PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This is OP’s appeal against the order dated 10.11.2010  of ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which the complaint was allowed and the OPs/appellant were directed to refund all excess amount beyond Rs.75,000/- taken by them from the account of the Complainant and ordered that the loan amount beyond Rs.75,000/- could be recovered by them from their Agent to whom they have disbursed the same. The excess amount beyond Rs.75,000/- taken by them from the Complainant/respondent No.1 was to be refunded by OPs within 30 days from the date of receipt of certified copy of the order, failing which they were liable to pay the amount along with interest @12% per annum from the date of the order, till the date of actual payment to the complainant

2.                The facts, in brief, are that the Complainant/respondent No.1 was intending to buy a car and in this regard the OP No.1/appellant through its agent M/s Axess Services-OP/respondent No.2 approached him for sanction of a car loan. The complainant alleged that he was made to sign a number of standard printed documents, along with some blank papers and stamp papers. Blank cheques  were also given to the OPs by the complainant as security. The loan was to be repaid directly through the Bank by ECS. The Complainant was assured that the loan amount would be available within 3-4 days.  After a week the Complainant was informed by M/s Axcess Services that Rs.1.25 lacs had been sanctioned as loan and the same would be paid on transfer of R.C. of the car in the name of the Complainant bearing hypothecation in the name of TATA Capital Ltd. But when it was told by the complainant to the agent that he would not be able to purchase the car without the amount required for purchase of car, the agent (OP No.2) then gave him a cheque of Rs.75,000/- from his own account, on the condition that the amount would be returned when the loan amount was received by the Complainant from OP No.1. The Complainant arranged the balance amount himself. The Complainant then purchased a second hand car, make Santro, bearing Regn. No.HR-51-K6114 and after completion of all formalities, the Complainant contacted the OP No.2 and also the Appellant and handed over the required documents to them. It was further stated by the complainant that he visited the office of OP No.1 but he was not allowed to meet the Branch Manager of the company. Thereafter, the OPs kept dilly-dallying the matter. In the mean time OP No.2 shifted his office and the Complainant thus had no knowledge about his new address.  It was alleged by the complainant that actually OP No.1 did not give any loan to him and issued no letter regarding sanction of loan but took undue benefit of the cheques and papers duly signed by him, and had collected all installments of Rs.6077/- each from the account of the Complainant, whereas the Complainant had only received Rs.75,000/- from OP No.2. It was further stated by the  complainant that OP No.1 was not entitled to recover any amount from him, as they have never paid him any amount because the amount of Rs.75,000/- was given to him by the agent. It was alleged that an amount of Rs.3,000/- was wrongly charged  by the OPs as documentation charges.   The Complainant stated that the OPs were not entitled to charge any interest or finance charges on the balance amount of Rs.50,000/-, which was not even received by him from the OP No.1. Ultimately a legal notice was issued to the OPs but to no effect. Hence this complaint.

3.                In its reply OP No.1 stated that the loan in question was disbursed to the Complainant through OP No.2  and communicated all the terms and conditions to the complainant at the time of disbursal of loan. It was further stated that the Complainant applied for the loan through M/s Axcess Services, which was an independent unit and works for various banks and financial institutions including the Appellant. A loan of Rs.1.22 lacs was sanctioned, out of which Rs.3,000/- were deducted as documentation charges and Rs.1.19 lacs was disbursed on 23.7.2008 for purchase of used Santro car. The loan was disbursed by the Appellant through a cheque/ demand draft in the name of M/s Axcess Services, as per instructions of the Complainant. Copy of the loan-cum-hypothecation-cum-guarantee agreement and authority letter vide which the Complainant directed the OP to disburse the loan in the name of M/s Axcess Services has been placed on record as Annexure R-3 and R-4 respectively.  It was stated that the loan of Rs.1.22 lacs had been sanctioned with an EMI of Rs.6077/- payable on 7th of each month for 24 months. The answering OP denied all other allegations of the Complainant and a prayer was made for dismissal of complaint.

5.                During the course of proceedings, the ld. District Forum allowed the Complainant to implead Mr. Rajesh Narang of M/s Axcess Services as OP No.2 by filing an amended complaint, along with affidavit.   Thereafter notice was sent to OP No.2, which was served for 7.9.2010 but none appeared on his behalf and  he was proceeded against ex-parte.

6.                Parties led evidence in support of their contentions. 

7.                After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated in the opening para of this order

8.                 Feeling aggrieved, the instant appeal has been filed by the appellant/OP-1.

9.                 We have heard arguments of the learned counsel for the parties and have perused the record.

10.               It was mentioned by the complainant/respondent-1 in para 1 of the complaint that in July 2008 he was intending to get loan to purchase a car, and in that connection TATA Capital Limited-OP No.1, approached him through its agents-OP No.2. M/s Axcess Services. It was further mentioned in para 2 that the OPs obtained their signatures on a number of printed/blank documents and got blank cheques and  their agent assured the complainant that the loan shall be made available within 3-4 days. It was mentioned in para No.3 of the complaint that they were informed by OP No.2 that loan had been sanctioned. In para No.4, it was mentioned that agent of OP No.1 gave to the complainant a cheque for Rs.75,000/- .  In this manner, the contention of the complainant is that OP No.2 was agent of OP No.1/appellant. This fact is proved from the documentary evidence also.  Annexure C-3 is the document of OP No.1 having contract details, in which Axess Services is mentioned to be their DSA (Direct Sale Agent). Even OP No.1 in its reply, mentioned in para No. 1 and 2 that M/s Axess Services works for various banks, financial institutions etc. including the answering OP.  They claimed to have paid loan amount to their agent OP No.2 and not directly to the complainant.

11.               The learned counsel for the OP/appellant argued that the  complainant had moved an application Annexure R-4 for making the payment of the loan amount to M/s Axess Services and therefore, the payment was made to OP No.2, as desired by the complainant/respondent-1.  There is no denying of the fact that OP No.2 had no connection with the complainant.  He was not the owner of the vehicle, which was to be sold to the complainant, nor was he a dealer to get the said bargain struck. It is argued by the counsel for the complainant that there was no reason, why they would ask for making the payment to a stranger instead of requesting for making the payment directly to themselves.  There is truth in his contention. According to the complainant/respondent No.1 at the time of filling up the application form a number of documents, many of which were blank, were put before the complainants/respondent No.1 and they were made to sign on the same and the application Annexure R-4 was also got signed without the same having been read by or read over to the complainant. It shows that the complainant never consented intentionally for making the payment of the loan amount to OP No.2.

12.               Annexure R-3 is loan-cum-Hypothecation-cum-Guarantee Agreement, Clause 2 of which provides for Loan and Disbursement. The relevant portion of this Clause reads as under:-

The Lender may (in its discretion) disburse the amounts directly to the seller/borrower. In the event the seller has availed of any facility from its bankers/financiers, the disbursement may be made directly to such bankers/financiers of the seller.  Such a disbursement shall be deemed to be a disbursement to the borrower under this Agreement.

It shows that the payment of the loan amount could be made either to the seller of the vehicle or to the borrower and if the seller of the vehicle had obtained any loan from the bankers or financier, then the payment could be directly made to them also. There was, therefore, no agreement between the parties to make the payment to a stranger in contravention of the agreement Annexure R-3. There appears to be no doubt about it that the OP No.2 was introduced by the officials of the appellant/OP-1 to siphon off a major portion of the loan being advanced to the complainant.  It is an unfair trade practice on the part of OPs to make the payment to their agent and then withhold amount, and thereby harass their creditors by paying lesser amount of loan by digesting or sharing the remaining amount with the DSA (Direct Sale Agent).

13.               Since OP No 2 was the agent of the OP No.1 (as well of many other financier institutions) the payment to the agent cannot be construed as payment to the complainant. Only that amount would be considered to have been paid to the borrower which has reached him, either directly from the appellant or from its agent-OP No.2. In the present case OP No.2 has paid the complainant only a sum of Rs.75,000/- and no further amount was paid.  The complainant would be therefore, liable to pay back the amount of Rs.75,000/- only and not the one which has either been retained by OP No.2 or they shared with the officials of OP No.1. It is for the appellant to get back the remaining amount either from OP No.2 or from its officials responsible for making the payment to OP No.2 in contravention of the agreement Annexure R-3.

14.               The complainant/respondent No.1 has not denied the receipt of Rs.75,000/- from the appellant through OP No.2.  The appellant has not produced any evidence, if they made the payment of any amount in excess of Rs.75,000/- to OP No.2 for payment to the complainant. OP No.2 was proceeded against ex parte before the learned District Forum. It is therefore, established that only a sum of Rs.75,000/- was paid to the complainant as loan.

15.               The learned District Forum did not allow any interest on the amount, on the ground that the column relating to the payment of interest was lying blank in Annexure R-1 and R-2. The appellant has not challenged the said finding through this appeal, nor any effort was made to prove, if there was any agreement between the parties to pay interest on the said amount.

16.               In view of the above discussion we are of the opinion that the complainant/respondent-1 was liable to refund only a sum of Rs.75,000/- to the OPs and nothing more.  The impugned order is therefore, perfectly legal and valid and is liable to be upheld. There is no merit in this appeal and the same is accordingly dismissed with litigation costs of Rs.10,000/-.

17.               The OP No.1 would be at liberty to recover the amount in excess of Rs.75,000/-, if ever paid to OP No.2, along with interest and costs from OP No.2, or from its own officials by adopting the procedure established under law.  

                    Copies of this order be sent to the parties free of charge.