State Consumer Disputes Redressal Commission
Bajaj Finance Ltd. vs Rajbinder Singh on 6 July, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.584 of 2013
Date of institution : 21.05.2013
Date of decision : 06.07.2015
1. Bajaj Finance Ltd., 4th Floor, Bajaj Finserv Corporate Office, off
Pune-Ahmedanagar Road, Viman Nagar, Pune-411014,
Maharashtra.
2. Responsible Officer or Executing dealing at the Branch Office
of Bajaj Finance, Bajaj Auto Finance Ltd., 2nd Floor, GR Tower,
Mall Road, near Smile Center, Amritsar.
....Appellants/Opposite Parties
Versus
Rajbinder Singh son of Kulbir Singh, resident of H.No.3, Street
No.20, Gobind Pura, P.O. Rayon & Silk Mills, Amritsar.
....Respondent/Complainant
First Appeal against the order dated
20.03.2013 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Baldev Singh Sekhon, Member
Present:-
For the appellants : Shri R.S. Sekhon, Advocate For the respondent : Shri Gagandeep Singh, Advocate JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/opposite parties have preferred this appeal against the order dated 20.03.2013 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Forum"), vide which the complaint filed by Rajbinder Singh, First Appeal No.584 of 2013 2 respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed with Rs.2,000/-, as litigation expenses and they were directed to refund Rs.1,633/- to the complainant and to pay a compensation of Rs.25,000/- for the harassment and mental agony suffered by him.
2. As per the allegations, made in the complaint, the complainant approached opposite party No.1 for financing a Refrigerator as consumer loan, in August, 2007; as that opposite party was doing the business of the financing. It agreed to advance the finance for the purchase of Refrigerator and received initial payment of Rs.4,165/-. Cheques for the amount of the E.M.I. of Rs.833/- per month were given for the months of September, 2007 to March, 2008; which were drawn on ICICI Bank and were payable on the 7th of each month. He paid all the dues and asked for "NOC" from this opposite party in the year 2008, but the same was not given on one excuse or the other. The assurance was given to him that the "NOC" would come from the Head Office in due course of time; as he had already paid the dues. He obtained another loan for the purchase of scooter in the month of December, 2008 from ICICI Bank and paid the instalments towards that loan amount and also obtained the "Clearance Certificate" from the said Bank. In the month of February, 2012, he applied for car loan to State Bank of India, Ranjit Avenue, Amritsar, but was informed that his statement in CIBIL was not cleared by opposite party No.1 and his status therein was mentioned as "written off/settled"; which means that he had not paid the pending dues. When he made inquiry from opposite party First Appeal No.584 of 2013 3 No.1, he was told that one instalment of Rs.833/- was pending and another sum of Rs.800/- was to be charged from him as penalty. He made it clear to it that he had already paid all the monthly instalments, but it insisted that the sum of Rs.1,633/- be deposited for obtaining "NOC". He deposited that amount immediately to get the "NOC" and thereafter, booked the car in December, 2011. Opposite party No.1 committed a fraud and cheated him in order to spoil his reputation by getting his status entered as "written off/settled" in CIBIL; as a result of which he suffered great harassment and could not concentrate on his business for one month. On account of the delay in the booking of car, he had to pay Rs.24,000/- in excess, on account of the increase in the price thereof. The said act on the part of opposite party No.1 amounts to unfair trade practice; as a result of which he suffered mental pain, agony, tension, harassment, financial loss and reputation in the market. In the complaint, he prayed for the issuance of following directions to the opposite parties:
i) to refund the sum of Rs.1,633/-, along with interest at the rate of 24% per annum;
ii) to pay a compensation of Rs.80,000/-, on account of the loss of reputation, defamation, loss of business, mental pain, agony and harassment suffered by him;
iii) to pay Rs.24,000/-, as the difference on account of the increase of the price of the car;
iv) to remove his status of "written off/settled" from CIBIL
immediately; and
First Appeal No.584 of 2013 4
v) to pay Rs.5,500/-, as litigation expenses.
3. The complaint was contested by the opposite parties, who filed joint written reply before the District Forum. In the written reply, they did not dispute that the complainant had approached them for the grant of financial assistance and that post dated cheques were issued by him and that he had come to collect the "NOC", which was issued after the payment of Rs.1,633/- on 17.02.2012. While denying the other allegations made in the complaint, they pleaded that the complainant had approached them for obtaining the loan for purchasing Washing Machine make Whirlpool and that loan was disbursed to him on 20.08.2007.
Regarding that loan, he executed agreement No.491/48824 on 20.08.2007 and availed the finance of Rs.9,996/-. That amount was repayable in monthly instalments of Rs.833/-; which were payable for 12 months. Towards the instalments for repayment of the loan, he issued post dated cheques. The cheques issued towards instalment Nos.1, 6 and 7 got bounced on account of "Insufficient Funds" in his account. Thereafter, he paid those instalments in cash, without penal charges. On account of the bouncing of the cheques and late payment of the instalments, the penal charges were imposed, which were not paid and, as such, there was no question of issuance of "NOC" in the year 2008. He cleared the charges only on 17.02.2012 and immediately, the "NOC" was issued on the next day. The recording of status "written off/settled" in the CIBIL was on account of the default on the part of the complainant himself and they were not responsible for the same. They did not commit any such fraud First Appeal No.584 of 2013 5 nor cheated the complainant nor they adopted any unfair trade practice. The complainant himself was responsible for the late clearance of the loan amount and is estopped by his own act and conduct from filing the present complaint. The same is blatant and flagrant abuse of the process of law and has been filed with ulterior motive to harass and humiliate them, so that they may succumb to the pressure tactics of the complainant. He cannot be allowed to take advantage of his own wrongs and defaults. The story alleged in the complaint is baseless, concocted and without any truth. The complainant has not come to the District Forum with clean hands and has suppressed the true and material facts. They prayed for the dismissal of the complaint.
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.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the appellant/opposite parties that the District Forum failed to consider the evidence produced on the record, while recording findings in favour of the complainant. From that evidence, it stands proved that three of the post dated cheques issued by him towards the instalments of loan had bounced and a penalty of Rs.800/- was imposed; which was never paid by him. One of the instalments of Rs.833/- remained unpaid. That instalment and the penalty charges First Appeal No.584 of 2013 6 were paid on 17.02.2012 and immediately, the NOC was issued. It was on account of the act of commission or omission on the part of the complainant himself that his status as "written off/settled" was entered in CIBIL and they cannot be made liable for the same. The District Forum committed an illegality, while giving the direction to refund Rs.1,633/- and to pay compensation. Such an order cannot be sustained and is liable to be set aside.
7. On the other hand, it was submitted by the learned counsel for the complainant that after thoroughly going through the evidence produced by both the sides, correct findings were recorded by the District Forum. It stands proved from that evidence that the loan amount was cleared by the complainant within the prescribed time and no such instalment of Rs.833/- was due from him. He was never made aware of any penal charges of Rs.800/-, nor those charges were demanded. It was only when the complaint was filed that the evidence regarding the said instalment and penal charges being due was fabricated by the opposite parties. There is no ground for upsetting the well reasoned findings of the District Forum.
8. The complainant proved the allegations made in the complaint, by making a deposition regarding all those facts in his affidavit Ex.C-1. No doubt, in rebuttal to that evidence, the opposite parties proved on record the affidavit of Devenderpal Singh, Collection Manager, Ex.R-1, but that affidavit is no affidavit in the eyes of law. The same is just the written reply filed by the opposite parties; which has been given the form of an affidavit. The deponent has not deposed about specific facts. Even the verification of the First Appeal No.584 of 2013 7 affidavit is defective; wherein the contents of the affidavit are verified to be true and correct as per the knowledge and belief of the deponent. It has not been stated in the verification, as to which particular Paras of the affidavit are true and correct to the best of his knowledge and which of the Paras are true and correct to his belief. The affidavit, bearing such defective verification, is not admissible in evidence. Therefore, the deposition made by the complainant before the District Forum has remained unrebutted. Once the complainant proved that he had paid all the instalments towards the loan amount, the onus shifted upon the opposite parties to prove that one instalment was still due from him and that three of the post dated cheques issued by him, as payment towards those instalments, had bounced. No evidence has been produced by them for discharging that onus. Three instalments of Rs.833/-, each, were paid by the complainant in cash on 21.09.2007, 14.02.2008 and 17.03.2008; as is clear from the receipts Ex.C-2, Ex.C-5 and Ex.C-6 issued by opposite party No.1. The opposite parties themselves proved on record the statement of account Ex.R-3 and it is very much clear from that statement of account that all the instalments had been paid by due date and the balance was shown as "Nil" on 31.12.2008. No doubt, in that statement, Rs.800/- has been shown as due from the complainant on account of overdue charges, but neither it is mentioned in that statement of account, nor any evidence was produced, as to how that amount was due on account of overdue charges, when as per other part of the statement, all the instalments were paid in time. After duly scrutinizing the evidence produced by First Appeal No.584 of 2013 8 the parties, correct findings were recorded by the District Forum and there is no ground for upsetting those well reasoned findings. There is no merit in the appeal and the same is hereby dismissed.
9. The sum of Rs.14,400/- 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.
10. The arguments in this case were heard on 30.06.2015 and the order was reserved. Now, the order be communicated to the parties.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER July 06, 2015 (Gurmeet S)