HDFC Bank vs Hari Shankar Roy & Anr

This revision is directed by the petitioner bank against the order of the State Commission West Bengal dated 22.1.2013 in first appeals No.109/2012

and FA/125/2012.

Briefly put, facts relevant for the disposal of the revision petition are that respondent No.1 Hari Shankar Roy filed a consumer complaint before the

District Forum concerned on the allegations that he had booked a car marketed by respondent No.1 Mohan Udyog (opposite party No.1) by making

down payment of booking amount of Rs.5100/- on 16.1.2007. The price of the car was Rs.4,63,000/-. Opposite party No.1 dealer had allowed

discount on the aforesaid consideration amount. It is the case of the complainant that for making balance payment the complainant took loan from the

petitioner bank (opposite party No.2). The opposite party No.2 accordingly paid the aforesaid amount of loan Rs.3,90,000/- directly to the dealer

against the price of the car. It is alleged that after the aforesaid payment, an adjustment of discount of Rs.45,000/-remained to be paid against the

price of the car.

The complainant in order to clear the said dues visited the office of opposite party No.1 dealer but the dealer refused to adjust the payment and denied

to deliver the car which has caused pecuniary loss to the complainant. It is further the case of the complainant that he sent legal notices dated

9.3.2007, 8.4.2007 and 17.5.2007 to opposite party No.1 dealer demanding refund of the amount paid by him against the purchase of car which was

not delivered. In reply the dealer sent an advocate’s notice dated 23.5.2007 from which the complainant came to know that the petitioner bank

(opposite party No.2) had cancelled the loan agreement and taken back the money paid, from the dealer. According to the complainant the

cancellation of loan by the petitioner bank (opposite party No.2) without prior intimation to the complainant amounts to deficiency in service. Thus,

feeling aggrieved from the conduct of the respective opposite parties the complainants raised the consumer dispute.

The opposite party contested the complaint. Opposite party No.1 in its written version took the plea that it had duly refunded the amount of

Rs.3,88,900/- to the opposite party No.2 bank. As such there can be no further demand from the complainant’s end regarding the refund of

amount deposited for the booked car. Opposite party No.1 dealer further alleged that he is still willing to refund the booking amount of Rs.5100/- since

the amount was paid by the complainant to him. According to opposite party No.1, the dispute has crept between the petitioner bank regarding

cancellation of loan in which opposite party No.1 has no role to play.

The petitioner bank (opposite party No.2) in its written version took the plea that pursuant to the loan agreement executed between the parties, the

petitioner bank made payment of the loan sanctioned directly to the opposite party No.1 dealer. According to the bank the loan was cancelled as per

the instructions of the complainant and the same was communicated to opposite party No.1 dealer. According to the petitioner bank since the loan

agreement was cancelled as per the instructions of the complainant, there was no question of any deficiency in service on the part of the opposite

party bank.

The District Forum on consideration of the pleadings and appreciation of evidence allowed the consumer complaint against both the opposite parties

and directed as under: -

“Hence ordered.

That the petition of the complainant is allowed on contest with cost against the OPs. OPs are jointly and severally directed to pay a sum of

Rs.1,25,000/-(rupees one lakh twenty five thousand) only towards compensation for harassment and mental agony sustained by the complainant and

litigation cost of Rs.5,000/-(rupees five thousand) only within 45 days from the date of communication of this order, i.e. an interest @ 9% p.a. shall

accrue over the entire sum due to the credit of the complainant.

Supply certified copy of this order to the parties.â€​

Both the opposite parties being aggrieved of the order of the District Forum approached the State Commission in separate appeals being

FA/109/2012 and FA125/2012. The State Commission on re-appreciation of evidence took the view that there was no deficiency in service on the part

of opposite party No.1 dealer. As such no order could be passed against him. The State Commission, however, held the petitioner bank solely

responsible for non-delivery of car to the complainant since it unilaterally cancelled the loan and sought refund of the loan amount from the dealer. The

State thus directed the petitioner bank as under: -

“ Hence, ordered that the O.P.- Financier is directed to pay Rs.1,25,000/- to the complainant towards compensation for harassment and mental

agony sustained by the complainant and litigation cost of Rs.5,000/- only within 45 days from the date of this order, in default, an interest @ 9% per

annum shall accrue on the entire sum due to the credit of the complainant. The impugned judgment is modified to the extent as stated above.â€​

The petitioner bank not being satisfied with the order of the State Commission has preferred the instant revision petition.

Learned counsel for the petitioner has contended that the order of the State Commission is not sustainable because the State Commission has failed

to appreciate that opposite party bank has cancelled the loan on the instructions of the respondent/complainant and pursuant to the cancellation sought

refund of the loan amount disbursed on behalf of the complainant to the dealer.

I do not find merit in the above contention. Since the petitioner bank has claimed in its written statement that the loan was cancelled on the

instructions of the complainant, the onus to prove the said allegation was squarely on the petitioner bank. The petitioner bank, however, neither filed

any document containing instructions to cancel the loan nor adduced any cogent evidence to prove its allegations regarding instructions given by the

complainant. On the contrary, the complainant had sent a letter dated 4.6.2007 to the petitioner bank asking them to furnish the exact reason for

cancellation of the loan. From the aforesaid, it is clear that opposite party bank has failed to establish that the loan was cancelled as per the

instructions of the complainant. Thus, in my view the order of the State Commission cannot be faulted because unilateral cancellation of the loan after

sanction by the bank without even intimating the complainant is deficiency in service.

Learned counsel has further contended that the State Commission has fallen in error in failing to appreciate that the dispute actually was between

the complainant and respondent No.1 dealer regarding quantum of balance amount to be paid by the complainant against the price of the car. Even if

there was some dispute between the complainant and opposite party No.1 dealer regarding the balance payment against the price but the fact remains

that the dealer refused to deliver the car because the major consideration amount which was financed by the opposite party bank was withdrawn by

the bank by cancelling the loan agreement. Thus, in my view the petitioner bank cannot take shelter of the minor dispute between the complainant and

respondent No.1 dealer to escape the liability for his unwarranted act.

In view of the reasons stated above, I do not find any infirmity in the impugned order which may call for interference in exercise of revisional

jurisdiction. Revision petition is accordingly dismissed with no order as to cost.