained irregular in making the repayment of the loan amount to the answering respondents and defaulted in installments from the very beginning.. The matter was referred to the Sole Arbitrator and reference notice was also issued to the complainant in the present complaint and the Hon'ble Arbitrator had issued notices to both the parties but the complainant did not appear before the Arbitrator intentionally to avoid liability on their part and finally the Arbitrator passed an arbitration award dated 21.05.2019 for an amount of Rs. 84,751/- along with interest and cost and the answering respondent also filed a Criminal complaint under section 138 NI Act which was still pending before the CMM, Dwarka Court, New Delhi. Further the above said auto loan account was settled between the parties and as per settlement the settled amount of Rs. 40,000/- was paid by the complainant to the answering respondents and accordingly the auto loan account/agreement of the complainant had been closed by the answering respondents and NOC has been hold due to huge default in business loan as per terms of the loan agreement and settlement letter dated 30.10.2019. The complainant had also availed fünds facility to the tune of Rs. 1,000,000/- as business loan from the answering respondent vide loan account no. 46323490 and for which a loan agreement dated 30.03.2017 was duly signed and executed between the parties to the present complaint. As per terms and conditions of the said loan agreement, the complaint was to repay the above said loan amount to the answering respondent, in 36 equal installments of Rs 34,960/- each and the first installment was to be paid from 04-05-2017 and the last installment was to be paid on or before 04-04-2020. After availing the funds facility the complainant always remained irregular in making the repayment of the loan amount to the answering respondents and defaulted in installments from the very beginning. As per the terms and conditions envisaged in Clause 17 of the loan agreement, the complainant was bound to clear all the outstanding dues if he had availed more than one loan facility for issuance of NOC, the said clause is reproduced as under:
17. SET OFF LIEN:
In respect of all or any of Borrower’s/guarantor’s liabilities to the Bank whether under the agreement or under any other obligation or any other facilities/borrowing/document, whether such liabilities are/be crystallised, actual or contingent, primary or collateral or several or jointly with others whether as principal debtor and/or a guarantor and/or otherwise howsoever (collectively “Liabilities”), the Bank shall have a specific and special lien on all the Borrower’s/guarantor’s present and future stocks, shares, securities, property, book debts, all moneys in all accounts whether current savings, overdraft, fixed or other deposits, held with or in custody, legal or constructive with the bank, now or in future, whether in same or different capacity ad whether severally or jointly, whether for any banking relationship, safe custody, collection, or otherwise and the Bank shall have the right to, without notice to and without consent of the Borrower to transfer, sell, realize, adjust appropriate all such securities and property as aforesaid for the purpose of realizing of appropriating against any of Bank’s dues in respect of any of the liabilities. In addition to general lien and/or similar right, the bank may at any time in its absolute discretion and without notice to and without consent of the borrower, combine or consolidate all or any of accounts of the borrower, whether of same type or nature or not and whether in same capacity or not, with any of the liabilities and set off or transfer ay sum or sums standings to the credit of any one or more of such accounts in or towards satisfaction of any of the liabilities. The bank shall be deemed to have and hold and continue to have first charge on any assets including any of the deposit on which security has been created in respect of the loan, also for any of the other liabilities and all the rights and powers vested in the bank in terms of any security or charge created for the loan shall be available to the bank also in respect of such liabilities, irrespective of the fact whether the loan was at any time repaid or satisfied or not and even after the loan has been repaid or prepaid or the security and property is given to the bank in respect of any particular liabilities.
As per settlement letter dated 30.10.2019 vide Ex.C4 in para No.7 in which it has been mentioned that: "this settlement amount shall be accepted as full and final settlement of the subject loan account and on receipt of the said settlement amount NOC for the said account shall be issued subject to Borrower/Hypothecator does not owe any direct/indirect liability to the bank.”
8. In this case, the complainant is a defaulter of other loan. Opposite parties Nos.1 & 2 has placed on record the following authorities:
a) M.Malika Vs. State Bank of India, IV (2006) CPJ 1(NC).
b) Canara Bank Vs. C.D.Patel passed by the Hon’ble National Commission (reported as II(2001) CPJ 19 NC.
c) Syndicate Bank Vs. Vijay Kumar passed by Hon’ble Supreme Court (1992)2SCC 330.
Ratio of these authorities are applicable to the facts of the present case
9. Keeping in view of the above submissions as well as the evidence led by the parties, the Commission is of the opinion that no deficiency in service on the part of the opposite parties have been proved. Resultantly, the complaint is dismissed. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 13.02.2024. (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.
