BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.33/2014

Dated this the  4^th day of August 2017

(Date of Institution: 23.04.2014)

P. Chozhamannan @ Pandian             

Son of Pazhani                   

Plot No.3, Door No. 176/5          

ECR Main Road,   Lawspet

Puducherry – 8

….     Complainant

Vs

1.  The Manager             

     M/s Fullerton India Credit Company Ltd.,       

     No.74 (47), S.V. Patel Salai

     North Bulward, near S.S. Thirumana Mandapam

     Puducherry – 605 001.

2. The Managing Director    

    M/s Credit Information (India) Ltd.,

    Coastal House, 6^th Floor

    193, Backpay Ricka Mansion

    Nariman Point, Mumbai – 400 021

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru. V. V. STEEPHEN,  B.A., LL.B., 

MEMBER

Tmt D. KAVITHA,  B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru S. Tamilselvan, Advocate             

FOR THE OPPOSITE PARTIES: For OP1 – Thiru K. Ravikumar, Advocate

For OP2 –  Thiru N. Baptiste Augustin,

                   Advocate

O R  D  E  R

(By Tmt. D. Kavitha, Member)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the first opposite party to pay a sum of Rs.4.00 lakhs towards compensation for deficiency of service; to pay a sum of Rs.2.00 lakhs for hiding the truth; to pay a sum of Rs.5.00 lakhs for causing mental agony and to pay a sum of Rs.5.00 lakhs for adding the complainant name to CIBIL; to direct the second opposite party to remove the name of the complainant from CIBIL and to direct the opposite parties to pay the cost of this proceedings.

          2.  The case of the complainant is as follows:

The complainant  is an self-employed doing business in the name and style of M/s Jayasri Reboring at Puducherry.   While so, a person from first opposite party introducing him as an agent of OP1 approached the complainant and insisted for a loan, however he refused the same.  Since the said person persistently insisted the complainant for getting a loan and also given an assurance that if the complainant thinks that if he does not want the loan, he can close the same after two months.  Hence, the complainant got a loan of Rs.49,500/-.  The first opposite party after obtaining his signatures in the loan documents and  five numbers of cheque leaves issued by Corporation Bank, Puducherry, issued a cheque for Rs.46,401/- after making deduction for loan account.  The first opposite party also assured that a sum of Rs.2,930/- per month will be E-transferred from the account of the complainant  towards monthly instalments and also assured that if the complainant wants to close the loan, he can do so after paying the interest to that date.  Accordingly, the complainant paid six instalments and then approached the said agent to close the loan  for which he was informed that after making payments of eight instalments only, they can close the loan and hence, the complainant was forced to pay eight instalments.  When he approached for closing the loan after eight instalments, the said agent said that after making ten instalments as per company's rules and regulations, he can close the account.  Accordingly, the complainant paid  the said amount also.  The first opposite party against asked the complainant to pay the instalments for 12 months and then he will close the accounts.  Hence, the complainant gave representation to close the account in written with one Dinesh of first opposite party company on 20.02.2009 and 13.03.2009, but he did not receive any reply.  Moreover, he was abused with filthy words by the first opposite party and also stated that if the whole amount was paid, then only, they could close the loan account.  Aggrieved by the same, the complainant stopped e-payment with his banker.  Thereafter, an employee from first opposite party company came to the complainant and demanded one month instalments and then the matter will be settled amicably, if not, his name will be added in the CIBIL.  Hence, the complainant paid the same and obtained receipt.  Since there was no demand from the first opposite party and also they have not given any statement, the complainant sent a notice on 09.10.2009 which was received by the first opposite party and replied through their Counsel.  The complainant sent letters to Reserve Bank of India.  Thereafter, the complainant received a letter from first opposite party on 20.12.2010 asking the complainant to pay a sum of Rs.16,500/- and close the account.  On the same day, the complainant settled the dues and the first opposite party also given a No Due Certificate.  While the things being so, some months prior to filing this complaint, the complainant approached a bank for loan by submitting all the documents and the said amount was also recognized by the bank, but when the Manager verified his loan application with CIBL and found that the complainant is a defaulter of loan amount and hence, the Manager asked the complainant to remove his name from CIBIL.  Even though the complainant has shown all the documents to prove that there was no due, the bank has refused to give loan to the complainant unless and otherwise, his name was removed from CIBIL.  The complainant stated that the first opposite party with hostile thought and to avoid their mistake, the complainant's name was entered in the CIBIL and the said act is illegal and deficiency of service.  That on 07.03.2012 the complainant sent a notice to the opposite parties for removal of his name from CIBIL.  Though the same was received by the opposite parties, they have not removed his name from CIBIL, however, they have sent a reply dated 16.03.2012.  Since the second opposite party has entered his name in the defaulter's list without making any enquiry, the second opposite party is also added as a party in this proceedings. 

3. The reply version filed by the first opposite party briefly discloses the following:

Apart from denying the allegations of complainant in the complaint, this opposite party stated that the complaint is not maintainable either in law or on facts.  The complainant is not a Consumer as defined under Section 2 (d) of the Consumer Protection Act as far as the first opposite party is concerned.  Further stated that there is no consumer dispute between the complainant and the first opposite party as defined under sec. 2 (e) of the Consumer Protection Act.  This opposite party has not committed any deficiency of service.  Further stated that as per Section 12 (1) of Consumer Protection Act 1986, the first opposite party has not sold any goods or delivered or agreed to be sold or delivered or any service provided or agreed to be provided.    This opposite party is a lender and the complainant is the borrower and hence, there is no consumer relationship with the complainant. 

          4. This opposite party further stated that the complainant had availed a personal loan for a sum of Rs.49,500/- vide loan No. 059215000003450 on 03.12.2008 and agreed to repay the above said loan amount in 24 equal monthly instalments of Rs.2,930/-.  The complainant paid only 14 instalments and that too after dishonouring 7 cheques towards discharge of the complainant's liability.  The complainant did not pay 10 instalments along with delayed payment penalty, cheque bounce charges and other incidental and ancillary charges, which the complainant was bound to pay under the terms and conditions of the loan.  The complainant had wantonly, intentionally defaulted to pay the instalments every month irrespective of the regular demand by the Officers of the first opposite party.  This opposite party further stated that the complainant had approached the first opposite party and had offered to pay Rs.16,500/- on 20.12.2010 against the total due of rs.42,206/- and given waiver of rs.25,706/- to the complainant, as there was no means of recovery of the entire dues from the complainant, this opposite party was forced to receive the said amount of Rs.16,500/- on 20.12.2010 from the complainant and write off the remaining Rs.25,706/- and had issued a receipt towards the said amount.  The information given to the second opposite party is the truth and generally the company are giving settled customers information to CIBIL on every month and in this case was also forwarded to CIBIL as settled case with waiver of rs.25,706/- and this information was given to the second opposite party for support of customer only and to update the same in CIBIL website and increase his CIBIL points.  The complainant will have to claim his remedies against the bank that had refused to give loan to him.  Hence, prayed for dismissal of the complaint. 

5. The reply version filed by the second opposite party briefly discloses the following:

          The complaint is not maintainable as there is no privity of contract between the complainant and this opposite party.  The complainant is not a consumer of this opposite party as neither the complainant has availed any services for consideration from this opposite party nor has this opposite party provided any services to the complainant.  There is no averment as to the relationship of the complainant with this opposite party.  Further, this opposite party has stated that it does not carry on business or have a branch office, or personally work for gain at Pondicherry, nor any cause of action has arisen against this opposite party within the territorial jurisdiction of this Hon'ble Forum.  The complainant has also failed to obtain leave from this Forum as envisaged under section 11 (2) (b) of Consumer Protection Act.  This opposite party is a company incorporated under the provisions of the Companies Act, 1956 and engaged in the business of storing, retrieving, compiling, collating, processing and maintaining a Data Bank of Credit information relating to both individuals and entities of all types whether incorporated or not, for the use of banks, financial institutions etc. dealing with the distribution of credit.  This opposite party functions in accordance with the provision of the Credit Information Companies (Regulation) Act 2005 (CICRA) read with the Credit Information Rules and Regulations 2006 made under CICRA.  The furnishing of credit information is strictly to a closed user group of members, individuals and the specified users as permitted / required under the provisions of the CICRA and rules and regulations.  As per Sec. 31 of  CICRA, no court or authority shall have or be entitled to exercise any jurisdiction, powers or authority except the Supreme Court or the High Court exercising jurisdiction under Articles 32, 226 and 227 of the Constitution of India in relation to the matters referred to in the said section (which inter alia includes Section 18 of CICRA dealing with settlement of disputes).  As per Section 18 of CICRA, if any dispute arises amongst, credit information companies, credit institutions, borrowers and clients on matters relating to business of credit information and for which no remedy has been provided under this Act, such disputes shall be settled by conciliation or arbitration.  Hence, this opposite party is neither a necessary nor a proper party to this proceedings.  This opposite party further stated that as per Section 21 (3) of the CICRA "if a credit information company or specified user or credit institution in possession or control of credit information, has not updated the information maintained by it, a borrower or client may request all or any of them to update the information, whether by making an appropriate correction, or addition or otherwise, and on such request the credit information company or the specified user or the credit institution, as the case may be shall take appropriate steps to update the credit information within thirty dates after being requested to do so.  Provided that the credit information company and the specified user shall make a correction, deletion or addition to the credit information only after such correction, deletion or addition has been certified as correct by the concerned credit institution….."   Thus, this opposite party has no unilateral right to carry out any correction, deletion or modification in the credit information of any person unless such correction etc has been certified as correct by the concerned credit institution.  In view of the complaint, this opposite party had taken up the grievance of the complainant with the first opposite party and they confirmed the details submitted by them for the account of the complainant.  Further, this opposite party is not responsible for the accuracy, completeness and veracity of any and all information reported / submitted by the member credit institution.  As per section 30 of CICRA, no suit or other legal proceedings can be against, inter-alia, this opposite party for anything done by it in good faith or in pursuance of the said act or any other law for the time being in force. Hence, there is no cause of action against this opposite party.  The complainant has without exhausting the remedy available to him under the CICRA and without raising any grievance with this opposite party, straight away filed the instant complaint against this opposite party and sought reliefs against it, in a perfunctory manner.  The complainant has specifically stated in the complaint that he had interacted with the Officers of the first opposite party and had also got issued a legal notice only to them.  Hence, prayed for dismissal of the complaint with exemplary costs.     

          6. This Forum has perused the complaint and Reply Version filed by the complainant and by the opposite parties and heard the learned Counsels for their parties.  On the side of the complainant CW1 was examined and Exs.C1 to C28 were marked and on the side of OP1, Mr. G. Parthiban, Business Unit Manager was examined as RW1 and  Ex.R1 was marked.  No oral evidence was adduced by OP2.

7.       Points for determination are:

1. Whether the Complainant is a Consumer as defined in the Consumer Protection Act?
2. Whether the opposite parties attributed any deficiency in service?
3. Whether the complainant is entitled for any relief?

8.  Point No.1:

On perusal of Ex.C2 the complainant has paid processing fees of Rs.1350/- for availing loan from the first Opposite party and on perusing the Ex.C4, this Forum has observed that the complainant has availed loan from the first opposite Credit Company Limited.  Hence, the complainant is considered to be a Consumer to the Opposite Parties.  Hence, this point is answered accordingly.

          9.  Point No.2:

          The complainant submitted that he is running a self-employed unit, for that he had availed personal loan from the OP1 Credit Company Limited through their agents for a sum of Rs.49,500/- vide loan No. 059215999993450 on 12.03.2008 and agreed to repay the loan amount in 24 equal monthly instalments of Rs.2,930/-. At that time, the complainant has given five corporation bank cheques to the OP1 vide Ex.C5.

10. The complainant received the loan for Rs.46,401/- vide Ex.C4 after deducting of processing fees of Rs.1,350/- and insurance charges for Rs.1,749/- vide Ex.C2.  The complainant stated that the agent of OP1 has given promise to the complainant that whenever the complainant wants to close the loan, he can foreclose with interest as on date.  As such, the complainant paid six months instalments and approached OP1's agent and expressed his willingness to close the loan dues.  OP1 agent did not take any steps, on the contrary, he asked to pay further instalment till 12^th due then only the complainant can get foreclosure facilities from OP1.  As such, the complainant paid 12^th month EMI.  The complainant again requested the agent that he is ready to pay the remaining dues with interest as on today.

          11. Subsequently, the complainant has given a letter to one Dhinesh, Office Staff vide Ex.C1 dated 20.02.2009 and Ex.C3 dated 19.03.2009.  Even then, the  OP1 did not give any reply.  Therefore, the complainant had sent a legal notice dated 09.10.209 to OP1 vide Ex.C13, the same was acknowledged by OP1 vide Ex.C14, Acknowledgement card.  Ex.C7 is the reply received by the complainant for Ex.C13.  Ex.C6 is the demand notice from OP1.  In the meantime, the complainant issued a letter to Reserve Bank of India on 18.09.2009 with copies to connected departments vide Ex.C8.  In this connection, the complainant received the replies from Fullerton India, Mumbai vide Ex.C9 and from Reserve Bank of India vide Exs.C10 and C11.  Exs.C12, C15, C16, C17, C18 and C19 are the correspondences between the complainant and the Reserve Bank of India.  After the intervention of Reserve bank of Indian and Department of Non-Banking Supervision, the OP1 has sent a letter for settlement vide Ex.C20 dated 20.12.2010.  On the very same day, the complainant paid the entire amount of Rs.16,500/-.  Ex.C21 dated 20.12.2010 which the OP1 offered to settlement.  Ex.C22 is the confirmation letter by OP1 for payment of entire amount made by the complainant. 

          12. While so, the complainant approached the State Bank of India, credit card facilities and the application was rejected by stating that the complainant name has come under the defaulters list.  To prove the same, the complainant has filed Ex.C28.  Ex.C23 is the CIBIL Report of the complainant stating that the status "WRITTEN OFF".  Therefore, the complainant has sent a legal notice to OP1 dated 07.03.2012 vide Ex.C24 to delete the status mentioned as WRITTEN OFF in CIBIL Report and Ex.C25 is the acknowledgement card for having receipt of Ex.C24 by OP1.  Ex.C26 is the legal notice to the Managing Director, M/s Fullerton Credit Company Limited, Mumbai and it returned as left.  Ex.C27 is the reply by OP1 dated 16.03.2012.  The complainant submitted that the OP1 wantonly added the name of the complainant in the CIBIL List due to their animosity against the complainant.  The OP1 failed to get deleted the name of the complainant from CIVIL List since they received the legal notice Ex.C24.  Such act on the part of OP1 amounts to deficiency in service on their part, which caused a great sufferings to the complainant.  Therefore, the complainant preferred this complaint to delete the name of the complainant in CIBIL List and for compensation for the deficiency in service attributed by the Opposite Parties. 

          13. On the other hand OP1 submitted that the complainant paid only 14 instalments and that too after dishonouring 7 cheques.  The complainant had wantonly defaulted in making the instalments.  To prove the same, OP1 has filed the account statement vide Ex.R1 and also the complainant never approached the OP1 for pre-closure of the loan obtained by the complainant.  The first opposite party was forced to receive the amount of Rs.16,500/- from the complainant and write off the remaining Rs.25,706/- because there was no way of recover the entire dues of Rs.42,206/-.  In Ex.C22 dated 22.02.2011, the OP1 has given information as per law to OP2 stating that the real fact and truth regarding the loan settlement details of the complainant.  Because OP1 has written off Rs.25,706/- from the dues and also the list maintained by 2^nd opposite party is not defaulter list.  Hence, there is no deficiency in service on the part of OP1.

          14. On the part of OP2, it is alleged that the complainant has availed loan only from OP1.  No averments as to the relationship of the complainant with OP2 has been made.  The complainant has no privity of contract with OP2 and added as a unnecessary part in this complaint and hence, deserves dismissal against OP2.  In this regard, the OP2 cited the decision of the Hon'ble State Consumer Disputes Redressal Commission, Chandigard in the Appeal of Harvindar Singh Johal vs The Branch Manager, Housing Park Pvt Ltd., and others (F.A. No. 407 of 2012).  The CIR merely reflects the information submitted by its members of Credit Institution as required under the CICRA Rules and Regulations.  The OP1 issued the Credit Information Report in a standard Form and OP2 does not create information to provide inputs thereon of its own.  The OP2 has no right to correct, delete or modify in the CIR unless such correction has been recommended by concerned Credit Institution.   

          15. From the arguments submitted by the Counsels and from the records filed by the parties, it is very much clear that the name of the complainant is enlisted as defaulter in the CIBIL List.  The counsel for OP1 argued that they have given the information of real fact and truth to CIBIL List regarding the loan settlement details of the complainant.  The OP1 has waived off the interest and hence entered the status of the complainant as WRITTEN OFF / SETTLED STATUS.  Once the dispute is settled amicably, it should not be pursued further in any way of filing the complaint.  In this case, the complainant approached the OP1 for foreclosure of his loan with interest as on date.  Hence, there is no meaning for waiver of interest.  The OP1 was made the offer on 20.12.2012 (Ex.C20) and it was accepted by the complainant.  As such, the complainant paid the entire amount as required by the OP1.  For the same OP1 also furnished Ex.C22 by stating that "received the entire  outstanding amount under the aforesaid loan account as per book of account as on date".  It is clear that the complainant paid the entire amount and there was an amicable settlement made after receiving the amount from the complainant.  OP1 has wrongly entered the complainant name as defaulter in the CIBIL List.  The OP1 could have made an entry as "closed" because full dues have been settled by the complainant.  Such act of OP1 caused great harassment to the complainant at that time he approached to avail the loan facility from other financial institutions and they refused to sanction the loan as the CIBIL List shows the complainant as a defaulter and therefore, the act of OP1 amounts to deficiency in service which caused great sufferance to the complainant. 

          16. From the argument submitted by OP2, the complainant's name is added in the default list as per the correspondence made by OP1.  OP2 can delete the name of the complainant until and otherwise, receipt of instructions received from OP1 and OP2 can furnish necessary updates in the credit information. 

          17. In result, this Forum observed that the OP2 is bound to adopt the procedure to delete the name of the complainant from the defaulter list by OP1.  Hence, OP2 is discharged their liability.  Moreover, the complainant also endorsed in the complaint itself on 16.12.2015 that he is not pressing any relief against OP2.  Hence, this Forum has observed that the OP2 has not committed any deficiency in service to complainant.

          18. POINT No.3:

          From the above discussion, we hereby allow the present complaint as against OP1 and the first Opposite Party is directed

          i) To direct the second opposite party to delete the name of the complainant in the defaulter list in CIBIL REPORT.

ii) To pay a sum of Rs.25,000/- as compensation to the complainant for causing harassment and mental agony due to the deficiency in service by OP1.

          iii) To pay a sum of Rs.5000/-  as cost of the proceedings.

          iv) The complaint as against OP2 is hereby dismissed as not pressed.

 Dated this the 4^th day of August 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           31.12.2014           Chozhamannan @ Pandian

OPPOSITE PARTY'S WITNESS:  

RW1           03.09.2015           Parthipan              

COMPLAINANT'S SIDE DOCUMENTS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF MATERIAL OBJECTS: NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER