Delhi

StateCommission

A/10/252

PNB - Complainant(s)

Versus

ASHISH AGGARWAL - Opp.Party(s)

07 Jan 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:07.01.2016

First Appeal- 252/2010

(Arising out of the order dated 09.02.2010 passed in Complainant Case No. 1415/2009 by the District Consumer Disputes Redressal Forum (New Delhi), Barracks Kasturba Gandhi Marg, New Delhi)

1. Punjab National Bank (Zonal Office),

Atma Ram House Tolstoy Marg,

New Delhi-01.

 

Presently merged with Circle Office,

4^th Floor, Rajendra Bhawan, Rajendra Place,

New Delhi.

 

2. Chairman and Managing Director,

Punjab National Bank,

Head Office, 7 Bhikhaji Cama Place,

New Delhi-66.

 

3. Chief Manager-PNB,

B/o Daryaganj,

New Delhi-2.

                                                        ….Appellants

Versus

Ashish Aggarwal,

315, Stone Pine Terrace,

Fremont, CA-94356 (USA),

1500 White Birch Apt. 314,

Fremont, CA 94536 USA (As per Bank’s record)

….Respondent

CORAM

Justice Veena Birbal, President

Salma Noor, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) wherein challenge is made to ex-parte judgement dated 9.2.10 passed in Consumer Complaint No.1415/2009 by the Ld. District Forum (in short, “the District Forum”).
2. Briefly the facts relevant for the disposal of the present appeal are as under:

The respondent/complainant and his wife had taken a housing loan of Rs.47,45,000/- from Standard Chartered Bank in the year 2003 for purchase of a residential house at P-6/9, DLF Phase-II, Gurgaon(Haryana).  After few years, the Standard Chartered Bank increased the rate of interest whereas the appellant/OP was charging less rate of interest on loan.  Accordingly the respondent/complainant had approached appellant/OP No.3 i.e. Chief Manager, PNB Branch for taking over their housing loan from Standard Chartered Bank.  It was alleged that at that time, their total outstanding loan was Rs.25 lacs but the respondent wanted to take over the loan amount of Rs.17 lacs only and difference was to be paid by respondent/complainant and his wife from their own resources.  At that time, respondent and his wife were residing in USA and could not present themselves personally.  They had executed special power of attorney in favour of Smt. Raj Rani, Ex-Staff Member of PNB and the mother of respondent/complainant empowering her to apply to appellant bank for taking over of their housing loan from Standard Chartered Bank and also to execute necessary loan documents.  It is stated that all the necessary documents were executed.  It is further stated that as per clause 11 of the terms and conditions of housing loan, the borrower had to get the property insured and in case the borrower/s failed to get the property insured, it was open to the bank to get the property insured and debit the amount premium from the borrower’s account.  It was alleged that the respondent/complainant did not take any interest for getting the insurance done and left with no option, the appellant/OP debited Rs.1,104/- from the account of the respondent towards insurance amount. Thereupon the respondent/complainant alleged that the insurance charges would be borne by the bank itself.  Aggrieved with the deduction of the aforesaid amount, a complaint was filed before the District Forum by respondent/complainant under Section 12 of the Act seeking directions to appellant/OP to refund Rs.1,104/- to him along with compensation on account of mental agony and harassment.

3. Perusal of the record shows that appellant/OP did not appear before the Ld. District Forum and was proceeded ex-parte.
4. After considering the ex-parte evidence of respondent/complainant, the Ld. District Forum passed the impugned judgement and directed the appellant/OP as under:

“1. OP-3 will pay Rs.1,104/- to the Complainant.

2. On account of mental agony and harassment, OP-3 will pay Rs.30,000/- to the Complainant as compensation.

3. OP-3 will pay Rs.5,000/- to the Complainant towards the cost of litigation.

    This order be complied within 30 days.

    Pronounced in open court on 9.2.10.”

5. Aggrieved with the aforesaid ex-parte judgement, present appeal is filed.
6. We may mention that when the appeal was filed, there was some delay in filing the appeal which was condoned vide order dated 4.4.13 subject to payment of cost of Rs.2,000/- to be paid within seven days of aforesaid order.  The cost was not paid by the appellant/OP to the respondent/complainant. On the next date of hearing i.e. on 11.4.13, application for condonation of delay was rejected and appeal was dismissed being time-barred.  Thereupon the appellant challenged the said order before National Commission by filing R.P. No.2135/13.  The National Commission vide order dated 7.3.14 condoned the delay in filing the present appeal subject to payment of costs of Rs.2,500/- and restored the appeal and directed the parties to appear before this Commission on 4.4.14.  The relevant portion of order of National Commission dated 7.3.14 is reproduced as under:

“In the interest of justice, the appeal stands restored before the State Commission, subject to payment of Rs.2500/- as costs, which be paid to the respondent.  The total amount in the sum of Rs.7500/- be paid to Shri G.L. Aggarwal, father of the respondent through demand draft.  The State Commission is directed to hear the case on merits.  The parties are directed to appear before the State Commission on 4.4.2014.  The State Commission will hear the case after satisfying that the costs stand paid to the respondent’s power of attorney.  In case any of the parties do not appear on the next date, the State Commission may proceed in accordance with law.”

 

7. Ld. Counsel for the appellant has stated that the cost has already been paid as ordered by the National Commission vide aforesaid order to the AR of the respondent. 
8. After passing of the order of the National Commission, no one has appeared for the respondent/complainant before this Commission.  Ld. Counsel for the appellant has submitted that the respondent/complainant or his AR ought to have appeared of his own when the directions were given by the National Commission in the presence of AR of respondent/complainant while disposing of the RP No.2135/2013.  It was also directed by the National Commission that parties shall appear on 4.4.14.
9. This Commission has also sent notice to respondent/complainant.  Ld. Counsel for the appellant/OP has submitted that address given is correct.  On the aforesaid address, the AR of respondent/complainant had appeared earlier before this Commission as well as also appeared before National Commission.  It is further submitted that AR of respondent/complainant is his father.  It is also submitted that someone on behalf of respondent/complainant ought to have appeared of his own.
10. In view of above submissions made, we have heard Ld. Counsel for appellant.
11. Ld. Counsel for the appellant has contended that the appellant was never served before the District Forum.  It is contended that no proof of service is there on the record of the District Forum to the effect that appellant/OP was served with the notice of complaint case.  It is submitted that the alleged service was manipulated by the respondent/complainant.  It is further submitted that on merits, the appellant/OP has good case.  It is submitted that Housing Loan documents were executed between the parties and under the terms and conditions of Housing Loan Agreement, the respondent/complainant was to get the property insured.  As respondent/complainant did not do so, the appellant bank got the property insured and debited Rs.1,104/- from the account of the respondent/complainant towards insurance charges.  A receipt of having paid the amount to the Insurance Company is also attached.  It is contended that the amount was paid to avoid risk of loss to the property.  It is contended that Ld. District Forum has wrongly granted compensation of Rs.30,000/- and litigation expenses of Rs.5,000/- specially when there is no deficiency of service on the part of appellant/OP.  It is submitted that impugned judgement be set aside and opportunity be given to the appellant/OP to contest the case before Ld. District Forum. 
12. Perusal of record shows that the complaint was filed by respondent/complainant on 23.9.09 and the dasti notice for 1.10.09 was issued for serving on appellant/OP.  On 1.10.09, the case was adjourned to 12.10.09 for filing proof of service.  On the said date, the appellant/OP was proceeded ex-parte.  Notice of complaint was not sent to appellant/OP by registered AD post or by speed post.  There is no affidavit of the person who had allegedly served the notice.    The District Forum has observed that the proof of service is placed on record.  The same is seen.  The proof of service is nothing but a rubber stamp of bank is affixed on the court notice issued to the OP for 12.10.09.  There is no name of the person who has allegedly received the said notice.  Nothing has also been stated to whom the notice was served.  No affidavit of the person is also filed who has allegedly taken the notice.  It has also come on record that the mother of the respondent/complainant was also an employee of the appellant bank.  Without there being necessary particulars as on whom the notice was allegedly served, it can’t be said that appellant/OP was properly served. Even on merits also, the appellant has a good case as has been contended above.  The Ld. District Forum has acted in haste.  In view of the reasoning given, we allow the present appeal and set aside the impugned ex-parte judgement and remand back the case to Ld. District Forum for deciding fresh after giving opportunity to appellant/OP to contest the same on merits.               
13. Let the parties appear before the District Forum on 22.4.16.  If the respondent/complainant fails to appear before the District Forum on the aforesaid date, the District Forum shall send a fresh notice to him and after ensuring service shall proceed further in the matter in accordance with law.
14. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned

District Forum.

 

15. The record of the District Forum be sent forthwith.  Thereafter the file be consigned to Record Room.

(Justice Veena Birbal)

President

 

(Salma Noor)

Member