ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

The complainant has filed this complaint for deficiency in service in not repaying the excess amount of Rs.25,290/- recovered from his Bank account for the month of Nov-2020 and Dec-2020 and for refund of the same along with interest at 18% p.a from the said months and Rs.10,000/- towards travel expenses and Rs.1,00,000/- as damages for causing him mental agony, harassment and cost and other  reliefs as this Commission deems fit U/Sec.35 of the C.P. Act, 2019.

The brief facts of the complaint are that;

2.    The complainant had obtained car loan with OP No.1 to be repayable in 60 monthly installments to end on October-2020.  When once the loan was cleared by him by paying all the installments regularly, it is the duty of OP to return the documents of the Car along with No Objection Certificate. 

It is contended that, the loan for the car was sanctioned in the month of Oct 2015 and the installment was to commence from Dec 2015.  Accordingly, he paid the installment till Oct 2020 through ECS from his Banker i.e., Axis Bank, Koramangala Branch to OP No.1 loan account on 15^th of every month.  The dispute started pertaining to the car loan in the month of Jan 2019 when the recovery agent of OP No.1 made frivolous allegations regarding non-payment of the loan amount in a irrespectful manner. The matter was appraised and clarified to the recovery agent.  The said agent collected the document and details of payments made and assured that, he would contact the branch and clarify the matter.  For the first time, he informed that, the installment for Nov 2015 was due which was unexpected.  The allegation of OP regarding non-payment of the installment for the month of Nov 2015 is not at all correct and misconceived.  Even assuming for the moment that even he is due, the installment of Nov 2015 since he was having sufficient amount in his SB A/c standing with Axis Bank, through ECS, OP could have deducted the said amount.  Further, OP started harassing and threating to seize the said vehicle though all the amount installment was paid.  He met one Venkatachala and Savita the managers of Wilson Garden branch and upon deliberation, he paid Rs.12,645/- through a cheque drawn on Axis Bank, Koramangala Branch on 19.10.2019 to clear of the so called due amount on Nov 2015 installment.  In spite of it, OP did not issue the NOC and further the amount a sum of Rs.12,645/- X2 received as installment for the month of November 2020 and December 2020.  The act of OP in not returning the documents of the vehicle, the Key of the car and also refund of excess installment, in spite of clearing the loan, amounts to deficiency of service.  It is also contended that, he issued a legal notice to OPs regarding not fulfilling the obligations by OPs but, has not replied the notice. Hence, prayed to allow the complaint.

This complaint was filed against 5 OPs and afterwards the counsel for the complainant by filing a memo sought the deletion of OP No.3, 4 and 5 and hence, they were deleted from the complaint.  Complainant proceeded this complaint against OP No.1 and 2 only.  OP No.1 though served with notice remained absent and placed ex-parte.  Afterwards, OP No.1 filed IA U/O 9 Rule 7 CPC to set aside the ex-parte order and the same was allowed and he contested the complaint along with OP No.2, who appeared through his Advocate upon the service of notice for appearance and filed the version which has been adopted by OP No.1 by filing a memo. 

In the version filed by OP No.1 and 2, it is contended that the complainant is not entitled for the relief prayed in the complaint and further the complaint is not maintainable either in law or on facts and there is no cause of action for the complainant and the complaint filed is on frivolous, baseless grounds and liable to be dismissed by imposing exemplary cost.  It is further contended that, the complainant availed term loan of Rs. 6 lacks to purchase a car agreeing to repay along with interest in 60 EMIs commencing from the due date i.e., 05.11.2015 as the loan was disbursed on 05.10.2015.  The complainant started repayment of the loan i.e., EMI from December 2015 instead of Paying the EMI from November 2015 and the said EMI for the month November 2015 remained unpaid.  This amount was taken as not paid and the interest was charged on the said amount as it continued to show as outstanding in the account.  The allegation on the recovery agent demanding the complaint by using unparliamentarily words and foul language has been denied by OP as the payment of installments by the complainant from December-2015 onward was regular.  The last payment of the installment of the loan with interest was paid on oct-2020 making it clear that starting from November-2015 and the end date of the installment was October-2020 that is 60 months.  Though the last installment was paid on 15.10.2020 there was a debit balance of Rs.10,349/-.  The said amount is the interest accrued in respect of the EMI that was to be paid in the month of nov-2015 which was paid in the month of oct-2019.  The said amount i.e., the EMI for the month of nov-2015 was paid during oct-2019 by transfer from his account and hence, the loan was closed on 30.11.2020.  Hence, and since the loan was cleared, and the entire repayment of the loan was received by them during month October-2020, and as the loan account was closed in the said amount, recovery of further installment during the month of December 2020 would not arise.  They have not made any recovery for the month of November and December-2020.  Hence, repayment of the said amount would not rise at all.  They have denied the allegation that, their recovery agent contacted the complainant and threatened to seize the vehicle but admitted that they have sent request letter or reminders to the complaint demanding to pay the balance of EMI to regularize the account. 

It is contended that, the EMI was being paid through ECS from his account standing with Axis Bank and he was aware as to when the loan would be closed i.e., in the month of October-2020 itself, whereas the complainant closed the account in the month of November-2020.  It was the duty of the complainant to inform his banker to close or stop the EMIs upon the payment of the entire loan amount, for the lapse of it, OP cannot be blamed.  If at all any amount has been deducted from his account through ECS, the remedy for the complainant is to recover the same from Axis bank.  Denying all the other allegations made against them, prayed the forum to dismiss the complaint. 

4.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

5.     Our answers to the above points are:-

POINT NO.1 :   In the Affirmative

POINT NO.2 ::  Partly in the Affirmative.

                        For the following.

REASONS

POINT No.1 & 2:-

6.    It is not in dispute that the complainant borrowed a car loan from the OPs during the month of October-2015 agreeing to repay the same in 60 equated monthly installments commencing from December-2015  (according to complainant) and commencing from November-2015 (according to OPPOSITE PARTY No.1 and 2).  It is also not in dispute that, it found that the complainant started payment of the EMI from December-2015 onwards and was regular in paying the installments/EMIs from that month onwards and it was informed to the complainant and the same was paid on 19.01.2019.  Series of correspondences have taken place between the parties.  Complainant has produced the account statement issued by OP 1 and 2 Bank, wherein the first installment of Rs.12,645/- (EMI) commenced and paid on 15.12.2015 and has been regularly paid till 15.10.2020 along with the accrued interest.  It is admitted that, on 30.10.2020, a sum of Rs.12,645/- was paid by the complainant’s Bank and they have adjusted Rs.10,349/- being the interest due towards the EMI that was to be paid in the month of November-2015 which was not paid throughout and that the remaining amount out of the said amount i.e., Rs.2,271/- after deducting DD commission charge of Rs.25/- was to be returned to complainant for which they had prepared the DD on 30.11.2020 and the same was kept in the loan file of the complainant and since the concerned officials were transferred, the said DD could not be handed over to the complainant.  Further as per the account extract produced which is marked as Ex.P-7, a sum of Rs.12,645/- which was remitted to the loan account of the complainant standing with OP 1 and 2 by the complainant’s Bank i.e., AXIS Bank and the same has been reverted on 15.12.2020 itself.  Hence, the OPs are not liable to pay that amount.

7.    Whatever said and done by the OPs, OPs have filed one document i.e., ECS mandate Form issued by them only to the AXIS Bank stating that, EMI effect date 15.12.2015, start date 15.12.2015 end date 15.11.2020,  EMI Rs.12,645/- , EMI debit date 13^th of every month.  It is signed by the complainant wherein it is mentioned that, I have accordingly advised the State Bank of India by its authorized service provider to raise debits on main barrower above account regularly every month through ECS up to a maximum amount of Rs.12,645-00, I authorize the Bank to honour all such instructions. Please note ECS mandate and acknowledged receipt of the said document is dated 16.11.2015, this has been accepted and acted upon by SBI i.e., the OPs and also the Axis Bank.

8.    When this is taken into consideration, the say of OP 1 and 2 that, the EMI ought to have commenced on 15.11.2015 cannot be accepted as it has been clearly and unequivocally, without any room for confusion has stated that, the EMI to commence from 15.12.2015 and to end after 60 months i.e., in the month of November 2020.  OPs have admitted that, the complainant was regular in paying the amount as per this ECS mandate.  Hence, recovery of interest of Rs.10,349/- towards the delayed payment in respect of the installment of Nov-2015 is not proper.  Since the complainant has been regular in paying the installment and it is of common knowledge and it is the belief of loan borrowers that the interest of the current month to be paid in the next month or that the installment paid for the month could be adjusted towards the previous month’s balance as there would be grace period for paying the installment for about a week or 10 days to pay the previous months installment. 

9.    In this case there is no reason to presume or assume such a payment as the ECS mandate form issued by SBI, Wilson Garden Branch has mentioned clearly that the start date and effect date for commencement of the EMI is 15.12.2015. In view of this we hold point Noi.1 in favour of the complainant holding that there is a deficiency of service on the part of OP in collecting the interest throughout i.e., 15.11.2015 to 19.01.2019 on the amount of Rs.12,645/- which was paid on 19.01.2019.  Hence, the same is liable to be returned to the complainant as the complainant has paid an additional installment of Rs.12,645/- on 19.01.2020. 

10.  In view of the above, it is just and proper to direct OP to pay a sum of Rs.12,645/- along with interest at 6% p.a from 30^th November 2020, if a sum of Rs.2,271/- has not been paid to the complainant.  If the same is paid to the account of the complainant either by cheque or DD or electronic transfer,  OP is directed to pay the balance i.e., Rs.10,349/- along with interest at 6% p.a. from Nov-2020.  Act of OPs made the complainant to approach this Forum by spending his time, money and energy by engaging a professional versed with law by paying his professional fee.  Hence, we direct OPs to pay Rs. 10,000/- towards damages and Rs.10,000/- towards litigation expenses and hence, we answer Point No.2 in partly affirmative.  Hence, we pass the following:-  

ORDER

1. Complaint is allowed in part with cost.
2. OPPOSITE PARTY No.1 and 2 are directed to pay a sum of Rs.12,645/- along with interest at 6% p.a., from 30.11.2020, if a sum of Rs.2,271/- has not been paid to the complainant.  If the same is paid to the account of the complainant either by cheque or DD or electronic transfer,  OPPOSITE PARTY No.1 and 2 are  directed to pay the balance i.e., Rs.10,349/- along with interest at 6% p.a. from Nov-2020 till payment of the said amount.
3. OPPOSITE PARTY No.1 and 2 are also directed to pay a sum of Rs.10,000/- as damages to the complainant for causing hardship and inconvenience.
4. Further OPPOSITE PARTY No.1 and 2 are directed to pay Rs.10,000/- towards litigation expenses.
5. The OP No.1 and 2 are further directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this 12^th DAY OF AUGUST 2022)

MEMBER                                         PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

Copies of Documents produced on behalf of Opposite Party/s

MEMBER                                        PRESIDENT

RHR*