Heard learned counsel for both the parties.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

3.              The factual matrix leading to the case of the complainant is that the complainant has purchased a new Mahindra Scorpio on being financed by the OP No.1 for Rs.7,00,000/- on the condition to repay same in 45 installments. The complainant alleged inter-alia that he has paid all the installments and after closure of the account  he has sought for the No Dues Certificate but the OP-Bank served a notice to pay Rs.44,512/-for final settlement. The complainant alleged that he has already paid  Rs.14,875/- extra but instead of refund of same, OP No.1-Bank has refund to give him No Dues certificate and demanding the extract money as delayed payment interest. Hence, the complaint.

4.        The OP No.1 to 3 appeared and took the plea that the complainant has to pay three percent per month as default payment and in fact the complainant has made default payment in some occasion. The complainant has suppressed such fact. So, they submit that deficiency of service to refund any amount to complainant and the complainant is required to pay delayed payment interest.

5.          OP No.4 & 5 admittedly repaired the vehicle and they also claimed price of the repair. Since, the matter related to finance, there is no cause of action against them.

6.    The learned District Forum,after hearing both the parties,  passed the following order:-

                Xxx              xxx                              xxx

                 “ The Opposite Party No.1,2, & 3 are directed to refund the excess interest amount of Rs.14,875/- and give the No Dues Certificate alongwith litigation expenses of Rs.5,000/- to the complainant within thirty days of receipt of this order, failing which the Opp.Party are liable to pay penal interest @ 11.5% on the above amount till its realization.”

7.       Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version with proper prospective. According to him the claim of refund of Rs.14,875/- does not arise because he has paid the last installment. Learned District Forum ought to have considered the agreement between the parties,  about payment  of the installment on delayed payment of installments.

8.        Learned counsel for the appellant submitted that learned District Forum has erred in law by not considering the facts that the complainant has made making payment in certain occasion which has been observed by the learned District Forum but did not considered the said fact in favour of the appellant. Learned District Forum should have rejected the complaint and directed the complainant to pay further amount of Rs.14,875/- to settle the account. So, he submitted to set-aside the impugned order by allowing the appeal.

9.          Learned counsel for the appellant submitted that he has paid all the installments in excess of the amount payable because he has paid Rs.2,38,000/-  instead of Rs.2,23,125/- and thereby he is entitle to get refund of Rs.14,875/- and learned District Forum has rightly ordered to refund same. He submitted that the interest on delayed payment has been already calculated and recovered from the complainant and there is no outstanding against the complainant. So, he submitted that the impugned order should be confirmed by disposing the appeal.

10.      Considered the submission of learned counsel for both the parties, perused the DFR including impugned order.

11.        The complainant is required to prove the deficiency of service as a matter of principle of law.

12.       It is admitted fact that the complainant has incurred loan of Rs.7,00,000/- from the OP No.1-Bank to purchase the vehicle on the condition to repay same in 45 installments. It is also not in dispute that the complainant has paid the installments and the statement of account has been filed by the complainant to show the payment.

13.       Complainant has filed the necessary receipt of the loan amount. The OP has also admitted about payment of installment by the complainant.

14.        Now onus  sleeps to OP to prove that the complainant has failed to prove the delayed payment interest. In order to prove same, he is required to file the agreement but same has not been filed. He has only filed the statement of account and the statement of account reveals that in some occasions  the complainant has not paid  the required installment amount but same has been calculated and paid on the next occasion. So, the question comes now when there is delayed payment counted and paid, the question of delayed payment after the instalments being paid does not arise. In that context  learned counsel for the appellant failed to show any document executed between the parties to show that the delayed payment interest is only to be payable after all installments are paid. On the otherhand the complainant has paid such Rs.14,875/- towards demand of OP No.1-Bank. In one side the complainant  failed to prove that he has paid any extract amount and on the otherhand the OP failed to prove the delayed payment charges payable by the complainant. As per the banking procedure before the last installment  the account should be made clear so as to accept the last installment or last payment together and issue No Dues Certificate. In absence of any agreement such  procedure is universally applicable.

15.        Therefore, in the present case learned District Forum has not considered all the above facts and directed for refund of the amount illegally to the complainant although the OP No.1-Bank has failed to prove the fact alleged but the facts and circumstances discussed  above, make it clear that demand of the further amount  upon the complainant is deficiency of service on the part of the OP. So, affirming the impugned order this  Commission is of the view that the operative portion of the impugned order should be modified. Therefore, the impugned order is modified to the extent that the OP No.1 would issue No Dues Certificate  to the complainant  and impugned order so far payment of excess amount of Rs.14,875/- is set-aside  without insisting any payment further. So far the litigation cost is concerned, the same is reduced to Rs.3000/- payable by the OP No.1-Bank to the complainant and the rest part of the impugned order remain unaltered.

       The appeal is disposed of accordingly. No cost.

        Free copy of the order be supplied to the respective parties.

        DFR be sent back forthwith.