H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

Appeal No. 03/2008.

Date of Decision 17.8.2009.

In the matter of:



1. General Manager, Mahindra & Mahindra Financial Services

Limited, NH-21, Ner Chowk, PO Bhangrotu, Tehsil Sadar, Mandi, HP.,



2. General Manager, Mahindra & Mahindra Financial Services Ltd.,

2nd Floor Sadhana House, 570 PB Marg Worli, Mumbai 400 018

Appellants No1 & 2 through Mr. Vivek Guleria son of Sh. B.S. Guleria,

GPA of Mahindra & Mahindra Financial Services Ltd.

… … Appellants.

Versus



Sh. Rajesh Kumar son of Shri Laxmi Dhar Sharma

R/o Chatrokhari, PO Sundernagar, Distt. Mandi, HP.

… … Respondent.



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting?



For the Appellants.: Mr. Prince Chauhan, Advocate vice

Mr. Rahul Mahajan, Advocate.



For the Respondent.: Mr. B.R. Sharma, Advocate vice

Mr. V.B.Verma, Advocate.



O R D E R



Per Mr. Chander Shekher Sharma, Member.



This appeal is directed against the order of District Forum Mandi, in Consumer Complaint No. 224/2007 dated 20.12.2007. By means of impugned order, complaint of the respondent was allowed and appellants were directed to issue No Objection Certificate, (NOC) of the vehicle bearing registration No. HP-01-K-0429 to the respondent within one month from the date of the order, failing which they have been directed to pay compensation at the rate of 100/- per day to the respondent till issuance of the NOC.

2. Facts of the case as they emerge from the complaint file are, that respondent had sought financial assistance on 28.12.2000 from the appellants of Rs. 4,91,955/- for the purchase of Bollaro GLX Camper vehicle No. HP-01-K-0429. Appellants sanctioned loan in the sum of Rs. 4,91,955/- plus financial charges amounting to Rs. 2,49,675/- inclusive of interest, total amount was Rs. 7,41,630/-. This was to be repaid by the respondent in 47 equated monthly installments of Rs. 12,570/-, last installment was payable on 22.11.2005.

3. Further case of the respondent in the complaint is, that he regularly paid the loan installments and last installment of the loan was also paid on the due date. After the payment of the entire loan amount together with the financial charges, respondent requested for the issuance of No Objection Certificate (NOC) of his vehicle from the appellants, because in the record the entry of hypothecation of the vehicle stood recorded in favour of the appellants. Appellants refused to do the needful because in their record a sum of Rs. 44,000/- on account of Additional Financial Charges (AFCs) was still payable by the respondent, besides this amount and further sum of Rs. 500/- for the issuance of NOC. As per respondent he had paid the amount of loan and the financial charges to the appellants, as such he was not required to pay the charges of AFCs etc. as claimed by them. In this background the complaint was filed by the respondent under Section 12 of the Consumer Protection Act, 1986 alleging deficiency of service on the part of the appellants.

4. Appellants filed its version in reply to the complaint and pleaded, that there is no deficiency of service on their part, because the amount of Rs. 44,000/- towards AFCs besides Rs. 500/- being charges for the issuance of NOC was still due and outstanding payable by the respondent, as there was default in the payment of monthly installments by the respondent. Per Mr. Chauhan learned counsel for the appellants levy of additional financial charges is legal and the respondent is liable to those besides Rs. 500/- for issuance of NOC. In addition to this, objection relating to the territorial jurisdiction of the District Forum below to try the complaint was also taken.

5. Respondent filed rejoinder to the reply wherein the averments made in the complaint were reiterated. Appellants have also filed sur-joinder.

6. Brief resume of evidence of appellants, as well as of respondent in nutshell is, that appellants filed affidavit of Mr. Kulvinder Singh Chandel in support of its reply, besides documents viz., power of attorney Annexure R-1, loan agreement Annexure R-2, receipt dated 20.1.2005 Annexure R-3, notice for payment of Rs. 44,000/- Annexure R-4, receipt dated 9.4.2005 Annexure R-5, notices for the payment of arrears Annexures R-6 to R-8, receipts dated 17.5.2005 Annexure R-9, notice dated 20.3.2006 Annexure R-10 and various receipts Annexure R-11 to R-53. AFCs working sheet Annexure R-54 was also annexed with the affidavit of Kulvinder Singh.

7. Respondent in support of the complaint filed his own affidavit and affidavit of Mr. Hansraj Kashyap and various documents. These are copy of statement of loan, copy of legal notice dated 16.7.2007 and reply to the notice dated 19.7.2007, copy of various receipts Sr. No.1 to 50, copy of final settlement of account No. 51, cheques Sr. No. 52 to 62, copy of bank draft amounting to Rs. 13,370/- of HP State Co-operative Bank, Annexure R-63.

8. We have heard learned counsel for the parties, as well as have also gone through the record of the case file carefully.

9. Mr. Prince Chauhan learned counsel for the appellants argued, that since respondent was a defaulter in making payment of loan installments, as such amount of Rs. 44,000/- on account of AFCs and amount of Rs. 500/- towards issuance of NOC is due from the appellants, as such NOC was rightly not issued in favour of the respondent by his clients. This was the main stay of the appellants in this appeal.

10. Mr. B.R. Sharma, learned counsel for the respondent supported the order of the District Forum below, that amount of Rs. 7,41,630/- which was payable to the appellants as per agreement was paid much before the due date, as such nothing was payable to the appellants, as such they wrongly withheld the NOC of the vehicle.

11. After hearing the learned counsel for the parties, as well as after going through the record of the case, we are convinced that the order of the District Forum below does not suffer from any infirmity and it calls for no interference. Reason being that the respondent had cleared the full amount of loan amounting to Rs. 4,91,955/- well before the due date, since the amount of Rs. 70,000/- was paid by the respondent on 19.10.2005, whereas the last installment was to be paid on or before 28.10.2005. This fact is also evident from the evidence on record, that the monthly installments of loan as per agreement was @ Rs. 12,570/- per month, whereas it appears that respondent had paid 8 installments @ Rs. 13,570/- per month and 14 installments @ Rs. 13,000/- per month and 9 installments @ Rs. 13,370/- per month. Respondent had paid the first installment of loan on the very date of the disbursement of loan to him i.e. on 28.12.2000.

12. From the record of the case, it is also evident that appellants were wrongly levying interest on the amount of loan installment of Rs. 12,570/- @ 10.15 % per annum for 5 years. In addition to the aforesaid sum, the respondent had also paid the amount of Rs. 13,610/- on 18.6.2001, Rs. 13,210/- on 17.11.2001, Rs. 14,780 on 27.12.2001, Rs. 13,370/- on 16.4.2001, Rs. 13,410/- on 9.5.2002, Rs. 20,000/-/- on 14.12.2002 and Rs. 15,400/- on 15.1.2003, but these amounts have been adjusted in account on different dates as stated in detail by the District Forum below in para 9 of its order.

13. Hence it is very clear from the record that the appellants did not take into account the installments paid by the respondents on the same date when it was paid and also not counted for the amount paid in full by the respondent. Since the respondent had paid the installments @ Rs. 13,570/-, whereas the installments as per agreement which was to be paid was Rs. 12,570/- for a continuous period of 5 years, as such respondent is also entitled for the interest upon the amount paid in excess by him to the appellants which was to be paid by respondent in case of default as per terms and conditions of the agreement.

14. This fact is also evident from the evidence on record viz. affidavit of S/Sh. Rajesh Kumar and Hansraj Kashyap that when they visited the office of the appellants-finance company on 21.11.2005 and asked about remaining debit payable when the appellant No. 1 demanded Rs. 47,650/- which was paid. Demand of Rs. 44,000/- was made from the respondent only, when repeated requests were made by him for the issuance of NOC in his favour. Demand of Rs. 44,000/- as AFCs was wrongly made by the appellants vide notice dated 16.7.2007, particularly at the time of deposit of Rs. 70,000/- on 19.10.2005, no such demand was ever made from him. Statement of account supplied to the respondent by the appellants which is at pages 33 to 36 of the complaint file reveals zero balance in the loan account of respondent as on 31.3.2006.

15. In view of the aforesaid discussion, we are of the view that the action of the appellants in withholding the NOC of the vehicle of the respondent is highly unjust, illegal, arbitrary, and malafide, since the respondent had cleared the loan amount well before the due date as per loan agreement.



16. No other point was urged.



In view of the aforesaid discussion and keeping in view the facts and circumstances of the case, the appeal is dismissed as we find no reason to interfere with the order passed by the District Forum Mandi, in Consumer Complaint No. 224/2007 dated 20.12.2007 and the same is upheld. Appellants are now directed to issue NOC of the vehicle bearing registration No. HP-01K-0429 to the respondent on or before 18.9.2009, failing which they shall be liable to pay compensation @ Rs. 100/- per day to the respondent till the date of its issuance.



All interim orders passed from time to time in this appeal shall stand vacated forthwith.



Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla,

August 17, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.