Tamil Nadu

StateCommission

FA/145/2014

INDIABULLS FINANCIAL SERVICES LTD., THE MANAGER - Complainant(s)

Versus

V.J. DAVID, PROPRIETOR - Opp.Party(s)

LA JURIS

13 Jun 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                       PRESIDENT

              THIRU. S. KARUPPIAH,                                                      JUDICIAL MEMBER  

                  THIRU.R. VENKATESAPERUMAL,                                       MEMBER

 

F.A.No.145/2014

(Against the order passed in C.C.No.150/2010, dated 10.01.2013 on the file of the District Commission, Chennai (South).

 

 

 MONDAY, THE 13^th DAY OF JUNE 2022.

 

 

1.      M/s.  Indiabulls Financial Services Ltd., 

         Represented by its Manager, 

         New No.229, Old No.861,

         Poonamallee High Road,    

         Kilpauk, Chennai – 600 010. 

 

2.      M/s.  Indiabulls Financial Services Ltd., 

         Represented by its Authorised Signatory

         Corporate Office

         Indiabulls House

         Udyog Vihar Phase V,

         Gurgaon, Haryana – 122 001.                                   Appellants/Opposite Parties   

 

      

                    - Vs –

 

V.  David,

Proprietor,

The Wood Packers,

No.30, Devadoss Street,

Gurusamy Nagar,

Mahananthapuram,

Porur, Chennai – 600 116.                                                 Respondent/Complainant

 

Counsel for the Appellants/Opposite Parties:   M/s. Burno Cruz, & S. Velankanni,

                                                                     Advocates.

Counsel for the Respondent/Complainant    :   M/s. B. Vivekanandan, Advocate. 

 

             This appeal coming before us for final hearing today, on 30.05.2022 and on hearing the arguments on the side of the appellants and on perusing the material records, this Commission made the following;-

ORDER

THIRU. S. KARUPPIAH, JUDICIAL MEMBER.     

 

1.         This appeal has been filed by the appellant/2^nd  opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the District Commission, Chennai (North) made in C.C.No.150/2010, dated 10.01.2013  by allowing the complaint in part directing the opposite parties 1 and 2 jointly and severally to refund a sum of Rs.1,21,220/- to the complainant with interest at the rate of 12% per annum from 04.10.2008 till the date of payment and also to pay a sum of Rs.25,000/- as compensation for unfair trade practice and another sum of Rs.25,000/- for mental agony undergone by the complainant with costs of Rs.2,000/-.      

2.       For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redressal Commission, Chennai (North).          

3.       The facts of the case before the District Commission is as follows; -  The complainant being a proprietor of the Wood Packers, obtained a loan from the opposite parties on 29.02.2008.  The loan amount was Rs.8,50,000/- but the opposite parties deducted some amount towards processing fee and other hidden charges and credited only Rs.8,30,899/- for which they obtained 36 cheque leaves towards the payment of monthly installments and also obtained one more cheque leaf totaling 37 cheques.   Contrary to the agreement, the opposite parties charged higher rate of interest and so the complainant after negotiations with the opposite parties, preclosed the loan account and both sides agreed for a sum of Rs.8,34,829/-.  The complainant as full and final settlement paid a sum of Rs.8,34,829/- by way of cheque but that cheque was bounced and returned due to some technical reasons and hence he repaid the entire amount by way of demand draft on 23.05.2008.  In spite of such final settlement the cheques were not returned to the complainant and the opposite parties illegally encashed 4 cheques itself for Rs.34,305/- each and enriched themselves to the tune of Rs.1,21,220/-.  Hence, the complainant sent an advocate notice for which no proper reply was received from the opposite parties and therefore the claim was made before the District Commission by filing a consumer complaint.  

4.         The opposite parties in their written version, have contended inter alia that the loan amount of Rs.8,50,000/- was sanctioned to the complainant and he has to repay the same in 36 Equated Monthly Installments (EMIs).  He was irregular in repayment; however, the loan was preclosed by way of demand draft for Rs.8,34,829/-.  As per the terms of the loan,  preclosure cannot be done within the period of six months.  Further, the complainant failed to pay 4 monthly EMIs that have been subsequently deducted by way of presenting 4 cheques.   After some negations, the complainant agreed for refund of Rs.10,375/- in October 2008 and another amount of Rs.30,305/- in March 2009.  After this settlement, the complainant is not entitled to make any claim before the Consumer Commission and hence the complaint is to be dismissed.     

5.        Before the District Commission, both sides filed their proof affidavits and Exhibits A1 to A14 were marked on the side of the complainant and Exhibits B1 to B3 were marked on the side of the opposite parties.  

6.        The District Commission after going through the pleadings and evidences of both sides came to the conclusion that there was a unfair trade practice indulged by the opposite parties followed by deficiency in service and passed an award directing the opposite parties to refund a sum of Rs.1,21,220/-, and  Rs.25,000/- as compensation for unfair trade practice and another sum of Rs.25,000/- for mental agony suffered by the complainant with costs of Rs.2000/-. 

7.          Aggrieved over the award of the District Commission,  the opposite parties have preferred this appeal by stating that the District Commission failed to take note that as per terms and conditions, the loan cannot be preclosed before the period of six months and the complainant was paid a sum of Rs.10,375/- in the months of  October 2008 and Rs.30,305/- in  March 2009 and the above amount was paid to the complainant after some negotiations to close the issues and once the amount was received by the complainant, he cannot agitate the issue against the settlement.  But, the District Commission failed to take note of it and hence the opposite parties requested this Commission to allow this appeal by setting aside the order of the District Commission.

8.     The learned counsel for the appellants/opposite parties would submit by presenting a statement of account which was already marked on their side as Exhibit B3 before the District Commission and tried to convince the Commission that the complainant is liable to pay an extra amount of Rs.1,21,220/-. But, after some negotiations an amount of Rs.40,680/- was refunded to the complainant and that amount was not considered by the District Commission.

9.        The point for consideration is

           (1)    Whether the appeal is to be allowed or not?     

10.     Point: - It is an admitted fact of both sides that the complainant was sanctioned a loan of Rs.8,50,000/- on 29.02.2008 ; however, after deducting processing fee, GST.etc. to the tune of Rs.19,101/- only Rs.8,30,899/- was credited into his account.

11.     The complainant has stated that  he had intended to preclose the loan account and approached the opposite parties who agreed for the same and the preclosure loan amount was fixed at Rs.8,34,829/-.  This fact was not at all denied by the opposite parties. Though in the written version as well as in the proof affidavit, the opposite  parties have mentioned that within six months period from the date of loan no preclosure is possible and produced Ex B2 terms and conditions of the loan to that effect and further they did not deny their consent given to the complainant for preclosure.  Once the agreement of preclosure is arrived at between the parties and when it is not specifically denied,  this Commission holds it as proved.   Apart from that, Ex A3, foreclosure letter which was marked on the side of the complainant itself proves the fact that the agreed preclosure amount is Rs.8,34,829/-.  Furthermore, in Ex A4, the opposite parties confirmed that Rs.8,34,829/- is the final amount arrived towards full and final settlement of the above loan.  So, the complainant is liable to pay only Rs.8,34,829/- as on 20.04.2008.  However, the cheque was presented on 05.05.2008 for encashment but bounced and returned back. So, the complainant immediately paid the same amount by way of demand draft and it was encashed on 22.05.2008 even as per their own statement.  The demand draft was drawn on 19.05.2008.  This is again confirmed in the letter dated 19.05.2008,  Ex A5 issued by the opposite parties.  And so from Ex A5,  the opposite parties gave a receipt on receiving Rs.8,34,829/- towards final settlement.   The acknowledgement letter was signed by one Mr. Nandakumar, shown as an Authorised Signatory for the opposite parties. This letter or receipt of payment was duly entered in the accounts sheet.

12.           So, as per the Ex A5 letters dated 19.05.2008, the opposite parties received Rs.8,34,829/- towards full and final settlement they are not entitled to claim any further amount from the complainant. Per contra, as against this admitted position, the opposite parties kept the account as running account and continued till 12.03.2009.  When the account was settled on 22.05.2008, there is no need for the opposite parties to keep the account as running and encashed the cheques available with them.   At the risk of repetition, this Commission again reiterate that as per Ex A5, the loan was discharged on 22.05.2008.  But, the opposite parties on 03.06.2008, 03.07.2008, 04.08.2008 and again on 03.09.2008 encashed 4 cheques and received Rs.1,21,220/- as alleged by the complainant. There is no need or right for the opposite parties to encash the above 4 cheques after preclosure of the loan account.  As they have enriched themselves by unauthorised encashment, they made some debit by saying that there was some waiver to the complainant and subsequently gave a waiver on 30.09.2008 to the tune of Rs.58,650/- and credited the same in his account. The allegation of the opposite parties that they have repaid Rs.10,375/- on 06.10.2008  and Rs.30,305/- on 12.03.2009 was not proved before this Commission by way of any other acceptable evidence. However, on perusing the complainant’s pass book statement, which is marked as Ex A14, this Commission finds out a credit of Rs.10,375/- was made on 15.10.2008 by way of cheque No.000000009769.  Of course, this was lost sight of by the District Commission.  But, as per the earlier discussion by this Commission, the act of the opposite parties in keeping the account of the complainant alive after giving full and final settlement receipt is nothing but unfair trade practice and showing some amount in the debit column and showing some amount in the credit column after 18 months of settlement proves the fraudulent act of the opposite parties and they have created the account statement only for the purpose of this case and it is nothing but cheating not only the complainant but this Commission also.  So, in spite of taking note of Rs.10,375/- a payment made by the opposite parties, we are not inclined to show any mercy upon the opposite parties, the appellants herein. Moreover, there is no whisper about the refund of amount in their reply notice which was marked on the side of the complainant as Ex A9.   So, at any rate, the order of the District Commission directing the opposite parties to return the excess amount of Rs.1,21,220/- with interest at the rate of 12% per annum from 04.10.2009 till the date of payment and to pay compensation of Rs.25,000/- for unfair trade practice and another sum of Rs.25,000/- as compensation for mental agony suffered by the complainant with cost of Rs.2000/- is reasonable and found correct.  Therefore, we are of the view that there is no need to interfere with the order of the District Commission.     

13.     In the result,

         a)  The appeal is dismissed

         b)  The order of the District Commission, Chennai (North) passed in   

               C.C.No.150/2010, dated 10.01.2013 is confirmed.   

         c)   There shall be no order as to costs in this appeal.   

 

 

 

 

         Sd/-                                           Sd/-                                           Sd/-

R.VENKATESAPERUMAL            S. KARUPPIAH,                         R. SUBBIAH,

      MEMBER.                             JUDICIAL MEMBER                     PRESIDENT