COMPLAINT FILED ON:16.08.2010

        DISPOSED ON:27.07.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

27^th DAY OF JULY-2012

  PRESENT :-  SRI. B.S. REDDY                   PRESIDENT

                      SRI. A. MUNIYAPPA                   MEMBER

       COMPLAINT NO.1915/2010

O R D E R

Sri.B.S.REDDY,PRESIDENT

The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps.) to issue NOC and to pay damages of Rs.1,00,000/- on the allegations of deficiency in service.

2. The case of the complainant to be stated in brief is that

The complainant had availed car loan for a sum of Rs.1,93,000/- from the first OP in the year 2002.   The monthly instalment was Rs.4510/-.   As against the loan the Op1 had obtained post dated cheque leaves of 54 of SBI Bank from the complainant.   The Loan Account Number was 40071987.   The complainant has been regularly paying the loan instalments without any instalments due from his side.   In the year 2003, the complainant changed the Bank Account from SBI to SBT.   He wrote a letter to the first OP informing the same and further along with the letter he had also sent the post dated cheque leaves of SBT to OP1, asking him to replace with the already existing cheque leaves, the OP1 did not accept the cheque leaves on the basis that it is a policy matter not to replace the cheque leaves.   But he had orally informed the complainant that he would not present the cheque leaves every month.   OP1 advised the complainant to make a payment every month by way of cash at the cash counter at Cunnigham Road Branch.   Accordingly, the complainant has paid the entire 54 monthly instalments by way of cash at the cash counter at Cunnigham Road Branch.   After remitting the entire loan amount the complainant sought for NOC from the Op1.   After repeated request OP1 written a letter saying that they have transferred the loan account of the complainant to OP2 ICICI, the transfer of loan account was not intimated to the complainant.   In the R.C.Book against the HP the OP1 name is reflected.   On 29.03.2010 the complainant received letter from OP2 stating that the complainant is due to it in a sum of Rs.64416.65/- which includes the cheque bounce charges of Rs.6061/-.   The complainant has already paid the instalments due.   In fact he has paid an excess of Rs.490/- which needs to be refunded.    In spite of payment of the car loan in full and final, the OPs are harassing the complainant by not giving NOC to transfer the RC in his name.    This act of the Ops has resulted in deficiency of service.   The complainant is not due any amount to Ops in spite of the same Ops have not issued the NOC.   Hence, the complaint.

3. On appearance, OP1 filed version contending that the complainant approached for availing the Auto loan for a sum of Rs.1,93,000/- vide loan application form dt.05.03.2002 and the loan sanctioned was Rs.1,88,490/- on executing the car loan cum Hypothecation agreement and irrevocable Power of Attorney in favour of the OP1 Bank and the Loan was disbursed to the complainant on 21.03.2002.   The complainant was required to pay Equated Monthly instalments of Rs.4,510/- each for 60 months commencing from 01/04/2002 and the complainant was required to pay the EMI on first of every month.   It is denied that the complainant has written letter to replace the cheque leaves of SBI and he was advised by OP1 to pay monthly instalments by way of cash at the cash counter.  At the time of sanctioning loan the complainant issued post dated cheques towards clearance of monthly instalments and on sanction of the loan he was required to clear the cheques issued towards instalments on the due date that is on 1^st of every month but the complainant has failed to pay the instalments regularly on the due date and the cheques issued by him towards payment of instalments were dishonored during the period Jan-October 2004 and the OP1 had to collect instalments by way of forced collections from the complainant.  The allegations that the transfer of the loan account was not intimated to the complainant is denied as false.   The cheque towards EMI on November-2004 issued was returned unpaid for the reason Account closed, as a result OP1 stopped presenting the cheques issued by the complainant from December-2004.   The complainant started depositing the monthly instalment by way of cash according to his convenience and neglecting to pay the instalments on the due date resulting accrual of penal interest on his Auto loan account.   OP1 through its letter dt.09.03.2006 informed the complainant about the loan account being sold to OP2 based on the assignment deed that was entered into between OP1 & 2 on 06.12.2005 and further in the said letter the complainant was informed that OP1 is the authorized to collect the payment upto 5^th April-2006, and there after it will be the Op2 who shall collect the receivables from the complainant.   The complainant despite having received the said letter has failed to act upon the same and has failed to remit the installments to the Op2.   As per Clause-16 of Car Loan Cum Hypothecation Agreement OP1 has got every right to transfer its debt to the OP2.   It is the duty of the complainant to make correspondence with Op2 for repaying the loan which the complainant has failed to do.   The allegation that the complainant has paid instalments due and he has paid an excess amount of Rs.490/- it is factually incorrect and the same is denied as false.   The complainant despite the receipt of the letter dt.09.03.2006 informing to pay the monthly instalments to OP2, from 05.04.2006 has remitted the instalments by way of cash directly to the suspense of the OP1 and the OP1 with due diligence has transferred/remitted the payments received to the OP2.  The allegation that the Bank Statement reveals that the complainant has paid the entire amount and Ops have refused to give NOC and the same is deficiency in service is denied as false as the payment vouchers produced by the complainant marked as Annexure-A relates to the instalments prior to transfer of loan to the Op2.   OP2 is the right person to furnish the details of loan outstanding subsequent to transfer of the loan and for issuing of the NOC if the loan is settled in full and any other particulars pertaining to the loan account and no claim is or can be made against OP1.  The Legal Notice stated to have been issued by the complainant is not at all reached OP1.   The payment vouchers furnished by the complainant shows that last payment made towards his loan instalments was in the month of 8^th May 2007 and the legal notice is dt.28.06.2010, hence there is delay in filing the complaint, the complainant is liable to be dismissed on that ground itself.   Hence, it is prayed to dismiss the complaint.

4. OP2 filed the version contending that the complainant initially availed the loan from OP1.   Subsequent to the availing of the loan the certain loan portfolios have been assigned to the OP2, where under the loan transaction pertaining to the complainant also assigned to the OP2 on 01.02.2006.   The said fact has been intimated to the complainant by the OP1.   Even after assignment of the said portfolio to the OP2, the complainant had tendered the payment to the OP1.    OP1 also received the payments.   OP2 is justified in demanding the amount outstanding.   Whereas, the OP1 was not justified in collecting the same.   The Statement of Account as per Annexure-A is produced to show that the complainant was due the amount as on the date of demanding the amount.    Since OP2 has not received any loan amount in the loan account, the complainant is not entitled to claim NOC from OP2.   Hence, it is prayed to dismiss the complaint with costs.

5. The complainant in order to substantiate complaint averments filed affidavit evidence and produced documents. The foreclosure Manager and P.A.holder of Op1 filed affidavit evidence in support of the defence version and produced documents.  The Officer of Op2 filed affidavit evidence in support of the defence version and produced documents.

6. Arguments from complainant’s side and OP1 side heard, OP2’s side taken as heard.

7. Points for consideration are as under:

       Point No.1:-  Whether the complainant has

    proved the deficiency in service

    on the part of the OPs?

 Point No.2:-   If so, whether the complainant is

                     entitled for the relief’s claimed?

       Point No.3:-  To what Order?

8. We record our findings on the above points:

Point No.1:- Affirmative

Point No.2:- Affirmative in Part

Point No.3:- As per final order

R E A S O N S

At the outset it is not at dispute that the complainant availed car loan for a sum of Rs.1,93,000/- from OP1 in the year-2002  repayable in monthly instalment of Rs.4,510/-.   OP1 obtained post dated cheque leaves of 54 of SBI Bank from the complainant, the loan account No.40071987.

        In the year 2003, the complainant claims that he changed the Bank Account from SBI to SBT.  Hence he has written letter to OP1 informing the same and he had sent the post dated cheques of SBT asking OP1 to replace with the already existing cheque leaves.   OP did not accept the cheque leaves of SBT stating that it is a policy matter not to replace the cheque leaves.   Orally OP1 informed that the cheque leaves of SBI would not be presented by advising the complainant to make payment every month by way of cash at the cash counter at Cunningham Road Branch, Bangalore.   Accordingly, the complainant claims that he has paid the entire 54 monthly instalments by way of cash at the cash counter at Cunnigham Road Branch.   Thus the after remitting the entire loan amount through cheque and cash sought for NOC from Op1.   After repeated requests, Ops refused to give NOC, the same amounts to deficiency in service.   Op1 is stated have addressed the letter dt.09.03.2006 intimating that they have transferred the loan account of the complainant to OP2.  The complainant was not intimated about the transfer of the loan account to Op2.    In the R.C.Book of the vehicle, the name of the Op1 is reflected as H.P. on 29.03.2010 OP2 addressed letter to complainant stating that a sum of Rs.64,416.65/- which includes the cheque bounce charges of Rs.6061/- is due from the complainant.   In spite of assurance by the OP1 that they would not present the cheques, OP2 is claiming the clearance of SBI cheques.   Thus the complainant is claiming that he has paid an excess of Rs.490/- which needs to be refunded.

9. As per the defence version of the Op1 that loan amount was repayable in 60 equal monthly instalments of Rs.4,510/-.   On presentation of EMI cheque of the complainant in the month of November-2004, the same was returned unpaid for the reason account closed as a result Op1 stopped the presentation of cheque issued towards monthly instalments from December-2004 and the complainant started depositing monthly instalments by way of cash.   It is stated that Op has intimated the complainant through letter dt.09.03.2006 about the loan account being sold to OP2, based on the assignment deed that was entered into between OP1 and 2 on 06.12.2005 and complainant was informed that OP1 is authorized to collect the payment up to 5^th April 2006 and thereafter it will be the OP2 who shall collect the receivables from the complainant.   The complainant despite having received the said letter failed to act upon the same and remit the instalments to the OP2.

            It may be noted that OP1 has not produced any material to show that the letter dt.09.03.2006 has been received by the complainant regarding the intimation of the loan transfer to OP2 and to pay the amounts of monthly instalments to Op2 subsequent to 05.04.2006.  As the complainant was not aware of the loan transfer from Op1 to  OP2, he deposited monthly instalments by way of cash at the cash counter Cunningham Road Branch of Op1.   The vouchers for having deposited the cash are produced by the complainant.    Totally cash vouchers of 35 in numbers are produced by the complainant.   In case if the complainant was informed by OP1 about the loan transfer to Op2, there was no reason for the complainant to deposit monthly instalments in Op1 cash counter even after 05.04.2006.   Because of the gross negligence on the part of OP1 in not forming the complainant about the transfer of the loan account to Op2, the complainant was made to suffer as he has deposited monthly instalments by way of cash in the cash counter of Op1.   When loan account was transferred to OP2, OP1 was not justified in receiving monthly instalments subsequent to 05.04.2006, it would have refused to receive the instalments directing complainant to remit the instalment amounts to OP2 Bank.   Op1 is not claiming any amount due from the complainant.    In the R.C.book of the vehicle the name of Op1 has been shown as H.P, without NOC from OP1 complainant could not get the H.P. removed from the R.C.Book of his vehicle.

10. The main defence of the Op2 is after the assignment of the portfolio the complainant had tendered the payment to OP1 and OP1 had received the payments.   Op2 has not received any amount in the loan account of the complainant.   Hence, OP2 has demanded the amount due as per Account statement through the letter dt.29.03.2010 demanding an amount of Rs.64,416.65/-.   Since Op2 has not received any amount in the loan account, hence the complainant is not entitled to claim NOC from Op2. 

We have gone through the Statement of Account of Op2 in respect of the loan transaction of the complainant for the period 01.02.2006 to 13.04.2011.   As per this Account Statement it is shown that the amount financed is Rs.50,035/- instalment over due as Rs.27,060/- other over dues Rs.45,037/- accrued charges Rs.25,000/- and net receivable amount is shown as Rs.52,353/-.   Further it is shown that instalment paid is Rs.27,060/- and the principle amount paid is Rs.24,102/- interest paid Rs.2,958/-.   The tenure of loan is shown as 12 the instalment period from 01.03.2006 to 1.02.2007.   It may be noted that the cheques were issued by the complainant towards repayment of monthly instalments relating to SBI were transferred to OP2 along with loan account and the said cheques are being presented towards collection of monthly instalments and those cheques are bounced, Op2 has added cheque bounced charges and over due charges to the balance amount due.    The complainant has already addressed letter to Op1 on 26.09.2003 requesting to replace the cheques of SBT in place of SBI cheque leaves.   OP1 has admitted that it has not presented the cheques from December-2004 relating to SBI as the complainant has closed the account.  Despite fact that the act of Op1 in transferring the unused cheques of SBI along with loan transfer to OP2 and making OP2 to present the said cheques is a clear act of gross negligence.   When OP1 Bank has not presented the said cheques from December-2004 there was no reason to send those cheques to OP2 while transferring the loan account.  Therefore, we are of the view that the complainant is not liable to pay the overdue charges and cheque bouncing charges levied by Op2 Bank.

11. The Advocate for OP1 filed Memo on 21.10.2011 stating that whatever the amounts that were deposited by the complainant at Op1 cash counter are being transferred to OP2 towards loan account.   The total amount of Rs.22,550/- is stated to have been transferred to Op2 Bank.   Along with that Memo, the copy of the letter stating that this is to confirm that the attached remittances have been processed successfully and remitted to ICICI Bank (OP2) as mentioned below.

        As per the above Statement totally an amount of Rs.96,120/- is stated to have been transferred to Op2 Bank.  After this letter is produced by Op1 along with the Account Statement regarding transfer of the amount to OP2, OP2 has not turned up and submitted, anything about the remittance of these amounts.   Thus it becomes clear that OP2 has received the entire amounts deposited by the complainant in OP1 subsequent to 05.04.2006, even then failed to submit the same to the Forum fairly accepting that whatever the amount that has been paid in OP1 is received towards the loan account.   This conduct of OP2 in spite of receipt of the instalment loan amount not reporting the same to this Forum amounts to deficiency in service on its part.

12. We are unable to accept the case of the complainant that the loan amount was repayable only in 54 equated monthly instalments of Rs.4,510/-.    The copy of the loan agreement produced by OP1 clearly goes to show that the complainant has agreed to repay the loan amount in 60 equated monthly instalments of Rs.4,510/- and moreover in the affidavit filed by the complainant in support of I.A. filed Under Order-6 Rule-17 R/w Section 151 of CPC complainant has sworn to the fact that by obtaining the said amount he has repaid the loan amount of Rs.1,93,000/- with interest within 60 instalments as stipulated in the contract.   Again in the same affidavit he has sworn to the facts that he has paid the entire amount in 54 instalments.   The Account Extract produced by OP1 marked as document No.3 reveals that the complainant has paid in all 48 monthly instalments at the rate of Rs.4,510/- and the remaining 12 monthly instalments were due at the time of transfer of loan account from OP1 and 2.   Accordingly in OP2 the instalments are shown as 12 and the loan amount advanced by OP2 is shown as Rs.50,035/.

13. As per Account Statement dt.13.04.2011 produced by OP2 with regard to repayment schedule it is shown that total amount of Rs.54,120/- is payable towards the loan account of the complainant.   Out of that principle amount is shown as Rs.50,035/- and interest Rs.4,085/-.   An amount of Rs.9,020/- has been taken towards payment on 12.04.2006.    As per the vouchers produced by the complainant the following payments in cash are made after 05.04.2006 in OP1 cash counter which ought to have been made in Op2 Bank.

Thus the total amount of cash deposit made in OP1 cash counter under the above vouchers works out at Rs.45, 100/- by adding an amount of Rs.9,020/- taken into credit on 12.04.2006 in the loan account, the total amount paid by the complainant works out to Rs.54,120/- which has been shown in the repayment schedule of Op2 Bank.   Whatever the amount deposited under these vouchers in Op1 Bank by the complainant has been remitted by Op1 to the loan account of the complainant at Op2 Bank.   Thus it becomes clear that the complainant has cleared the entire amount due under the loan account of Op2.  In spite of receipt of the entire amount OP2 has not issued NOC, the same amounts to deficiency in service on its part.   The complainant has cleared the loan in the month of May-2007 itself in spite of that both these OP1 and 2 made the complainant to suffer by not issuing NOC required for removing the H.P in the R.C.Book of the vehicle.   The complainant has suffered mental agony and physical strain by the act of both these Ops.   Therefore both the Ops are to be ordered to pay compensation of Rs.10,000/- each to the complainant and issue NOC regarding the loan transaction.   Accordingly, we proceed to pass the following:

O R D E R

        The complaint filed by the complainant is allowed in part.

Ops are directed to issue NOC in respect of the loan transaction of the complainant.   OP1 and 2 each are directed to pay compensation of Rs.10,000/- to the complainant along with litigation cost of Rs.3,000/-.

 This order is to be complied within four weeks from the date of its communication.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 27^th day of July 2012.)

MEMBER                                                       PRESIDENT

Cs.