DOF.01.06.2009

DOO.29.07.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan     :  President

Smt.K.P.Preethakumari  :  Member

Smt.M.D.Jessy                :  Member

Dated this, the 29^th    day of   July 2011

CC.148 /2009

Kakkattu Narayanan,

“Sudheep”

A One Road,

Thottada.P.O.                                                Complainant

(Rep. by Adv.G.V.Pankajakshan)

1. The Manager,

     ICICI Bank Ltd.,

     Kannur Branch, Kannur.

     (Rep. by Adv.Rajesh V Nair) 

2. The Manger,

ICICI  Bank Ltd.

Shafir Complex,

Opp.YMCA,

Kannur Road, Calicut.                           Opposite parties 

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to pay  

`1, 00,000 as compensation and to regularize repayment dues exempting the interest.

          The case of the complainant in brief is as follows: - The complainant is a government employee who has availed a personal loan from the 1^st opposite party for an amount of ` 1, 00,000. The amount was disbursed on 23.1.04. Repayment period was from 7.1.05 to 7.8.08. 1^st opposite party furnished a payment schedule , the complainant made payment promptly on the basis of the same. Complainant has given proper instruction to transfer the amount from his S B account to the above loan account for repayment of EMI.  Complainant made payment without fail. When the repayment of the loan was in the final stage 1^st opposite party along with some of their officials approached the complainant and induced with attractive offers to take a new loan. They have advised to top up the existing loan and to avail the 2nd loan.  1^st opposite party specifically informed that the repayment of 2^nd loan has to be made only after furnishing the repayment schedule. But without consent and concurrence the opposite party transferred the amount from the S B account of the complainant towards the payment of 2^nd loan. Complainant has not given any oral and written instruction to the 1^st opposite party to transfer the amount from his savings bank account towards payment of 2^nd loan account. Since he was not served with any repayment statement transferring of amount from the S.B account of complainant without his consent is a clear violation of banking regulation act. Complainant was not aware of the transfer of money from the S.B account of complainant towards the EMI of 2^nd loan.  Because of this reason the repayment of 1^st loan fell due. It is a gross negligence and deficiency in service on the part of opposite party.  Opposite parties and their officials are harassing and threatening the complainant making unwarranted comments. Even after bringing out this facts before the opposite parties they were not ready to   solved the issue. Hence on 5.3.09 complainant issued a lawyer notice calling for make arrangements to get regularize the repayment of loan dues by exempting him from paying the interest. Notice was received by opposite party on 6.3.09. No reply was sent by the opposite party and has not done anything to make arrangements to redress the grievance of the complainant. Hence this complaint.

          In pursuance to the notice 1^st opposite party appeared and filed version.  The brief version is as follows: Complainant had availed a personal loan for an amount of `1, 00,000 with repayment period from 7.8.05 to 7.8.08. The complainant was not prompt in repaying the installments. As a result of this 1<sup>st</sup> opposite party agreed to top up the existing loan. Complainant himself represented that he wants an additional loan.  The loan installments are collected through his S.B account as per the instructions given by him. As on 31.10.09 the complainant is liable to pay `79,575 to the bank. This complaint is filed in order to circumvent the payment due to the bank projecting him as innocent. The complainant approached the Forum without clean hands. Demand on the   side of opposite party to make payment is not harassment. Opposite party has not taken any action against the complainant even after there is default. Complainant has not stated on which head he is entitled to get the amount from the bank as damage. There is no deficiency in service from the side of the bank. Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     parties?

2. Whether the complainant is entitled for the relief as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of chief affidavit filed by both sides. Oral testimony of PW1, DW1, documentary evidence Exts. A1 to A3 on the side of complainant and Exts. B1 and B2.

Issue Nos.1 to 3

Admittedly complainant has availed personal loan for an amount of `1, 00,000 . The loan disbursed on 23.11.04. the repayment period was from 7.1.05 to 7.8.05. The complainant availed a new loan by top up the existing loan. The payment of EMI of 1^st loan was made through S.B account of complainant as per his instruction.

          The complainant’s averment is that soon after availing the loan 1^st opposite party furnished the payment schedule and accordingly complainant made the prompt repayment. He has given proper instruction to 1^st opposite party to transfer the amount form his S.B account. Complainant alleged that  in the final stage of repayment of the loan 1^st opposite party  along with some of his officials  approached  him and induced him to  avail a new loan by making attractive offers. On the basis of their advice and instigation the complainant was compelled to avail 2^nd  loan. It is also alleged that the officials informed the complainant that the repayment towards loan would be commenced only after the issuance of the repayment schedule by the bank. But bank did not give him repayment schedule for the payment of 2^nd loan. Complainant has not given any instruction to transfer any amount from his account towards payment of 2^nd loan amount. But opposite party transferred amount from the S.B account of complainant without his permission and consent for payment of EMI towards 2^nd loan. Since it was promised that the installment of 2^nd loan would be started only after the issuance of repayment schedule, complainant was unaware of the default of payment of 1st loan. Though notice was sent to make arrangements to regularize payment exempting interest there was no response on the side of opposite party.

          Opposite party on the other hand contended that the complainant represented opposite party for additional loan and 1^st opposite party agreed to top up 1^st loan. Thus complainant obtained 2nd loan. Complainant was not regular in payment of EMI opposite party has given all the details and repayment schedule issued but complainant was a defaulter. The loan installment is collected through his S.B account as per the instruction given by the complainant he approached the Forum without clean hand. As on 31.10.09 complainant is liable to pay an amount of  `79,575.

Both parties adduced evidence to support their respective contentions by way of chief affidavit and exts.A1to A3, B1 and B2 Chief Affidavit field in tune with the pleadings of respective parties.

          The complainant has specific case that he had not given any instruction to opposite party to transfer amount from his S.B account towards payment of 2^nd loan. If that be so opposite party is not entitled to transfer any amount from the S.B account of complainant for the purpose of payment of EMI towards 2^nd loan, while promptly paying EMI of 1^st loan. If there was no such loan such pending, things would have been different. It is quite natural that complainant was under the impression that the EMI of the 1^st loan continued to be paid since his mode of payment was same. There is no meaning in saying that no action so far has taken against complainant even if there is default. No action taken means complainant had been left unaware of the fact of discontinuation of the 1^st loan. It cannot be considered as an act done for the convenience of the complainant. Complainant was put in darkness keeping in impression that the payment of his 1^st  loan was going on smoothly. In the light of this aspect there are certain relevancy in the question of non issuance of repayment schedule with respect to the 2^nd loan. Complainant has deposed in his cross examination that  BZ-ys¯ tem¬ account  aqt¶m \mtem          installment am{Xta _m¡n-bp-­m-bn-cp-¶p-f-fp. Complainant has pleaded that he has taken 2^nd loan in the eve of final stage of 1^st loan. The payment of 1^st loan in the light of the available evidence was very much systematic. Amount was readily adjusted from his savings bank account as per the specific instruction given by the complainant. Opposite party diverted this system of payment without the knowledge and consent of the complainant which cannot be justified at all. It s not clear what prompted to make  such a diversion of mode of payment this imprudent act of  opposite party can only be considered as a result of rightful though which make suspicion. Since the adjustment of complainant in repayment of EMI of loan has been collapsed by the act of diversion of payment with out the consent of the complainant is definitely deficiency in service on the part of opposite parties.

          From the very outset the complainant’s case is that he is ready to pay the amount if payment of schedule is furnished.  It is a fact that opposite party started adjusting the amount to make payment of EMI of second loan without furnishing payment schedule and further more without the consent/instruction of the complainant. Complainant has a very reasonable case that since the balance available in his account was transferred towards  EMI of the second loan, the regular payment of the EMI of the first loan was fell due. He has also a case that thereafter he had paid two installments of EMI on 7.5.08 and on 6.6.08 but now opposite party demands to pay that amount also. DW1, the Manager of the bank deposed that “ Ime-¯n-\-\p-k-cn¨v  repayment amount\v hy-X-ym-kT D­m-bn-cn-¡pT” . So necessity of payment of schedule in this case is important because it is a case of top up of the first loan. DW1 further deposed thus:BZ-ys¯  loansâ repayment \S-¯n-bXv  S.B account t\cn-«mWv. S.B account \n¶p Fs´-¦n-epT sN¿-W-sa-¦n customer instruction X¶m am{Xta sN¿m-dp-f-fq. ]cm-Xn-¡m-csâ  instruction In«n-b-Xn-\m-emWv BZ-ys¯ loante¡v payment\S-¯n-bXv” . Answer to another question he has denied that opposite party has transferred the amount from the S.B account of complainant towards payment of second loan without his consent. But to next question he answered that if he has given instruction that document would be available in the bank. He has answered to next question that “ Instruction  X¶ {]Im-c-amWv account  \n¶p amän-bXp F¶p ImWn-¡m³   tcJ lmP-cm-¡m³ X¿m-dmWv”. Opposite party did not produce that document to prove this contentions. What is the reason for not producing this document to establish the case of the opposite party is not explained. Mere production of this relevant document would have been spoiled the very foundation of the set up of complainant’s case. The non production of this document even if it is deposed so in cross examination plainly leads to assume that it was only a lie and there was no such document.

          Moreover, complainant sent Ext.A1 lawyer notice dated 5.3.09 but opposite party did not turned up to respond to this notice. The notice detailed the entire case of the complainant. Ext.B2 receipt and A3 acknowledge proves that it was sent by complainant and received by opposite party. But opposite party remained absent without answering to the question of complainant which legally amounts to admission of the complainant’s case.

          Taking into consideration the available documents and the evidence adduced by way of affidavit of both parties and oral testimony of PW1 and DW1 we are of opinion that there is deficiency in service on the part of opposite parties and at the same time complainant is liable to pay the loan amount. We do feel that it is justifiable that the amount which has been adjusted to the second loan without the consent and concurrence of complainant has to be readjusted to account towards payment of first loan and allow the complainant to close the first loan without any penalty and so also permit to pay the second loan by EMI as per the schedule of payment issuing to complainant afresh. Considering the special nature of the mode of transaction of the subject matter we are not awarding any compensation or cost. Hence the issues 1 to 3 are found partly in favour of complainant. Order passed accordingly.

          In the result, the complaint is allowed partly directing the opposite parties

1)     to adjust the amount in first loan that had been accounted towards

     the payment of second loan back  in order to account

     payment and closing of 1^st loan without any penalty/fine;

2)  to adjust  balance amount for payment of second loan

      itself; and

3) Issue payment of schedule afresh so as to facilitate the

     payment towards EMI of second loan avoiding

     fine/penalty.

          within one month from the date of receipt of this order failing which:

1) the first loan availed by the complainant stands closed

    and

2)     complainant is entitled to continue payment of EMI as is

 made earlier till the closing of the second loan.

Taking into account of the special nature of this case we are not awarding compensation and cost.

                Sd/-                   Sd/-                   Sd/-                   

                   President              Member                Member

APPENDIX

Exhibits for the complainant

 A1 Copy of the lawyer notice dt.05.3.09 sent to OP

 A2 & A3. Postal receipt and AD card

Exhibits for the opposite party:

B1.Copy of the statement of accounts t 19.5.2010

B2. Account statement of maintained by OP dt.11.02.2011

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

DW1. Sandeep K Nair

                  /forwarded by order/

          Senior Superintendent

Consumer Disputes Redressal Forum, Kannur.