BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, EAST SIKKIM AT GANGTOK

CONSUMER COMPLAINT CASE NO.12 OF 2019

{PRESENT:-            1. Prajwal Khatiwada, President

                                                 2. Anita Shilal, Member

                                                 3. Rohit Kumar Pradhan, Member}

Shri Rinzing Lama alias Rinzing Bhutia,

   S/o Shri L.Lama,

   R/o Phodong, Kagyud Gumpa,

   PO & PS Phodong,

   North Sikkim                                                     ....Complainant

                                                          -Versus-

     The Branch manager,

     IndusInd Bank,

     Tadong, Gangtok,

     East Sikkim

                                                                              …...Opposite Party                                                                              

FOR THE COMPLAINANT : Ld. Counsel Shri Aditya Makkhim                                                                       

FOR THE OPPOSITE             : Ld. Counsel Shri Sushant Subba

PARTY                                                                        

O-R-D-E-R

1. This is to decide a complaint filed by the complainant claiming deficiency in service on the part of the Opposite Party (OP). He has, accordingly, prayed for compensation/damages under various heads.
2. Briefly stated, it is the case of the complainant that he is a resident of Phodong, North Sikkim and a retired Government Servant. In the year 2012, he had purchased a Maruti Alto vehicle from M/s Entel Motors, Tadong(authorised dealer of Maruti vehicles) after obtaining finance facility from the OP. In particular, he had obtained car loan to the tune of Rs.2,04,000/-(Rupees Two lakhs four thousand) only from the OP in respect of the above vehicle vide loan agreement dated 25.09.2012(bearing No.WNG01563C)[1]. The said loan amount was to be repaid through monthly installments of Rs.6,680/- over a period of 45 months.
3. After obtaining the above car loan from the OP he had been regularly paying the monthly installments upto August 2013. Thereafter, during September 2013 he approached the OP to verify about the total outstanding dues. Since the total outstanding dues were only Rs.1,80,000/- he duly paid the said amount in the same month. Since the loan was cleared he was issued a money receipt(Annexure-6/Exhibit 9) by the OP.
4. According to the complainant, despite the clearance of the outstanding dues above the OP did not issue the No Due Certificate despite several requests and visits to its office. Though he was informed by the OP that the above certificate would be issued by its head office it was never issued to him.
5. Much to his surprise, he later received a legal notice from the OP demanding the payment of Rs.1,80,000/- as outstanding dues although it had already been paid by him as above. He accordingly visited the OP with the relevant papers but to no avail. Left with no option he wrote a letter dated 06.05.2019 to the OP and forwarded all the relevant documents which were received by the latter on the same day. Despite receiving it no effective action was taken by the OP. Instead, it sent a reply dated 31.05.2019 to him denying that any such payment of Rs.1,80,000/- was made to it by him.
6. As per the complainant, he was always regular in paying the monthly loan installments and never defaulted even once. Further, the outstanding dues above were duly cleared by him. Despite the same, the OP failed to issue the No Due Certificate causing him immense mental harassment and tension. He also issued a legal notice to the OP on 26.08.2019 which was also to no avail.
7. The complainant would, accordingly, claim that there has been deficiency in service on the part of the OP. He would thus claim compensation/damages/reliefs from the OP as follows:-

       (i) An amount of Rs.2,00,000/-(Rupees Two lakhs) only as compensation for deficiency in service on the part of the OP;

         (ii) An amount of Rs.2,00,000/-(Rupees Two lakhs) only as compensation for causing immense mental tension, pain, agony and harassment to him;

         (iii) An amount of Rs.25,000/-(Rupees Twenty five thousand) only against the cost of litigation;

         (iv) Interest at the rate of 12% per annum from September, 2013 i.e., the date of payment of full and final payment;

         (v) An order directing the Respondent to issue “No Due Certificate”; and

         (vi) Any other relief/reliefs as this Commission may deem fit and proper in the interest of justice.

8. According to the complainant, the cause of action for filing the present complaint first arose when the OP had agreed to finance the above vehicle. It also arose in September 2013 when he made the full and final payment of the outstanding dues of Rs.1,80,000/-. It again arose on 06.05.2019 when he sent the letter for closure of the above loan account. It further arose on 29.05.2019 when the OP sent its reply to the above letter. It again arose on 26.08.2019 when the complainant issued the legal notice. Thereafter, it has been continuing within the jurisdiction of this Commission.
9.  The OP filed its written version in the matter challenging the complaint on various grounds. It would deny that the complainant had duly paid the outstanding dues above. Instead, according to it the complaint has been filed by the complainant after an arbitral award[2] came to be passed against him on 06.04.2017 in pursuance of the arbitral proceedings which had been initiated by the OP on account of the default on the part of the complainant to repay the outstanding loan amount. In fact, due to the above adverse arbitral award the CIBIL[3] score of the complainant as well as his co-borrower(CW2 Chongpen Lepcha) was adversely affected due to which the present complaint has been filed as an after thought to nullify the effect of the above arbitral award.
10. The OP would also claim that the above money receipt(Exhibit 9) is a fabricated document. It does not bear the date or month of its issuance. As per it, there has been no deficiency in service on its part. It would also deny that it had received any letter or notice from the complainant for issuance of the No Due Certificate. In fact, according to it the present complaint is also barred by limitation as the alleged payment of outstanding dues was supposedly made as back as in September 2013 whereas the present complaint has been filed only on 16.10.2019. It would, accordingly, pray for rejection of the complaint.
11. The following points were framed for determination after hearing the parties through their Counsel and on careful consideration of their respective pleadings and the various documents filed in the matter. The onus of proof was fixed accordingly:-

      (1) Whether the complaint is maintainable?(opc);

       (2) Whether the complainant has duly paid the outstanding dues against the loan amount availed by him from the OP?(opc)

       (3) Whether Annexure 6(money receipt) had been duly issued by the OP? (opc)

       (4) Whether there has been any deficiency in service on the part of the OP? (opc)

       (5) Whether the complainant is entitled to the reliefs prayed for by him? (opc)                 

12. The complainant examined himself and the co-borrower of the above loan viz., Chongpen Lepcha(CW2) in support of his case. They both filed their evidence-on-affidavits(Exhibits 1 & 14) and confirmed/authenticated it on oath. The OP, on the other hand, examined its Branch Manager Sonam Topgay Bhutia(DW1) who too filed his evidence-on-affidavit(Exhibit B) in the matter and confirmed/authenticated it before this Commission under oath.
13.  After the parties closed their evidence, their Counsel were heard on arguments. It may be mentioned here that the matter was considerably delayed owing to the prevalent situation arising due to COVID-19. Part-proceedings were also conducted through video-conferencing.
14. Ld. Counsel Shri Aditya Makkhim, appearing for the complainant, mostly reiterated the submissions of the complainant above. According to him, the complainant has been able to prove a case of deficiency in service on the part of the OP. The evidence and materials put forward by him would clearly establish his case.
15. It was also contended by Shri Makkhim that the OP has not been able to challenge Exhibit 9(money receipt) which has been duly proved by the complainant. It was also submitted that the complainant was never aware of the alleged arbitral proceedings. In any event, the same would have no bearing on the present case. Reliance was placed on the cases of Skypak Couriers Ltd., Appellant v. TATA Chemicals Ltd., Respondent (2000) 5 SCC 294; and Vishwa Prakash, Petitioner v. Raju Joseph and Anr., Respondents III(1999) CPJ 524 in support of the above submissions.
16. It was finally contended that though the OP bank has examined its Branch Manager(DW1), he has not filed any letter of authority or power of attorney issued/executed by the OP bank to represent it. As such his evidence would be of no consequence. Reliance was placed on the case of State Bank of Travancore, Appellant v. M/s Kingston Computers India Private Limited, Respondent 2011 (11) SCC 524; M/s Nibro Limited, Plaintiff v. National Insurance Co.Ltd., Defendant AIR 1991 Del 25; and Lucas  Indian Services Ltd., Appellant v. Sanjay Kumar Agarwal, Respondent 2010 SCC OnLine 2888 while submitting that in the absence of any such authorization letter as above DW1 could not have represented or filed evidence on behalf of the OP.
17. Ld. Counsel Shri Sushant Subba, appearing for the OP, on the other hand, contended that the complainant has miserably failed to prove his case against the OP. According to Shri Subba, no case of deficiency in service on the part of the said OP has been made out by the complainant. He has not been able to sufficiently prove the payment of the outstanding dues of Rs.1,80,000/- in the month of September 2013 as alleged by him. The alleged money receipt does not bear the date or other details of the official issuing it. This fact has also been admitted by the complainant.
18. It was also contended by Shri Subba that though on one hand the complainant claims to have cleared the outstanding dues in September 2013, yet from the statements of account(Exhibit 7 coll.) filed by him it can be seen that he had been paying the monthly installments upto 30.07.2015. He has admitted the same during his cross-examination. This would clearly belie his claims that he had cleared the outstanding dues as back as in September 2013.
19. We have given our anxious and thoughtful consideration to the rival submissions put forward by the Counsel for the parties and have carefully gone through the evidence/materials placed before us. The decisions cited before us have also been carefully perused.
20. Point Nos.(2) and (3) shall be taken up first.

      “(2) Whether the complainant has duly paid the outstanding dues against the loan amount availed by him from the OP?(opc)

       (3) Whether Annexure 6(money receipt/Exhibit 9) had been duly issued by the OP? (opc)”

21. As seen above, it has been the case of the complainant that he had obtained the concerned finance facility/loan of ₹ 2,04,000/-(Rupees Two lakhs four thousand) only from the OP vide loan agreement No.WNG01563C dated 25.09.2012 which was to be repaid in 45 monthly installments of ₹ 6,680/-. After obtaining the said loan he regularly paid the monthly installments upto August, 2013. Sometime during September 2013 he and CW2 Chongpen Lepcha approached the office of the OP and enquired about the outstanding loan amount(dues). He was, accordingly, informed by the officials of the OP that the outstanding loan amount was ₹ 1,80,000/-. Accordingly, in the same month the complainant went to the office of the OP and paid the total outstanding dues above as full and final settlement for which he was also issued the money receipt(Exhibit 9) by the OP. After clearing the above loan he requested the OP for a No Due Certificate and was assured that it would be issued from the head office of the OP. However, despite several visits to the office of the OP the said certificate was not issued to him. The OP claimed that it had not received the No Due Certificate from the head office. To his utter surprise, the complainant later received a notice from the OP demanding payment of the aforesaid amount of ₹ 1,80,000/-. He was directed to pay the same on or before 17.08.2016. Though subsequently he wrote a letter dated 06.05.2019 to the OP mentioning the above payment, the OP sent a letter dated 31.05.2019(Exhibit 11) to him denying and disputing his claims. Despite the passage of time the above certificate was not issued to him. He, accordingly, issued a legal notice dated 26.08.2019 to the OP through his lawyer. However, despite the same the needful was not done by the OP. The OP, on its part, would deny the above claims of the complainant. It would deny that he had duly paid the outstanding dues above. According to it, the concerned money receipt(Exhibit 9) is a fabricated document. It does not have any date or detail. According to it, the present complaint has been filed by the complainant after an arbitral award came to be passed against him on 06.04.2017 which was initiated by the OP on account of the default on his part to repay the outstanding loan amount above. Owing to the above adverse arbitral award the CIBIL score of the complainant as well as the co-borrower(CW2) was seriously affected due to which the present complaint has been filed.
22. It may be mentioned here that though the complainant would baldly claim as above, he has not been able to sufficiently prove the payment made by him and the due issuance of the money receipt(Exhibit 9) whereby, according to him, the OP has acknowledged the receipt of ₹ 1,80,000/- as full and final settlement. For instance, it neither bears the date nor the specific details of the official issuing it. The complainant himself has admitted during his cross-examination that Exhibit 9 does not contain any date and also does not reflect the name of the bank official who had issued it. So much so, he would even admit that he did not know as to when Exhibit 9 was issued to him by the OP. To make the matter worse, Exhibit 9 is a mere hand-written note. Given the usual banking practices it is highly improbable that such a casual certificate would be issued by a bank acknowledging the full and final settlement of a loan account.
23. There is yet another hitch in the complainant's case. Though he has baldly claimed as above with regard to the one-time payment of the outstanding loan amount in September 2013, he has himself filed Exhibit 7(coll) which are the statements of account indicating the repayment of the loan installments by him. He has referred to it at paragraph 4 of his evidence-on-affidavit(Exhibit 1). Interestingly, going by it he is seen to have paid the installments to the OP till 30.04.2015. He has himself categorically admitted this in his cross-examination. It is not understood as to why the installments were paid upto 30.04.2015 though, according to him, he had already cleared the outstanding loan amount as back as during September 2013. He has not been able to explain the same. Further, his Counsel also drew a blank when the necessary verifications in that regard were made by us.
24. It can thus be seen that the entire case set out by the complainant is highly doubtful. Though he has also examined CW2 in order to prove that the concerned one-time payment was made by him, CW2 has merely reiterated the claims of the complainant in his evidence-on-affidavit(Exhibit 14) and has nothing substantial to contribute. We have however already discussed above the weightage that can be given to the claims of the complainant.
25. It was contended by the OP that the present complaint has been filed by the complainant after an arbitral award came to be passed against him on 06.04.2017 which arbitral proceedings were initiated by it(OP) in connection with the outstanding loan amount above. The OP has also filed a certified copy of the concerned arbitral award i.e., Exhibit A, which was duly identified and proved by DW1 before us. A perusal of the same would reveal that it is pertaining to the same loan account above. Strangely, no serious efforts were made by the complainant to refute or assail the said award which is also a circumstance militating against his bald claims.
26. Ld. Counsel for the complainant had even contended that DW1(Branch Manager of OP) has not filed any letter of authority or power of attorney issued/executed by the OP bank to represent it and as such his evidence would be of no consequence. He(DW1) could not have represented or filed evidence on behalf of the OP as per Ld. Counsel. In this regard, it may be mentioned here that DW1 being the Branch Manager of the OP bank/branch is its principal officer and by virtue of his position he is the most competent person who can depose to the facts of the case based on the official records. We do not think any separate authorization letter would be required. In fact, he himself being the principal officer of the OP bank/branch it is not understood as to who would be issuing the concerned authorization letter. As a matter of fact, Order XXIX Rule 1 of the Code of Civil Procedure, 1908(In short, “the CPC, 1908”) is clear with regard to the competency of the principal officer of the concerned corporations(which would include banks such as OP) to sign and verify the pleadings on behalf of the corporation/bank. Further, such principal officers are always competent to depose. We may also refer to the cases of Umesh Chandra Misra, Petitioner v, State Bank of India & Anr., Respondents AIR 1987 Orissa 67(Para 12) in this context. It may also be mentioned here that the written version of the OP was admittedly signed and verified by the previous Deputy Manager of the OP who can also be regarded as one of the principal officers of the OP. Insofar as the decision of the Hon'ble Supreme Court in State Bank of Travancore, Appellant v. M/s Kingston Computers India Private Limited, Respondent 2011 (11) SCC 524 relied upon by the Counsel for the complainant, it is noted that M/s Nibro Limited's case has also been referred to therein.  It is, however, noted that the facts under consideration of the Hon'ble Supreme Court in the above case are clearly distinguishable. There, the Hon'ble Summit Court was considering a case where it had not been sufficiently proved that the person who had signed, verified and filed the concerned suit for recovery of money on behalf of the Respondent(M/s Kingston Computers) was duly appointed as the Director of the Respondent company or that a resolution was passed by its Board of Directors authorizing him to file the suit on its behalf. Conversely, in the case on hand DW1 is himself the Branch Manager of the OP bank. He is thus competent to depose in the matter on behalf of his bank. Point Nos.(2) and (3) are, accordingly, decided in the negative.
27. Point Nos.(1), (4) and (5).

     “(1) Whether the complaint is maintainable?(opc;

       (4) Whether there has been any deficiency in service on the part of the OP? (opc)

       (5) Whether the complainant is entitled to the reliefs prayed for by him? (opc)”

28. Suffice it to say, the complainant has not been able to prove his case. No deficiency in service on the part of the OP has been made out by him. The question of him being entitled to the concerned reliefs does not arise. The complaint is, accordingly, dismissed. The above points are decided accordingly.

              PRONOUNCED  

      (Anita Shilal)                (Rohit Kumar Pradhan) (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRC(E) at Gangtok       DCDRC(E) at Gangtok                 DCDRC(E) at Gangtok

LIST OF WITNESSES EXAMINED BY THE COMPLAINANT

01.        CW1     -  Rinzing Lama alias Rinzing Bhutia(Complainant)

02.        CW2     -  Chongpen Lepcha

LIST OF DOCUMENTS EXHIBITED BY THE COMPLAINANT

01.        Exhibit 1    - Evidence-on-affidavit of complainant

02.        Exhibit 2    - Copy of voter identity card

03.        Exhibit 3    -      Copy of proforma invoice

04.        Exhibit 4    -      Copy of Form 22

05.        Exhibit 5    -  Insurance policy

06.        Exhibit 6    -  Copy of loan agreement

07.        Exhibit 7    -  Statement of accounts

08.        Exhibit 8    -      Cash payment receipts

09.        Exhibit 9    -  Money receipt

10.        Exhibit 10 -       Original office copy of letter dated 06.05.2019

11.        Exhibit 11 -       Reply of OP dated 31.05.2019

12.        Exhibit 12 -       Copy of legal notice dated 26.08.2019

13.        Exhibit 13 -       Postal receipt

14.        Exhibit 14 -       Evidence-on-affidavit of CW2

LIST OF WITNESSES EXAMINED BY THE OPPOSITE PARTY

01. DW1-           Sonam Topgay Bhutia(Branch Manager of OP)

LIST OF DOCUMENTS EXHIBITED BY THE OPPOSITE PARTY

01. Exhibit A- Certified copy of arbitral award dated 06.04.2017

02. Exhibit B- Evidence-on-affidavit of DW1

   Anita Shilal)                 (Rohit Kumar Pradhan)    (Prajwal Khatiwada)            

        Member                               Member                                             President

    DCDRC(E) at Gangtok      DCDRC(E) at Gangtok                 DCDRC(E) at Gangtok