State Consumer Disputes Redressal Commission
Mahindra And Mahindra Financial ... vs Anuj Goel on 1 June, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.962 of 2015
Date of institution : 25.08.2015
Date of decision : 01.06.2016
1. Mahindra and Mahindra Financial Services Ltd. having its
Regional Office situated at SCO No.33-34-35,4th Floor, near
Regional Passport Office, Sector 34-A, Chandigarh (UT)
through Shri Jai Narayan, Litigation Officer (Legal).
2. Mahindra and Mahindra Financial Services Ltd. having its
registered office at Gateway Building, Apollo Bunder, Mumbai,
Maharashtra-400 001 through its Chairman/Managing Director.
3. Mahindra and Mahindra Financial Services Ltd. having its
Branch Office situated at C/o Chopra Tower, Ist Floor, Ambala-
Chandigarh Road, Dera Bassi-140 506, Punjab, through
Branch Manager.
.......Appellants-Opposite Parties
Versus
Anuj Goel s/o Shri Purushotam Dass Goel, R/o Flat No.08, Simran
Apartment, Ekta Vihar, Baltana,Zirakpur, District Mohali, Punjab-140
604.
........Respondent-Complainant
First Appeal against the order dated
24.6.2015 of the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellants : Shri Nitin Thatai, Advocate. For the respondent : Shri Anuj Goel (In Person). JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellants/opposite parties against the order dated 24.6.2015 passed by District First Appeal No.962 of 2015 2 Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short, "District Forum"), vide which the complaint filed by the respondent/complainant, Anuj Goel, under Section 12 of the Consumer Protection Act, 1986, was allowed and the following directions were issued to the opposite parties:-
a) to get the name of the complainant removed from the CIBIL Site immediately;
b) to issue 'No Objection Certificate' and statement of account against the car loan account;
c) to return the three bounced and three unused security cheques; and
d) to pay Rs.20,000/- in lump sum as compensation and costs of litigation for the mental agony and harassment suffered by him.
2. As per the allegations, made in the complaint, the complainant purchased one car make Hyundai Eon (in short, "the Car") on 8.6.2013 from Berkeley Hyundai Showroom, Industrial Area, Panchkula, after getting the same financed from the opposite parties, who had assured him that valuable service shall be provided and there would be no problem of any nature in respect of the availing of the loan facility. It was in view of that assurance that he had shown his willingness to obtain the loan facility by executing loan agreement dated 8.6.2013. It was only after the completion of the documentation that he was provided loan account No.2638119 and six cheques bearing No.016895 to 016900 drawn on Union Bank of India were obtained from him as security. It was assured by the First Appeal No.962 of 2015 3 opposite parties that those cheques would never be presented for encashment unless and until he made default in the payment of the instalments. At the time of availing that loan facility he gave 14 post dated cheques and told the opposite parties that those be presented against the payment of monthly instalments. The instalments by way of those post dated cheques were paid upto 10.8.2014 and thereafter he went to the opposite parties and presented three post dated cheques for the months of September, October and November 2014. On 11.9.2014 he received a message through SMS regarding the deduction of Rs.5,715/- from his account, as monthly instalment towards loan facility. In the same month on 17.9.2014 he received the second message through SMS regarding presentation of another cheque (Cheque No.041536) by the opposite parties; which got bounced due to less funds in his account. When contacted the officials of the opposite parties disclosed that on 11.9.2014 one of the security cheques was presented and on 17.9.2014 the other post dated cheque was presented. The opposite parties could not have presented the cheque; which was meant for security, when he had already given post dated cheque towards the payment of instalment, which became due in that month. The same mistake was committed by the opposite parties by presenting one of the security cheques for the amount of Rs.5,715/- on 13.10.2014 and the post dated cheque for the same amount on the same day; which got bounced due to less funds. That very mistake was again repeated by the opposite parties by presenting one of the post dated cheque on 13.11.2014 and the security cheque on 15.11.2014, which got bounced. Instead First Appeal No.962 of 2015 4 of rectifying their mistake they again committed another deficiency in service in the month of December 2014 when they presented one of the post dated cheques on 23.12.2014. He had already provided other cheques for that month and the other months. One of the officials of the opposite parties; named, Negi, informed him about the bouncing of the cheque in the month of December 2014 and asked him to clear that payment or otherwise his name shall be included in the list of defaulters i.e. CIBIL. When he verified the account details from his banker, it transpired that the said cheque was got cleared on 23.12.2014. Still the amount was debited in his account as bouncing charges of that cheque. Thus, the opposite parties indulged in unfair trade practice and were deficient in service. It was almost after two months without affording an opportunity to him that they issued letter dated 20.1.2015 mentioning therein that the cheques were presented by their Customer Manager due to oversight and they had no intention to cheat him and that a draft of Rs.650/- was being forwarded to him. However, they failed to provide any justifiable reason for the deficiency in service and adoption of unfair trade practice. From the statement of account it is reflected that the opposite parties charged penalty of Rs.500/-, each, regarding the above said transactions in the said three months. As a result of the deficiency in service and unfair trade practice on the part of the opposite parties he had to undergo lot of mental agony and harassment. He prayed for the issuance of following directions to them:-
First Appeal No.962 of 2015 5
i) to immediately reverse the wrong entries of September, October and November and December 2014;
ii) to waive off the penalty of Rs.1,501/-, which has been debited in his account;
iii) to pay penalty charges of Rs.450/- deducted from his account on account of bouncing of the cheques;
iv) to delete his name from the list of defaulters i.e. CIBIL;
v) to pay Rs.10,000/-, as conveyance charges;
vi) to pay Rs.1,50,000/-, as compensation for the mental
pain and harassment suffered by him; and
vii) to pay Rs.25,000/-, as litigation expenses.
3. The complaint was contested by the opposite parties by filing joint written reply before the District Forum, in which they admitted that the loan facility for getting the car financed was obtained from them by the complainant, who after the completion of the documentation part was provided with loan account number and three cheques, as mentioned in para no.3 of the complaint, were taken from him by way of security and he also handed over 14 post dated cheques, as by way of instalments towards the repayment of the loan. They also admitted that there was no default on his part for making the payment of the instalments in respect of the loan facility taken by him. They also admitted the presentation of the cheques, as detailed in the complaint to the banker of the complainant and the bouncing of some of those cheques. While denying the other allegations made in the complaint they averred that cheques bearing No.041536, 016896 and 016897 were presented inadvertently due to First Appeal No.962 of 2015 6 oversight. However, the matter has already been settled between them and the complainant after he was called to the Head Office;
when his grievance could not be sorted out in the Branch Office. At that time he demanded Rs.450/- from them with regard to the cheque bouncing charges and accordingly a draft of Rs.650/- was sent to him along with the letter dated 20.1.2015. He also demanded NOC and was asked to come to the office again but failed to appear. No cause of action has accrued to him to file the present complaint and the same is not maintainable. He has not approached the District Forum with clean hands. Complicated questions are involved in the complaint and, as such, he is to be directed to approach the appropriate Court for getting the relief. His name was never given by them in CIBIL nor they were deficient in service nor adopted any unfair trade practice. They have already returned the mis-utilized cheques to the complainants. The facts, as stated in the complaint, are false, frivolous and baseless and have been stated just to defame them. The Loan Agreement contains the arbitration clause and according to that clause any dispute arising between the parties is to be tried by the arbitrator. The complaint is liable to be dismissed on that ground alone. They prayed for the dismissal of the same with exemplary costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
First Appeal No.962 of 2015 7
5. We have heard learned counsel for the appellants/opposite parties and the respondent-complainant in person and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the opposite parties that the grievances of the complainant, as raised in the legal notice dated 9.12.2014, Ex.C-8, were duly redressed by the opposite parties and grievances raised by him were that the three cheques with original Memos of Dishonour be returned to him; letter be issued to him that the cheques bounced due to the mistake of the opposite parties in order to enable him to clean his records with the Bank and the CIBIL; to pay Rs.450/- on account of the bouncing of the cheques; and to furnish the statement of the account. That fact stands proved from the letter dated 20.1.2015 proved by the complainant as Ex.C-9. A draft of Rs.650/- was duly sent to him and he was asked to collect the original cheques with memos of dishonour as well as the statement of account, but he never turned up to collect the same. Once that grievance was removed, the complainant had no cause of action to file the complaint and the same was to be dismissed on that ground alone. He further submitted that the District Forum committed an illegality by issuing even those directions; which were never prayed for by the complainants. He never prayed for the issuance of 'No Objection Certificate' and still a direction was issued to that effect. No evidence was produced by the complainant for proving that his name has been entered in the list of defaulters by CIBIL and, as such, a direction for removal of that name could not have been issued. He First Appeal No.962 of 2015 8 prayed for the acceptance of the appeal and setting aside of the order passed by the District Forum. He further submitted that in case this Commission is not inclined to set aside the whole of the order so passed by the District Forum, then the same be modified so as to delete the first two directions so issued to the opposite parties and to reduce the amount of compensation of Rs.20,000/-, as the same, keeping in view the alleged deficiency in service, is on the higher side.
7. On the other hand, it was submitted by the complainant, in person, that no such meeting was held with him by the opposite parties and the letter Ex.C-5 was written by them on their own. The draft of Rs.650/- sent along with that letter was not acceptable and he never got the same encashed. His grievance regarding the deficiency in service and adoption of unfair trade practice was not redressed by the opposite parties. Rs.450/- only was not the amount; which was debited to his account on account of bouncing of the cheques; which were wrongly presented but it is reflected from the loan account statement Ex.C-10 that Rs.500/-, each, was debited on account of the cheque return charges. From the Statement of Account of his banker Ex.C-7, it stands proved that the opposite parties even presented those cheques; which were given only by way of security and had presented two cheques in the same months, whereas one cheque was to be presented for the recovery of the instalment of that month. This not only amounts to deficiency in service on their part but also unfair trade practice. In these circumstances, it cannot be said that the compensation of First Appeal No.962 of 2015 9 Rs.20,000/-, which also includes the cost of litigation, is on the higher side. There is no merit in the appeal and the same is liable to be dismissed.
8. Most of the facts, as stated in the complaint, have been admitted by the opposite parties. They have also admitted the mistake of presenting even those cheques to the banker of the complainant; which were given only by way of security. The complainant proved on record the Statement of Account Ex.C-7; which was issued to him by the said Bank. A perusal thereof shows that two cheques, each, were presented by the opposite parties to his banker in the months of September, October and November, 2014. The instalments were payable monthly and, as such, they could have presented one cheque every month. The second cheque presented by them during those three months was dishonoured for want of sufficient funds but the Statement of Account makes it clear that the complainant had been depositing money in that account for the honouring of one cheque every month. This act on the part of the opposite parties to present the cheques; which were meant only for security and presenting two cheques each during the three months and then claiming charges at the rate of Rs.500/-, each, for bouncing of cheques amounts to deficiency in service and adoption of unfair trade practice.
9. It may be said that the complainant in his Notice, Ex.C-8, which is dated 09.12.2014, raised the following grievances:-
"1. Original three cheques with original memos bounced by the bank, be returned to me.First Appeal No.962 of 2015 10
2. A letter from your Company in which it should be clearly mentioned that the cheques have been bounced due to mistake of the company and Mr. Anuj Goel is not at default in any case to enable me to clean my records with the Bank and CIBIL.
3. A sum of Rs.450/- (Fine of Rs.150/- charged by my bank for each time my cheque got bounced i.e. for Sep. 14, Oct. 14 and Nov. 14) to be remitted to me.
4. A statement of Account (SOA) from 08.06.2013 to
10.11.2014 which clearly shows that all the payments of instalments have been cleared on time."
10. It does not mean that he was estopped from raising the other grievances against the opposite parties. Moreover, it cannot be said from the evidence produced on the record that all those grievances stood removed. The reply which was given to the notice was proved as Ex.C-9, along with that reply the opposite parties sent Rs.650/-. They did not return the original cheques with the memos of dishonour nor furnished the Statement of Account and rather asked the complainant to come to the Bank for collecting the same. The case pleaded by them in the written reply stands contradicted by the contents of this reply. In the written reply they have come up with the plea that the complainant was called to the Branch Office but the dispute could not be sorted out and thereafter he was called to the Head Office where the dispute was sorted out and settled. It is mentioned in this reply itself that the complainant was called for settling the matter but he did not come to attend the meeting. The First Appeal No.962 of 2015 11 opposite parties failed to remove all the grievances, which the complainant raised in the present complaint. The complainant reposed faith in them as a banker and that faith was betrayed by them by violating the terms agreed upon by them and their dishonest intention stands proved from the fact that they had been presenting two cheques in the months of September, October and November 2014 when they were supposed and required to present only one cheque during those months. In these circumstances, it cannot be said that the amount of Rs.20,000/- awarded as compensation and litigation costs is on the higher side.
11. No evidence was proved by the complainant that his name was included in the list of defaulters being maintained by the CIBIL. He nowhere alleged in his complaint that he was entitled to "No Dues Certificate" and the same was not furnished by the opposite parties. The District Forum committed an illegality by issuing a direction to the opposite parties to issue "No Dues Certificate", when admittedly the loan account has not been cleared by the complainant.
12. In the result, the appeal is partly allowed and the order passed by the District Forum is modified. Instead of the direction so issued by it, the following directions are issued to the opposite parties:-
i) to issue the Statement of Account against the Car Loan Account to the complainant;
ii) to return the three bounced cheques, along with the
Memos of Dishonour; and
First Appeal No.962 of 2015 12
iii) to pay Rs.20,000/- in lump sum, as compensation for
mental agony and harassment suffered by the
complainant and as costs of litigation.
13. The sum of Rs.10,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
14. The arguments in this case were heard on 18.5.2016 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (MRS. SURINDER PAL KAUR) MEMBER June 01, 2016 Bansal