The present complaint has been filed by the local Pathankot Resident Sh.Kashmir Singh (the titled complainant) against the titled opposite parties being aggrieved at their alleged refusal to issue No Due Certificate and also to Refund Excess EMI Paid in Truck Loan besides to pay Rs.10 Lac as cost and compensation. The OP4 Manjit Singh has been arrayed as proforma respondent.
2. The back-drop as per the complainant version has been that the OP3 Manjit Singh had owned the 10 Tyre Truck-Trailer Registration No.PB-02-AR-9911 and had availed of the Term Loan of Rs.3.75 Lac on 30.07.2015 from the OP1/2 Fin. Co. against Hypothecation of Truck-Trailer repayable in E.M.I. (Equated Monthly Installments). The OP3 Manjit Singh had somehow defaulted in repayment as he could repay only Five EMI in 12 months so he executed an Agreement to Sell the Truck-Trailer to the complainant (along with Power of Attorney in his favor) with the specific consent of the OP1/2 Fin. Co. with a clear cum categorical mention of the OP1/2 Loan O/s of Rs.5.94 Lac to be liquidated within 05.07.2020 through EMI Repayment by the complainant; who, somehow in his endeavor to expeditiously liquidate the Loan O/s deposited Rs.10 Lac i.e., excess EMI repayment, though inadvertently, against Principal Amount of Rs.5.94 Lac plus Interest, thereupon.
3. The complainant further continues that he has since then repeatedly visited & regularly requested the OP1/2 officials to issue him the requisite NDC (No Dues Certificate) and also to Refund/Return-back the Excess Deposited EMI Amount but they would invariably delay cum defer the matter on one or the other pretext. And, in response to the complainant request for transfer of the Truck-Trailer to his name in the O/o DTO/ RTA Records, the OP1/2 Fin. Co. had purchased an unauthorized Insurance Policy on 23.08.2020, in his name, from the OP4 insurers the Sister Tie-up Co. of the OP1/2 Co., to the debit of the Loan A/c @ Rs.54,619/- whereas Truck-Trailer R.C. has been continuing in the N/o of the previous owner.
4. The OP1/2 Fin. Co. in order to exploit the inferior status/position of the complainant forged/fabricated a fresh but fake loan of Rs.3.90 Lac in his name on 08.01.2020 without giving/disbursing him any amount out of the same. Thus, the complainant is not liable to repay the amount of the so-fabricated loan-account.
5. Lastly, the complainant has filed the present complaint seeking directives to the OP1/2 financiers to issue NDC, refund excess paid EMI and not to repossess his Truck-Trailer besides to pay him Rs.10 lac as cost and compensation, in the interest of justice. The complainant, in order to support his complaint has placed his affidavit (Ex.CW-1) along with the herein listed documents, in evidence. i) Ex.C1 – Copy of the R.C. of the Truck-Trailer; ii) Ex.C2 – Copy of the Insurance Cover in the N/o the complainant; iii) Ex.C3 – Copy of the Sanction Rs.3.90 Lac; iv) Ex.C4 – Copy of the Agreement to Sell the Truck-Trailer; v) Ex.C5– Copy of the Power of Attorney; vi) Ex.C6 – Copy of the Sale Affidavit by the OP3; vii) Ex.C7 – Copy of the Affidavit by the complainant; viii) Ex.C8 – Copy of the Legal Notice served upon the complainant by the OP3 Manjit Singh; ix) Ex.C9 – Copy of the EMI Receipt (duplicate) of 30.05.2019 for Rs.19,000/- & others with A/c Statement Ex.C10; x) Rejoinder to the written statement of opposite party No.4 & Written Arguments along with Repayment Receipts by the complainant.
6. The OP1/2 financiers appeared on summoning/notice through their counsel and filed their written reply deposing/stating therein their preliminary as well as other (on merits) objections as: i) That the complaint has been filed sans reason and cause of action and ii) Not legally maintainable and iii) The complainant has no locus Standee to file the present complaint; iv) Not come to the court with clean hands as has concealed the true and material facts as he has filed the civil suit No. CS/588/2021 CJSD, Pathankot on the same cause of action; v) The Truck-Trailer is being used for commercial purpose and earning profits and there's an arbitration-agreement between the parties hence the commission does not have the requisite competent jurisdiction to put the present complaint on trial.
7. On merits, the OP1/2 Fin. Co. do not dispute para 1 that the complainant has been a retired Army Personnel draws pension and plies the Truck-Trailer for profits/commercial purpose so the commission lacks the competent jurisdiction to put the complaint on trial. The para 2 has been denied but with exception that the Truck-Trailer was financed by the OP1/2 Co. vide the loan cum hypothecation agreement. The Agreement to Sell the Truck-Trailer and the Power of Attorney are not admitted being false. The Paras 3 to para 12 have been denied being incorrect as an amount of Rs.5,96,135/- has been outstanding against the complainant as on 29.11.2021. Lastly, the OP1/2 Fin. Co. have filed the Affidavit (Ex.OP1,2/1), Loan & Hypothecation Agreement (Ex.OP1,2/2), Special Power of Attorney (Ex.OP1,2/3) and Account Statement (Ex1,2/4) and seek dismissal of the complaint with costs.
8. The OP3 Manjit Singh opted/preferred to stay absent and were ordered to suffer the ex-parte proceedings.
9. The OP4 Insurers appeared through their counsel and filed their written statement/reply pleading the preliminary as well as other (on merits) objections as: The complainant has no cause of action and locus standee to file the present complaint. The OP4 insurers have been wrongly joined in the array of respondents as the loan transaction dispute etc has been between the complainant and the OP1/2 Fin. Co. from whom alone relief has been sought. Further, the OP1/2 Co. and the OP Ins. Co. are the two separate entities though name-sake and do carry neither any inter-link nor an inter-SE tie-up, as such complaint warrants dismissal. On merits, the OP4 insurers address the para 1 as matter of records and the paras 2 to 5 as wrong and not related to them; And, the issuance of insurance policy has been a matter of record having no link with the present consumer dispute and as such no question of deficiency in service on their part; Again, the contents of para 6 to that of para 10 have been specifically denied, addressed as wrong. Moreover, a civil-suit on the alleged cause of action is continuing at the local district courts so the present complaint need be dismissed with costs, in the interest of justice. Lastly, the OP4 in its endeavor to successfully prosecute its defense has produced, in evidence, the lone Affidavit (Ex.OP4/A) of Amandeep Sharma its Manager-Legal duly deposing the contents of the written reply.
10. We have thoroughly examined the available documentary evidence as produced on records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference for of some documents ignored to be produced by the contesting litigants in the back-drop of arguments duly put forth by the respective learned counsels for the present contestants.
11. We find that the present dispute has arisen on account of the OP financiers’ refusal to issue No Due Certificate and to Refund/Return the excess EMI amounts deposited by the complainant and also to Reverse Insurance Premium Amount Entry invalidly debited in the Loan A/c by the OP as duly evidenced vide the valid deposit receipts and loan a/c statement/documents produced here, in evidence. On the other hand, the OP Fin. Co. has been charging interest at an excessive and illegal ROI (Rate of Interest) in contravention to the RBI guidelines as evidenced vide the loan-account statements. Moreover, the OP have intentionally not filed/produced the requisite Loan Related Documents/Papers such as Sanction Letters etc and others in order to over-shadow the requisite transparency in transactions cum clarity in accounts to cover their stark anomalies in their loaning business. The OP1/2's Acceptance/Credits of the EMI in the OP3 Manjit Singh Loan-account as deposited by the Complainant Kashmir Singh; Purchase of insurance-policy in the name of Kashmir Singh with the Truck-Trailer continuing in the name of the previous owner Manjit Singh; Deferment in Account-Settling through Delay and Demur; Charging of Exorbitant and UN-necessary Penalty and Penal Charges in contravention to the RBI instructions and guidelines etc have been some of the apparent wrongs committed by the OP1/2 Fin. Co. in connivance with the OP4 Ins. Co. against the complainant inflicting his consumer rights. There's an open display of unfair trade practices and illegal means to unnecessarily threaten the Seizure cum Repossession of the Vehicle for illegal gains through illegal designs.
12. The complainant has satisfactorily and sufficiently proved his contented allegations vide the produced evidence through the documents exhibited here as: Ex.C1 to Ex.C10. However, he has failed to produce the Loan Sanction and other loan documents that were vital to determine terms of sanction and default, if any, in repayment since these were not made available to him by the OP1/2 finance company nor they have produced the same, in totality, during the proceedings and that shows guilt cum malice in the related transactions.
13. Further, the OP1/2 financiers have produced their supporting evidence vide the documents exhibited as: Ex.OP1,2/1 to Ex.OP1,2/4 that neither rebuts nor negates the adverse allegations and these do not either requisition or explain as to why the loan account was debited with excessive penalties/unwarranted cum unauthorized insurance premium and other alike. The OP financiers have instead alleged the instant dispute to be the one pertaining to the one of non-repayment of loan (and not a consumer dispute) that bars the forum’s jurisdiction.
14. We however find that that the matter of loan-account-settlement has been collateral to the prime consumer-dispute of an unscrupulous exploitation of the consumer’s subservient position and thus we are inclined to set-aside the wrongs suffered by the complainant at the hands of the herein titled opposite parties.
15. Finally, we find that the complainant’s contented complaint stands proved, sufficiently and satisfactorily, through the documentary evidence as produced by him by way of his affidavit deposing the contents of complaint vide his recorded evidence. On the other hand, the OP financiers have produced its affidavit full of deposing rebuttals and other contents of written statement etc along with copies of authority & incorporation the requisites to prosecute its defense; copy of the loan agreement but with none of the respective loan documents so as to prove its sanction along with its terms during the pend-ency of the continuing loan along with levying of arbitrary penalty and other charges etc amounting to deficiency in service, unfair trade practice resulting into exploitation of the subservient position of the borrowing complainant and that lines them up to an adverse statutory award under the applicable Act. We can understand the non-availability of loan and other security documents etc with the subserviently positioned complainant but its non-production on the complaint-proceedings (by the OP financiers) does raise scope of an adverse discretionary judicial view and subsequent award. However, it be reduced to writing that the OP financiers have failed to produce some cogent evidence to prove its ‘bald’ claims of non-compliance of sanction and defaults along with the piled-up arrears outstanding in the complainant’s loan a/c and also its other ‘bald’ allegations etc.
16. Lastly, in the light of the all above, we partly allow the present complaint and ORDER the OP financiers to issue No Dues Certificate to the complainant along with all the other necessary papers of the Vehicle and reverse all previous debits of whatsoever and refund/return the excess credit outstanding so transpiring to the complaint (of course post-credit of EMI on the dates of deposit) with interest @ 6% PA w e from the date of complaint till realization besides a sum of Rs.25,000/- as cost and compensation within 45 days of receipt of the certified copy of the orders otherwise the aggregated amount of the award shall attract additional interest @ 3 % PA w e from the date of orders till realization.
17. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
18. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (B.S.Matharu)
NOV. 02, 2022. Member.
YP.
