BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Ajay Singh, S/o Dr. Jaswinder Jit Singh, r/o House No. 3511, Sector 37D, Chandigarh.

…..Complainant

                            V E R S U S

1.  M/s Kotak Mahindra Prime Limited having their address at SCO 153-155, Sector 9 D, Chandigarh.

2.  Senior Branch Manager, Punjab National Bank, SCO 375-376, Sector 37, Chandigarh.

                                   ……Opposite Parties

CORAM:        SH.JAGROOP SINGH MAHAL                      PRESIDENT

                SH.RAJINDER SINGH GILL                 MEMBER

                DR.(MRS) MADANJIT KAUR SAHOTA          MEMBER

Argued by:       Sh. Ashok Malik, Adv. for complainant.

Sh. Ranjeesh Malhotra, Adv. for OP-1.

OP-2 exparte

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

             Succinctly put, the complainant took a loan of Rs.1,50,000/- from OP-1 and purchased Alto car. The loan was to be repaid in 60 monthly installments of Rs.3050/- each aggregating to Rs.1,83,000/- for which he issued 60 post dated cheques of Rs.3050/- to OP-1 of OP-2 bank where his account was maintained.  He repaid the entire loan amount alongwith interest  to OP-1 and the loan account was settled in full and final settlement after the last payment on 03.09.2009 but till date the OP-1 did not issue the NOC to enable him get the hypothecation removed from the registration certificate. On 13.12.2008, he received a legal notice from OP-1 in which it was stated that due to delay in the remittance of the scheduled installments the amount of Rs.3354.36 accrued to his account as penal charges. He received another legal notice in which it was informed to him that Rs.4119.125 had accrued to his account due to delay in remittance of installments.  On enquiry from the OP-2 bank, it was revealed that those 60 cheques, 12 cheques were sent by the OP-1 to OP-2 bank without mentioning the payees name due to which they were not cleared by OP-2 bank and hence bounced. He approached the OPs several times through every possible means to settle his grievance but all in vain. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.        Notice was served to the OPs. None appeared on behalf of the OP-2.  Accordingly the OP-2 was proceeded ex-parte. 
3.        In their written reply OP-1 admitted the factual matrix of the case and submitted that the present case involved a disputed question of facts and law and hence the complaint was liable to be relegated to the Civil Court.  The OP-1 submitted that an amount of Rs.1,46,950/- was sanctioned for the said loan. As per the agreement, in case of delay of EMI, bouncing of cheque, the complainant was liable to pay the penalty charges, collection charges and interest/penal charges on the delayed amount. Out of 61 cheques which were issued by the complainant, 15 cheques were bounced due to insufficient funds in the account of the complainant. As per the account statement Rs.7,979.39 was still outstanding from the complainant as on 15.06.2010 and the said amount would be increased till the same is cleared. NOC would be issued to the complainant subject to clearance of the dues by him. Denying all the material allegations of the complainant, the OP-1 pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 
4.        The Parties led evidence in support of their contentions.
5.        We have heard the Learned Counsel for the contesting parties and have also perused the record.
6.         The contention of the OP is that the complainant has not paid the amount of instalments by due dates and was, therefore, liable to pay penalty, late payment fee or interest and, therefore, a sum of Rs.7,979.39 is still due from them as mentioned in Annexure R-3.  It is contended that the complainant is not entitled to no due certificate or the compensation/damages for harassment.  In support of his contention the ld. counsel referred to the statement (Annexure R-2) the concluding 2 pages of which show the 15 instances when the cheques issued by the complainant for repayment  of the loan were allegedly dishonoured.  The first entry in this list is that of cheque No.19382 dated 1.8.2008 payment of which is said to have been stopped by the drawer.  The OP could not produce any document to suggest if the payment was stopped by drawer.  They did not produce any document from the Punjab National Bank on which the cheque was drawn to prove this allegation.  The complainant has denied having stopped any payment and have contended that Annexure R-2 has been prepared by the OP just to  mislead the Forum and to justify their inaction. 
7.        The second entry also relates to cheque No.19382 which is said to have been referred to the drawer on 7.8.2008. The OP did not produce the bank memos dated 1.8.2008 or 7.8.2008 to prove if the said cheque bounced due to any such reason.  In the absence of the evidence we cannot believe the assertion mentioned in Annexure R-2 in this respect.
8.        The next 3 entries relate to cheque No.19383 dated 1.9.2008.  It is first mentioned that the said cheque bounced because it was not drawn on Punjab National Bank  to which it was submitted.  The contention of the ld. counsel for the complainant is that in fact blank cheques were obtained by the OP and they were to mention the name of the bank on the cheque to whom it was to be made payable and if they did not fill up the name, it could not have been the fault of the complainant.  This fact is made clear from entry at Sr.No.5 in which the OP were told that payees name was required to be mentioned in the cheque.  It shows that the OP had been submitting the said cheque without mentioning the name of the payee and for this lapse on their part they cannot charge the complainant to pay the penalty or late fee/interest.  The entry at Sr. No.4  with respect to this cheque shows that it bounced due to insufficient funds on 6.9.2008. When we peruse the statement of Account (Annexure A-3), it becomes clear that the complainant had a sum of Rs.2,58,764.59 in his bank account on that date.  The question of insufficient funds, therefore, did not arise which makes it clear that the OP has fabricated false record in the shape of Annexure R-2 with respect to the bouncing of the cheques.
9.        There are entries at Sr.No.6 with regard to cheque No.19386 dated 1.12.2008 and at Sr.No.12 with regard to cheque No.19392 dated 1.6.2009 which are alleged to have bounced for other reasons.  No reasons have been mentioned by the OP nor have been proved.  It, therefore, also cannot be said to be a fault of the complainant.
10. Cheques No.19387 to 19391 and 19393 at Sr.No.7 to 11 and 13 are shown to have been dishonoured for want of payees name.  If the OP submitted the cheques without mentioning the name of the payee, it is the fault of the OP for which the complainant cannot be penalized.  Otherwise also, obtaining blank cheques on which the name of the payee is not mentioned is by itself an unfair trade practice adopted by the OP for which they should be penalized. 
11. Cheque No.19394 dated 1.8.2009 at Sr. No.14 was dishonoured because the clearing stamp required thereon was not affixed.  This cheque, therefore, did not bounce due to any fault on the part of the OP. 
12. Cheque No.19395 dated 1.9.2009 at Sr.No.15 bounced due to the reason that account was closed.   When we peruse the account statement (Annexure A-3), we find that the account of the complainant was still continuing and a sum of Rs.60,821.59 was lying therein.  There are entries dated 3.9.2009, 4.9.2009, 21.9.2009, 22.9.2009 and 25.9.2009 therein which show that the account of the complainant had not been closed.  Annexure a-3 further shows that  a sum of Rs.3,050/- was withdrawn from the account of the complainant on 4.9.2009 and was deposited to the account of Kotak Mahindra.  It is, therefore, clear that all these entries in Annexure R-2 have been manipulated by the OP.  None of the entries is supported by any evidence from the bank and are falsely introduced to claim interest and penalty charges from the complainant.
13. In view of the above discussion it would be clear that the complainant has paid all the instalments and if there was delay in any instalment, it was due to the fault of the OP itself for which no penalty or other charges can be claimed from the complainant.  The complainant is, therefore, not liable to pay any such amount of Rs.7,979.39 as is being claimed by the OP.  The OP are adopting unfair trade practice of obtaining blank cheques from the creditors and have harassed the complainant by not releasing the  no due certificate. The OP is, therefore, directed to pay to the complainant a sum of Rs.25,000/- for causing harassment to him in delaying the issuance of the no due certificate and pay another Rs.25,000/- for indulging in unfair trace practice.  The entire amount of Rs.50,000/- with litigation costs of Rs.5,000/- shall be paid to the complainant within thirty days from the date of receipt of copy of the order failing which the OP would be liable to pay the same with penal interest @ 12% per annum since the filing of the present complaint i.e.1.4.2010 till the amount is actually paid to the complainant.
14. Since no deficiency in service or unfair trade practice has been alleged or proved against OP-2, therefore the complaint qua it is dismissed with no order as to costs.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.