Haryana

Ambala

CC/338/2018

Mahesh Kumar - Complainant(s)

Versus

M/s Indusind Bank - Opp.Party(s)

07 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  338 of 2018.

                                                          Date of Institution  :  11.10.2018.

                                                          Date of decision     :   07.10.2019.

 

Shri Mahesh Kumar son of late Shri Charan Dass, aged about 51 years, resident of H.No.806, Deena ki Mandi, Ambala Cantt.

……. Complainant.

                                                Versus

 

M/s Induslnd Bank through its Branch Manager, C/o Consumer Finance Divn. NPA Branch, Ambala City.

 

     ….…. Opposite Party.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Manu Rastogi, Advocate, counsel for complainant.

Shri Vivek Sagar, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President

          Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To issue NOC in respect of Loan account of M&M “XYLO” car bearing registration No.HR37C-9248 and “GM Tavera Car” bearing registration No.HR37C-6148.
2. To pay Rs.50,,000/- as compensation on account of harassment and mental agony suffered by him.
3. To pay Rs.11,000/- as litigation charges.

 

Brief facts of the case are that the complainant took two different loans under customer Code No.CU0584076 for his “M&M XYLO” Car bearing Registration No.HR37C-9248 on 18.09.2012 and “GM Tavera Car” bearing Registration No.HR37C-6148, on 26.05.2011 from the OP. He after paying the loan amount closed both the loan accounts on 15.10.2016 and 12.06.2015 respectively. After clearance of the loans the OP was required to issue NOC to him to get the hypothecation agreement cancelled with the registration authorities.  In order to get the NOC, he contacted the OP many times, but it was putting of the matter on one pretext or the other. A legal notice dated 23.08.2018 was served upon the OP, but of no avail. By not giving the NOC, in respect of above said loans, the OP has committed deficiency in service. Hence, the present complaint.

2.                 Upon notice, OP appeared through counsel and filed written version, raising preliminary objections regarding maintainability and jurisdiction. On merits, the OP admitted the factum of taking of loan by the complainant for the two vehicles as discussed in the complaint and stated that  besides that the complainant had also taken loan vide Contract No.HPA01130C for Maruti Swift Dzire, bearing registration no.HR-01AG-8831 and he was also a co-borrower in Loan Agreement No.HPA00747C, executed in favour of Ravinder Kumar, borrower. No doubt the complainant had cleared the above said two loan accounts but the loan amount is still outstanding for the remaining two loan accounts, as is evident from the statement of account.  “As per guidelines of RBI, if any one contract of a person comes in category of NPA (non performing assets) then all of his contracts would be treated as NPA despite regular payment in his other contracts and loan accounts”. Complainant requested time and again to the OP to clear his dues but he did not clear the dues.  The bank had initiated the arbitration proceedings and arbitration award has been passed against the complainant by Sh.S.Rajeni Ramadass, Advocate on 09.07.2018. The bank has preferred an execution of the award before the Court of Shri Purushotam Kumar, ADJ, Ambala, which is still pending. Complainant is duly bound to pay instalments in time, of his all loan accounts being borrower and co-borrower. The legal position and inability of bank was communicated to the complainant. Until and unless he clears all dues as borrower and co-borrower of all the loan accounts and in case the complainant was free from his legal liability as borrower and co-borrower, he is fully entitled to get NOC. Rest of the allegations levelled by the complainant were denied for lack of knowledge and prayer has been made for dismissal of the present complaint with costs.

3.                The ld. counsel for the complainant tendered affidavit of Sh. Vinay Kumar, GPA of complainant as Annexure CA along with documents as Annexure C-1 to C-6 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP tendered affidavits of Shri Arjun Vohra, GPA of M/s Induslnd Bank Ltd. alongwith documents Annexure OP1 to OP5 and closed the evidence on behalf of OP.

4.                 We have heard the learned counsel for parties and carefully gone through the case file.

5.                 Admittedly, the complainant had paid the entire loan amount to the OP for his two vehicles i.e “M&M XYLO” Car bearing Reg. No.HR37C-9248 and “GM Tavera Car” bearing Registration No.HR37C-6148. He accordingly, applied for issuance of NOC, but the OP refused to issue the same. The plea of the OP is that no doubt the complainant had paid the loan amount for the vehicles in question, but he had also taken loan for his Maruti Swift Dezire and he is a co-borrower in loan agreement No.HPA00747C.  The amount is still outstanding in both the cases. The arbitration award dated 09.07.2018, has been passed against the complainant and execution of the said award is pending before the Court of Hon’ble ADJ, Ambala. As per terms of conditions of the loan agreement, the NOC for the above referred vehicles cannot be issued in favour of the complainant.

6.                In the statement of account of loan account No.HPA01130C, of Maruti Swift Dezire, (Annexure OP-2), it is clearly mentioned that the loan is outstanding. From the perusal of statement of account of loan account No.HPA00747C, it is revealed that Ravinder Kumar is the borrower and the complainant is the co-borrower and the loan is still outstanding. This fact that the execution of the arbitration award dated 09.07.2018 is pending before the Court of Hon’ble ADJ, Ambala has not been controverted by the complainant.  From the perusal of term No.20, SET-OFF AND LIEN of the loan agreement Annexure OP-4, which reads as under:-

• 20.1 Notwithstanding anything contained in this Agreement, the Lender shall have a lien over all the assets of the Borrower(s) and to combine all accounts of the Borrower(s)/co-borrower(s) for recovery of the Lender’s dues hereunder.
• 20.02 It is hereby agreed and understood by the Borrower that, in the event the Borrower(s) defaults in payment of the installments/charges/fees, without prejudice to the right of termination, the Lender shall have the right to set-off all monies, securities, deposits, other assets and properties of the Borrower’s/co-borrower’s that is held by the Lender as secured asset, against the amount in respect of which the default has been committed under this agreement or any other agreement.

      It is quite clear that the Bank has a general lien over all the assets of the borrowers and co-borrowers. In the case of State Bank of Patiala Vs. Narender Pal Singh 2012 CPJ 352, (NC), the Hon’ble National Commission has held that the Bank has ‘General Lien’ over all forms of securities deposited by or on behalf of the customer in the ordinary course of banking business and that the General Lien is a valuable right of the banker judicially recognized and in the absence of agreement to the contrary. The provisions of Section 171 of the Indian Contract Act, 1872 carves out an except to the said general rule in order to protect the interest of the bank by ensuring right to retain the documents so that other loan accounts of the bank are also cleared by borrowers or guarantors without forcing the bank to file the suits. The Hon’ble State Consumer Disputes Redressal Commission, Haryana, in First Appeal No.519 of 2016, in the case titled as Indusland Bank Limited Vs. Amrik Singh, decided on 25.01.2017, has held that as per the guidelines of Reserve Bank of India, if any one contract of a person comes in the category of NPA (Non Performing Asset then all of his contracts would be treated as Non Performing Assets (NPA) despite regular payment in his other contracts. Therefore, as per the aforesaid guidelines of Reserve Bank of India, NOC pertains to the loan account No.HDY00123D cannot be issued unless the aforesaid other loan account got regularized or get settled.  Taking into consideration the facts of the present case and the law laid down by the Superior Fora, we are of the view that by not issuing the NOC, the OP has not committed any deficiency in service. The complaint filed by the complainant is devoid of merits, consequently, we dismiss the same without any order as to costs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :07.10.2019.

 

 

 

          (Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

              Member                                   Member                       President