(Passed On 26/11/2015)

 Per Smt. Jayshree Yengal, Hon’ble Member

1. This appeal challenges the order dated 13/4/2007, passed by the District Consumer Forum, Buldhana, partly allowing the Consumer complaint bearing No. 217 of 2006 and thereby directing the opposite party (for short OP) Nos. 1 and 2/appellants herein to issue no due certificate to the complainant and further imposed Rs. 2,500/- and Rs. 500/- as compensation for mental and physical harassment and towards cost of proceeding respectively. The aforesaid direction to be complied within one month of the receipt of the order and  the said compensation would be paid with 5 percent per annum interest if the aforesaid directions are not complied within aforesaid period of one month.  
2. Respondent No. 1 Mr. Raghunath Sakharam Nagare be referred as complainant, respondent No. 2 Gadre Motors be referred as OP No. 3 and appellants Nos. 1 and 2 Ashok Leyland Finance Company Ltd., Branch Manager, Ashok Leyland Finance Company Ltd.  be referred as OP Nos. 1 and 2 for the sake of convenience.
3. Facts in brief as set out by the complainant in complaint are as under.

Complainant Mr. Raghunath Sakharam Nagare purchased a four wheeler of Mahindra Matador Load King model from OP No. 3, Gadre Motors for consideration of Rs. 4,47,800/-. The complainant paid Rs. 1,38,181/- as margin money and the complainant availed loan towards the balance of Rs. 3,35,000/- from OP Nos. 1 and 2, Ashok Leyland Finance Company Ltd. The said loan was to be repaid in 22 equal monthly installments towards which the complainant issued 10 blank cheques to the OPs. It is the contention of the complainant that the OP No 2 initially presented the cheques regularly every month and the same were duly honored and the OP received the repayment towards the same. The OP No. 2 presented 3 cheques bearing Nos. 343945, 343946 and 343947 simultaneously on the same day. The complainant immediately enquired with the OP No. 2 as to why he presented three cheques issued towards EMI in one stroke. It is the contention of the complainant that he was informed by the OP that he could deposit the amount for one cheque. Therefore the complainant deposited the amount to honour one cheque. The OP then presented cheques bearing No. 343948 and 343949 in the bank which were also duly honoured. The OP then informed the complainant that he would be presenting the cheque bearing No. 343950 which would be inclusive of the monthly installment and also the monthly installment which were outstanding against the complainant. The complainant agreed for the same. The OP then requested the complainant to issue more cheques towards the EMI as the cheques that he had already issued were exhausted. The complainant requested the OP to give the statement of the loan account. The OP supplied the same by facts on perusing the same, the complainant realized that extra interest was charged. It is the contention of the complainant that OP adopted unfair trade practice by imposing interest in his account when the EMI calculated was already inclusive of the interest and the OP had breached the terms and conditions of the loan agreement. The representative of the OP Nos. 1 and 2 behaved rudely with the complainant and threatened him that they would repossess the vehicle at any time. The complainant stopped repayment from 30/10/2005. The representative of the OP Nos. 1 and 2 on 23/3/2006 obstructed the vehicle of the complainant on the road and demanded repayment of loan. To which the complainant requested the OP to give the statement of account and no due certificate and expressed his readiness to pay the outstanding dues. The complainant and OPs settled the account of loan and as a result of the settlement, the complainant issued a demand draft (DD) of Rs. 3,65,14/- on 25/3/2006 to the OPs. It is further contended by the complainant that the OP again informed the complainant that he would have to pay the interest. The complainant on 13/7/2006 went to Akola and paid Rs. 70,000/- by DD to the OPs. The OPs also issued a receipt towards the same. The complainant repaid the outstanding two installments which being of Rs. 11,470/- on 13/8/2006 and Rs. 12,821/- on 12/9/2006. The OP inspite of the aforesaid repayments made by the complainant failed to issue ‘ No Due Certificate.’ However on 30/11/2006, the complainant issued a copy of the settlement amount in which Rs. 51,566.66/- was still shown as outstanding. Alleging unfair trade practice adopted by the OP Nos. 1 and 2, the complainant filed a consumer complaint and sought for compensation of Rs. 25,000/- towards mental and physical harassment, and Rs. 25,000/- towards monitory loss caused to the complainant and Rs. 30,000/- towards the unfair trade practice adopted by the OPs and Rs. 2,000/- towards cost of proceeding. The complainant by the consumer complaint also sought directions for issuance of no due certificate by the OPs to the complainant.

4. The OP Nos. 1, 2 and 3 resisted the complaint by filing their written version and denied all the adverse allegations of the complainant. The OP Nos. 1 and 2 Ashok Leyland Finance Company Ltd. by the written version filed its preliminary objections on the ground that the Forum has no jurisdiction to decide the complaint as he had breached the policy condition by filing consumer complaint when the clause of arbitration was part of the loan agreement. The OPs Nos. 1 and 2 further submitted that the dispute involved cannot be decided in summary proceeding as it would require evidence to be adduced in detail. Therefore sought for dismissal of the complaint. The OP Nos. 1 and 2 have specifically submitted that the complainant failed to repay the loan by regular installment as per terms and condition of loan agreement. Since the complainant failed to repay the outstanding loan amount, the no due certificate could not be issued to the complainant and he had breached the terms and condition of the loan agreement as he struck repayment. The OP Nos. 1 and 2 denied to have adopted any unfair trade practice or rendered deficiency in service and sought for dismissal of complaint.
5. The Forum after hearing both the sides and perusing the documents on record partly allowed the complaint as aforesaid. The Forum has held that the complainant has proved that he has repaid the loan within the stipulated period and his loan account is duly satisfied and therefore he is entitled to the no due certificate’ to be issued by the OP Nos. 1 and 2.
6. Being aggrieved by the  impugned order, the OP Nos. 1 and 2, Ashok Leyland Finance Company Ltd. has preferred this appeal and challenged the impugned order on the ground that the Forum failed to appreciate that the complainant committed default in repayment of the monthly installment and there still remained outstanding amount against complainant and if the no due certificate is issued to the complainant then the appellant would be deprived of recovery of the loan amount due and they would be put to great loss and extra interest charged on the complainant  is as per the terms and condition of the loan agreement as the EMI were not paid on the due dates.
7. We heard counsel for the appellant and respondent No. 1. Respondent No. 2 is proceeded exparte. We also perused the written notes of arguments, copy of the complaint, written version and documents filed on record by both the parties.
8. On perusal of the schedule of repayment, it reflects that the monthly repayment of installment commences from 13/12/2004 and according to the said schedule the last  22^nd installment falls due on 13/9/2006. The letters dated 28/06/2005, 1/10/2005, 10/3/2006 and  30/06/2006 addressed to the complainant by the respondent repeatedly mentioned that the payment of installment is not made on due date. We also perused the statement of accounts of the complainant which  reflects that most of the installments were not paid on the due date and  two cheques issued by the complainant were also dishonoured. Perusal of the settlement statement  as on 18/1/2007,  reflects that settlement amount as on 8/1/2007 being  worked out by the appellant as Rs.  57,296.99/- The only inference that can be drawn from these documents filed on record is that the complainant/respondent herein failed to repay the EMI on  due dates and the appellant/OP has charged interest as per terms and condition of the loan agreement. The document which reflects the settlement amount as on 8/1/2007 of Rs. 57,296.99/- is not denied by the respondent and it is  mentioned in it that the said document was issued to complainant when he sought for the no due certificate from the appellant. The complainant has not brought any evidence on record to show that the loan was completely repaid and there remained no due in the said account. The aforesaid document showing settlement amount as on 8/1/2007 also makes it clear that the complainant has not repaid the loan as per the schedule of repayment in which the last installment was to be paid on 13/9/2006. We are of the reasoned view that the complainant has not brought any evidence on record in support of the relief sought in the complaint seeking no due certificate from the appellant. Thus the impugned order by which the Forum has allowed the complaint cannot be  sustained in law. For the foregoing reason, we are of the reasoned view that the impugned order deserves to be quashed and set aside and the appeal deserves to be allowed. In the result, we pass the following order.

ORDER

1. Appeal is allowed.
2. The impugned order dated 13/07/2007  passed by the District Consumer Forum, Buldhana in consumer complaint No. 217 of 2006  is  quashed and set aside.
3. The complaint bearing No. 217 of 2006 is  dismissed.
4. No order as to costs.
5. Copy of order be furnished to both the parties, free of cost.