KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 28/2018
JUDGMENT DATED: 09.06.2023
(Against the Order in C.C. 638/2014 of CDRC, Ernakulam)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANT:
Dr. K.M. George, S/o late K.V. Mathew, Powathikunnil, Chevayur P.O., Kozhikode Taluk, Kozhikode.
(By Adv. P.K. Muhammed)
Vs.
RESPONDENTS:
- The Manager, Citibank NA, Ravis Arcade, Padma Junction, M.G. Road, Ernakulam-682 035.
- The Manager (Customer Services), Citibank NA, P.O. Box 4830, Anna Salai P.O., Chennai-600 002.
- The Citibank NA, represented by the Managing Director, Citibank NA, Jeevan Bharathi Building, 124, Connaught Circus, New Delhi-110 001.
(By Advs. Lal K. Joseph & R. Suja Madhav)
JUDGMENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
This is an appeal filed under Section 15 of the Consumer Protection Act 1986. Complainant in C.C. No. 638 of 2014 on the file of the District Consumer Disputes Redressal Commission, Ernakulam (referred as District Commission) is the appellant. On 23.08.2017 the District Commission had dismissed the complaint. Being aggrieved by the above order this appeal has been filed.
2. The case of the complainant in brief is that on 21.02.2003 he had applied for a loan of Rs. 2,95,823/- from the first opposite party for the purchase of a Tata Indica car. The loan was sanctioned agreeing the rate of interest as 9.75% repayable in 59 equated monthly instalments @ Rs. 6,662/-. The repayment was to commence one month after the disbursement of the loan amount. The bank had collected 59 undated signed cheque leaves in advance towards the EMI. All the 59 cheques were encashed and the last one was encashed on 08.03.2008. Since the entire payment was made the complainant had approached the first opposite party to issue a No Objection Certificate. At that stage the bank raised an objection that one cheque presented by the complainant had bounced resulting in one EMI falling due. On account of this the complainant alleged deficiency of service and unfair trade practice on the part of the first opposite party. The loan amount was Rs. 2,95,823/- and the opposite party had charged a high amount of ₹ 3,11,338/-. So the complainant stated that he incurred a total loss of Rs. 61,424/-. The bank had also collected Rs. 15,766/- towards booking charge. The bank had presented the cheques in advance resulting in its bouncing and thereby damage was caused to the reputation of the complainant and he suffered monetary loss of Rs. 6,440/- being the amount collected towards other charges. He alleged that the bank had tampered the original agreement without the knowledge and consent of the complainant. Hence the complainant would seek for refund of the excess amount collected along with compensation to the tune of Rs. 1,00,000/-.
3. The opposite parties had filed a version with the following contentions:- The complaint is barred by limitation. The complainant had entered into a loan agreement with the opposite party on 21.02.2003 and acted in accordance with the terms of the contract. Now the complainant cannot turn round and set up a case against the recitals in the contract after elapsing a period of 11 years. Since the matter relates to settlement of accounts the complaint is not maintainable. The dispute is not a consumer dispute and hence the Consumer Disputes Redressal Commission has no jurisdiction. The Ernakulam District Commission lacks territorial jurisdiction as the entire transactions had taken place within the jurisdiction of the District Commission, Kozhikode. An amount of Rs. 3,11,338/- was disbursed on 27.02.2003 and EMI was fixed as Rs. 6,662/- covering a tenure of 60 months. The first instalment was made zero by the opposite party and accordingly the first EMI was due on 01.4.2003. The first EMI was reckoned as accepted in the month of April and cheques were collected in respect of the remaining 59 EMI. As per the loan agreement the complainant had agreed to pay Rs. 15,515/- as loan booking fees and the complainant is estopped from raising contentions against the terms and conditions in the agreement already executed, accepted and acted upon. Unless the entire amount is repaid the opposite parties are not bound to issue the No Objection Certificate. There is no deficiency of service. The complaint is only to be dismissed.
4. The evidence consists of the testimony of the complainant as PW1 and Exhibits A1 to A16 on the side of the complainant. On the side of the opposite parties no oral evidence was adduced. Ext B1 was marked on their side.
5. The appellant would challenge the finding of the District Commission that there is deficiency of service on the side of the opposite party as the opposite party had collected more amount than the amount disbursed to the dealer. Opposite party had admittedly collected an excess amount of Rs. 5/- which was repaid. The District Commission had gone wrong in reaching a conclusion that there was no deficiency of service or unfair trade practice on the part of the opposite party.
6. Heard both sides. We have perused the Appeal memorandum and the records received from the District Commission.
7. The evidence let in by the complainant would show that the opposite party was seeking time to resolve the dispute, but the resolution as suggested went in vain as seen from the lawyer notice issued by the complainant dated 05.05.2014 and the reply sent by the opposite party dated 02.06.2014. The complaint was filed on 27.08.2014. So it cannot be found that the complaint is barred by limitation and thus we concur with the finding of the District Commission.
8. The second contention raised by the opposite party is that the complaint is not maintainable as the only possible course to be resorted to is a suit for settlement of accounts. The opposite party is a banking institution which renders service to its customers. When deficiency of service is alleged a complaint under section 2(1)(d) of the Consumer Protection Act is maintainable. So there is no merit in the technical contention raised by the opposite party regarding the maintainability of the complaint.
9. The next contention raised by the opposite party is that the Consumer Commission Ernakulam has no jurisdiction as no part of the transaction has arisen within the limits of that Commission. The major transaction i.e; the disbursement of loan was done within the limits of the Consumer Commission, Ernakulam. So it can be concluded that the District Commission, Ernakulam has got jurisdiction to try the matter. The District Commission had arrived at a proper conclusion and we concur with the finding of the District Commission.
10. The complainant would allege deficiency of service on the reason that the principal amount availed is only Rs. 2,95,823/- but in the loan agreement a correction is effected showing the loan amount as Rs. 3,11,338/- and the Bank had also collected an additional amount of Rs. 15,515/- as booking fee. The copy of the loan agreement executed is marked as Ext. A6 which shows that there is a specific clause to the effect that the borrower shall pay one time upfront fees towards services to be rendered by the bank. Clause 16 in Ext. A6 stipulates the conditions of the loan repayment. The complainant would allege that corrections were made by the opposite parties so as to make the amount in tune with their demand. It is true that certain overwritings are seen in Ext. A6, but those entries bear the authentication of the appellant by subscribing his signature. The complainant is an educated person who cannot pretend ignorance about the stipulations in the agreement. The conditions in respect of the repayment is clearly recited in the agreement that the EMI shall be payable from the subsequent month of the disbursement of loan irrespective of the delivery of the vehicle. The account statement of the complainant marked as Ext. B1 would show that the first four cheques issued towards repayment were bounced and accordingly penal charges were imposed. According to the appellant the Bank had presented the cheques in advance and hence the complainant cannot be held liable for the bouncing of the cheques. The argument advanced by the complainant in this regard is contradictory to the conditions in the karar. After availing a loan by executing an agreement incorporating the stipulations the complainant is estopped from raising a contention that the karar is a forged one. According to the complainant the repayments were promptly made and if that be so the loan should have been closed in 2008. But the complainant had applied for No Objection Certificate in 2013 which fact itself indicates the lack of bonafides in the stand taken by the complainant. Ext. B1 should prove that the three cheques given as EMI were returned unpaid. The breach of the conditions in the agreement originated from the side of the complainant and such a person can never become a victim of the alleged deficiency of service. Having due regard to the entire facts and circumstances of the case we have no hesitation to reach a conclusion that there was no deficiency of service or unfair trade practice on the part of the opposite parties. The District Commission had rightly dismissed the complaint. We find that the order passed by the District Commission suffers no infirmities. So the appeal is only to be dismissed.
In the result, we affirm the order of the District Commission. Appeal is dismissed. Considering the facts and circumstances of the case parties shall bear their respective costs.
AJITH KUMAR D. : JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
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