05.06.2015
MRIDULA ROY, MEMBER.
The instant appeal is directed against the judgment and order dated 05.03.2013 passed by Ld. District Forum, North 24 Parganas in Complaint Case being No. 342/2012 which was as follows:-
“…. That the complaint be and same is allowed on contest against both the parties but with cost against O.P. No. 2.
O.P. No. 2 is hereby directed to issue NOC/Clearance Certificate cancelling the agreement of loan including hypothecation agreement treating it as loan amount is finally settled, within one month from the date of this order and O.P. No. 2 is not entitled to claim any other money as overdue charge from the Complainant.
O.P. No. 2 shall pay a cost of Rs.2,000/- to the Complainant.
O.P. No. 2 is further directed to pay the punitive damages of Rs.5,000/- for adopting unfair trade practice but same shall be deposited in the account of State Consumer Redressal Fund. O.P. No. 2 is also directed to pay a sum of Rs.5,000/- as compensation for harassing the Complainant and also causing mental pain and agony.
Last but not least O.P. No. 2 shall comply the order very strictly within one month from the date of this order failing which for each day’s delay an interest of Rs.100/- shall be paid by the O.P. No. 2 till full realization of this order and if said interest would be collected, same shall be deposited to State Consumer Welfare Fund”.
Being aggrieved by the order the O.P. No. 2 the financier has preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum failed to appreciate the fact that the Complainant – Respondent himself admitted that none of the EMIs payable by him was honoured by his banker and the EMIs were returned unpaid by the State Bank of India i.e. the O.P. No. 1 and there was no fault on the part of the O.P. No. 2 i.e. the Appellant and, further, as per Clause 14(a) of the loan agreement executed by and between the Appellant and the Respondent – Complainant the Appellant is entitled to get EMIs return charges and delay payment charges.
The case of the Complainant (Respondent No. 1 herein) before the Ld. District Forum, in short, is that he purchased a two-wheeler Bajaj Discover Motorcycle with financial assistance of the O.P. No. 2 – financier (Appellant herein) and accordingly, availed a loan of Rs.32,000/- which was repayable by 24 Equated Monthly Instalments (EMI) @ 1,647/- each from his Bank A/c through Electronic Clearance System (ECS) from the O.P. No. 1 – Bank (Respondent No. 2 herein). Subsequently, the Complainant found that no EMI had been paid through ECS from the O.P. – Bank inspite of sufficient balance in his account. The Complainant contacted the O.P. – financier and came to know from the reply of the O.P. – financier that due to banking problem no encashment through ECS had been made and, therefore, the Complainant would have to pay the EMI amount in cash by hand to the representative of the O.P. – financier. Accordingly, the O.P. – representative used to come and collect the amount of EMI which was settled for a period of 24 months. The Complainant had paid all the 24 instalments but the O.P. – financier did not issue any NOC in respect of the said loan and, instead, demanded an amount of Rs.6,980/- for delayed payment charges (for EMIs) and, even, threatened to put his name in ‘Cibil’ unless he paid the said amount. The Complainant made several correspondences to the O.P. – financier to that effect but to no avail. Finding no other alternative the Complainant has filed the petition of complaint before the Ld. District Forum praying for direction upon the O.Ps to pay cost/compensation in favour of the Complainant to the tune of Rs.1,00,000/- for their illegal, arbitrary and malafide acts knowing fully well about the actual state of affairs and intentional harassment resulting in wastage of valuable time, loss of privacy, defamation, legal expenses, mental agony or depression.
The O.P. No. 2 appeared and contested the case by filing Written Version denying and disputing all material allegations contending, inter alia, that in the loan agreement it was agreed by the parties that any dispute would be redressed before the arbitrator and, therefore, the same cannot be entertained before the Consumer Disputes Redressal agencies and it was further contended that as per terms of the loan agreement vide Clause 14(a) other overdue charges had accumulated in the loan account of the Complainant since he failed to pay the EMI on time for which he had to pay Rs.7,000/- towards overdue amount and for which, the O.P. – Financier had not handed over the NOC/Clearance Certificate to the Complainant.
In course of hearing of the argument Ld. Advocate for the Appellant has submitted that the EMIs were scheduled to be paid through ECS from the account of the Complainant. But, from 1st to 7th EMIs had not been paid in time and it was due to the problem between the Complainant and his banker. Thereafter, the Complainant had paid the entire EMIs but for delayed payment he would have to pay the charges as per clause 14(a) of the loan agreement which he did not pay. Ld. Advocate for the Appellant has further stated that if the Complainant pays the charges for delayed payment the Appellant will issue the NOC in respect of the loan obtained by the Complainant.
The Ld. Advocate for the Respondent No. 1 has submitted that the Respondent No. 1 availed the loan for purchasing motorcycle and the EMI was scheduled @ 1,647/- which was payable through the ECSs from the bank and he had made sufficient balance in the account wherefrom the EMIs were scheduled to be paid. But the bank due to its internal problem could not disburse the said amount to the financier on time for which the financier demanded extra amount from him. The Ld. Advocate for the Respondent – Complainant has specifically stated that since he kept sufficient balance in his bank account and made every arrangement for repayment of EMIs in time the financier cannot claim extra amount from him for delayed payment for which he had no role to play.
The Respondent No. 2 – Bank did not enter appearance.
Having heard submissions made by the parties and on perusal of the papers on record it appears that the Complainant availed the loan disbursed by the Appellant – financier under certain terms and conditions. The Complainant made arrangement through bank for payment of EMIs in time. But, it is averred by the Complainant, that due to bank’s internal problem the EMIs (from 1 to 7) have not been paid on time. The Complainant has claimed that he did not default in making payment of EMIs on time and, therefore, he cannot be liable for payment of charges for delayed payment. However, it is admitted by the Complainant that the 1st to 7th EMIs had not been paid on time to the Appellant – financier due to internal problem of the Complainant’s banker although there was sufficient balance in the account of the Complainant. Be that as it may, the financier, admittedly did not receive the EMI amount from 1st to 7th on time. Therefore, the Appellant – Financier rightly claimed for the charges for delayed payment and did not issue the NOC in respect of the loan account since the loan had not been liquidated. However, it appears from the record that due to bankers’ deficiency in service the EMIs (1st to 7th) had not been paid on time to the financier and due to such deficiency on the part of the bank the Complainant has become liable to pay the charges for delayed payment of EMIs to his financier.
Under such state of affairs, we are of opinion that the Respondent – Bank should compensate the Complainant for its serious deficiency in providing service. In our considered opinion it will be just and proper if the Respondent – Bank pays Rs.75,000/- to the Complainant for such deficiency in providing service and to pay Rs.10,000/- towards cost of litigation.
The O.P. No. 1 – financier is entitled to get the charges of Rs.6,980/- for delayed payment as per the terms of the loan agreement.
However, mere existence of the arbitration clause in the loan agreement does not bar the jurisdiction of Consumer Dispute Redressal Agencies.
In the result, the appeal succeeds.
Hence, ORDERED, that the appeal is allowed in part on contest without cost. The impugned order is modified to the following extent :-
The Respondent No. 2 – bank is directed to pay Rs.75,000/- to the Respondent No. 1 – Complainant towards compensation for its serious deficiency in service to the Respondent – Complainant and also to pay Rs.10,000/- towards litigation cost within 45 days from the date of this order, failing which the entire amount shall carry interest @ 10% per annum till realization in full.
Respondent No. 1 – Complainant is directed to pay the charges of Rs.6,980/- for delayed payment to the Appellant – financier within 45 days from the date of this order. The other directions of the Ld. District Forum are set aside. The impugned judgment stands modified accordingly.
