STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.440 of 2010)

                                                                   Date of Institution:03.12.2010

                                                                   Date of Decision  :24.03.2011

1.     Mahindra and Mahindra Financial Services Ltd., through its General Manager (Head Office), 2^nd Floor, Sadhna House, Worli, Mumbai – 400018.

2.     Mahindra & Mahindra Financial Services Ltd., through its Manager (North Zone), SCO No.3, 1^st Floor, Madhya Marg, Sector 26, Chandigarh.

……Appellants.

Versus

Smt. Uma Rani wife of Sh. Balbir Singh resident of House No.660, Sector 22-A, Chandigarh.

              ....Respondent.

BEFORE:            HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                        S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:            Sh. G. S. Ahluwalia, Advocate for the appellant.

                    Sh. Sandeep Bhardwaj, Advocate for respondent.

PER  JAGROOP  SINGH  MAHAL, MEMBER.

                    This appeal under Section 15 of Consumer Protection Act, 1986 has been filed by the OPs against the order dated 27.10.2010 passed by learned District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter referred to as District Forum) vide which the complaint filed by the respondent/complainant was allowed and the OPs/Appellants were directed to issue the ‘No Objection Certificate’ in question and return the security cheques to the complainant. They were also burdened with Rs.25,000/- as compensation and Rs.5,500/- as litigation cost to be paid to the complainant. The order was directed to be complied with within a period of 30 days from the date of receipt of copy of the order failing which the OPs were made liable to pay the aforesaid amount with penal interest @12% per annum from the date if filing the complaint i.e. 19.7.2010 till actual payment.

2.                 Briefly stated the case of the complainant is that she purchased a Tata Sumo vehicle after getting the same financed for a sum of Rs.3,46,785/- from the OPs, which was to be repaid in 47 monthly installments of Rs.9,673/- each. It was alleged by the complainant that after making complete payment with interest, she approached the OPs for issuance of ‘No Objection Certificate’, number of times but the same was not supplied to her by the OPs. Ultimately, the complainant served a legal notice upon the OPs but to no avail. Alleging deficiency in service on the part of OPs, complainant filed the present complaint.

3.                 In their joint reply, OPs, apart from admitting the factual aspects of the case, pleaded that the complainant failed to deposit the monthly installments in time and the installment amount deposited by her with the OPs was not based on correct calculation. As per the OPs, the total outstanding dues against the complainant after adjusting the amount already paid by her, was Rs.64,496/- and she failed to deposit the said amount. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.

4.                 The parties led evidence in support of their contentions. 

5.                 After hearing the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint vide the impugned order dated 27.10.2010 as already mentioned in the opening para of the judgment.

6.                 The OPs have challenged the impugned order through this appeal.

7.                 We have heard the learned counsel for the parties and have carefully gone through the record.

8.                 The contention of the learned counsel for the OP/appellant is that the respondent/ complainant has not paid the entire amount due from him and still a sum of Rs.64,496/- was due on account of delayed payment of installments on which interest/penalty @3% per month was to be levied. Their contention is that ‘No Due Certificate’ was not issued due to this reason. This contention was not accepted by the learned District Forum rightly so because the OP/appellant has not produced any such copy of agreement under which the complainant was liable to pay any interest or penalty on account of delay in making the payment of installments. The learned District Forum rather held that the agreement has been willfully withheld by the OP nor a copy thereof was supplied to the complainant despite repeated requests and the agreement was withheld by the OP/appellant just to evade their liability to keep the District Forum in the dark and to grab the hard earned money of the complainant by their illegal demand of residual balance of Rs.64,496/-  as outstanding loan. The learned counsel for the appellant, however, attached with the Memorandum of Appeal, a Loan Agreement dated 5.5.2004. This agreement is not proved to have been executed by the complainant. It was never supplied to the complainant along with the written reply filed by the OP before the learned District Forum. The OP produced the affidavit of Sh. Anurag Sharma, Assistant Manager of the OP/appellant but in the said affidavit, no such reference to any Loan Agreement dated 5.5.2004 was given. Sh. Anurag Sharma did not prove through his affidavit if any such Loan Agreement was executed by the complainant in their favour. We are, therefore, of the opinion that this Loan Agreement attached with the Memorandum of Appeal cannot be read in evidence. It has been introduced now just to fill up the lacuna and the complainant is being taken by surprise. The right course would have been that when the agreement was entered into, a copy of the same should have been supplied to the complainant and subsequently, when the complainant wrote letters (Annexures C-41, C-42 and C-44) and requested for the supply of a copy of the Agreement (Annexures C-46 & C-47), it should have been supplied to him at least during the trial of the complaint, if not on demand made by the complainant, before filing the complaint. This document, therefore, cannot be taken on record. As discussed above, there is no evidence to suggest if the OP/appellant were entitled to any penalty or interest, if any installment was deposited late by the complainant.

9.                 There is no dispute about it that the loan amount was to be paid by installments. The complainant has paid all the installments due from him. The receipt in this respect are Annexure C-2, C-4 and C-6 to C-39. Annexure C-39 shows that it was the final installment towards this loan, which was paid on 24.5.2008. Thereafter, the complainant did not pay any installment and the OPs did not ask for any and did not serve any notice on the complainant to pay any further installment. When the complainant requested for ‘No Due Certificate’ vide Annexure C-41 dated 31.5.2008 and issued reminder (Annexure C-42) dated 2.8.2008, it was thereafter that the OP served a notice (Annexure C-43) dated 5.9.2008 on the complainant requiring it to pay additional amount of Rs.64,496/-. The complainant denied the same vide Annexure C-44 and requested for copy of the agreement vide Annexures C-46 and C-47 under which the additional amount was being demanded. No such agreement was supplied to the complainant. The conduct of the OP/appellant, therefore, shows that no such agreement existed till then and nothing remained due from the complainant and the demand of Rs.64,496/-  has been made only to justify the delay in issuing ‘No Due Certificate’ to him.

10.               The contention of the learned counsel for the OP/appellant that Annexure R-1, the Statement of Account maintained by them in their records proves that the amount was due from the complainant. In this statement, interest and penalty has been levied on the complainant without any justification and without any agreement between the parties to that effect and therefore, Annexure R-1 is contrary to the understanding between the parties and the additional amount now being demanded is not due from the complainant. One thing is true that the OPs admitted through this statement that the complainant has paid all 48 installments to them and has paid not only the full amount of loan but the interest in excess of the amount due from him.

11.               The learned District Forum has directed the OPs/appellants to issue ‘No Objection Certificate’ to the complainant. It is admitted between the parties, and is also made out from the letters Annexure C-41, C-42 and C-44 that the complainant demanded ‘No Due Certificate’ and not the ‘No Objection Certificate’. The OP/appellant would, therefore, issue ‘No Due Certificate’ to the complainant instead of ‘No Objection Certificate’ as directed vide Para No.10 of the impugned order.

12.               In view of the above discussion, we are of the opinion that the learned District Forum rightly allowed the complaint filed by the complainant. Subject to the modification, referred to above, the order is perfectly legal and valid. There is no substance in the appeal filed by the complainant and the same is accordingly dismissed with litigation costs of Rs.10,000/-.

13.               Copies of this order be sent to the parties free of charge.

Pronounced.

24^th March 2011.

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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STATE COMMISSION

(Appeal No.440 of 2010)

Argued by:            Sh. G. S. Ahluwalia, Advocate for the appellant.

                    Sh. Sandeep Bhardwaj, Advocate for respondent.

Dated the 24^th day of March, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this appeal has been dismissed with litigation costs of Rs.10,000/-.

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