IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 15/S/2015.                            DATED : 06.07.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SMT. PRATITI BHATTACHARYYA.

COMPLAINANT             : SMT. ARCHANA BHOWMICK

  W/O. Sri Pradip Bhowmick,

  12, Nandalal Basu Sarani, College Para, Siliguri, 

  P.O. & P.S.- Siliguri, Dist.- Darjeeling, Pin - 734 001.     

O.P.  Nos.      1.                        : AXIS BANK LTD.,

  A limited company having it’s registered office at

  Trishul, Opposite Samartheswar Temple,

  Law Garden, Ellisbridge, Ahmedabad,

  Gujrat – 380 006.

                                    2.                     : AXIS BANK LTD.,

                                                              69, G.C. Avenue, 2^nd Floor, India House,

  Kolkata 0 700 013.

                                    3.                     : AXIS BANK LIMITED,

  Retail Asset Centre - Siliguri,  

  2^nd Floor, Spectrum House, Sevoke Road,

  P.O. & P.S.- Siliguri, Dist.- Darjeeling,

  PIN- 734 001.

                                    4.                     : INDIAN OVERSEAS BANK,

  P.B. No.3765, 763, Anna Salai,

  Chennai : 600 002.

                                    5.                     : INDIAN OVERSEAS BANK,

  Hill Cart Road, P.O. & P.S.- Siliguri,

  Dist.- Darjeeling

FOR THE COMPLAINANT         : Sri Avrojyoti Das, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

The brief facts of the case are that the complainant in the month of July, 2009 approached the OP No.3 for loan for purchasing a car and OP No.3 sanctioned a loan amounting to Rs.2,46,000/-  in favour of the complainant and

as per terms and conditions of loan the complainant supposed to pay an EMI of

Contd......P/2

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 Rs.5,329/- only on the 1^st day of each month commencing from 1^st September, 2009 and the entire loan amount supposed to be paid by 61 monthly installments.  It was agreed between the parties that the monthly installment shall be collected by the OP No.3 by way of electronic clearing service (ECS) and to that effect the complainant issued a cancelled blank cheque to the OP No.3 as it was mandatory.  OP No.3 collected the monthly installments regularly till December, 2012, from the savings bank account of the complainant lying with OP No.5.  Suddenly OP No.3 stopped to collect the monthly installment and thereafter sent some persons to the house of the complainant who represented them as bank staff and demanded monthly installments by way of cash but the complainant refused to pay the installments in cash and thereafter issued a letter to the Branch Manager of OP No.3 ventilating her grievances and asked them to issue a proper notice for collecting the monthly installments in cash but instead of doing so, the OP No.2 through their lawyer on 20.04.2013 issued an illegal and arbitrary notice.  Thereafter, on 30.03.2014 the complainant came to know that OP Nos.1, 2 & 3 most illegally forged the cheque given by the complainant to the OP No.3 as a security and filled up a vexatious amount of Rs.1,16,563/- only and collected the said amount from the complainant’s account most illegally vide cheque No.927522 on 11.03.2014 drawn on OP No.5.  The total amount due with the OP No.3 was Rs.1,06,653/- only whereas the OP Nos.1, 2 & 3 most illegally filled up a blank cheque given as security with a higher amount of Rs.1,16,563.00/- for their illegal gain and thus cheated the complainant and they have most illegally withdrawn excessive amount of Rs.9,910/- from the account of the complainant.  Moreover, the monthly installment for the aforesaid loan as per agreement was supposed to be cleared by August, 2014 but the OPs most illegally collected the entire amount of loan along with an excessive amount on 11.03.2014.  The complainant on 04.04.2014 lodged a complaint against the OP Nos.1, 2 & 3 before the Officer-in-Charge, Siliguri P.S. for the said mischief. Due to shortage of fund the complainant had to face hardship causing immense mental agony to the complainant.  The OPs are guilty of unfair trade practice and there was deficiency of service on the part the OPs for which complainant suffered loss and injury.  Hence, this case filled by the complainant for a direction upon the OP Nos.1, 2 & 3 to pay Rs.9,910/- along with interest thereon and further to pay a compensation of Rs.20,000/- for deficiency in service and negligence on the part of the OPs and for mental agony suffered by the complainant and a further sum of 20,000/- towards litigation cost.

Contd......P/3

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The OP Nos.1, 2 & 3 entered appearance and filed a written version wherein the material averments made in the complaint is denied and it has been contended inter-alia that the instant case is not maintainable.  It has been contended by the OP Nos.1, 2 & 3 that the complainant used to pay her car loan EMI/installment through ECS according to her choice, but from the very inception the ECS were bounced on few occasions and the same were eventually cleared only from March, 2010 to December, 2012 and since December, 2012 the ECS payment returned bounced once again due to mismatching of signature of the complainant. 

It has been further contended by the OP Nos.1 to 3 that the OPs cannot stop the ECS once the same is initiated as it is not a manual process and the OP No.3 does not have any role to play in the said matter for non-withdrawing money (EMI/Installment) from the account of the complainant maintained with the OP No.5. 

It has been further contended by the OP Nos.1, 2 & 3 that ECS was being bounced the OPs did not have any other means other than of collecting EMI through its collection agents for recovery of the loan amount but the complainant neither paid the EMI upon verification of their identity card nor she had shown any bonafide intention to pay the loan and thus when the EMIs failed due, the OPs did not have any other option then to issue a legal notice demanding the due amount.  It has been further stated by the OPs that it was the complainant herself who visited the bank on 03.03.2014 to resolve the disputes and agreed to pay the sum of Rs.1,16,563/- and instructed to present the cheque No.927522 dated 06.03.2014 which was issued by the complainant and lying with the bank since inception of the transaction and accordingly, the OPs have got due credit of the said cheque amount and closed the loan by waiving Rs.731/- and issued No Due Certificate.  It has been further submitted by OP Nos.1, 2 & 3 that the relief claimed by the complainant under Section 11 of the Consumer Protection Act, 1986 is totally baseless and as there is no misconduct or negligence or unfair trade practice was done by the OP Nos.1, 2 & 3, the complainant is not entitled to get any relief and the instant case is liable to be dismissed. 

The OP Nos.4 & 5 also contested the case by filing a separate written version narrating that the present complaint is not maintainable against OP Nos.4 & 5 at all and is liable to be dismissed against them as no cause of action for filing this case has ever been arose as against the OP Nos.4 & 5.  It has been

Contd......P/4

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further contended by the OP Nos.4 & 5 that so long Magnetic Ink Character Recognition (MICR) code matched the loan amount (EMI) was automatically transferred through ECS from the account of the complainant which was maintained with the OP No.5 to the account of OP No.3 and subsequently MICR code of OP NO.5 was changed from 02 to 01 and such changes shall be informed to all the members bank by the President House i.e., State Bank of India as the MICR system at Siliguri is maintained by the State Bank of India as President House.  The OP No.5 has no knowledge that whether the President House has informed the changes of MICR code number of the OP No.5 to the OP No.3 or whether the OP No.3 did send the ECS after changing the MICR code number of the OP No.5 in spite of information given by the President House to the OP No.3.  It has been further stated by the OP Nos.4 & 5 that they received a cheque bearing No.927522 on 11.03.2014 for Rs.1,16,536/- and since the said cheque was in order  and balance in the savings bank account was also available to meet the cheque and since there was no adverse letter was issued upon the OP No.5 by the S/B account holder, the said cheque was passed to the debit of the said S/B account in clearing by the OP No.5 which was in ordered in normal banking.  It has been further stated by the OP Nos.4 & 5 that since there is no such specific allegations have been brought against the OP Nos.4 & 5 and since no cause of action have ever been arose against them the case is not maintainable and liable to be dismissed with cost against OP Nos.4 & 5.                          

To prove the case, the complainant has filed the following documents:-

1.       Photocopy of loan approval letter along with repayment schedule.

2.       Photocopy of the sanction letter dated 24.09.2009.

3.       Photocopy of the letter issued by the complainant to the Branch Manager, Axis Bank Ltd, Siliguri on 26.02.2013.

4.       Photocopy of the lawyer notice dated 20.04.2013 issued by the OP No.2.

5.       Photocopy of the complaint dated 04.04.2014 filed by the complainant before the Siliguri Police Station.

6.       Photocopy of the Passbook of the complainant of the savings account lying with the OP No.5.

          Complainant has filed evidence in-chief.

OP Nos.1, 3, 4 & 5 have filed evidence-in-chief.

          Complainant has filed Written Notes on argument.

OP Nos.1, 2, 3, 4 5 2 have filed Written Notes of Argument.

Contd......P/5

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Points for determination

1.       Is there any deficiency in service on the part of the OPs ?

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason

          Both the issues are taken up together for the brevity and convenience of discussion.

It is admitted fact that the complainant took loan of a sum of Rs.2,46,000/- from the OP No.3 Axis bank Ltd. in order to purchase a car and as per terms and conditions of the loan the complainant supposed to pay an EMI of Rs.5,329/- only in 61 Equated Monthly Instalments commencing from 1^st September, 2009 and it was agreed between the parties that the monthly instalments shall be collected by the OP No.3 by way of electronic clearing services and to that effect the complainant issued a cancelled blank cheque to the OP No.3 as it was mandatory.  It is also admitted fact that the OP No.3 collected monthly instalments regularly till December, 2012 from the savings bank account of the complainant lying with the OP No.5 Indian Overseas Bank through ECS.

It has contended by the ld Advocate of the complainant that the OP No.3 suddenly stopped collecting EMI and thereafter sent bank collection agents to the house of the complainant who demanded EMI from the complainant by way of cash but the complainant refused to give the same.  Complainant then sent a letter to the OP No.3 ventilating her grievance and asked the bank to issue a proper notice for collecting the monthly instalment in cash but instead of doing so the OP No.2 issued an illegal and arbitrary notice on 20.04.2013 through their lawyer to the complainant.  It has been further contended by the ld Advocate of the complainant that at all material times there was sufficient fund available at the complainant’s account for honouring the legitimate claim of the OP No.3 but on 30.03.2014 complainant suddenly came to know that the OP Nos.1, 2 & 3 most illegally forged the cheque given by the complainant to the OP No.3 as security and filled up a vexatious amount of Rs.1,16,563/- only and collected the said amount from the account of the complainant lying with the OP No.5 although the total due with the OP No.3 was Rs.1,06,653/-. 

The ld Advocate of the OP Nos.1, 2 & 3 on the other hand contended that the complainant had arranged payment of EMIs from her banker namely Indian Overseas Bank i.e., OP No.5 through ECS mood and the OP No.3 just processed

Contd......P/6

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the said request of the complainant and sent the ECS mandate to her banker (OP No.5) for accepting the request of the complainant and activate the ECS debit request from the account maintained by the complainant there for repayment of her car loan instalment.  The ECS payment made by the complainant got repeated bounced and same were eventually cleared from March, 2010 to December, 2012 and since December, 2012 the ECS payment returned bounced once again due to mismatching of signature of the complainant.  It has been further contended by the ld Advocate of the OP Nos.1, 2 & 3 that the OP No.3 has not stopped and cannot stop the ECS once the same has been initiated as it is not a manual process and every month on a particular date the ECS request would be sent to the OP No.5 who in turn would credit the loan account by debiting the account of the complainant maintained with the OP No.5 and therefore, whatever the dispute was due to which the ECS was not credited was on the part of the complainant and herewith her account maintained with the OP No.5 and the OP No.3 does not have any role to play in the matter of non-withdrawing money/EMI from the account of the complainant maintained with OP No.5.  It has been further contended by ld Advocate of the OP Nos.1, 2 & 3 that since the ECS was being bounced the OP No.3 sent their collection agent to the complainant for recovery of the loan amount.  It has been further contended by the OP Nos.1, 2 & 3 that the bank generally send their collection officers in a good gesture to accommodate and facilitate the customer however, if the customer is not satisfied with this system, it was her duty to go to bank and deposit the amount but the complainant did not take any initiative for payment of balance loan amount and thus when the EMIs fail due the OP did not have any other option than to issue a legal notice to the complainant demanding the due amount.  The bank is dealing with public money and the complainant neither opted any other alternative for clearing up the said repayment dues to the OP No.3 and she had no bonafide intention to pay the loan.  It has been further stated by the ld Advocate of OP Nos.1, 2 & 3 that it was the complainant herself who visited the bank on 03.03.2014 to resolve the dispute and agreed to pay the sum of Rs.1,16,563/- and instructed to present the cheque No.927522 dated 06.03.2014 which was issued by the complainant and was lying with the bank since inception of the transaction. 

In this case the OP Nos.4 & 5 Indian Overseas Bank filed written version and from the contents of the said written version we find that the ECS can only be bounced if MICR code mismatches or if there is insufficient fund.  Here

Contd......P/7

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sufficient fund was there in the account of the complainant and as such it can be hold that ECS was not done properly as the MICR code was mismatched in this case, as a result ECS was bounced. 

It is not disputed that after December, 2012 no EMI was received by OP No.3 from the account of the complainant lying with OP No.5 and accordingly, OP No.3 sent their collection agent to the residence of the complainant.  In this regard, we find that the complainant has submitted the copy of the letter dated 26.02.2013 wherefrom it appears that the complainant wrote to the Branch Manager, Axis Bank, Siliguri narrating the facts that collectors of the bank visited her premises to collect the instalments but she is not ready to handover the said instalments to the collector without bank’s written notice. So, it is well within the knowledge of the complainant that OP No.3 could not able to collect the instalments from OP No.5 through ECS.  Again we find that the OP No.3 issued one notice to the complainant dated 20.04.2013 to clear the EMI overdue amount in respect of her car loan account No.AUO350100160708 availed with Axis Bank Ltd., RAC Siliguri, Spectrum House, 3^rd Floor, Sevoke Road, Siliguri, 734 001 and in the said notice it has been specifically stated that the complainant has committed default in payment of equated monthly instalments amount as per due date and as on date the EMI overdue amount in her account is Rs.21,316/- excluding penal interest and bouncing charges.  In the said notice it has been further informed that timely payment of the EMIs is the essence of the contract and the complainant has not been regular in honouring her contractual commitment with regard to the payment of EMIs as and when they became due and applicable and the complainant was called upon to pay the EMI overdue amount of Rs.21,316/- as on 19.04.2013 within a period of 7 days from the date of notice else Bank will be compelled to recall the entire loan amount as well as initiate appropriate steps as per the terms of the agreement including enforcing the security.  So, we find that by the said notice the bank has already cautioned the complainant for payment of EMIs which fall overdue.  In this case on the side of the complainant the photocopy of the sanction letter dated 24.07.2009 together with the additional terms and conditions to be complied with by the complainant as given by the Axis Bank is submitted (document no.2).  On perusal of the said terms and conditions we find that in Point No.13 it has been specifically stated that “in the event of default by you as per the clauses of loan agreement, in payment of loan instalment, interest, cost etc., the loan shall be recalled forthwith without any notice to yourself upon a

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demand being made on you to repay the amount, you shall forthwith repay the entire amount together with interest, cost and charges etc. failing which the bank reserves the right to seek legal remedies to recover its dues from you and guarantor”.  Any “event of default as defined under the loan agreement shall attach penal interest @ 24% per annum or such other rate of interest as decided by the bank”.  

Here we find that the complainant, after receipt of this notice, did not take any initiative to make payment of EMI as per contract between the parties.  

From the written version of OP Nos.4 & 5 we further find that MICR code was changed from 02 to 01 and as MICR code was mismatched in the present case as a result ECS bounced but the complainant neither asked nor informed the matter of bouncing ECS to the OP Nos.4 & 5 either in writing or verbal.  If the complainant or OP Nos.1, 2 & 3 would agitate the matter to the O Nos.4 & 5 then certainly the OP Nos.4 & 5 look into the matter seriously and the problem of mismatching of MICR code did not arise.  The complainant with her full knowledge that the EMI after December, 2012 could not be paid to the OP No.3 through ECS did not take any initiative to make contact with the OP Nos.4 & 5 to resolve the problem. 

OP No. 3 is the bank who sanctioned loan in favour of the complainant with certain terms and conditions and both the parties were bound to follow the same as per contract.  The bank if finds that the customer is defaulter in payment of loan, it has no other alternative but to recollect the same according to the terms and conditions given in the loan agreement.  However, OP No.3 sent his collection agents for collection of the EMI from the complainant, and when the complainant refused to pay EMI to the collection agent and sent a letter expressing her grievance, the bank issued a demand notice to clear the overdue amount.  So, it cannot be said that bank all on a sudden had collected the entire balance amount of loan by using the cancelled cheque deposited by the complainant at the time of taking loan.  Bank issued notice on 20.04.2013 upon the complainant and the bank collected the sum of Rs.1,16,563/- from the account of the complainant lying with OP No.5 on 06.03.2014 i.e., after lapse of more or less one year.  The complainant claims that the OP No.3 bank took an excess amount of Rs.9,910/- but it appears from the additional terms and conditions to be complied with by the borrower that any event of default as defined under the loan agreement shall attract penal interest @ 24% per annum or such other rate of interest as decided by the bank.  If the complainant had

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any bonafide intention to pay the loan she could make contact with the bank authorities to find out the fault in respect of payment of EMI through ECS.  Here we find that the complainant did not make payment in spite of getting demand notice rather she avoided to pay the dues to the bank and accordingly, the complainant is not entitled to get any relief as prayed for. 

In the result, the case fails.        

Hence, it is

                     O R D E R E D

that the Consumer Case No.15/S/2015 is dismissed on contest but without cost.

Let copies of this judgment be supplied to the parties free of cost.