Order-10.

Date-09/01/2017.

       Shri Kamal De, President.

This is an application u/s.12 of the C.P. Act, 1986.

            The case of the complainant, in short, is that the OPs are financers in respect of the purchase of Tata Nano Vehicle.  The OPs had financed the vehicle purchased by the deceased son of the complainant from K.B. Motors, the Authorized dealer of Tata Motors sometimes on or about 14-08-2010.  The vehicle was originally financed in favour of Abhishek Bose, since deceased, the son of the complainant and subsequently the finance was transferred in the name of Prabir Bose, the complainant vide contract no.5000426901 dated 04-08-2009.  The borrower had to repay the loan in 47 Equated Monthly Instalments (EMI)  at the rate of3362/- except the first instalment being Rs.3,364/-. Abhishek Bose, since deceased, had paid 16 instalments starting from 02-09-2009 till 02-12-2010 through HDFC Bank, Akash Ganga Branch, Haldia.  Abhishek Bose expired on 08-11-2010.  Loan being transferred in the name of the complainant, the complainant made payment of balance 30 instalments from 02-01-2011 to 02-07-2013 through SB A/c. No.0895010106852 maintained with UBI, Parnasree Pally Branch.  However, the 24^th instalment dated 02-08-2010 was not realized by the OPs from the account of the complainant in spite of the fact that the account had sufficient balance at that point of time.   The complainant submits that on 02-07-2013 the last instalment was paid by the complainant being the 47^th instalment in terms of the repayment schedule provided by the OPs.  Subsequently, the complainant on several occasions visited the office of the OP2 and prayed for issuance of “no objection certificate/no outstanding certificate” but in vain.  In June, 2016 the complainant met one Atanu Maity, official of OP2 who had issued a statement indicating the total outstanding dues as Rs.14,020-70 on 24-06-2016.  It is that case of the complainant that in spite of payment of 46 instalment out of 47 instalments the overdue instalment as per statement provided by the OPs is Rs.14,020-70 which is beyond the imagination of the complainant.  The complainant, thereafter, rushed to the office of the OP2 and made an attempt to meet the Regional Legal Manager (East) to enquire into the veracity of the matter but the complainant was not allowed to meet him.  The complainant reiterates that he has already paid 46 out of 47 instalments and 24^th instalment was not realized by the OPs in spite of fact that the account had no sufficient balance.  Complainant states that he hired the services of the OPs by paying the istalment on regular basis.  The complainant is not getting ‘no objection’ certificate for the laches and deficiency on the part of the OPs.  The complainant is also unable to ply the vehicle on the roads without ‘no objection certificate’.  Moreover, the smart card will bear the name of TATA Motors Finance Ltd. since the vehicle was hypothecated in their names.  The complainant submits that the OPs have caused mental agony, physical harassment to him.  Hence, this case. 

            OPs 1 and 2 have not appeared in this case.  They have not filed any written version.  The case has proceeded ex parte against the OPs.1 and 2.

            OP3, however, has contested the case in filing written version contending, inter alia, that the case is not maintainable in fact and in law.  It is stated that the dispute is civil in nature and the relationship between the parties as creditor and borrower.  It is stated that the loan was fixed for a period of 47 instalments starting from 02-09-2009 to 02-07-2013.  The complainant was to pay Rs.3364/- for the first instalment and Rs.3362/- for 2^nd to 46^th instalments.  It is stated that the complainant did not pay the dues periodically and defaulted in payment of instlaments.  It is stated that the complainant has paid about 46 instalments out of 47 instalments and OPs are ready to give ‘No Objection Certificate’ if the present complainant clears his dues of Rs.14,020-70 and other interest applicable as per agreement.  It is also stated that the OPs are in no way liable for any banking fault for realization of the instalment amount.  It is also stated that as per the complaint petition one instalment is payable to the OPs by the complainant and at this juncture there is no question to provide ‘no objection certificate’ in favour of the complainant.

Point for Decision

1. Whether the OPs have been deficient in rendering service to the complainant?
2. Whether the complainant is entitled to get the relief as prayed for?

Decision with Reasons

We have perused the documents on record i.e. Xerox copy of PDC List for contract no.500426901, Xerox copy of repayment schedule, Xerox copies of receipt of payment dated 12-01-2011 and 30-03-2011, Xerox copy of statement of account – UBI for the period 01-01-2011 to 31-08-2012, Xerox copy of savings deposit pass book, Xerox copy of Tata Motors Finance Ltd., Cardex (Contract details). 

It appears that the son of the complainant purchased a Nano CX DX3 obtaining financial assistance from the OPs and entering into a loan cum hypothecation agreement with the OPs.  The said hire purchase cum hypothecation agreement dated 04-08-2009 was executed between the complainant and the OPs and the loan was granted.  The loan was fixed for a period of 47 instalments starting from 02-09-2009 to 02-07-2013.  The complainant paid Rs.3,364/- for the first instalment and Rs.3362/- for 2^nd to 46 instalment and the instalment was to be paid within 2^nd of every English Calendar month.  Loan was initially disbursed in the name of Abhishek Bose, the son of the complainant and after demise of him the complainant, father of the deceased made payment of the instlaments.  The OPs have alleged that it is apparent from the Cardex dated 29-09-2016 that the complainant has paid about 42 instalments out of 47 instalments.  The OP submits that they are ready to give ‘no objection certificate’ if present complainant clears his dues of Rs.14,020-70 and other interest applicable as per agreement.  It appears that the OPs have not furnished ECS before this Forum in support of such dues of Rs.14,020-70.  On the contrary, we find that the complainant has filed statement of accounts of the concerned bank and it appears from such statement that complainant paid 46 instalments out of 47 instalments.  It also appears that 24^th instalment was due and payable as on 02-08-2011 but OP did not realize the 24^th instalment dated 02-08-2011 from the account of the complainant in spite of the fact that the account had sufficient balance at that point of time.  Copies of the schedule of repayment for contract no.5000426901 and the statement of accounts of UBI of Parnasree Pally (Annexure-A) support and confirm the said fact.  it also appears that the loan amount was finally repaid on 02-07-2013 being the 47^th instalment in terms of the repayment schedule provided by the Ops.  it is not understood why the OP did not realize the 24^th instalment dated 02-08-2011 from the account of the complainant in spite of the fact that the account had sufficient balance at that point of time.  We think that it is clearly a deficiency of service on the part of the OP.  It also appears that the complainant on several occasions approached the OP2 and prayed for issuance of no objection certificate/no outstanding certificate but in vain.  It was not also stated by the OP2 that the 24^th instalment was due and payable as on 02-08-2011 by making any communication with the complainant.  So, we think that the deficiency lies on the part of the OP2 and not on the part of the complainant.

            Accordingly, we discard the contention of the part of OP that the complainant has dues of Rs.14,020-70.  We think that the OPs cannot also charge any interest for the fault on their own part. 

In view of the discussion as made in the foregoing paragraphs we hold that the OPs have been deficient in rendering service to the complainant and the complainant is entitled to get the relief as prayed for.

In result, the case merits success.

Hence,

Ordered

That the complaint be and the same is allowed on contest against the OPs.

            The OPs are directed to issue ‘no objection certificate’ on receiving balance payment of Rs.3,362/- within one month from the date of passing this order. 

            OPs are jointly and severally directed to pay a sum of Rs.20,000/- to the complainant for causing harassment, mental pain and agony apart from litigation cost of Rs.10,000/- within the said stipulated period.

            Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OPs will be liable to pay penal damage  at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.