DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW

CASE No.462 of 2012

       Smt. Gyanti Devi, aged about 62 yrs.,

       R/o C/o S.K. Dubey, Advocate,

       628/1-S, Shakti Nagar, Faizabad Road,

       Opp. Rajat Girls College, Lucknow,

        U.P.-226016. Ph. No.09450454021.

                                                                    ……Complainant

Versus

1. Tata Motors Finance Co. Ltd.,

506 ABC, 5^th Floor, Ratan Square,

                       20-A, Vidhan Sabha Marg, Lucknow,

                      U.P.

                      Through Branch Manager.

2. Tata Motors Finance Co. Ltd.,

I-Think Techno Campus,

Building A, 2^nd Floor Off-Pokhran

Road 2, Thane West-400607.

Through General Manager.

3. Tata Motors Finance Co. Ltd.,

I-Think Techno Campus,

Building A, 2^nd Floor Off-Pokhran

Road 2, Thane West-400607.

Through Branch Manager.

                                                                              .......Opp. Parties

Present:-

Sri Vijai Varma, President.

Smt. Anju Awasthy, Member.

JUDGMENT

This complaint is filed by the Complainant against the OPs for directing the OPs to give NOC and to set aside the claim of Rs.35,000.00 from the Complainant and for payment of Rs.50,000.00 as compensation, Rs.25,000.00 for the loss of reputation and Rs.25,000.00 as cost of litigation.

          The case in brief of the Complainant is that he took a loan of Rs.1,40,000.00 on 29.10.2007 from Tata Motors

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Finance Ltd. for purchasing a Santro Car. The loan agreement was for 4 yrs. w.e.f. 29.10.2007, executed between the parties at Lucknow. The Complainant paid entire loan amount to the Tata Motors in 48 instalments of Rs.3,949.00 as he had given 48 cheques for the purpose of encashment and the cheques had to be deposited by the OPs on 29^th of every month. The Tata Motors received several cash amount in lieu of bounced cheques in their local office at Lucknow and there is no liability against the Complainant. Tata Motors itself had entered the process of cash payment in lieu of bounced cheques, hence there is no question of charging the money on bounced cheques and delay in payment. Even though the Complainant had made payments of cash payment within stipulated period i.e. upto 02.10.2012 but the OPs regularly raised their illegal demands of money. The fact is that the cheques have been bounced due to negligence of Tata Motors itself. The Tata Motors had been depositing the cheque on 2^nd day of every month whereas the first instalment fell due on 29.01.2007. The Complainant had been sending reminders to Tata Motors to deposit the cheque on 29^th of every month and not on 2^nd day of every month but the Tata Motors kept depositing the cheques on 2^nd day of every month. The Complainant was working in a private school and for sanctioning the loan amount the Tata Motors had taken a pay slip. The school gave the salary on the second week of every month a fact which was in the knowledge of Tata Motors Finance Ltd. Now Tata Motors Finance Ltd. is not providing the NOC of the said car and asking for payment of Rs.35,000.00 with regard to the aforesaid loan which is totally unjustified. Besides Tata Motors Finance Ltd. vide letter dated 30.06.2008 informed the Complainant that the cheques /instrument will be deposited for clearance at Mumbai on due date of EMI whereas earlier the said cheques were to be deposited in Lucknow branch. Thus, without taking the permission from the Complainant the Tata Motors Finance

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Ltd. put the cheques for the clearance directly from Mumbai which is totally unjustified. Tata Motors had sent a notice to the Complainant about the initiation of arbitration proceedings in Mumbai. This shows the harassment attitude of the OPs. It is to be noted that during the course of 4 years of the loan no demand was raised by the Tata Motors Finance Ltd. and it is only after the payment of the entire amount that they started raising the demand for the payment of Rs.35,000.00. Since the OPs did not issue the NOC to the Complainant, hence this complaint.

          The OPs have filed the WS wherein as while admitting the loan taken by the Complainant, the OPs have mainly submitted that as per the agreement both parties are bound by it and therefore this Forum has no power to interfere into the matter. Besides the Complainant is not the consumer under the Consumer Protection Act. Besides as per the agreement the dispute arising out of loan agreement is to be settled through arbitration at Mumbai and hence this dispute cannot be looked into by this Forum. Besides the jurisdiction of the case lies in Mumbai only. The OPs have filed the computerized system of a/c clearly showing the default of the Complainant in making payment of the EMIs. On delayed payment of EMI the Complainant is liable to pay interest, banker charges etc. on a/c of bouncing of the cheques. The OPs have not committed any unfair trade practice or deficiency in service. The Complainant was a regular and habitual defaulter in making the timely payment of the instalments. There is an outstanding amount of Rs.42,215.15 against the Complainant and the OPs are entitled to recover the same. The Complainant had given certain cheques but all the cheques got dishonoured/bounced with remark of fund insufficient, therefore the charges with regard to dishonor of the cheques etc. are levied by the OPs. With regard to bounced cheques the Complainant paid entire amount for which he was given receipt. As per the payment

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schedule the Complainant was under obligation to repay the instalment amount on every second day of every succeeding month, hence the answering OPs deposited the cheques under the repayment schedule, therefore there is no default of the answering respondents. The Complainant cannot take the plea that she always got salary in the second week of every month, hence she is not able to pay the loan amount as per schedule. The Complainant is not entitled to get NOC until she clears the dues of Rs.42,215.15, therefore this complaint deserves to be dismissed with costs.

          The Complainant has filed her affidavit with 8 annexures. She has also filed an affidavit in support of deposit amounts with paper No.5 to 27.The OPs have filed the affidavit of Sri Vaibhav Khare, Authorized Signatory, Tata Motors Finance Ltd. with photocopy of contract details, repayments, stipulated normal termination and rejected receipts.

          Heard Counsel for the Complainant but none appeared to argue the case from the side of the OPs. Perused the entire record.

          Now, the following issues arise for the disposal of this case:-

1. Whether the Complainant is a consumer under the Consumer Protection Act or not?
2. Whether this Forum has jurisdiction to decide this case or not?
3. Whether the Complainant is bound by the Arbitration agreement or not? If so, its consequences.
4. Whether the OPs have committed unfair trade practice or deficiency in service in not issuing NOC to the Complainant? If so, its consequences.

We first take up the point that as to whether the Complainant is a consumer under the Consumer Protection Act or not? It is the contention of the OPs that the relationship

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between the Complainant and the OPs is that of debtor and lender and therefore the Complainant is not a consumer as defined in the Act but there is no merit in this contention of the OP as service under Section 2 (1) (0) has been defined as “service means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction,) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.” From the aforesaid provision, it is absolutely clear that service includes financing and therefore the OPs which is a financial institution is covered under the aforesaid provision of a service provider and therefore it cannot be said that the Complainant is not a consumer under the provision of Consumer Protection Act.

Now we take up the next two points that as to whether this Forum has jurisdiction to decide this case or not and whether the Complainant is bound by the Arbitration agreement or not which are similar, hence can be decided together. In this regard, it is the contention of the OPs that as per the loan agreement, a petitioner for arbitration under Arbitration and Conciliation Act, 1996 shall be instituted only in competent Court in Mumbai, hence only the Mumbai which has the jurisdiction to deal with this case but in this regard, it is argued from the side of the Complainant that the loan agreement was entered between the parties at Lucknow, hence Lucknow Forum has jurisdiction to deal with this case. So, obviously, there is merit in the argument advanced by the learned Counsel for the Complainant, hence it is concluded that this Forum has the jurisdiction as the parties entered into the agreement at Lucknow only. So far as the contention of the

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OPs with regard to arbitration proceedings at Mumbai are concerned. It has been held in a plethora of cases that the Consumer Protection Act provides remedy which is an addition to other provisions and therefore on the basis of an arbitration agreement it cannot be said that the case cannot be filed in a Forum for the purpose of compensation etc. Therefore, it is concluded that this Forum has the jurisdiction to deal with this case notwithstanding the provision of arbitration proceedings in the agreement.

Now we come to the main point as to whether the OPs have committed unfair trade practice or deficiency in service in not issuing NOC to the Complainant. In this regard, it is the case of the Complainant that he had given 48 cheques to the OPs for realising the instalment of the amount of loan which were to be encashed on 29^th day of every month. It is not disputed that the 48 cheques were given by the Complainant to the OPs. It is admitted to the OPs in their WS that the cheques towards instalment were to be deposited on 29^th day of every month. The case of the OPs is that as per their repayment schedule the Complainant was under obligation to repay the instalment on every 2^nd day of every succeeding month. It was the responsibility of the OPs to deposit the cheques a few dates before the instalment was due on 29^th day of every month but the OPs had deposited the cheques on 2^nd day of each month whereby some cheques could not be encashed as the Complainant got his salary in second week of the month. The Complainant had submitted his pay slip with regard to the sanctioning of the loan amount which showed as to when the salary was given to the Complainant and therefore the OPs should have deposited the cheques a few days before 29^th of every month so that the cheque could be encashed on or before the due date of 29^th of each month and the Complainant is not bound to get the cheques encashed on 2^nd day of the month and therefore the OPs themselves were responsible for depositing

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the cheques much before they were supposed to have been encashed. This appears to be a ploy to get the cheques not getting encashed because of the paucity of fund as the Complainant was a salaried person. From the statement of the a/cs provided by the OPs, it is clear that so many charges for the encashment of the cheques for various reasons have been levied whereas the fact is that the cheques were within the custody of the OPs themselves and there was no justifiable reason for levying such charges as collection charges, bank charges, legal expenses etc. In fact if at all the cheques could not be encashed on the day when the instalments were due because of the non availability of the funds then the Complainant could have been charged with certain expenses which might have been incurred by the OPs in getting the insalment due realized from the Complainant but there does not appear to be any such thing involved in the instant case. Thus, showing certain amount to be in balance against the Complainant when the OPs themselves have had all the 48 cheques for realising the instalments due shows, that they have adopted methods to realize undue amount from the Complainant with regard to the loan taken by him which certainly is unfair trade practice on their part. Therefore, when the Complainant had paid the entire amount due as he had already submitted all the 48 cheques to be encashed by the OPs then the fault if any lies with the OPs in not getting cheques encashed when they were due. Since the Complainant has in fact paid the entire amount which she was supposed to pay then the OPs should have issued NOC to her but the OPs kept demanding money showing some amount due to the Complainant for various unjustified reasons and as discussed above OPs have committed unfair trade practice in making such demands and therefore the OPs are duty bound to issue NOC to the Complainant. As the demand for Rs.35,000.00 made by the OPs was not justified, therefore the aforesaid

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demand of the OPs is to be set aside. As the Complainant also appears to have been harassed in this regard, hence she is entitled to get compensation as also cost of the litigation.

ORDER

          The complaint is partly allowed. The demand of Rs.35,000.00 made by the OPs is set aside. The OPs are jointly and severally directed to provide NOC to the Complainant.

          The OPs are also directed to pay Rs.3,000.00 (Rupees Three Thousand Only) as compensation and Rs.3,000.00 (Rupees Three Thousand Only) as cost of the litigation.

The compliance of the order is to be made within a month.

 (Anju Awasthy)                                       (Vijai Varma)

          Member                                                      President  

  Dated:   28  January, 2016