BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

                                                     Dated this the 16^th February 2017

PRESENT

           SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

           SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

                                                                                                C.C. No.428/2014

(Admitted on 11.11.2014)

Mr. N.T. Rajgopal,

S/o Late N. Thirumaleshwara Bhat,

Aged about 55 years,

Vate House, Ujrupade Post,

Puttur Tq, D.K.

                                                                 ….. COMPLAINANT

(Advocate for the Complainant: Sri SD)

VERSUS

1. Deputy General Manager,

    Corporation Bank, Head Office,

    Mangala Devi Temple Road,

    P.B.No.88, Mangalore  01.

2. Manager,

    Corporation Bank,

    Bolwar Branch,

    Puttur Taluk, D.K.

                                                               ….....OPPOSITE PARTIES

(Opposite Party No.1: Ex parte)

(Advocate for the Opposite Party No.2: Sri KRA)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

1. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite parties claiming certain reliefs to extend the loan waiver scheme under the direction of Central Government under ADWDRS 2008 of loan No. CCCK/01/050002, to pay Rs.50,000/ towards compensation and to pay Rs.20,000/ as expenses.

     2.    In support of the above complaint Mr. N.T. Rajgopal filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C9 as detailed in the annexure here below.  On behalf of the opposite parties Mr. Ibrahim (RW1) Branch Manager, also filed affidavit evidence and not replied the interrogatories served on him.

The brief facts of the case are as under

     On perusal of the complaint and the version of the parties, we under stood the dispute as, the opposite party corporation bank have waived the loan availed by the complainant on 27.06.2008 under a scheme and later on 08.10.2013 reversed the waiver hence alleged deficiency in service and this complaint filed .The opposite party contended that as per ADWDRS 2008 scheme the complainant loan was not qualified for the waiver but by mistake the loan was waived. When the opposite party found the mistake has reversed it and there is no deficiency in service from their part. These are being the facts of the dispute in resolving it we consider the following 

POINTS FOR ADJUDICATION

We have considered the evidence lead by the parties and the documents produced by the complainant. Opposite party not produced any document. The admitted facts are that, the availing of the loan by the complainant and the waiver of the loan under ADWDRS 2008 scheme by the opposite party. It is also admitted by the opposite party that the loan waiver is cancelled and the waiver credit is reversed and the complainant loan account is debited again for the sum waived off. It is also admitted by the opposite party that, the waiver was reversed after five years. It is denied that the opposite party committed deficiency in service by reversing the waiver.  It is denied that the complainant is a consumer. Now the points to be decided are the following.

1. Whether the complainant is the consumer under Consumer Protection Act 1986?
2. Whether the opposite party proves that the reversal of loan waiver is proper and no deficiency in service on their part?
3. Whether the complainant entitled for the prayed relief?
4. What order?

We have examined the evidence adduced and considered the documents produced by the complainant. We have traversed through the notes filed by the parties. Heard the submission of the parties and answered the above points as under.

1. In the affirmative.
2. In the negative.
3. In the affirmative.
4. As per delivered order.

REASON

POINT NO 1:  The complainant had produced EX C 1 and EX C 3 which shows the complainant is the account holder in the opposite party bank. It is admitted that the bank has sanctioned the loan to the complainant. Hence it is established that the opposite party is the service provider and the complainant is the consumer. The opposite party no 1 produced an authority of Revision Petition No 4894 of 2012 of Honorable National commission stating that the sanctioning of the subsidy matter will not come under the jurisdiction of the consumer forum. We closely scanned the authority produced. It is right the Honorable National commission has held the subsidy sanctioning is not the service. But in the instant case the dispute is not related to sanction of the subsidy but waiver of the loan in the first instance and secondly it is alleged that the banker once waived the loan and after 5 years cancelled the waiver of loan and demanded payment from the complainant after debiting with the amount already waived. It is concern with the opposite party’s negligence in handling the customer account and with the schemes where the opposite party was authorized to execute. Hence the dispute is with regard to negligence of the opposite party and the complainant is the customer of the bank and the consumer and the forum have jurisdiction. Hence we answered the point no 1 in the affirmative.

POINT NO 2:  It is observed from the record on file and admittedly that, the opposite party has given credit to the extent 45812/ to the complainant loan Account on 27.06.2008  and the same amount has been reversed on 08.10.2013. It is settled law that the opposite party is accountable for every transaction entry in the account of the customer and the customer will have right to sought an explanation for every entry and in particular the debit entries. The opposite party defends his entries on the ground that the complainants account was credited with said amount under the loan waiver ADWDRS 2008 scheme and later (after 5 years) came to know the mistake while auditing that the complainant account is not eligible under the said scheme for the loan waiver and hence the reversal of the waiver is effected on 08.10.2013. Now it is the burden of the opposite party to explain and establish the reverse entry is authorized by the complainant and legally done. Hence the point no 2 is taken for adjudication.

2.     The opposite party contention is the benefit of loan waiver scheme was wrongly given to the complainant and later on coming to know the mistake through auditing of the accounts and the opposite party had reversed it.  Opposite party contends that  as per double entry banking accounts practice it is permissible and not wrong to give reverse entry, as per scheme the benefit will be available only for those loan accounts disbursed between 31.03.1997 and 31.12.2007 and which were overdue as on 31.12.2007, the complainants loan Account was not overdue as on 31.12.2007. The opposite party also contends that they have informed the customer before reversal of the entry. As per banking law and practice there is provision for rectification of entries and there is no bar of limitation in such cases.

3.     In our opinion in sailing through the above defenses the opposite party,

1. Has to prove that there was the ADWDRS 2008 scheme to waive the loan which are of overdue as on 31.12.2007.
2. The opposite party has to furnish the record to show that the complainant loan account was not overdue as on 31.12.2007 and the mistake is not because of negligence.
3. The opposite party shall furnish the date of coming to know the mistake as they have taken 5 long years to do the alleged correction.
4. The opposite party have to produce provision under banking law to establish that the banker has right to correct it even after 5 years lapsed.
5. The opposite party has to explain why earlier audit annual report not detected the mistake.

4.      Surprisingly the opposite party has not furnished any piece of paper as record to establish their contentions. The opposite party contended about the Audit report which detected the mistake but not produced it, the opposite party not produced the ADWDRS 2008 scheme documents to the bench for scrutiny, the statement of loan account of the complainant to show the loan was not overdue as on 31.12.2007, is not produced any copy of the letter informing the complainant about non applicability of the scheme to the complainant account and the mistake happened in giving benefit, before reversing the credit, or any cogent evidence to show the time of detecting the mistake. The opposite party relied on the banking law to authorize the correction even after 5 years of mistake but not narrated the provision or section under which the he is authorized. Not adduced any evidence to show the reverse entry is explained to the complainant.

5.      Even while answering the interrogatories on affidavit contradictory statement rendered.  In sworn in chief examination affidavit it was said that the mistake was noticed at the time of audit inspection but in reply affidavit in Q no 2 it is answered as the waiver is not the subject of auditing because passing the benefit are done gradually, in an Answer to Q no 6 audit report is irrelevant, the audit report is not mandatory requirement to make debit entry. The double entry banking practice is not properly explained. 

6.      We do not see any seriousness in the defense which prompt us infer the opposite party banker has no answer for reversal of waiver and the reverting of benefit under the scheme. The opposite party is grossly negligent in handling the benefit scheme operation while applying and then reversing it that too after 5 years. Because of the lapse of 5 years there is no fair opportunity to the complainant to go into the terms of the scheme and to know there is eligibility or not, of the benefit to him. We see there is grave negligence and deficiency in service on the part of the banker. The opposite party has not proved his case and we answered the point no 2 in the negative.

POINT NO 3: The opposite party not produced any record to show the applicability or non-applicability of the scheme to the complainants loan  account and not explained how the reverse entry after 5 years is proper and authorized and also how there is mistake in giving benefit to the complainant wrongly, and we hold the opposite party is liable for the deficiency in service and negligence. Hence the complainant is entitled for the relief prayed. The complainant has prayed for the reversal of the entry by extending the ADWDRS 2008 scheme benefit. Since the complainant formerly given benefit of the scheme but the non eligibility and reversal of the waiver not explained and convinced to us and also the reverse entry is unauthorized, the complainant is entitled to get it reverted back to original position by crediting the debited amount on reversal with an interest at the rate applicable to loan availed by the complainant from the date of reversal till the date of reverting the benefit (crediting back). We see a grave negligence in giving benefit waited for 5 years and reverting the benefit and debiting the complainant loan account without authorization. Hence in our opinion the complainant is entitled for ₹ 25000/ as compensation and ₹ 6000/- as litigation expenses. Hence we answered the point no 3 in the affirmative.

POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following 

ORDER

            The complaint is allowed. The opposite party shall pay the complainant a sum of ₹ 43,812/ (Rupees Forty Three thousand and Eight hundred Twelve only) with an interest at the rate applicable to complainant’s loan account from the date of reverse (08.10.2013) till the date of payment and an amount of ₹ 25,000/ (Rupees Twenty Five thousand only) towards compensation and ₹ 6,000/ (Rupees Six thousand only) towards cost within 30 days from the date of the copy of the order received.           

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

      (Page No.1 to 9 directly typed by member revised and pronounced in the open court on this the 16^th February 2016)

                    MEMBER                                              PRESIDENT

         (SRI T.C. RAJASHEKAR)                   (SRI VISHWESHWARA BHAT D)

    D.K. District Consumer Forum                    D.K. District Consumer Forum

     Additional Bench, Mangalore                      Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. N.T. Rajgopal

Documents marked on behalf of the Complainant:

ExC1: 29.01.2005: Copy of the Pass Book

ExC2: 27.06.2008: Copy of the Pass Book

ExC3: 08.10.2013: Account statement of the complainant                 

Ex.C4: 15.01.2014: Demand Letter issued by the 2^nd Opposite  Party to the complainant

Ex.C5: 30.01.2014: Reply given by the complainant

Ex.C6: 24.02.2014: Reply of the 1^st opposite party

Ex.C7: 19.03.2014: O/c of the regd lawyer’s notice

Ex.C8: 10.06.2014: Reply of the 2^nd opposite party

Ex.C9:20.03.2014: Postal Acknowledgement of 1^st O.P

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Ibrahim (RW1) Branch Manager      

Documents produced on behalf of the Opposite Parties:

 Nil 

Dated: 16.2.2017                                           MEMBER