Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 51/12.02.2016
M/s Sarviour Biotech Private Limited
2047/48, 2nd floor, Gali no.6 Chuna Mandi,
Paharganj, New Delhi 110055
through its Director - Shri Chandraksh Pant
(see sub- paragraph no. 7.1.3 below) …Complainant
Versus
OP1. Nainital Bank Limited
G. B. Pant Road, Nainital, Uttrakhand
OP2. The Manager , Nainital Bank Ltd.,
33, Pachkuian Road, New Delhi ...Opposite Party
Date of filing: 12.02.2016
Coram: Date of Order: 03 08.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.4)
1.1. (Introduction to case of parties) –The complainant has grievances of unfair trade practice on the part of OPs that loan amount of Rs. 6 lakh was taken for buying car, the EMIs were paid, despite it the OPs failed to issue 'no due certificate'. That is why this complaint under the Consumer Protection Act, 1986 for appropriate direction to the OPs to issue no due certificate, besides other directions not to make extra charges from the complainant, compensation of Rs. 10 lakhs in lieu of harassment, mental torture, agony and damages besides other appropriate relief.
1.2. The complaint has been opposed by the OPs vehemently that there is no unfair trade practice, the complainant was at fault for want of payment of regular EMIs, there was outstanding amount of Rs. 31,369/- recoverable from the complainant, for which civil recovery of money suit was filed/pending in the court of Ld. Civil Judge, Tis Hazari, the complainant had not filed any counter claim, if he has bona-fide that two extra EMIs were collected. The complainant is not entitled for any of the relief claim.
2.1. (Case of complainant) –The complainant is a private limited company, having its business of export and import. It took loan of Rs. 6 lakh for purchase of car in the name of M/s Saviour Biotech Pvt. Ltd. from OP, the loan was repayable in 60 EMIs of Rs. 12,897/-each, for which complainant was issued sanction letter for signature. The complainant availed the loan and it was paying EMIs regularly without any default, which is being reflected in the statement of account.
2.2. After payment of all the EMIs, the complainant approached to the OPs bank for no due certificate but it was not issued and complainant was asked to pay Rs. 54,800/- in addition to already paid 60 EMIs. The OPs had never informed the complainant or asked such amount at any point of time till the complainant’s approached for no due certificate. The complainant is having current account no. 032-1000000002135 with the Nainital Bank Ltd., P.K. Road, Delhi, the car loan was taken in respect of that account and EMIs were deducted from the same current account.
After repayment of entire loan amount, the OPs had withdrawn two extra installments of Rs. 12,897/- each without intimating the complainant. The OP bank violated agreement by way of withdrawn that amount in addition to repayment of 60 EMIs, the bank had no authority to do so. It was the responsibility of OPs to inform and update the complainant, inclusive of on the point of change in the rate of interest, if any. The complainant never defaulted any EMI. There is unfair trade practice on the part of OPs.
2.3 The complainant visited the head office of bank to resolve the issue but no result. The complainant’s loan account was declared NPA, due to which the complainant is not getting loan from anywhere. The complainant served legal notice dated 31.08.2015 on the OPs but no reply was given by them. That is why the complaint. The complaint is supported with the affidavit.
2.4 The complaint is accompanied with copies of – loan sanction letter, statement of account issued by OP, legal notice and copy of Board Resolution .
3.1 (Case of OP1 & OP2 )-The OPs opposed the complaint vehemently by filing their joint written statement. The complaint is an afterthought and false, it is liable to dismissed with heavy cost apart from prosecution u/s 340 CrPC for creating false story and evidence. Moreover, complaint has been filed at a counter stand to the civil suit dated 19.01.2016 filed by OP-Bank for recovery of Rs. 31,369/-, which is pending before the court of Ld. Civil Judge, Tis Hazari, Delhi. The complainant has approached this Consumer Fora without clean hands.
3.2. The loan was sanctioned with terms and conditions of sanction letter and demand promissory note, the EMIs were fixed at the time of sanction of the loan. However, as per demand promissory note, the floating rate of interest is/was applicable and complainant was liable to pay the floating rate of interest on base rate of the bank. The complainant has been complying with the necessary guidelines issued by RBI.
The OPs deny all other allegations in the complaint either of withdrawal of two extra installments of Rs. 12,897/- each or otherwise that the OPs have not indulged in any such activities. Since the complainant was liable to pay floating rate of interest on base rate of the bank and the complainant is misrepresenting that all the EMIs were already paid or an amount of Rs. 54,800/- was wrongly demanded or that amount was not intimated to the complainant. The complainant never visited the office of OPs. In fact, OPs had issued notice dated 02.01.2016 while calling upon the complainant to pay outstanding amount of Rs. 31,369/-, which was calculated upto 30.11.2015 plus future interest with an advice to pay the amount within 7 days but complainant failed and neglected to pay the outstanding amount. Thus, the loan account was declared NPA by the bank. The OPs filed money recovery suit against the complainant on 19.01.2016 before the competent court of law. The OPs never received any legal notice dated 31.10.2015 of complainant. Lastly, the complaint suffers from non-joinder of principle borrower M/s Saviour Biotech Pvt. Ltd. , for want of impleadment of necessary parties besides mis-joinder of a party and the complaint is liable to be dismissed. The reply is supported with the affidavit of Sh. Raj Kumar Gupta, Sr. Branch Manager.
3.3 The written statement is accompanied with copies of – power of attorney of Sh. Raj Kumar Gupta.
4.1. (Evidence)- Complainant filed his affidavit of evidence, which is on the lines of pleading with documents.
4.2. Both the OPs led their evidence by way of affidavit of Shri Raj Kumar Gupta, Sr Branch Manager, (who also authored the written statement). The written statement was accompanied with a single document of power of attorney, however, when the evidence was led, the OPs had filed many other documents of civil suit or otherwise, without the leave of Commission. The affidavit is coupled with documents, which is on the lines of the written statement.
4.3 It is relevant to mention that during the pending of complaint, the complainant had received certain documents in the civil suit, therefore, the complainant had filed an application for permission to file additional documents, it was permitted by Ld. Predecessors by detailed order dated 14.09.2017.
6.1 (Final hearing) -The complainant and the OPs filed their written arguments, which are blend of their pleadings and evidence. In fact their cases, as set up, have already been introduced in detail.
6.2.The parties were given opportunity to make oral submissions. Shri Yudhvir Sharma, Advocate for complainant and Manoj Gupta, Advocate for OPs presented their submissions.
During the course of arguments on the one side complainant has filed copy of judgment and decree dated 27.02.2023 that OP-Bank's civil suit no. 597390/2016 was dismissed by the court of Ld Civil Judge, Delhi. On the other side, the OPs have also referred case law that the complaint is not valid and competent. All these issues will be dealt appropriately and the rival submissions are being reproduced herein.
7.1.1. The OPs have strongly opposed the complaint that it was filed by Chandrakash in his personal name but the loan was taken by M/s Saviour Biotech Pvt. Ltd., it has not been impleaded party to the complaint. Secondly, there is no Board Resolution in favour of the complainant to sign, verify and institute the complaint, which is basic norm and requirement for filing the pleading. The OPs rely upon United Bank of India Vs. Naresh Kumar AIR 1997 SC 3, State Bank of Travancore Vs. Kingston Computer 2011 11 SCC 524, Nibro Limited Vs. National Insurance Co. Ltd. AIR 1991 Delhi 25, Bupesh Rathore Vs. Dayashanker Prashad Chaurasiya 2022 2 SCC 355, Associate Cement Ltd. Vs. Keshvanand AIR 1998 SC 596 and Ram Prashad Vs. CIT AIR 1976 SC 637 that the complaint ought to be signed, verified and presented by the duly authorized person and it is to be in the name of company incorporated and not in the name of Managing Director or Director. The Director of company is not servant but an agent of the company, he cannot act of his own but has to act through its Director having authority. The complaint does not qualify all such requirements as the complaint is instituted in the name of Chandrakash Pant and not in the name of borrower. The complaint is liable to be dismissed.
7.1.2. However, the complainant has reservations to this plea of the OPs that it is a complaint of consumer dispute, Sh. Chandrakash Pant, Director has been authorized by Board Resolution, which has been proved in evidence. He is authorized by Board Resolution dated 09.02.2016 for various acts and deeds inclusive of prosecution of present complaint. The complaint is not suffering from non-joinder of name of the company since the complaint is signed and verified in the capacity of Director of the company and not in his individual capacity. The narration of facts in the complaint also spells out that affairs of loan and its repayment besides other facts and features are pertaining to M/s Saviour Biotech Pvt. Ltd. The complaint does not suffer from mis-joinder of parties.
7.1.3. The rival contentions are considered keeping in view facts and features of the case, case law presented and provisions of Order XXIX Rule 1 CPC & Order I Rule 10 (1) CPC [as a guidance for the purposes of adjudicating the issues].
On the face of record, the title of complaint is Chandraksh Pant, Director M/s Sarviour Biotech Private Limited, 2047/48, 2nd floor, Gali no.6Chuna Mandi, Paharganj, New Delhi 110055. Moreover, there is also Board Resolution in favour of Sh. Chandrakash Pant, Director to do needful for prosecution of the complaint. However, the requirement of Rule 1 of Order XXIX CPC is that complaint/suit by or against corporation/legal entity is to be in the name of that corporation/legal entity. But Sh. Chandrakash Pant had filed the suit for M/s Saviour Biotech Pvt. Ltd. but in his name as Director of his company, but this is not permitted by Rule 1 of Order XXIX CPC.
In addition, as per Rule 10(1) of Order I CPC provides that when the suit is instituted in the name of wrong person, under bona-fide, the proper name may be introduced by exercising the power under this provisions. Therefore, the name of M/s Sarviour Biotech Private Limited 2047/48, 2nd floor, Gali no.6 Chuna Mandi, Paharganj, New Delhi 110055 through its Director Chandraksh Pant can be substituted, it is accordingly properly subsituted. This contention of OPs is disposed off. The complaint cannot be construed mis-joinder of the parties. The complaint/suit cannot be non-suited on this score, which is also law under rule 9 of Order XXIX CPC.
8.1 So far other issues are concerned, the same are also considered and by taking consolidated stock of all such materials, the following conclusion are drawn:-
(i) The case of complainant is that the OPs have withdrawn two extra EMIs after repayment of 60 agreed EMIs. But the case of OPs is that no extra two EMIs were charged upon the complainant nor amount of Rs. 12,897/- each was withdrawn from the account of complainant. in fact, an amount of Rs. 31,369/- was outstanding against the complainant, for which civil suit for recovery of money was filed. Had the complainant grievances of withdrawal of excess amount from his account, he could have filed counter claim in that civil suit; but it was not done by the complainant.
(ii) In the sequence of events, as referred in sub-clause (i) above, it needs to look at the record of statement of account filed by the complainant (Annexure B/page no. 13-18) and also statement of account (Annexure E/page no. 35-40) of affidavit of OPs. As per Annexure-E of OPs, not only all the 60 EMIs were paid regularly and without fault but also there is additional 61st EMI (of 05.08.2015) deducted from the account of complainant. As per the statement of account/Annexure-B filed by the complainant and it was issued by the OP bank, it shows payment of 60 EMIs and the last EMI was paid on 08.04.2015. In addition, the complainant has also proved decree dated 27.02.2023 alongwith copy of judgment dated 27.02.2023 and while discussing issue no. 1 & 2 (at page no. 9 of the judgment) the court of Ld. Civil Judge has specifically recorded that a witness of Bank appeared (OP herein) and gave the statement that two extra EMIs were withdrawn from the account of complainant, which is after repayment of 60 EMIs. It proves that the OPs have charged extra two EMIs beyond the agreed 60 EMIs.
(iii) In view of the aforementioned sub-clauses, the plea of OPs does not sustain that complainant ought to have filed counter claim vis a vis the OPs/plaintiff could not prove of their case of recovery of amount against the complainant.
(iv) It stand proved that the complainant have repaid all 60 EMIs regularly, being reflected from the statement of account proved by OPs, being their own record. There is no proof by the OPs as to how all EMIs were not paid or there were irregularity or default in repayment of the loan. In fact, the consolidated record, inclusive of dismissal of civil suit, proves that the OPs have charged two extra EMIs beyond the agreed 60 EMIs, whereby the entire loan was paid.
(v) The aforementioned clauses proves that there is unfair trade practice adopted by the OPs against the complainant that despite receive of agreed 60 EMIs of repayment of entire loan amount, the OPs collected two extra EMIs by abusing the authority to withdraw the amount, which was upto 60 EMIs.
(vi) The complainant has also proved his request and legal notice for issue of no due certificate, it was not considered by the OPs, it amounts to deficiency of services. Since the complainant has paid the EMIs, it makes the complainant entitled for no due certificate in respect of aforementioned loan.
8.2 In view of the conclusion drawn in paragraph no. 8.1 above, the complainant has succeeded to establish his complaint against OPs. It is but natural that for want of ‘no due certificate’ it is affecting the complainant’s rights accrued whether of deletion of endorsement of hypothecation or CIBIL score, which matters a lot for financial relations and the present complainant suffered for it from OPs. The OPs could not establish that two EMIs were pending, moreover the civil suit filed by the OP-Bank has been dismissed by the civil court by holding, on the basis of evidence led, that OPs have already collected two extra EMIs. The OPs could issue NOC even after decision dated 27.02.2023 by the civil court but the OPs had failed to issue 'no due certificate' despite payment of all EMIs and dismissal of recovery of money suit.
8.3. The complainant deserves directions against OPs to issue ‘No Due Certificate' and also 'to correct/upto date the CIBI score record of complainant' and to inform the complainant about certificate and correction of such CIBIL record, apart from issuing appropriate letter to this effect, in favour of complainant.
8.4. The complainant sought compensation of Rs.10,00,000/- against OPs towards agony, harassment, deficiency of services besides defending the money suit initiated by the OPs.. Considering all the aspects involved, the complainant deserves compensation in its favour and against OPs, the compensation should be reasonable and consonance to the situation, thus is quantified for Rs.40,000/- in favour of complainant and against OPs.
8.5. The complainant also claims other appropriate relief. Since the complainant was constraint to file the complaint for valid relief, that too after payment of all the EMIs regularly, the complainant also deserves costs of litigation, it is quantified as Rs.20,000/- in favour of the complainant and against OPs.
9.1. Accordingly, this complaint is disposed off in favour of complainant against OPs and OPs are directed to (i) issue 'no dues certificate' for clearance of loan amount in respect of loan amount of account no. 032560532, Customer ID 7237 and (ii) 'to correct/update the CIBIL score record of complainant' as nothing is outstanding against the complainant (iii) the OPs are restrained from making any recovery of such loan account from the current account of complainant company and (iv) also inform the complainant about correction/update of such CIBIL record apart from issuing appropriate letter to this effect, in favour of complainant.
9.2.The OPs are directed to comply above orders/directions in its letter and spirit within 35 days of this order. In case the OPs do not comply with this Order, partly or otherwise, then the complainant will be at liberty to institute appropriate motion under the law. It is also clarified that present Manager of OP2 Branch (either designated at Senior Manager or Branch Manager, as the case may be) will also be liable for compliances and for other legal consequences for non-compliances.
10. Announced on this 3rd day of August 2024 [श्र!वण 12, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
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