Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Complainant had borrowed a loan from Citi Bank from which, he purchased a Honda City car. The Opposite Party No.1 is the HDFC Bank Ltd., and the Opposite Party No.2, is an officer of the Opposite Party No.1 – Bank; (hereinafter both the Opposite Parties are referred to only as the Opposite Party No.1 – Bank; for the sake of brevity). [2] The Opposite Party No.1 – Bank; through its officers, represented to the Complainant that it would provide top-up loan to the Complainant so as to enable the Complainant to clear the loan of Citi Bank and assured the Complainant that recovery of EMI would start only after loan borrowed from Citi Bank was cleared. According to the Complainant, however, the Opposite Party No.1 – Bank; did not clear loan dues of the Citi Bank and at the same time, started collecting EMI through ECS from the Complainant’s bank account. At the same time, Citi Bank also continued to recover EMI from the Complainant towards outstanding loan dues. Thus, the interests of the Complainant were not protected and the Opposite Party No.1 – Bank; did not act as per the representation made to the Complainant and the Complainant suffered financial loss. There had been correspondence between the Complainant and the Opposite Party No.1 – Bank; and ultimately, the Complainant filed present consumer complaint, as against the Opposite Party No.1 – Bank; seeking direction to pay the entire amount of EMI collected from the Complainant as well ascompensation in sum of Rs.1,00,000/-. [3] Despite due service of notice of appearance issued by this Forum, the Opposite Party No.1 – Bank; chose to remain absent and did not file its written version on the record, as called for by this Forum and as such, was set ex-parte. [4] The Complainant filed his affidavit of evidence as well as written submissions. [5] We have gone through the pleadings, affidavit and documents as well as written submissions filed by the Complainant. [6] Even though the Opposite Party No.1 – Bank; is marked ex-parte, present consumer complaint is being decided on merits on the basis of pleadings, affidavit and documents as well as written submissions filed by the Complainant. [7] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party No.1 – Bank; is guilty of deficiency in service? | NO | 2. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [8] As the averments in the complaint reveal, the Complainant had borrowed a loan from the Citi Bank to purchase a car and according to the Complainant, on representation of the Opposite Party No.1 – Bank; he availed top-up loan from the Opposite Party No.1 – Bank; to repay the loan borrowed from the Citi Bank. According to the Complainant, it was for the Opposite Party No.1 – Bank; to clear the loan from the Citi Bank and then only, the Opposite Party No.1 – Bank; was entitled to recover EMI from the Complainant. [9] Correspondence between the parties shed light on the real nature of the transaction. [10] Alongwith the list of documents, at Exhibit-3, the Complainant has produced on the record, the copies of correspondence that had taken place between the Complainant and the Opposite Party No.1 – Bank. Below that list, at page (21) of the compilation, there is a copy of the letter dtd.27/7/2007, by which, the Opposite Party No.1 – Bank; had informed the Complainant that loan amount in sum of Rs.7,00,000/- was sanctioned. By the said letter, the Complainant was informed that EMI was in sum of Rs.19,838/- and it will start from 2/9/2007. At page (22) of the compilation, there is repayment schedule. At page (23) of the compilation, there is copy of a letter sent by the Opposite Party No.1 – Bank; to the Complainant by which, adjustment of first EMI in sum of Rs.19,838/- was given. We will come to details given in this letter a little later. Below that letter, at page (24) of the compilation, there is a copy of letter dtd.13/9/2007, sent by the Opposite Party No.1 – Bank; to the Complainant, by which, the Complainant was informed that the loan was cancelled and the entries were taken to that effect in the books of accounts and the post-dated cheques issued by the Complainant were cancelled. This letter shows that at the instance of the Complainant, the loan sanctioned by the Opposite Party No.1 – Bank; was cancelled and the post-dated cheques issued by the Complainant were also cancelled. At page (25) of the compilation, there is a copy of letter dtd.21/9/2007, sent by the Opposite Party No.1 – Bank; to the Complainant, by which, the Complainant was informed that loan was fully settled. [11] Now, the Complainant has alleged that the Opposite Party No.1 – Bank; did not repay the loan borrowed by the Complainant from the Citi Bank and both the banks continued to recover EMI from the Complainant and thus, the interests of the Complainant were jeopardized. At page (29) of the compilation, there is a copy of letter dtd.3/3/2008, issued by the Opposite Party No.1 – Bank; to the Complainant, which is in fact, reply issued by the Opposite Party No.1 – Bank; to the Complainant’s legal notice, issued through an advocate. In paragraph No.(06) of this reply, it was clarified that the Complainant had applied for a top-up loan and the loan amount in sum of Rs.7,00,000/- was sanctioned and the EMI commenced from the month of Sept-2007. When the Direct Selling Associate of the Opposite Party No.1 – Bank; went to the Citi Bank to foreclose the Complainant’s loan account, it was found that the underlying asset (Honda City car) had been pledged for an additional facility availed by the Complainant from the Citi Bank. As a result of this, the Opposite Party No.1 – Bank; was left with no other choice but to cancel the loan advanced to the Complainant and call back the proceeds thereof. In paragraph No.(06) of the reply notice, there is a statement to the effect that there was willful concealment of material facts on the part of the Complainant. In the affidavit of evidence filed by the Complainant, we do not find any explanation regarding statements made in paragraph No.(06) of the reply notice issued by the Opposite Party No.1 – Bank. If, the car was already pledged for supplementary loan with Citi Bank and if, that fact was not brought to the notice of the Opposite Party No.1 – Bank; then in such a case, the Opposite Party No.1 – Bank; was justified in cancelling the loan advanced to the Complainant. [12] The Complainant has alleged that the Opposite Party No.1 – Bank; continued to recover EMI from the Complainant. However, in paragraph No.(07) of the letter dtd.3/3/2008, referred supra, the Opposite Party No.1 – Bank; has clarified that out of first EMI in sum of Rs.19,838/-, an amount in sum of Rs.10,169/- was deducted towards interest on loan amount in sum of Rs.7,00,000/- for a period of 35 days; an amount in sum of Rs.1,000/- was deducted towards cancellation charges; and an amount in sum of Rs.8,669/- towards refund of amount; total of which comes to Rs.19,838/-. Thus, clarification or account of the first EMI dtd.2/9/2007 was given by the Opposite Party No.1 – Bank; to the Complainant, by this letter. [13] Be it noted in this context that on 27/1/2010; upon hearing the Learned Advocate for the Complainant, we had given directions to the Complainant to produce on the record a certificate issued by the Citi Bank to the effect that the Complainant’s car had been hypothecated with the Citi Bank for only one original transaction and not for any other transaction. The Complainant filed a copy of statement of accounts from the Citi Bank, but he did not file a certificate, as directed by this Forum. Moreover, the Complainant has not filed a statement of accounts from the Opposite Party No.1 – Bank; to show that even after 2/9/2007, the Opposite Party No.1 – Bank; has continued to deduct the EMI in sum of Rs.19,838/- against the loan amount in sum of Rs.7,00,000/-. In absence of copy of statement of accounts from the Opposite Party No.1 – Bank; there is no material on the record to show that after 2/9/2007, the Opposite Party No.1 – Bank; has deducted EMI from the Complainant’s bank account. The conduct on the part of the Complainant in not filing copy of loan account of Rs.7,00,000/-, sanctioned by the Opposite Party No.1 – Bank; is eloquent inasmuch as it would have shed light on the transaction between the Complainant and the Opposite Party No.1 – Bank; and it would have helped to substantiate the allegations of the Complainant that even after the month of Sept-2007, the Opposite Party No.1 – Bank; has continued to recover EMI from the Complainant’s bank account. [14] Merely because the Opposite Party No.1 – Bank; has not filed its written version of defence and is set ex-parte, it does not mean that all the allegations in the complaint, though uncontroverted, have been proved. We have analyzed the contents of correspondence, which had gone into between the Complainant and the Opposite Party No.1 – Bank; and the same reveals that the Opposite Party No.1 – Bank; on account of hypothecation of car by the Complainant with the Citi Bank, for another loan transaction, had cancelled this loan and only one EMI was deducted, amount of which has been adjusted towards interest and cancellation charges. [15] In the background of these facts, we find that the Opposite Party No.1 – Bank; is not guilty of deficiency in service. With this, we proceed to pass the order as below:- ORDER The complaint stands dismissed. No order as to costs. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
