CC No.87/2010

Filed on 07.07.2010

Disposed on 10.02.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

DATED THIS THE 10^th DAY OF FEBRUARY 2012

CONSUMER COMPLAINT NO.87/2010

PRESENT:

                   Sri T. Rajashekharaiah, B.A. L.L.B.,

                   PRESIDENT

                   Sri. T. Nagaraja,

                   MEMBER

                   Smt. K.G. Shantala,

                   MEMBER

V/S

ORDER

BY SRI T. RAJASHEKHARAIAH, PRESIDENT

1.       This Complaint was filed on 07.07.2010 under Sec.12 of the Consumer Protection Act, 1986.  The Complainant contends that the Opposite Party was giving financial assistance for purchase of vehicle and the Complainant took financial assistance to the extent of Rs.1,80,000/- by an agreement dt.30.04.2009.  The Complainant purchased the vehicle bearing No.KA-40-4505 by taking loan of Rs.1,80,000/- from the Opposite Party.  The Complainant has repaid the amount of Rs.2,40,780/- on six occasions as stated in the Complaint.  The Complainant has not committed any default in paying the amount.  The Complainant approached the Opposite Party for issue of No Due Certificate and the Opposite Party has not issued the same.  Instead of issuing no due certificate to the Complainant, the Opposite Party has caused to issue premature termination on 12.04.2010 demanding to pay total balance of Rs.29,279/-.  The Complainant is not liable to pay any amount.  On the other hand, he has paid excess amount of Rs.42,780/-.  The loan taken was Rs.1,80,000/-, the amount repaid was Rs.2,40,780/-.  The amount payable was Rs.1,98,000/-.  Hence, there was excess payment of Rs.42,780/-.  The Complainant has issued a legal notice to the Opposite Party calling upon him to issue no due certificate and the Opposite Party has not complied the same.  Hence, this Complaint is filed for directing the Opposite Party to issue no due certificate since he has cleared the entire loan.  The Complainant has also prayed for direction to the Opposite Party to repay the excess amount of Rs.42,780/- with interest at 18% from the date of last payment i.e., 26.10.2009.

          2.      The Opposite Party has filed its Version and admitted the transaction between the parties and contended that the Complainant has defaulted in payment of the first instalment and he made part payment relating to 3^rd and 4^th instalment and delayed payment for instalment No.3,4 and 5.  However, on 26.10.2009, the Complainant requested for premature termination or foreclosure of the loan for which he was required to pay prepayment penalty at 4% of the outstanding loan or Rs.5,000/- whichever is higher.  Under the agreement between the parties, the Opposite Party may charge penalty for preclosure.  Upon the Complainant’s request, the Opposite Party informed him that the total outstanding as on 26.10.2009 is Rs.2,48,335/- however the Complainant made the payment of Rs.2,28,200/- only.  Hence, the Complainant has not made full payment and without making full payment, he is not entitled to obtain the NOC.  Hence, the Opposite Party has rightly repudiated the claim of the Complainant to issue the NOC.  Hence, the Complaint may be dismissed.

3.      The points that arise for our consideration are:

(i)                 Whether the Complainant has established deficiency in service by the Opposite Parties?

(ii)              To what relief the Complainant is entitled?

4.      Our findings to these points are as hereunder:

i)                   Affirmative

ii)                 As per the final order.

R E A S O N S

5.      POINT NO.1:        When the contentions of both the parties are considered about the amount of loan granted and the amount repaid about it, we find that there is some discrepancy.  According to the Complainant, the loan taken by him was Rs.1,80,000/-.  But the Opposite Party has contended that he has availed financial assistance of Rs.2 lakhs.  The Opposite Party has produced the loan cum hypothecation agreement dt.28.01.2009 and in the annexure the loan amount is mentioned as Rs.2 lakhs.  In our opinion, there cannot be any dispute about what was the amount of loan taken.  It may be that even though the loan sanctioned was Rs.2 lakhs and the loan amount disbursed may be less.  But there is no specific material to know what exactly was the loan disbursed.  Hence, it may be Rs.1,80,000/- as contended by the Complainant are Rs.2 lakhs as contended by the Opposite Party.  About the amount repaid also there is discrepancy.  The Complainant has given details of repayment on six dates as follows.

The Complainant has also produced the relevant receipts for having made the said payments.  The four receipts are issued by the Opposite Party and two are the bank challans for having remitted the amount to that loan account.  Hence, there is clear material on the side of the Complainant for having paid the said amount of Rs.2,40,000/-.  But the Opposite Party is contending that the amount repaid is Rs.2,28,000/-.  In this way, there is discrepancy of the amount repaid also.  However, admittedly the last payment is made on 26.10.2009.  Hence, even according to the admission of the Opposite Party Rs.2,28,200/- has been received on or before 26.09.2009.  The loan transaction is dt.30.04.2009.  Hence, within a period of six months, the Complainant has repaid the entire amount.  In the said hypothecation cum loan agreement, the agreed rate of interest is not stated and it only states the EMI fixed and the number of EMIs.  Hence, it is not known what was the agreed rate of interest.  According to the Opposite Party, the Complainant will be liable to pay Rs.5,000/- towards preclosure charges.  In our opinion, even if the maximum rate of interest is calculated on the amount as stated by the Opposite Party, the Complainant has paid much more.  According to the Opposite Party, the loan amount of Rs.2 lakhs hence, if we calculate the interest at 18% p.a. on Rs.2 lakhs, for six months, it will be Rs.18,000/-.  According to the Opposite Party himself, the amount repaid is Rs.2,28,200/-.  Hence, he has paid atleast Rs.28,200/- towards interest.  Whereas the interest at 18% will be only Rs.18,000/-.  In this way, it is clear that the Complainant has paid much more than what would have been reasonably claimed as interest.  Even if we add Rs.5,000/- as foreclosure charges, the amount paid by the Complainant is more than what would have been reasonably expected.  Hence, we are of the opinion that the Complainant cannot be said to be due to pay any amount to the Opposite Party.  Hence, the Opposite Party was bound to issue No Due Certificate, stating that the entire amount has been paid and having failed to do so, it amounts to deficiency in service.  Hence, we hold this point in favour of the Complainant.

6.      POINT NO.2:        In view of the finding on Point No.1, the Complainant is entitled for a direction to the Opposite Party for issue of no due certificate.  The Complainant has prayed for a direction to the Opposite Party to refund Rs.42,780/- as he has paid excess amount.  In our opinion, there is no sufficient material on record to decide this point.  On the other hand, there is contradiction in the contentions of both the parties about the loan amount and the amounts paid as stated above.  Hence, we are of the opinion that the Complainant may recover the excess amount paid by him by filing Civil Suit and it cannot be decided in this Complaint.  However, for not issuing the no due certificate, the Complainant is entitled for a direction to that effect.  Hence, the dispute relating to refund of the excess amount is left open for decision through Civil Court.  The Opposite Party has unnecessarily delayed issuing the no due certificate to the Complainant and that has caused hardship to the Complainant and it is proper to award reasonable compensation.  In our opinion, awarding compensation of Rs.10,000/- is reasonable.  Hence, we proceed to pass the following;

O R D E R

This Complaint is allowed in part.  It is held that there is deficiency in service by the Opposite Party.  The Opposite Party is directed to issue No Due Certificate to the Complainant stating that the entire loan relating to the Agreement No.5999391249 dt.30.04.2009 is discharged.  The Opposite Party shall pay compensation of Rs.10,000/- (Rupees ten thousand only) and costs of Rs.5,000/- (Rupees five thousand only) to the Complainant.  The dispute relating to refund of Rs.42,780/- may be agitated before the Civil Court.

 This Order is pronounced on this the 10^th day of February 2012.

      MEMBER                                  MEMBER                                PRESIDENT