Sh.Anoop Sharma, Presiding Member

1.       Sh.Kulwant Singh has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that the complainant got financed vehicle Tata Ventures-X bearing RC No.PB-02-9512 for a sum of Rs.3 lacs from Opposite Parties No.1 and 2  in February-March, 2012, which was payable in EMI of Rs.7011/- per month total in 60 installments as settlement between the complainant and the Opposite Parties and said amount of installment was to be deducted from the account of the complainant being maintained in Oriental Bank of Commerce, Amritsar through ECS process, regarding which form was got filled from the complainant. The complainant also handed over 12 blank cheques bearing Nos. 9346076 to 936087 drawn on the said bank to Opposite Party as security to the said loan amount of Rs.3 lacs, but the Opposite Party in an illegal manner and after tempering the ECS form  started deducting an amount of Rs.7150/- per month instead of Rs.7011/- from the account of the complainant in an illegal manner. The complainant after gaining the knowledge of the same immediately contacted the Opposite Party No.2 and requested not to deduct the EMI of Rs.7150/- instead of Rs.7011/- and also requested to adjust the excess amount of Rs.8340/- already deducted in excess  from the account of the complainant through ECS process and the Opposite Party assured the complainant to adjust  the said excess amount, but to no effect so far. The complainant also instructed his bank to stop the payment and as such, the payment of two cheques by the banker of the complainant of his instructions. The complainant also requested the Opposite Party to adjust the excess amount in future installments so that two installments regarding which the payment was stopped may be got cleared/ adjusted, but the Opposite Party has refused to the same for the best reason known to them.  The complainant never made any default in making the payment of installments, but is the Opposite Party, who has illegal deducted the excess amount from the account of the complainant in an illegal manner. The installments upto the period of September, 2016 already stands paid to the Opposite Party and only 6 installments are payable for the period of October, 2016 to March, 2017 alongwith two EMI regarding which the payment was stopped by the complainant. The complainant is ready to make the payment of remaining installments but the Opposite Party is not accepting the amount from the complainant nor they are adjusting the excess amount, which they illegal deducted from the account of the complainant.    Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party be directed to adjust the excess amount of Rs.8340/- in the payable installments of the complainant and also to issue NOC after receiving the balance amount of EMI.

b)      Compensation of Rs.50,000/- on account of unnecessary harassment, mental pain and agony suffered by the complainant at the hands of the Opposite Parties may please be grated in favour of the complainant 

c)       cost of the litigation amounting to Rs.10,000/- may please be granted in favour of the complainant.

d)      Any other relief to which this Forum may deem fit be also granted in favour of the complainant.         

Hence, this complaint.

2.       Upon notice, opposite parties No.1 ,2 appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that the complainant is defaulter of answering Opposite Parties and failed to deposit the loan instalments within a requisite time period as undertaken by him at the time of advancement of loan. Uptil 24.10.2016 an amount of Rs.16100/- as current overdue stands against the complainant, as such on ground of concealment, the present complaint is liable to be dismissed. It is the legal duty of the complainant to clear the outstanding loan amount borrowed by him from the Opposite Parties in time, but he failed to do so and filed the instant complaint in order to harass and humiliate the innocent Opposite Parties. It is further submitted by he Opposite Parties that as per clause 23 of the loan –cum- hypothecation agreement entered into between the parties hereto provides that all the disputes, differences and claims between the parties hereto relating to the terms and conditions of the said agreement, shall be referred to the Arbtiration.  The complainant does not come within the purview of the definition of a consumer as defined in section 2 (i) (d) of the Consumer Protection Act, 1986 for the reason that he was using the vehicle in dispute for commercial purposes. Further the services rendered by the financer especially under loan cum hypothecation transactions  does not come within the purview of Consumer Protection Act, 1986. Admittedly, the complainant availed the finance facility from the Opposite Parties to finance the vehicle in question and entered into loan cum hypothecation agreement No. 5000948479 dated 19.3.2012 with the Opposite Parties and under the said agreement, the complainant had agreed to  repay the contract value of Rs.4,29,000/- inclusive of finance amount of Rs.3 lacs in 60 equated monthly instalments of Rs.7150/- each commencing from 15.4.2012 and ending on 15.3.2017. It was agreed between the complainant and the answering Opposite Parties that the time would be essence of the contract.  On merits, the Opposite Parties No.1 and 2  took almost same and similar pleas as taken by them in the preliminary objections and it is submitted that the answering Opposite Parties never taken any security cheques from the complainant as alleged.     

The loan EMI is Rs.7150/- and not Rs.7011/- as alleged by the complainant.  It is further submitted that the answering Opposite Parties are ready to issue NOC to the complainant with a condition that he has to clear the entire loan outstanding amount with the replying Opposite Parties as per the terms and conditions of the loan cum hypothecation cum guarantee agreement executed between the parties at the time of disbursal of loan.    Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       None appeared on behalf of Opposite Party No.3, hence Opposite Party No.3 was proceeded against exparte by this Forum. 

4.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C9  and closed his evidence.

5.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties No.1 and 2  tendered into evidence the affidavit of Sh.Mohit Rana (Manager) Ex.OP1,2/1 alongwith copies of documents Ex.OP1,2/2 to Ex.OP1,2/6  and closed the evidence on behalf of Opposite Parties No.1 and 2.

6.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

7.       Ld.counsel for the complainant has reiterated the facts as narrated in the complaint and argued that  the complainant got financed vehicle Tata Ventures-X bearing RC No.PB-02-9512 for a sum of Rs.3 lacs from Opposite Parties No.1 and 2  in February-March, 2012, which was payable in EMI of Rs.7011/- per month total in 60 installments as settlement between the complainant and the Opposite Parties and said amount of installment was to be deducted from the account of the complainant being maintained in Oriental Bank of Commerce, Amritsar through ECS process, regarding which form was got filled from the complainant. The complainant also handed over 12 blank cheques bearing Nos. 9346076 to 936087 drawn on the said bank to Opposite Party as security to the said loan amount of Rs.3 lacs, but the Opposite Party in an illegal manner and after tempering the ECS form  started deducting an amount of Rs.7150/- per month instead of Rs.7011/- from the account of the complainant in an illegal manner. The complainant after gaining the knowledge of the same immediately contacted the Opposite Party No.2 and requested not to deduct the EMI of Rs.7150/- instead of Rs.7011/- and also requested to adjust the excess amount of Rs.8340/- already deducted in excess  from the account of the complainant through ECS process and the Opposite Party assured the complainant to adjust  the said excess amount, but to no effect so far. The complainant also instructed his bank to stop the payment and as such, the payment of two cheques by the banker of the complainant of his instructions. The complainant also requested the Opposite Party to adjust the excess amount in future installments so that two installments regarding which the payment was stopped may be got cleared/ adjusted, but the Opposite Party has refused to the same for the best reason known to them.  The complainant never made any default in making the payment of installments, but is the Opposite Party, who has illegal deducted the excess amount from the account of the complainant in an illegal manner. The installments upto the period of September, 2016 already stands paid to the Opposite Party and only 6 installments are payable for the period of October, 2016 to March, 2017 alongwith two EMI regarding which the payment was stopped by the complainant. The complainant is ready to make the payment of remaining installments but the Opposite Party is not accepting the amount from the complainant nor they are adjusting the excess amount, which they illegal deducted from the account of the complainant.   

8.       On the other hand, ld.counsel for the Opposite Parties No.1 and 2 has repelled the aforesaid contentions of the complainant on the ground that  the complainant is defaulter of Opposite Parties No.1 and 2  and failed to deposit the loan instalments within a requisite time period as undertaken by him at the time of advancement of loan. He further argued that uptil 24.10.2016 an amount of Rs.16100/- as current overdue stands against the complainant, as such on ground of concealment, the present complaint is liable to be dismissed. It is further argued that it  is the legal duty of the complainant to clear the outstanding loan amount borrowed by him from the Opposite Parties in time, but he failed to do so and filed the instant complaint in order to harass and humiliate the innocent Opposite Parties. It is further submitted by the Opposite Parties that as per clause 23 of the loan –cum- hypothecation agreement entered into between the parties hereto provides that all the disputes, differences and claims between the parties hereto relating to the terms and conditions of the said agreement, shall be referred to the Arbitration.  The complainant does not come within the purview of the definition of a consumer as defined in section 2 (i) (d) of the Consumer Protection Act, 1986 for the reason that he was using the vehicle in dispute for commercial purposes. Further the services rendered by the financer especially under loan cum hypothecation transactions  does not come within the purview of Consumer Protection Act, 1986. Admittedly, the complainant availed the finance facility from the Opposite Parties to finance the vehicle in question and entered into loan cum hypothecation agreement No. 5000948479 dated 19.3.2012 with the Opposite Parties and under the said agreement, the complainant had agreed to  repay the contract value of Rs.4,29,000/- inclusive of finance amount of Rs.3 lacs in 60 equated monthly instalments of Rs.7150/- each commencing from 15.4.2012 and ending on 15.3.2017. It was agreed between the complainant and the answering Opposite Parties that the time would be essence of the contract.  On merits, the Opposite Parties No.1 and 2  took almost same and similar pleas as taken by them in the preliminary objections and it is submitted that the answering Opposite Parties never taken any security cheques from the complainant as alleged.  Hence, there is no deficiency in service on the part of Opposite Parties No.1 and 2 and has prayed for dismissal of the complainant.

9.       It is not the denial of the facts  that  the complainant got financed vehicle Tata Ventures-X bearing RC No.PB-02-9512 for a sum of Rs.3 lacs from Opposite Parties No.1 and 2  in February-March, 2012, which was payable alongwith interest in 60 installments as settlement between the complainant and  Opposite Parties and said amount of installment was to be deducted directly from the account of the complainant being maintained in Oriental Bank of Commerce, Amritsar through ECS process, regarding which form was got filled from the complainant. The only dispute between the parties is that   the loan EMI is Rs.7150/- and not Rs.7011/- as alleged by the complainant.  Moreover,  the Opposite Parties No.1 and 2  never taken any security cheques from the complainant as alleged.  It is the contention  of the Opposite Parties that the Opposite Parties No.1 and 2  are ready to issue NOC to the complainant with a condition that the complainant has to clear the entire loan outstanding amount with the replying Opposite Parties as per the terms and conditions of the loan cum hypothecation cum guarantee agreement executed between the parties at the time of disbursal of loan. Perusal of the written version filed by Opposite Parties No.1 and 2  as well as duly sworn affidavit of Sh.Mohit Rana (Manager) Ex.OP1,2/1 shows that the Opposite Parties have time and again based their defence on the documents Loan cum hypothecation cum guarantee agreement Ex.OP1,2/2 and Irrevocable power of attorney produced by itself and submitted that the complainant is bound with this agreement and have to repay the loan instalments as per the terms and conditions of this agreement. But however, minutely perusal of this document Loan cum hypothecation cum guarantee agreement Ex.OP1,2/2 and Irrevocable power of attorney produced by Opposite Parties No.1 and 2  shows that Irrevocable power of attorney  document is left totally blank and it has been got signed by the Opposite Parties No.1 and 2  from complainant (borrower) at the time of alleged agreement  and not even a single column of these documents is filled which fully proves the carelessness, negligence and high handedness of Opposite Parties No.1 and 2  and how irresponsible  they are by not filling even a single column of these documents. It is very strange enough that the Opposite Parties No.1 and 2  are basing their case on the document Loan cum hypothecation cum guarantee agreement Ex.OP1,2/2 ,but these documents are  left totally  blank and only got the signatures of the complainant. Not only this, it is also very strange that this blank document Ex.OP1/2/2 has been got attested from the Attesting Authority ( Notary Public) blindedly. It seems that at the time of alleged agreement, the Opposite Parties No.1 and 2  took the signatures of the complainant on blank documents and now produced by them in this Forum to prove their innocence, hence the demand raised by the Opposite Parties No.1 and 2 is totally illegal, rather depicts the mismanagement of Opposite Parties No.1 and 2 . As such, the demand of difference of instalments between Rs.7150/- and Rs.7011/-  by the Opposite Parties No.1 and 2  for Rs. 8340/- is not sustainable, therefore, the same is hereby set aside. All this has adversely affected the mental condition of the complainant and depicts that how much negligent and careless is the staff of the Opposite Parties No.1 and 2.

10.     Resultantly, we hold that he complainant is entitled to reasonable compensation.   However, Opposite Parties No.1 and 2  is entitled to recover  the remaining instalments if the same are not paid by the complainant.

11.     Keeping in view the facts and circumstances of the case, we direct the  Opposite Parties No.1 and 2 to adjust the excess amount of Rs.8340/- already deduced in excess from the account of the complainant through ECS process.  However, the  Opposite Parties No.1 and 2  are at liberty to  recover  the remaining instalments if the same are not paid by the complainant and thereafter, the Opposite Parties No.1 and 2  shall issue the NOC to the complainant. Opposite Parties No.1 and 2  are also directed to pay Rs.2000/- as compensation on account of mental tension and harassment besides Rs.1000/- as costs of litigation. The complaint against Opposite Party No.3 stands dismissed. Compliance of this order be made within 30 days from the receipt of copy of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum