Bangalore District Court
Sampath Kumar.M vs The Customer Service Executive on 24 June, 2016
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 24th day of June 2016.
PRESENT
Sri. RAVI M. NAIK,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.5247/2013
PLAINTIFF Sampath Kumar.M., S/o late Marappa, aged
about 49 years, r/a no.1215, 11th 'B' cross,
Mahalakshmipuram, West of Chord road, 2nd
stage, Bangalore -560 086.
(By Sri.Rajanna - Advocate)
- V E R S U S -
DEFENDANTs 1. The customer service Executive,
ICICI Bank Ltd., ICICI Bank phone
Banking Centre, ICICI Bank tower, 7th
floor, Sy.no.115/27, plot no.12,
Nanakramguda, Serilingampally, Hyderabad
- 500 032, Andhra Pradesh.
2. The Manager, ICICI Bank Ltd.,
M.G.Road Branch, Bangalore - 560 001.
3. Narayana.P_. S/o Puttaswamappa,
Aged about 48 years, r/a no.248/B,
3rd block, Rajajinagar, Bangalore - 10.
(D.1 & 2 by Suresh.V. D.3 By
Sri.M.V.Hiremath- Advocates)
2 O.S.No.5247/2013
Date of institution of the suit : 19.7.2013
Nature of the suit (suit on Suit for mandatory injunction
pronote, suit for declaration and
possession suit for injunction,etc) :
Date of the commencement of 17.6.2015
recording of the evidence :
Date on which the Judgment was 24.6.2016
pronounced :
Total duration Year/s Month/s Day/s
02 11 05
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
Bangalore.
J U D G M E N T
The plaintiff has filed a suit against the defendants with a prayer to pass judgment and decree directing the defendant nos.1 & 2 to issue no objections certificate/loan clearance certificate in favour of the plaintiff in connection with the clearance of the entire loan amount under the hypothecation agreement in respect of the suit schedule car, award cost and such other reliefs.
2. The brief averments of the plaint are that the 3rd defendant had purchased the suit schedule car by 3 O.S.No.5247/2013 availing loan from the defendant nos.1 & 2 and the said car was hypothecated to the defendant nos.1 & 2. Entry in respect of the said hypothecation is also entered in the RC book of the said car by the RTO. It is further stated that the 3rd defendant for his financial necessity sold the suit schedule car on 1.2.2007 in favour of the plaintiff with an understanding that the plaintiff has to clear the loan availed by the 3rd defendant from the defendant nos.1 & 2 bank. It is further stated that the plaintiff has cleared the entire loan outstanding to the defendant nos.1 & 2 in respect of the suit schedule car. The 3rd defendant intimated the sale of the suit schedule car in favour of the plaintiff and requested the first defendant to issue no objection certificate to get the transfer of the registration certificate in favour of the plaintiff in the books of RTO. The 3rd defendant has authorized the plaintiff to pursue the matter with the defendant nos.1 & 2 to get the no objection certificate. It is further stated that the plaintiff has made several correspondence with 4 O.S.No.5247/2013 the defendant nos.1 & 2 requesting them to issue no objection certificate to obtain transfer of entries in the RC book in respect of the suit schedule car, but the defendant nos.1 & 2 dodged the matter and there is no justification on the part of defendant nos.1 & 2 in denying the NOC to the plaintiff in respect of clearing the entire loan in respect of the suit schedule car as per the hypothecation agreement. Therefore, the plaintiff constrained to file the suit seeking mandatory injunction.
3. In pursuance of the suit summons, the defendant nos.1 to 3 have appeared through their counsel and the defendant nos.1 & 2 have filed a common written statement. The defendant no.3 has not filed any separate written statement.
4. The sum and substance of the contention of the defendant nos.1 & 2 in their written statement is that the plaintiff is a stranger to the alleged loan transaction and there is no privity of contract between the plaintiff and the defendant bank. There is no locus standi to the 5 O.S.No.5247/2013 plaintiff to file the suit claiming NOC. The defendant nos.1 & 2 have admitted that the 3rd defendant availed loan to purchase plaint schedule car by hypothecating the same in favour of the defendant nos.1 & 2. It is further contended that the plaintiff had been paying over dues, has no legal sanctity because the plaintiff has not entered into the loan agreement as substituted borrower, replacing the 3rd defendant. The agreement held between the plaintiff and 3rd defendant in the absence of the defendant bank is null and void. The defendant nos.1 & 2 have denied the averments made in para-5 to 11 of the plaint.
5. It is further contended that the 3rd defendant borrowed two loans in loan account bearing no.LABNG00003615042 dated 30.3.2005 for a sum of Rs.3,40,000/- and loan account bearing no.LABNG00005800454 for a sum of Rs.50,000/- respectively. The said two loans are linked loans. The first loan was borrowed by defendant no.3 to purchase 6 O.S.No.5247/2013 the suit schedule car by hypothecating the same. It is further contended that the payment made towards the loan account are deemed to have paid by or on behalf of the account holder unless an express contrary agreement exists. The 3rd defendant had not sought consent of the defendant nos.1 & 2 to transfer the loan agreement and transfer of debt. The defendant bank is not in receipt of letter dated 4.8.2010. The plaintiff is not a substituted borrower. Hence, the plaintiff has no right to claim NOC from the defendant bank. It is further contended that the 3rd defendant is a defaulter towards his personal loan account and the said loan account is classified as 'non- performing asset'. According to the RBI guidelines a borrower having multiple accounts defaults some of his loan accounts, then for classification purpose of NPA, such loans are to be construed borrower wise and not facility wise. On the line of the same principle, the defendant bank has classified both the loans of defendant no.3 as 'non-performing asset'. The defendant 7 O.S.No.5247/2013 no.3 is liable to pay Rs.58,857/- towards his linked account. It is further contended that the plaintiff is in adverse possession of the suit schedule vehicle defeating the rights of the defendant bank. He colluded with the defendant no.3 and filed a suit in order to defraud the defendant nos.1 & 2. Hence, the plaintiff is liable to pay damages to the defendant nos.1 & 2. For above all reasons, the defendant nos.1 & 2 have prayed for dismissal of the suit.
6. On the basis of the above pleadings, this court has framed the following issues:
1. Whether the plaintiff proves that 3rd defendant had purchased a Maruti Zen silver colour car bearing registration no.KA02 Z 9675 by availing loan from defendant nos.1 & 2 ?
2. Whether the plaintiff further proves that he purchased the said car from the 3rd defendant and cleared the loan availed by the 3rd defendant ?
3. Whether the defendant nos.1 & 2 proves that the plaintiff is totally a stranger to the loan transaction in respect of the vehicle bearing registration no.KA02 Z 9675 ? 8 O.S.No.5247/2013
4. Whether the defendant nos.1 & 2 further prove that the defendant no.3 has availed loan in two different loan accounts and the loan in question by hypothecating the suit schedule vehicle remains unpaid till date ?
5. Whether the plaintiff is entitled for relief of mandatory injunction ?
6. What decree or order ?
7. The plaintiff in order to prove his case, he himself examined before the court as PW.1 and got marked Exs.P.1 to P.13 documents. On the other hand, the Power of Attorney holder of defendant nos.1 & 2 i.e., the legal manager of defendant nos.1 & 2 is examined as DW.1 and Exs.D.1 to D.7 documents came to be marked on behalf of defendant nos.1 & 2.
8. Heard the learned Counsel appearing for the plaintiff and defendant nos.1 & 2.
9. My findings on the above issues are as follows: -
Issue nos.1 & 2 : In the Affirmative Issue no.3 : In the Negative Issue no.4 : Partly in the Affirmative Issue no.5 : In the Affirmative Issue no.6 : As per final order 9 O.S.No.5247/2013 for the following:
REASONS
10. Before answering the issues, I would like to state the undisputed facts of this case. The 3rd defendant is a borrower of loan from the defendant nos.1 & 2. He availed loan by hypothecating the suit schedule car i.e., Maruti Zen baring registration no. KA02 Z 9675.
11. Issue No.1 : The contention of the plaintiff is that the 3rd defendant purchased the plaint schedule car by availing loan from the defendant nos.1 & 2. To substantiate his contention, the plaintiff has got marked Ex.P.1 i.e., RC book pertaining to the vehicle bearing registration no.KA02 Z 9675, Ex.P.2 sale receipt, Exs.P.3 to P.5 payment receipts, Ex.P.6 pass book issued by canara bank. The recitals of Ex.P.1 disclose that the defendant no.3 availed loan for purchase of the suit schedule car hypothecating the same in favour of the defendant nos.1 & 2 bank. An entry to that effect is entered in Ex.P.1 on 1.4.2005. Thus, the material placed 10 O.S.No.5247/2013 before this court clearly discloses that the 3rd defendant had purchased Maruti Zen-silver colour car bearing regn.no. KA02 Z 9675 by hypothecating the said car and availed loan from defendant nos.1 & 2. Hence, I answer Issue no.1 in the affirmative.
12. Issue No.2 : The contention of the plaintiff is that he purchased the suit schedule car from the 3rd defendant and cleared the loan availed by 3rd defendant from the defendant nos.1 & 2. Ex.P.2 is the sale receipt.
The recitals of the said sale receipt disclose that the 3rd defendant sold and delivered Maruti Zen car bearing regn.no.KA02 Z 9675 to the plaintiff for a sum of Rs.3,30,000/-. Ex.P.6 is the bank pass book of Canara Bank, RMV Extension Branch, Bangalore pertaining to the plaintiff. The recitals of the said pass book disclose that the plaintiff has paid a sum of Rs.7,140/- each on 10.2.2007, 19.4.2007, 23.4.2007, 30.4.2007, 12.6.2007, 13.7.2007, 13.8.2007, 6.9.2007, 3.10.2007, 3.11.2007, 3.12.2007, 23.1.2008, 2.2.2008, 3.3.2008, 3.4.2008, 11 O.S.No.5247/2013 3.5.2008, 3.6.2008, 2.7.2008, 2.8.2008, 2.9,2008, 3.10.2008, 4.11.2008, 2.12.2008, 2.1.2009, 3.2.2009, 3.3.2009, 3.4.2009, 4.5.2009, 2.6.2009, 2.7.2009, 3.8.2009, 2.9.2009, 16.10.2009, 2.11.2009, 17.12.2009, 1.1.2010, 1.2.2010, 1.3.2010 and 3.4.2010 and made payment of Rs.2,78,460/- to the defendant nos.1 & 2. The recitals of Ex.P.6 further reveals that the said amount has been debited to the account of the plaintiff and credited to the account of defendant nos.1 & 2. Exs.P.3 to P.5 further reveals that the receipts have been issued in favour of the 3rd defendant for having paid the EMI in respect of loan account No.LABNG00003615642. In Ex.P.5, the details of the cheque numbers under which the payment has been made has also been mentioned. Thus, the contention of the plaintiff is that he purchased the car bearing no.KA02 Z 9675 from 3rd defendant and cleared the loan availed by the 3rd defendant. On the contrary, the contention of the defendant nos.1 & 2 is that there is no privity of contract between the defendant 12 O.S.No.5247/2013 nos.1 & 2 and the plaintiff. The plaintiff has no locus standi to seek no objection certificate in respect of the said loan since he is not a party to the said loan transaction. Ex.P.7 is the request letter addressed to the defendant no.2. In the said letter, the plaintiff has categorically requested to issue 'no objection certificate' in respect of the loan availed by the 3rd defendant pertaining to the plaint schedule car. Ex.P.8 is another letter written by the plaintiff to the 2nd defendant. In the said letter, the plaintiff requested the 2nd defendant to issue a loan clearance certificate. Ex.P.8(a) is the postal AD card. The recitals of the said document disclose that the letter issued to the 2nd defendant is served on its officials. Ex.P.9 is the letter addressed to the plaintiff by defendant nos.1 & 2 stating that they cannot share the information relating to their customers i.e., the 3rd defendant. The recitals of Exs.P.7 & P.8 disclose that repeatedly the plaintiff requested the 2nd defendant bank to issue clearance certificate in respect of the loan 13 O.S.No.5247/2013 transaction of the plaint schedule car. It is not the case of the defendant nos.1 & 2 that the 3rd defendant who purchased the plaint schedule car is in arrears of loan availed in respect of the said car which was hypothecated to the 2nd defendant bank. No doubt, there is no privity of contract in respect of the said loan between the plaintiff and the defendant nos.1 & 2. But, the fact remains that the plaintiff purchased the plaint schedule car from the 3rd defendant and cleared off the loan pertaining to the said car which was hypothecated to the defendant nos.1 & 2. If the defendant no.3 is in arrears of loan which is not pertaining to the plaint schedule car, the defendant nos.1 & 2 bank is at liberty to proceed against the 3rd defendant in respect of the said loan. But, they cannot refuse the plaintiff to issue clearance certificate pertaining to the plaint schedule car in respect of which the loan is cleared. On careful perusal of the cross- examination of PW.1 at page-10 disclose that the 3rd defendant has borrowed another personal loan from the 14 O.S.No.5247/2013 defendant nos.1 & 2 bank. The defendant nos.1 & 2 bank has not produced any material to show that they initiated any proceedings against the 3rd defendant to recover the said personal loan. Ex.D.2 is the loan application form for having availed personal loan by the 3rd defendant and a sum of Rs.60,000/- was disbursed to him as per the disbursal memo attached to Ex.D.2 on 21.2.2006. Whereas, loan in question i.e., in respect of the suit schedule car was availed prior to that. Learned counsel for defendant s no.1 & 2 vehemently contended that, the plaintiff has not entered into the loan agreement as substituted borrower replacing the third defendant, therefore the agreement held between the plaintiff and the 3rd defendant in the absence of the defendant bank is null and void. It is pertinent to note that all of a sudden the plaintiff is not claiming that he has paid the loan on behalf of the 3rd defendant in respect of the plaint schedule car. He has been paying the loan in respect of the plaint schedule car from 2007 15 O.S.No.5247/2013 onwards, that is clear from the recitals of the Ex.P.6. Subsequent to that as per Ex.P.7. The third defendant requested the plaintiff bank to release no objection certificate in favour of the plaintiff and the Plaintiff has also issued Ex.P.8 & Ex.P.10. In Ex.P.12 and 13 letters no doubt the 1st and 2nd defendant bank informed the plaintiff that they will not reveal the information pertaining to their customers. If really there is no privity of contract between the plaintiff and defendants no.1 & 2 at the initial stage itself i.e., in the year 2007 defendant no.1 & 2 bank could refuse to receive the loan installments paid by the plaintiff on behalf of the 3rd defendant. After receiving the number of installments from the plaintiff in respect of the loan pertaining to suit schedule car, when the plaintiff requested to issue no objection certificate the defendants no.1 & 2 cannot refuse to issue no-objection certificate. Even on single occasion the defendants no.1 & 2 did not inform the plaintiff to produce the agreement held between the 16 O.S.No.5247/2013 plaintiff and the 3rd defendant in respect of the purchase of the suit schedule car by the plaintiff from the 3rd defendant, at the fag end when the plaintiff requested the defendants no.1 & 2 to issue no objection certificate the defendants no.1 & 2 cannot refuse to issue, more so when the entire loan pertaining to the suit schedule car is paid by the plaintiff. Thus the overall materials placed before this court reveals that the plaintiff purchased the suit schedule car from the 3rd defendant and cleared the loan availed by the 3rd defendant. Hence I answer this issue in the affirmative.
13. Issue no.3:- according to the defendants no.1 & 2, the 3rd defendant who borrowed the loan has purchase the suit schedule car neither informed no obtained permission of the defendant s no.1 & 2 to assign the debt in favour of the plaintiff. No doubt the third defendant in writing has not obtained permission from 1st and 2nd defendants to assign the debt in favour of the plaintiff. It is pertinent to note that the plaintiff 17 O.S.No.5247/2013 purchased the suit schedule car from the 3rd defendant on 1.2.2007 i.e. clear from Ex.P.2 and started repaying the loan borrowed by the plaintiff in respect of suit schedule car to defendants no.1 & 2 promptly equal monthly installments of Rs..7140/- commencing on 10.2.2007. The entries in Ex.P.6 discloses that the plaintiff repaid the loan commencing from 10.2.2007 till 3.4.2010. For all these more than three years, the 1st and 2nd defendants have not whispered or refused to receive the installments from the plaintiff stating that 3rd defendant has not obtained permission from the bank to assign the debt in favour of plaintiff. The receipt of the loan installments by the defendants no.1 & 2 itself presupposes that the defendants no.1 & 2 bank by their conduct authorized the plaintiff to pay the loan on behalf of the 3rd defendant. The plaintiff in Exs.P.7, 8 & exp.10 legal notice repeatedly requested defendants no.1 & 2 bank narrating the facts requesting them to issue no objection certificate in respect of the suit schedule car. 18 O.S.No.5247/2013 Inspite of that 1st and 2nd defendants have not issued no objection in favour of the plaintiff. Under these circumstances the contention taken by the defendants no.1 & 2 that the plaintiff is totally a stranger to the loan transaction in respect of the suit schedule car holds no water.
14. Thus, the plaintiff on behalf of the 3rd defendant has paid the loan borrowed by 3rd defendant in respect of the suit schedule car. Ex.P.7 discloses that the 3rd defendant authorized the plaintiff to collect "No objection certificate" from the defendants No.1 and 2, merely because the plaintiff has not obtained prior permission of the defendants No.1 and 2 bank to purchase the suit schedule car from the 3rd defendant itself is not a ground to come to a conclusion that the plaintiff is stranger to the loan transaction. More so when the defendants No.1 and 2 have received outstanding dues pertaining to suit schedule car from the plaintiff. Hence, this court is of the opinion that the defendants No.1 and 2 have failed to 19 O.S.No.5247/2013 establish that the plaintiff is stranger to the loan transaction in respect of the suit schedule car. Hence, I answer Issue no.3 in the negative.
15. Issue No.4: According to the defendants No.1 and 2 the 3rd defendant availed the loan in two different loan accounts i.e., loan account No.LABNG00003615042 dated 30.3.2005 for a sum of Rs.3,40,000/- and loan account bearing no.LABNG00005800454 for a sum of Rs.50,000/- and the said two loans are linked loans. The aforesaid first loan was borrowed by the 3rd defendant to purchase the suit schedule car by hypothecating said car to the defendant Bank. On the contrary, the plaintiff has contended that the first loan i.e., loan dated 30.3.2005 has been fully paid by the plaintiff on behalf of the 3rd defendant and the 3rd defendant is liable to pay only the second loan i.e., loan of Rs.50,000/-.
16. The initial burden is on the defendants No.1 and 2 to show that both the aforesaid loans are linked loans. No doubt, the power of attorney holder of the 20 O.S.No.5247/2013 defendants No.1 and 2 i.e., DW1 has stated that following the RBI guidelines the defendant bank has classified both the loan of the 3rd defendant as NPA borrower wise inclusive of vehicle loan account and as per the foreclosure statement dated 20.5.2014. The 3rd defendant is liable to pay sum of Rs.58,857/- towards the linked account. Except the bare contentions in the written statement and chief examination version of DW1 the 1st and 2nd defendant have not produce the guidelines issued by the RBI to show that both loans are linked loans nor produce the foreclosure statement to show that the said two loans linked loans and the first loan availed by the 3rd defendant is considered as a NPA. In the cross examination of DW1 at Page No.7 para-7 he has stated as under:
"I do not know what the amount due by the 3rd defendant in respect of the auto loan. Auto loan is due from 2005."21 O.S.No.5247/2013
In his cross examination at page No.8 para No.8 he has further stated that "I do not know whether our Bank has issued any notice to the 3rd defendant towards the alleged arrears of loan. After me assuming the office, no notice was issued to the 3rd defendant. I have not verified whether any notice was issued prior to my assuming the office". In his cross examination at Page No.9 para 9 DW1 has further stated that "It is true to suggest that said two loan application were filed on different days and amounts were disbursed on different dates. I do not know whether there is any document to show that the personal loan is linked with the auto loan."
17. The defendants No.1 and 2 have not produced any material to show that the said two loans are linked loans and loan in question i.e., loan pertaining to the suit schedule car has become NPA. The recitals of Ex.P.8 discloses that on 26.11.2012 the plaintiff wrote a letter to the defendant No.2 stating that he has cleared the entire 22 O.S.No.5247/2013 loan in respect of first loan i.e., no.LABNG00003615042 dated 30.3.2005 and he has requested the defendants No.1 and 2 to issue loan clearance certificate. But the defendants No.1 and 2 have failed to issue the loan clearance certificate on the ground that the said loan is linked loan with loan account No.LABNG00005800454. If really RBI issued guidelines the 1st and 2nd defendant could produce the said guidelines, that the both loans should be treated as a linked loan but no guidelines has produced. Under these circumstances the defendants No.1 and 2 has no authority to retain the hypothecation even after the loan is fully discharged in respect of the suit schedule car. The defendants No.1 and 2 are at liberty to recover the arrears of loan i.e., personal loan from the 3rd defendant due under the loan account no.LABNG00005800454 and they cannot contend that the suit schedule vehicle loan remains unpaid. Therefore, this court is of the opinion that the defendants No.1 and 2 have established that the second loan i.e., loan availed 23 O.S.No.5247/2013 under LABNG00005800454 availed by the 3rd defendant is not paid by him, whereas, the loan availed by the 3rd defendant in respect of the suit schedule car under loan LABNG00003615042 fully paid by the plaintiff. Hence, I answer issue No.4 partly in the affirmative.
18. Issue No.5: In view of my findings on foregoing issue No.1 to 4 this court is of the opinion that the plaintiff has established that he has paid the entire loan amount pertaining to the suit schedule car availed by the 3rd defendant from the defendants No.1 and 2 and the defendants No.1 and 2 have failed to issue "No objections certificate/loan clearance certificate in favour of the plaintiff in respect of the suit schedule car. Therefore, the plaintiff is entitled for the relief of mandatory injunction as prayed and I answer issue No.5 in the affirmative.
19. Issue No.6: In the result, I proceed to pass the following:
24 O.S.No.5247/2013
ORDER The suit of the plaintiff is decreed. Issue mandatory injunction directing the defendants No.1 and 2 to issue No objection certificate/loan clearance certificate in favour of the plaintiff in connection with the clearance of the entire loan amount under the Hypothecation agreement in respect of the suit schedule car Maruthi Zen -Sliver Colour bearing registration No. KA-02-Z-9675 Chassis No.827207, Engine No.332318.
Considering the facts and circumstance of the case no order as to costs.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 24th day of June 2016).
(RAVI M.NAIK), I Addl.City Civil & Sessions Judge, Bangalore.25 O.S.No.5247/2013
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 Sampath Kumar LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 R.C.Book " P-2 Sale receipt " P-3 to 5 Payment receipts " P-6 Bank pass book " P-7 & 8 Letters " P-8(a) Acknowledgement " p.9 Letter " p.10 Legal notice " p.11 Returned postal envelope " p.11(a) Postal cover " p.12 Reply letter " p.13 Reply notice LIST OF WITNESSES EXAMINED FOR DEFENDANTS DW.1 Vishal Kumar Shukla LIST OF DOCUMENTS MARKED FOR DEFENDANTS Exs.D-1 Attested copy of GPA " D-2 Personal loan application along with dispersal memo " D-3 Attested copy of the statement of account " D-4 Copy of foreclosure statement " D-5 Credit facility application form " D-6 Copy of auto loan application " D-7 Copy of statement of account (RAVI M. NAIK), I Addl.City Civil & Sessions Judge, Bangalore.26 O.S.No.5247/2013