COMPLAINANT Sri. N.K. Krishnappa, S/o. Sri. Kenchegowda, Major by age, No. 32, 7th Main Road, Sannakki Bayalu, Kamakshipalya, Bangaluru – 560 079. Advocate (M. Shivarama)
1. M/s. Centurion Bank Ltd., No. 102, Raheja Plaza, Bengaluru – 560 025. Reptd. by it’s Branch Manager.
2. M/s. HDFC Bank, Retail Asset Division Branch, No. 548/D, 1st Floor, Maruthi Mansion, C.M.H. Road, Indiranagar, Bengaluru – 560 020. Reptd. by it’s Branch Manager. Advocate (Suresh)
O R D E R
This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.50,000/- and issue NOC for cancellation of the hypothecation of the vehicle bearing No. KA-04-ES-4533 and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant availed a two wheeler loan from OP.1 of Rs.36,987/- repayable in 24 EMI at the rate of Rs.1,787/- starting from 15.01.2007. The said vehicle was hypothecated in favour of OP.1. Complainant was prompt in making payment of the EMI through ECS facility. With all that for no fault of the complainant, OP imposed cheque bounce charges. Though complainant has not availed any financial assistance from OP.2 he got the communication on 02.12.2008 claiming a balance of Rs.17,155/-. The arbitrary act of OP.2 has caused him both mental agony and financial loss. OP.2 repeatedly harassed him towards the recovery of the amount in due. There is no privity of contract between the complainant and OP.2. OP.1 and 2 in collusion with each other have made a false and frivolous demand. The repeated requests and demands made by the complainant to issue NOC by receiving the EMI went in futile. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.
2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP.2 it has taken over the entire rights, liabilities of OP.1 with effect from 23.05.2008. Though complainant availed the two wheeler loan undertaking to repay the same in an EMI, but failed to keep up his promise, atleast 6 number of EMI ECS cheques were dishonored. As per the terms and conditions of the loan OP have got a right to impose cheque bounce charges, late payment charges, etc. That act of the OP cannot be termed as deficiency in service. As per the accounts maintained by the OP’s by 19.02.2009, complainant is still in due of Rs.17,719/-. When they demanded the complainant to pay the outstanding dues by addressing several letters, complainant has come up with this false and frivolous complaint. When complainant himself is in due of certain amount, he cannot insist for issuance of NOC or waiving of hypothecation. The approach of the complainant is not fair and honest. There is no deficiency in service on the part of the OP’s. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.
3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.
4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order?
5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order.
R E A S O N S
6. At the outset it is not at dispute that the complainant availed a two wheeler loan of Rs.36,987/- from OP.1 to purchase his two wheeler bearing No. KA-04-ES-4533. Complainant agreed to repay the same in an 24 EMI of Rs.1,787/- starting from 15.01.2007. The said vehicle was hypothecated in favour of the OP Bank. Now the grievance of the complainant is that though he is prompt in making payment of the EMI OP.1 imposed the cheque bounce charges and late payment charges, which is unjust and improper. Further it is contended by the complainant that though there is no privity of contract between himself and OP.2. OP.2 has demanded the balance of Rs.17,155/- by December 2008. He felt collusion between OP.1 and 2. The said demand according to him is illegal, unjust and improper. Hence he felt the deficiency in service.
7. As against this it is specifically contended by the OP that OP.2 has taken over the entire rights, liabilities, port polios, etc., of OP.1 with effect from 23.05.2008. The document to that effect is produced. So we do not find force in the contention of the complainant that there is no privitiy of contract between himself and OP.2. According to OP’s complainant is expected to pay the EMI through ECS mandate out of 18 EMI paid 6 EMI were dishonoured. Complainant was expected to pay 24 EMI, but he defaulted. The documents to that effect are produced. As per the foreclosure statement dated 19.02.2009, it appears complainant is still in due of Rs.17,719/-. Of course nowhere complainant has stated that he has paid all the 24 EMI as undertaken. Under such circumstances the approach of the complainant does not appears to be fair and honest.
8. As per the terms of the loan agreement if there is a default on the part of the complainant in repayment of the loan, in our view OP has got a right to impose late payment charges including cheque bounce charges. There is a proof that 6 number of cheques were dishonoured. Under such circumstances when complainant is still in due of Rs.10,722/- towards instalment and Rs.4,597/- late payment charges, Rs.2,400/- cheque bounce charges, the claim made by the OP of Rs.17,719/- appears to be genuine. When complainant is the defaulter, he cannot insist the OP to issue him NOC, that too when he failed to pay the entire loan with interest and other charges.
9. Having considered the facts and circumstances of the case and on the plain reading of the complaint, the allegations made in the complaint did not spell out a case of hiring of service and suffering from deficiency, rather it disclosed a case relating to settlement of accounts and for the balance due on the basis of the accounts. Under such circumstances in our view complainant did not fall within the ambit of sec-2(1) (c) (e) of the C.P. Act. If the complainant is so advised he can file an appropriate Civil Suit for the proper remedy to redress his grievance. So far as the facts on hand are concerned, when the complainant is the defaulter, he cannot allege the deficiency in service against the OP. The complaint appears to be devoid of merits. Hence he is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following:
O R D E R
The complaint is dismissed. In view of the nature of dispute no order as to costs. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 26th day of March 2009.)