Date of Filing:18.07.2007<br /> Date of Order:29.08.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 29TH DAY OF AUGUST 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> COMPLAINT NO: 1488 OF 2007<br /> <br /> <br /> M. Shivanand,<br /> Prop: Maheshwari Gas Agency,<br /> M.G. Road, <br /> Chikkaballapur Town. Complainant<br /> <br /> <br /> V/S<br /> <br /> The City Corporation Finance India Ltd., <br /> No.702, 7th Floor, Cotton Tower,<br /> Air Port Road, <br /> Bangalore. Opposite Party<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> <br /> This is a complaint filed U/Sec. 12 of the Consumer Protection Act, 1986 to direct the opposite party to issue a Clearance Certificate/N.O.C with respect to the Lorry bearing No. KA-40-2858 and KA-40-5858 and Loan Account No.HO1G810043194 and HO1F760034158. <br /> <br /> The brief facts of the case are that, the complainant has availed loan facility from the Maharashtra Apex Bank for the purpose of two Trucks/Lorries bearing KA-40-2858 and KA-40-5858 amounting to Rs.5,00,000/- and Rs.5,40,000/- respectively under contract loan A/c No. HO1G810043194 and HO1F760034158. At the time of purchasing the said vehicles complainant had made down payments. The loan amount shall be repaid in 25 installments and the insurance amount shall be paid by the Finance Company during the said tenure. The complainant started making payments towards the loan amount and has paid 23 installments in both loan Accounts/contracts. The complainant requested the opposite party to close the loan contract account and issue the clearance certificate. But the opposite party did not response the same. Thereafter the complainant also issued notices to the opposite party demanding to close the account and issue clearance certificate. In spite of best efforts of the complainant, no fruitful results yielded which constrained the complainant to issue a legal notice to the opposite party calling upon to issue clearance certificate. The non response and the non-issuing of the clearance certificate to the complainant by the opposite party amounts to deficiency and negligence in rendering service to the complainant. Hence, the complaint. <br /> <br /> 2. Notice was issued to opposite party. Notice was served. Opposite party appeared through counsel and submitted defence version contesting the claim. The complainant availed loan for purchase of two vehicles bearing No. KA-40-2858 and KA-40-5858 and hire purchase interest has been duly entered in the registration certificates. The complainant had availed loan of Rs.5,40,000/- under Account No.HO1F760034158 and agreed to pay interest at 10.36% p.a payable in equated monthly installments of Rs.21,912/- payable on 29th of every month over a period of 29 months starting from April-2001. The complainant had availed another loan of Rs.5,00,000/- under Account No.HO1G810043194 agreeing to pay interest at 13.21% p.a payable in equated monthly installments of Rs.25,066 payable on 14th of every month over a period of 23 months starting from July-2001. The complainant committed default in making repayment of the debt due and irregular in payment of the dues resulting in levy of penal charges. In view of the defaults the complainant is still due in a sum of Rs.2,83,695/- and Rs.1,87,113/- respectively. The complainant is admittedly at breach of contract, is not a consumer, and further has no cause to file this complaint. In view of all these reasons stated above, the opposite party prayed to dismiss the complaint.<br /> <br /> 3. Affidavit evidence of both the parties filed. Arguments are heard. Opposite party has filed written argument. <br /> <br /> REASONS<br /> <br /> 4. When the matter was posted for arguments a proposal was submitted by the learned Advocate for the complainant that matter is likely to be settled amicably between the parties and he submitted that the complainant is ready to pay the amount due to the Bank and he is seeking some concession in payment of interest on the ground that the debt is time barred and the opposite party cannot enforce the remedy to recover the time barred debt. On the submission of the counsel for the parties the matter was posted to report the statement. About 5-6 adjournments have been taken for arriving to just and reasonable and fair settlement between the parties by dialogue and discussion. The learned Advocate for the opposite party Bank has filed a memo on 4/7/2008 stating that the Advocate for the complainant had taken adjournments for settlement, but he has neither contacted the opposite party nor negotiated to settle the matter with opposite party and it is submitted that complainant has no intention to settle the matter. The hire installments are due from April-2003. In the memo it is submitted that principal amount outstanding is Rs.1,47,703/- and the complainant has not paid any amount in the last 5 years. It is submitted in the memo by the learned Advocate for the opposite party Bank that the complainant may be directed to deposit at least the principal amount due and seek concession in the interest from April-2003 to prove his bonafide in the matter of settlement, failing which the complaint may be posted for orders without considering the plea of complainant for settlement. It appears that due to gap of communication and meeting and negotiations the parties could not settle the matter amicably out side the Forum. The parties failed to report the settlement. However, the learned Advocate for the complainant filed a memo on 21/8/2008 under the signature of complainant that the complainant even now is ready to pay an amount of Rs.1,60,000/- as full and final settlement of the opposite party’s claim and opposite party may kindly be directed to issue NOC/Clearance Certificate with respect to 2 trucks’ loan as prayed in the complaint. The memo given by the complainant is taken on record. The learned Advocate for the Bank has submitted that, on February-2003 Rs.96,730/- was due in respect of one account and Rs.53,997/- is due in respect of another account. As per the memo submitted by the learned Advocate for the opposite party Bank on 4/7/2008 a total outstanding amount due is Rs.1,47,703/-. Admittedly, the complainant has paid 23 installments out of 25 installments. As per the defense version the complainant has not paid loan installment from April-2003. Now we are in August-2008 that means for more than 5 years the amount is due and no recovery is made by the Bank. The opposite party Bank has not taken any steps for recovery of the EMI of the complainant. Admittedly, the Bank has not filed any Civil Suit against the complainant for recovery of the amount. The opposite party Bank has not taken any steps to seize the vehicles also for making the default. It is argued by the learned Advocate for the complainant that opposite party has lost legal right to claim any amount from the complainant since the debt is barred by time. However, the learned Advocate for the complainant submitted that the complainant is ready and willing and has come forward to pay total amount of Rs.1,60,000/- in respect of both the accounts as one time settlement. The principal amount due was Rs.1,47,703/- in respect of both the accounts as per memo of the opposite party. The offer made by the complainant will satisfy the principal amount. In addition to the principal amount some amount also comes towards interest. The learned Advocate for the complainant during the course of argument submitted that though the complainant fairly submitted memo and ready to pay Rs.1,60,000/- as a full and final settlement. However, he left the matter to the Forum to fix the amount payable to the Bank for getting NOC/Clearance Certificate. Since the Bank has not taken any legal steps for recovery of the amount for the last more than 5 years. It is submitted by the learned Advocate for the opposite party that though the debt is barred by limitation, but it is not extinguished. The Limitation Act does not wipe out the debt itself, it takes away the remedy of the creditor to enforce the debt in a Court of law. So, under these circumstances, there will be no use to the opposite party Bank to insist the payment of full interest on the due amount. It is in the interest of Bank also to take the amount from the complainant by way of settlement and issue NOC/Clearance Certificate. By adopting this method the complainant will also get a relief and at the same time Bank will also be benefited and it will be getting time barred debt. So, under these circumstances, taking into consideration of arguments advanced by both the counsels for the parties and on the facts and circumstances also, we are of the opinion that it would be just, fair and proper to direct the complainant to pay Rs.1,70,000/- to the opposite party Bank for getting NOC/Clearance Certificate in respect of 2 accounts. We feel this order will be appreciated by both the parties to the proceedings. This order is in the nature of settlement. Consumer Protection Act is a benevolent and social legislation it intends to protect the better interest of the consumers. We have come to this conclusion by taking into consideration of the memo filed by both the parties referred to above. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 5. The complaint is allowed. The opposite party Bank is directed to issue clearance Certificate/NOC to the complainant in respect to loan Account Nos.HO1G810043194 and HO1F760034158 after receiving Rs.1,70,000/- from the complainant.<br /> 6. Both the parties shall bear their own costs. <br /> 7. Send the copy of this Order to both the parties as per statutory requirements immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 29TH DAY OF AUGUST 2008. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> rhr.<br />