Chandigarh

DF-II

CC/575/2022

BAL KRISHAN - Complainant(s)

Versus

TATA MOTORS FINANCE LIMITED & ANOTHER - Opp.Party(s)

DEVINDER KUMAR ADVOCATE

11 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	575 of 2022
Date  of  Institution	:	26.07.2022
Date   of   Decision	:	11.07.2023

 

 

 

 

 

Bal Krishan son of Sh.Amar Bahadur, Aged about 38 years, R/o House No.3132, Sunny Enclave, Sector 125, Kharar, District SAS Nagar, Mohali

             …..Complainant

Versus

 

1]  Tata Motors Finance Limited, Unit No.4B6-4B7, 4^th Floor, Highland Corporate Centre, kapurbawdi, Junction, Above Big Bazar, Thane West, Mumbai, Maharashtra through its Managing Director

2]  Tata Motors Finance Limited, SCO No.11, First Floor, Madhya Marg, Sector 26, Chandigarh through its Branch Manager.

     ….. Opposite Parties

 

BEFORE:  SMT.SURJEET KAUR     PRESIDING MEMBER 

                    SH.B.M.SHARMA                 MEMBER

 

                               

Argued by  : Sh.Devinder Kumar, Counsel for the complainant

Sh.Gaurav Bhardwaj, Counsel for the OPs

 

PER B. M. SHARMA, MEMBER

 

         Concisely put, the complainant purchased a vehicle i.e. Tata Zest bearing Regd. No.PB-01-B-2998 on 7.12.2016 from M/s Panchkula Automobiles to earn his livelihood, after availing loan of Rs.4,02,654/- from OP No.2 vide Loan Account NO.5002173352 (Ann.C-1 to C-3) repayable  in 60 equated monthly installment of Rs.10,707/-.  It is submitted that the complainant paid all the 60 installments to the OPs, including the three installments which he could not paid during  Covid-19 period of 2020 as detailed per Ann.C-4.  After payment of all 60 loan installment, the complainant approached the OPs for issuance of No Objection/Due Certificate and Form No.35 for getting the hypothecation termination from R.C. of the said vehicle.  However, the OPs instead demanded 7 more installments for closure of loan and provided issued fresh Loan Summary dated 11.4.2022 (Ann.C-5).   Thereafter, the complainant sent a letter dated 4.5.2022 to OPs through regd. Post to issue NDC otherwise he will take legal action (Ann.C-6 to C-8) and the OPs instead of resolving the issue, issued letter dated 6.5.2022 to the complainant demanding Rs.55,763/-    (Ann.C-9). It is also pleaded that the OPs also threatened the complainant to take possession of his vehicle forcibly.  Hence, the present complaint has been preferred alleging the said act & conduct of the OPs as gross deficiency in service and unfair trade practice, causing loss, harassment and agony to the complainant.  

2]       The OPs have filed joint written version and while admitting the factual matrix of the case, stated that loan facility of Rs.4,02,654/- for purchase the Tata Zest Car was provided to the complainant and loan agreement dated 8.12.2016 was duly executed by the complainant in favour of answering OP and the total contract value was Rs.6,55,091/- and the said amount was repayable in 67 EMIs as per schedule and loan agreement Annexure R-1. It is denied that the loan is repayable in 60 monthly installments of Rs.10,707/- and stated that the loan was repayable in 67 installments.  It is submitted that the complainant admitted to have defaulted in three installments.  It is also submitted that the loan was repayable in 67 installments and not 60 installments as claimed by the complainant.  It is stated that as per record of the OPs, an amount of Rs.55,763.13 was due against the complainant but the complainant did not pay the said amount and consequently Loan Recall Notice dated 6.5.2022 was issued to pay the amount within 7 days, failure to which  the matter was referred to Sole Arbitrator, who issued notice to the complainant for 30.5.2022 but the complainant did not appear and the interim award dated 30.5.2022 was passed. It is also submitted that notices were again issued to the complainant by the arbitrator for 8.7.2022, 25.8.2022 and the matter was adjourned to 29.9.2022 but the complainant did not appear and accordingly the Ld.Arbitrator passed the Arbitration Award on 15.11.2022 in favour of answering OPs. It is pleaded that since the Arbitration Award has already been passed on 15.11.2022, therefore this Commission has got no jurisdiction to try and decide the present complaint. It is also pleaded that the complainant is not entitled to any relief. Denying all other allegations and pleading no deficiency in service, the OPs NO.1 & 2 have prayed for dismissal of the complaint.

 

3]       Replication has also been filed by the complainant controverting the assertion of the OPs made in their reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the contesting parties and have perused the entire record.  

 

6]      It is an admitted case of the parties that the complainant availed car loan facility of Rs.4,02,654/- from the OPs vide Loan Account No.5002173352 and a loan agreement to that effect was also executed/entered into between the parties on 8.12.2016.

 

7]       The grouse of the complainant mainly is that he had repaid the said loan amount along with accrued interest etc. in 60 EMIs (equated monthly installments) of Rs.10,707/- during the period from 1.1.2017 till 11.3.2022 (Ann.C-1), as agreed & settled between the parties at the time of disbursement of loan, but despite of that, the OPs denied him issuance of No Due Certificate in respect of said loan account and instead raised demand for further amount which is illegal.  It is also contended by the ld.Counsel for the complainant that though the complainant during Covid-19 period in the year 2020 in April, May and July, 2020, which falls under moratorium period provided by Reserve bank of India, admitted to have missed three installments, but they too had been paid by him and as such nothing remained outstanding towards him. 

 

8]       On the other hand, the stand of the OPs is that as per Loan Agreement executed between the parties on 8.12.2016 the complainant was to repay the loan in 67 installments and not 60 installments as projected by the complainant.  It is also contended that the complainant also failed to pay the installments timely as agreed and committed default.

 

9]       We do not find merit in the contentions & plea of the OPs.  The Loan Agreement dated 8.12.2016 (Ann.R-1) placed on record by the OPs themselves, duly signed by both the parties, establishes that Loan is payable in 60 monthly installments of Rs.10,707/-, thus the plea of the OPs that the loan was repayable in 67 installment is belied & disproved from their own document Ann.R-1 and it is proved that the complainant was to repay 60 EMIs.

 

10]      So far as the plea of the OPs about default in payment of installment committed by the complainant is concerned, we find that it is an admitted case of the complainant that during Covid-19 period in the year 2020 in April, May & July, 2020, which falls under moratorium period provided by Reserve Bank of India, he missed three installments, but that too had been paid by him and in total all 60 EMIs have been repaid. The OPs have not denied or disputed that the complainant had paid 60 EMIs against said loan. It is also not denied or disputed by the OPs that the moratorium period was provided to all loan account holder by the Reserve Bank of India during Covid-19 period from March, 2020 till August, 2020 (06 Months).  This fact is also established from the Circular No.RBI/2019-20/186,DOR.No.BP.BC.47/21.04.048/2019-20, March 27, 2020 as well as Circular No.RBI/2019-20/244,DOR.No.BP.BC.71/21.04.048/2019-20, dated May 23, 2020 issued by Reserve Bank of India, directing all Commercial Bank, Cooperative Bank, All India Financial Institutions and Non-Banking Financial Companies about the grant of moratorium period firstly from 1^st March, 2020 to 31^st May, 2020 and then extended it till 31^st August, 2020 (Ann.B) meaning thereby that during the moratorium of six months from March, 2020 till August, 2020 non-payment of installment will not be treated as default. 

 

11]      Reliance has been placed on the judgment of Hon’ble Supreme Court of India in case of Small Scale Industrial Manufactures Association (Regd.) Vs. Union of India and others, Writ Petition (C) No. 476 OF 2020, decided on 23.3.2021 wherein it has be held that:-

“Once the payment of installment is deferred as per circular dated 27.03.2020, non-­payment of the installment during the moratorium period cannot be said to be willful and therefore there is no justification to charge the interest on interest/compound interest/penal interest for the period during the moratorium. Therefore, we are of the opinion that there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/compound interest/penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account.”

 

                                Thus it is clear that there was no willful default on the part of the complainant and the installments were missed during moratorium period provided by the Reserve Bank of India and a decision of Hon’ble Apex Court, referred to above, is also there in favour of loan account holder. Moreover, it is an undisputed fact from the side of the OPs as well as proved from Ann.C-1 that the complainant had paid all 60 EMIs against said loan. Therefore, the plea of the OPs about the alleged default, during Covid-19 period falling under moratorium period is not sustainable and hence rejected.    

 

12]      The OPs have also raise plea that as the Arbitration Award has been passed on 15.11.2022, therefore, the present complaint is not maintainable.

         The perusal of the file reveals that the present consumer complaint has been filed on 27.7.2022, whereas the arbitration award was passed subsequently on 15.11.2022.  Had the Arbitration Award was passed before institution/filing of the consumer complaint, the position would have been otherwise, but the present consumer complaint had already been filed much before the arbitration award, hence this plea of the OPs is rejected being untenable. 

         The Hon’ble Supreme Court of India (2018) 11 SCC 337 - Rosedale Developers Private Limited v. Aghore Bhattacharya and Ors. has held that :

"6.      In our opinion, there is no merit in the submission of the learned Counsel. The question whether the existence of an arbitration clause contained in the agreement executed between the parties excludes the jurisdiction of the consumer forum and on an application made by either party, the consumer forum is duty bound to make a reference to the arbitrator was extensively considered in National Seeds Corporation Limited v. M. Madhusudhan Reddy and Anr. (supra) and it was observed:-

          The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Protection Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Protection Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force."

                                The case law cited by ld.Counsel for the OPs of Hon’ble National Commission i.e. Mir Alam Vs. Magma Finance Corporation, 2021 (3) CPR 348; M/s Manas Constructions vs. L & T Finance Ltd., 2018 (1) CLT 312 And Magma Fincorp Ltd. vs. Gulzar Ali, the same are not applicable to the facts of the present complaint, as in the present case, the complainant/consumer choose to file the consumer complaint first and the arbitration award was obtained by the OPs subsequent to that. 

13]      It is also pertinent to mention here that the OP Company had duly received the notice of the present consumer complaint on 10.10.2022, as is established from Ann.A, which bears the signature and stamp of OP Company.  However, the OP Company despite receipt of the said notice as on 10.10.2022, choose not to disclose this fact to the Arbitrator, as is clear from the Award wherein it has been mentioned that “On 02.11.2022 time sought on behalf of the claimant to argue the matter and the matter was thus adjourned to 12.11.2022 for arguments.” Thus the non-disclosure of material information by the OPs to the arbitrator about pendency of the present consumer complaint despite having full knowledge, amounts to concealment, which is unfair & unwarranted on the part of the OP Company. It also shows that the OPs intentionally did not disclose this material information to the arbitrator in order to get exparte award, which too was passed much after the filing of present consumer complaint. 

 

14]      From the above discussion and findings, it is opined that the above acts & conducts of the OPs clearly amounts to deficiency in service as well as their indulgence into unfair trade practice, as a result, the complainant has certainly suffered mental agony, harassment, loss and has also been forced to enter into avoidable litigation.    

 

15]     Taking into consideration the findings aforesaid and settled position of law, we are of the opinion that the deficiency in service as well as unfair trade practice on the part of the OPs NO.1 & 2 has been proved. Therefore, the present complaint is allowed with direction to the Opposite Parties No.1 & 2 as under:-

a)  To issue No Objection Certificate/No Dues Certificate as well as Form No.35, in respect of the vehicle in question, to the complainant forthwith;

 

b)  To pay a compensation of Rs.35,000/- to the complainant for the harassment, mental agony and loss caused to him due to their deficient service coupled with unfair trade practice, along with litigation cost of Rs.15,000/-.

 

         This order shall be complied with by the OPs No.1 & 2 within a period of 45 days from the date of receipt of copy of this order, failing which they shall be liable to pay additional cost of Rs.20,000/- apart from above relief.

         Certified copy of this order be sent to the parties, free of charge. After compliance, file be consigned to record room.

Announced

11^th July, 2023                                          

                                                                                                   Sd/-

 (SURJEET KAUR)

PRESIDING MEMBER

 

Sd/-

(B.M.SHARMA)

MEMBER