Karnataka

Belgaum

CC/229/2015

Badasha M Goravanakol - Complainant(s)

Versus

The Branch Manager HDFC Bank - Opp.Party(s)

H C Savasuddi

24 Apr 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.229/2015

Date of filing: 04/04/2015

Date of disposal:27/04/2017

 

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT        -

Shri. Badasha M. Goravanakol, Age : 62 Years, Occ : Nil, R/o : Ashok Nagar, Belagavi.                          (Rep. by Shri.H.C.Savasuddi, Adv.)

 

- V/S -

 

OPPOSITE PARTY  -

The Branch Manager, H.D.F.C. Bank, IIIrd Floor, No.4830/28A, OPP. District Hospital, Dr.Ambedkar Road, Belagavi.                                            (Rep. by Shri.S.M.Kadolkar, Adv.

 

JUDGEMENT

 

By  Shri. A.G.Maldar, President.

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) to hand over the all original documents like R.C. Book, Insurance Copy, N.O.C. and other relevant papers and Rs.5,00,000/- towards compensation for mental agony and Rs.5,000/- cost of the litigation and any other reliefs.

  

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainant had availed loan from the OP of Rs.61,753/- for purchasing Two Wheeler Motor Cycle and OP disbursed total loan amount of Rs.60,171/- with interest @ 10.75 % with total tenure of 36 months which is applicable from may 2005 to April 2008 on the condition to repay the said loan in the monthly installments of Rs.2,092/- per month and thereafter the complainant has purchased two Wheeler vehicle Bearing No.KA-22/W-4109 and further the complainant has paid entire loan amount due with the bank alongwith interest as per statement issued dtd: 06.04.2015.

 

          Further the complainant contended that, after completion of loan transactions, the OP should return all documents and N.O.C. for cancellation of hypothecation as agreement of loan. But, till today the OP has not hand over the original papers and N.O.C. and also not paid the Insurance Premiums to the Insurance Company, these attitude of the OP, the complainant has suffered huge inhalation, mental and physical harassment due to the deficient services of the OP. Even, after several request, the OP did not return the said documents to the complainant. 

 

          Finally, the complainant has sent legal notice through his counsel on dtd: 25.02.2015 to supply the original documents, but till today the OP/Bank has not given any reply. Hence, ultimately the complainant has constrained to file this complaint.

 

 

3.      After receipt of said notice, the OP has appeared through his counsel and resisted the claim of the complainant by filing his written version and denied all allegations made out in the complaint and it is true that, the complainant had availed loan of Rs.61,753/- for the purchase of Two Wheeler bearing Reg.No.KA-22/W-4109 and further the said vehicle is hypothecated to the OP/Bank vide loan A/c No.90752584 and further the OP respectfully submits that, the complainant had also availed Personal Loan for Rs.28,000/- from the OP/Bank during Sep-2005 and entered into loan agreement undertaking to repay the loan with interest in 24 monthly installments of Rs.1,797/- each starting from 5^th Nov-2005 to 5^th Oct-2007 and further the complainant had defaulted in payment of installments since from 2006 and intentionally neglected to repay the said loan, inspite of several requests and demands made by the OP/Bank, as on the date, the complainant is due to pay a sum of Rs.76,337/- including the penalty and late payment charges under the loan A/c No.1817864. Hence, the OP/Bank as per the terms and conditions of the loan agreements and by invoking the provisions of Banker lien and set off the bank had put a hold on issuance of No Objections Certificate and other documents pertaining to the said vehicle.   

 

          The OP/Bank further contended that, the complaint filed by the complainant is also barred by limitation, according to the statement of loan A/c NO.90752584 produced by the complainant as mentioned in para 4 of the complaint and further the complainant had paid the loan amount on 22.12.2009 and now the complainant had approached this Hon’ble Forum after the lapse of 6 years and further the complainant had not given any cogent reasons for the delay in filing this complaint. Hence, the OP/Bank has not committed any deficiency of service on the part of the OP and prayed for dismissal of the complaint.

 

 

7.      Complainant has filed his affidavit in support of his case and produced 05 documents i.e. Xerox copy of the R.C., Xerox copy of Bank Statement, Xerox copy of Legal Notice, Xerox copy of the insurance policy and loan re-call Notice, which are marked as Ex.P-1 to  Ex.P-5, as against this, the OP has filed his affidavit in support of his case and produced 02 documents i.e. account statements of the complainant, which are marked as Ex.R-1 & Ex.R-2, for sake of our convenience, we have marked P & R series. The Adv. for both parties have filed their written arguments. Heard the arguments on both sides.

 

Now, on the basis of these facts, the following points that would arise for our consideration:

 

01. Whether the complainant has proved that, there is negligent and deficiency of service on the part of Op?

 

02.What order?

 

 

5.      Answer to the above Points:-

 

01. Partly Affirmative.

 

02. As per final Order.

 

R E A S O N S:-

 

6.      Point No.1: From the pleading of the parties and the evidence placed on the record by the both parties, it is admitted fact that the comp has obtained the loan of Rs61,753/-, for purchase of tow wheeler vehicle bearing No.KA-22/W-4109 on dated:20/04/2005 on EMI of Rs.2,092/- per month payable  in 36   installments and complainant has cleared the loan amount sanctioned by the ops. On the other hand, the first and foremost contention of the ops that, the transaction between the complainant and OP is a borrower and financer relations and the complainant is not a consumer of the Ops as section 2 (1) (d) of C.P. Act and the complaint is liable to be dismissed and  further the specific contention of the OP that, the complainant is defaulter and he has not paid installment from the year of 2006 and further contention that, same is intimated to the complainant, despite of the same, the complainant not cleared the amount. Hence, the OP has retain the original documents and he was in due towards the  said loan amount. So, the OP has not issued the no due certificate. These contention taken by the OP has no merit, because the OP has admittedly sanctioned the loan to the complainant and they are the service provider to their complaint. Hence, the contention of the OP that, he is defaulter is not acceptable.

 

          Moreover Ex.P-1 Statement of  A/c it clear reveals that and also establishes that, the said installment has been paid to the OP bank and same is credited to the complainant account.  If really, the said amount has not been paid to the OP and the complainant has outstanding dues, the OP would have been taken action by issuing notice to the complainant, calling upon him to pay the outstanding dues, In this regard Op has failed to place any material and cogent document to show that, the complainant is outstanding dues towards his loan account. Under these circumstance, in the absence of any material document, we cannot accepted the contention of the Op. As per the materials placed by the complainant, as well as the OP, the loan was sanctioned in the year 2005 and the complainant has repaid the said loan amount through cheques and cash in the year 2009. If really, the complainant is outstanding dues with the OP, the question of demanding the original vehicle document does not arise and even legal notice issued on dated 25.02.2015, which clearly established that, there is a gross negligence and deficiency in service on the part of OP and due to which more hardship and inconvenient caused to the complainant.

 

          In looking to the facts and circumstance of the case, we are of the considered view that there is a gross negligence and deficiency in service on the part of the OP and OP is liable to compensate the complaint for the same. The complainant has claimed the returning of the original documents which were deposited at the time of sanctioning loan.

 

The complainant claims that, he has approached the OP several times and requested to issue the NOC, the OP did not respond and ultimately, the complainant has got issued legal notice on  dated 25.02.2015 as per  Ex.P-3 by RPAD and he produced the same, for which also the OP has kept quite without responding to it. If really there was any further amount due from the complainant towards dues and over dues etc., the OP in the ordinary course, ought to have given reply to the  legal notice informing him as to what is the further amount due and calling upon to pay the said amount for issuing the NOC and this conduct  of the OP is highly improbable. Further it is important to note that, it is evident that, the complainant has made payments regularly  on each month, more than the installment amount.

 

So under such circumstance, the learned counsel for the complainant has asked what is the basis of claim in Rs.78,000/ towards overdue, the complainant has failed to explain. Further it is important to note that, even as per the said statement of account filed by the OP, it is nil and as outstanding due closed, after making payment of last payment on dated: 10.04.2008 why the complainant was not informed about the same and why the demand notice was not issued till this day and why no action was taken for the recovery of the said amount till this day has not been explained and it is important to note that only first time, when the OP has filed written version before this forum, it is being contented that, the complainant is still due of the Rs.78.000/-, that to without any basis. If complainant is has taken any personal loan as alleged by the op and committed default of any installment which enabled the op to take action separately not in this loan and the said loan  is sanctioned for purchase of two wheeler, which has been  sanctioned prior to the personal loan as found in the account statement produce by the Op himself and even the Op has not establish the case as alleged by the OP in written version and there is no any material document to show that, the personal loan is tag to two wheeler loan.

 

So under these circumstance, we have no hesitation to hold that, this claim of Rs.78.000/-, it is being made for the first time before this Forum is without any basis and refusing to issue NOC and Form No.35 and on that ground, now amount to not only deficiency in service and also unfair trade practice on the part of the OP, as a result which Act of the OP, the scamp was made to undergo mental agony hardship and inconvenience this unnecessary litigation. So, the complainant is to be compensated in this regard. Hence, we answer to the above point No 1 in Affirmative.  Accordingly, we proceed to pass the following;

 

O R D E R

 

   For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act 1986 is partly allowed.

 

 OP is ordered to issue clearance certificate (NOC) and
Form No.35 to the complainant.

OP is ordered to pay Rs.10,000/- to the complainant towards compensation for mental agony and costs of the proceedings.

 

 OP  is granted 8 weeks to comply this order, falling which the complainant shall entitle to recover the said amount together with  interest @ 9% p.a. from the date of filling of this complaint till realization.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 27^th day of April, 2017).

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.