Order dictated by:

Sh.S.S. Panesar, President.

1.       Sh.Apwinder Singh Sidhu has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that the complainant is a citizen of India and is a permanent resident of Amritsar. The complainant is the consumer of Opposite Parties  and availed their services by way of having car loan from them. In the year 2007, Opposite Parties  had sanctioned the car loan for the period of seven years in the name of complainant. In the year 2007, the complainant wanted to purchase the car and visited to Rohan Motors Limited, Dehrudun, Uttranchal. After the visit, the complainant decided to purchase the Swift Diesel VDI of Maruti Suzuki Brand. The actual price of Swift VDI was Rs.5,09,185/- knowing which the complainant decided to take some amount of car loan from the bank. The complainant visited the Opposite Parties  and asked for the schemes and procedure for car loan, on which the Opposite Parties  showed various types of car loan schemes  to complainant and after hearing all their schemes, the complainant agreed to take a scheme in which the Opposite Parties  will charge 11.25% interest per annum on the loan amount and submitted  all the documents required by the Opposite Parties  and applied for the loan. The complainant had given down payment for the sum of Rs.1,29,715/- on 31.7.2007 and for remaining amount the car loan bearing No.8402NG00016510 amounting to Rs.3,81,000/- was sanctioned by Opposite Parties  for a period of seven years with interest @ 11.25%. The total loan amount after adding the interest was Rs.5,54,402/- from which Rs.1,73,402/- was the interest for the period of seven years. The car loan was sanctioned for the monthly installment of Rs.6600/- and as per the requirement by the Opposite Parties, the complainant issued near about 40-45 undated  signed cheques amounting to Rs.6600/- which the Opposite Parties  had to present each cheque in one month only. The invoice receipt issued by  Rohan Motors Limited, Dehrudun, Uttranchal to complainant after purchasing the car which shows the actual price of car is attached. The payment of Swift VDI were paid to Rohan Motors Limited, Dehrudun, Uttranchal for the sum of Rs.1,29,715/- by the complainant and Rs.3,81,000/- by the Opposite Parties  vide transfer receipt dated 31.7.2007. The payment receipt alongwith processing fee receipt is attached. The letter dated 31.7.2007 from Opposite Parties  to the Manager, Rohan Motors Limited, Dehrudun, Uttranchal for informing that Opposite Parties had financed the loan for Swift VDI car to the complainant as per their proforma invoice. After completing the entire documentations, the complainant paid down payment and Opposite Parties  had paid the loan amount to Rohan Motors Limited, Dehrudun, Uttranchal and took the possession of Swift VDI Car. The cheques which were issued to other party were undated as per their requirement and as per  clause 10 letter of hypothecation, it is clearly mentioned that the complainant is authorizing other party to fill up the dates. After handing over 40-45 cheques to Opposite Parties, the Opposite Parties assured the complainant that when there will be requirement of more cheques, they will intimate the complainant. The total loan installments which the complainant had to pay were 84. From 10.8.2007 the Opposite Parties  started presenting the cheques for the sum of Rs.6600/- and from 10.8.2007 to 17.12.2008 (18 months), Opposite Parties  had presented cheques regularly as they had to present each cheque in one month. After 17.12.2008 the Opposite Parties  started presenting the cheques with the gap period of one month, two months or some time more. The complainant requested the Opposite Parties  several times to present each cheque in one month which the Opposite Parties  never  paid heed to and they started presenting two cheques in a day for harassing the complainant and some time, Opposite Parties  used to present four cheques in one day. The complainant requested not to present cheques like this and requested Opposite Parties that the way they were presenting the cheques, it will lead to big interest to the complainant. With the cheque entries and bank statements of the complainant, it clearly shows that the Opposite Parties  had not presented the cheques regularly and in the year 2011 when the cheques which were given at the time of sanctioning the loan were finished, the Opposite Parties  had ever contacted the complainant and the gap period was started and within the gap period of near about 8 months, the Opposite Parties  never contacted complainant for issuing new cheques. After the gap period when Opposite Party contacted the complainant the Opposite Parties told the complainant that the cheques which were issued at the time of sanctioning the loan from them two or there cheques are left now so the Opposite Parties  had stopped presented the remaining cheques and then Opposite Parties  asked the complainant to pay penalty for the gap period in which Opposite Parties  had not presented the cheques. The complainant were shocked and tried to explain Opposite Parties  that they had already  given the undated signed cheques to Opposite Parties  and it is the responsibility of Opposite Parties  to present each cheque in the month and if the cheques were finished it is the responsibility of Opposite Parties to contact and demand cheques, as at the time of sanctioning loan, the Opposite Parties  had assured the complainant that when there will be requirement of more cheques Opposite Parties  will contact complainant which they had not done. The complainant again visited to Opposite Party and requested to deduct the penalty amount which was not with the fault of the complainant. The complainant told Opposite Parties  that he had never been defaulter in the payment and had already requested the Opposite Party several time to present each cheque in one month, but the Opposite Parties  had never done that. The Opposite Party assured the complainant that they will deduct the penalty amount and demanded more undated signed cheques for the sum of Rs.6600/- only for the remaining payment. The complainant again issued near about 20 cheques bearing No. 379043 to 379062 to Opposite Parties  for further installments. The cheques which were issued second time to Opposite Parties  were also not presented properly which can be proved by the statements of complainant provided by the Opposite Parties. The total loan amount was Rs.5,54,402/- alongwith interest of seven years with 11.25% from which Rs.4,52,600/- were already paid as per the bank statements of the complainant and the remaining amount which were pending was Rs.1,01,802/- which the complainant never refused to pay and till date the complainant is ready to pay the actual amount, but the Opposite Parties  are demanding penalty amount of Rs.1,40,998/- for the gap period in which the cheques are presented as it was not the fault of the complainant. The complainant has sought the following reliefs vide instant complaint:-

a)       To deduct the penalty amount of Rs.1,40,998/- from the remaining loan amount which was added with the deficiency in services by Opposite Parties.

b)      Issue direction to Opposite Parties  to accept the remaining payment without penalty for the sum of Rs.1,01,802/- in one installment.

c)       Pay compensation to the tune of Rs.1 lac on account of mental tension and unnecessary harassment suffered by the complainant.

d)      Rs.15,000/- as litigation fee may kindly be also awarded.

e)       Any other  relief which this Forum may deem fit in the fact and circumstances of the present case, may also be awarded in favour of the complainant.

Hence, this complaint.

2.       Upon notice, Opposite Parties No.1 and 2 appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that the present complaint filed by the complainant is not maintainable  against the replying Opposite Parties  and the same has been filed just  to harass the Opposite Parties; that the complainant has wilfully failed to pay the instalment regularly and it was the duty of the complainant to repay the instalment/ loan in time. It is pertinent to mention over here that only three cheques were deposited by the complainant at the time of taking of loan which fact is clarified from the letter of hypothecation as in the end of that document, detail of the cheques is mentioned in schedule-I of that document and this fact was duly  confirmed by the borrower/ complainant by signing over that document i.e. Letter of Hypothecation (for car loan) and after that the Opposite Parties presented the cheques for clearance when the same was supplied by the complainant/ borrower and after that the bank presented the cheques for clearance as per the instructions of the complainant. As and when the complainant supplied the cheques, the Opposite Parties presented the same for clearance and as such, the Opposite Parties  are not at  fault and have always acted as prudent banker.   On merits, the  facts mentioned in the complaint are also denied. It is denied that the complainant issued 40-45 undated signed cheques. As and when the complainant supplied the cheques, the Opposite Parties  presented the same for clearance and as such, the Opposite Parties  are not at fault and have always acted as prudent banker and there was no lapse on the part of the Opposite Parties. The Opposite Parties  gave many reminders  oral as well as in writing, but the complainant failed to repay the loan in time. Remaining facts narrated in the complaint  are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence his affidavit Ex.CW1/A alongwith documents Ex.C1 to Ex.C46 and  closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties  tendered into evidence affidavit of Sh.Sunil Arora, Manager Ex.OP1, statement of account Ex.OP2, copy of letter of hypothecation Ex.OP3 and closed the evidence.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       On the basis of evidence on record, ld.counsel for the complainant has vehemently contended that the complainant had obtained car loan facility from Opposite Parties to the tune of Rs.3,81,000/-. The total loan amount after adding the interest was Rs.5,54,402/-. As per loan payment schedule, the complainant was to pay monthly instalments of Rs. 6600/- in all 84 installments to opposite parties  to discharge the loan liability. It is the case of the complainant that he handed over 40/45 blank undated signed cheques  in favour of opposite parties so that they may present one cheque in each month. After handing over 40-45 undated signed cheques to Opposite Parties, the Opposite Parties assured the complainant that when there arose requirement of more cheques, they will intimate the complainant.  From 10.8.2007 the Opposite Parties started presenting the cheques for the sum of Rs.6600/- and from 10.8.2007 to 17.12.2008 (18 months) which was in accordance with payment schedule.  But after 17.12.2008 the Opposite Parties started presenting the cheques with the gap period of one month, two months or sometimes after a more gap even. The complainant requested the Opposite Parties several times to present each cheque in one month  to which the Opposite Parties never paid  any heed  and they started presenting  two cheques in a day for harassing the complainant and some times Opposite Parties used to present four cheques in one day. The complainant requested them not present cheques like that and told the Opposite Parties that the way they were presenting the cheques, it will lead to big loss to the complainant. The attested copy of hand written cheque entries and bank statements sent by Opposite Parties are Ex.C20 and Ex.C21. To cover up their mistake, the Opposite Parties sent one recall notice to the complainant for pending payment . The following are the months in which Opposite Parties had not presented cheques as the signed undated cheques are already with them.

MISSED MONTHS: April 2009, October 2009, November 2009, April 2010, October 2010, December 2010, January 2011, April 2011, May 2011, June 2011, July 2011, August 2011, September 2011, October 2011, November 2011, January 2012, February 2012, April 2012, July 2012, September 2012, October 2012, April 2013, June 2013, July 2013, September 2013, October 2013.

With the cheque entries and banks statements of the complainant, it become clear  that Opposite Parties have not presented the cheques regularly, which were given at the time of sanctioning the loan and the Opposite Parties did not contact the complainant when all the cheques issued in their favour got exhausted nor  any request was made to the complainant for issuing new cheques.  When the complainant contacted the Opposite Parties they told the complainant that the cheques which were issued at the time of sanctioning the loan only two or three cheques  were left now so the Opposite Parties had stopped  presenting the remaining cheques and then the  Opposite Parties told the complainant to pay penalty for the gap period in which Opposite Parties had not presented the cheques. The complainant was shocked and he tried to explain Opposite Parties that he had already given the  undated signed cheques to Opposite Parties and it is the responsibility of the Opposite Parties to present one  cheque enery month . If the cheques issued in their favour had exhausted, it was the duty cast upon Opposite Parties to contact and demand more  cheques. Even then, the complainant again  issued near about 20 odd cheques bearing No. 379043 to 379062 to Opposite Parties for payment of further instalments. The cheques which were issued second time to Opposite Parties were also not presented properly which can be proved from the statements of account provided by the Opposite Parties. After adjusting all the instalments paid by the complainant, the remaining amount comes to the tune of Rs.1,08,002/- which the complainant is ready  to pay in two instalments, but the Opposite Parties are demanding penalty amount of Rs.1,40,998/- for the gap period in which the cheques were not presented. Since it was not the fault of the complainant., therefore, the complainant is not liable to pay penalty amount of Rs.1,40,998/-. The complainant had requested several times to deduct the penalty amount which was imposed by the Opposite Parties without any fault of the complainant, but the Opposite Parties are not ready to accept the amount without penalty amount  and then Opposite Parties marked CIBIL as negative to harass the complainant and it is requested that the Opposite Parties may be directed to pay compensation of Rs.1 lac on account of mental agony and unnecessary harassment suffered by the complainant while Rs.15,000/- may be awarded as costs of litigation.

7.       But however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant committed default  in making the payment of the loan instalments. During the months               April 2009, October 2009, November 2009, April 2010, October 2010, December 2010, January 2011, April 2011, May 2011, June 2011, July 2011, August 2011, September 2011, October 2011, November 2011, January 2012, February 2012, April 2012, July 2012, September 2012, October 2012, April 2013, June 2013, July 2013, September 2013 and  October 2013, the complainant has defaulted in making the payment of the loan instalments. The contention of the ld.counsel for the complainant that the complainant had already issued 40-45 undated signed cheques to the Opposite Parties at the time of sanctioning the loan, is not proved from the evidence on record. Even otherwise, it was the duty of the complainant to see that his loan instalments were regularly paid in his loan account and he was required to monitor the same regularly which the complainant has failed to do for the reasons best known to him. Opposite Parties now want to impose an amount of Rs.1,40,998/- as penalty on account of various defaults committed by the complainant in payment of loan instalments, which was well within their realm. Moreover, the instant case relates to accounts and this Forum has absolutely no jurisdiction to entertain and decide the instant complaint. We draw support in this connection from Ashok Leyland Finance Limited Vs. Himanshu S.Thumar 2005(II) CPJ 92, wherein Hon’ble Gujarat State Commission, Ahmedabad has held that account dispute is not a ‘consumer dispute’ and the complaint should not have been entertained by the District Foras.  The authority ‘supra’ is fully applicable to the facts of the present case on all its fours. 

8.       Since the complainant himself is guilty of committing default in loan repayment for several months and he being himself a defaulter can not approach the Forum for  seeking the relief vide instant complaint. Even otherwise, the dispute does not fall within the purview of consumer dispute. As such instant complaint is not legally maintainable. Consequently, instant complaint fails and is ordered to be dismissed. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 08.09.2016.