Punjab

Moga

CC/15/32

Jaswinder Singh - Complainant(s)

Versus

Bank of India - Opp.Party(s)

In person

11 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM, MOGA.

 

                                       Complaint No. 32 of 2015

                                                                 Instituted On: 18.05.2015

Decided On: 11.08.2015

 

Jaswinder Singh s/o Pritam Singh r/o H.No.18/126, Gill Road, Street No.4, Moga, Tehsil and District Moga.

Complainant

 

Versus

 

Bank of India, Branch Dala, Tehsil and District Moga, through its Branch Manager/Principal Officer.

         

Opposite Party

 

 

Complaint under section 12 of the

Consumer Protection Act, 1986.

 

 

Coram:      Sh.S.S.Panesar, President

                    Smt Vinod Bala, Member

                    Smt Bhupinder Kaur, Member

Present:      Sh. Jaswinder Singh complainant in person.

                     Sh.Ajay Gulati, Advocate counsel for opposite party.

 

ORDER

(S.S.Panesar, President)

                  Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against Bank of India, Branch Dala, Tehsil and District Moga, through its Branch Manager/Principal Officer (herein-after referred to as opposite party)- directing them to return the original title deed/sale deed dated 8.9.1989 of the house of the complainant deposited by him with the opposite party at the time of getting the loan, to pay Rs.50,000/- as compensation on account of unjust and illegal harassment and to pay Rs.20,000/- as cost of the complaint to the complainant. 

2.                Brief facts of the complaint are that the complainant had took a loan of Rs.3,00,000/- for repairing of his house from opposite party in the year 2004 against the title deed/sale deed dated 8.9.1989. The complainant repaid the entire loan amount alongwith interest through installments to the opposite party. The complainant had returned the part of the loan amount through installments but due to illness he became defaulter in paying the remaining instalments. Ultimately the opposite party compromised with the complainant in the year 2011 and asked the complainant to deposit the amount Rs.2,34,300/- in total through installment. As per the instructions of opposite party, the complainant paid the said amount through instalments as under:-

i)       Rs.1,00,000/-                 on dated 29.7.11

ii)      Rs.70,000/-                    on dated 6.8.11

iii)     Rs.40,000/-                    on dated 11.8.11

iv)     Rs.24,300/-                    on dated 29.9.11

                   In this way the complainant have returned the entire due loan amount to the opposite party upto 29.09.11 as per mutual settlement. The title deed/sale deed of the house of the complainant is still lying with opposite party and the officials of the opposite party lingering on the matter to return the title deed on one pretext or the other. Ultimately, the opposite party have started demanding Rs.67,440/- more from the complainant and flatly refused to return the title deed/sale deed until and unless the complainant deposit the alleged amount of Rs.67,440/- with the opposite party. The complainant has already paid the entire loan amount as per settlement upto 29.09.11 and noting remained due towards the complainant. Hence this complaint.

3.                On notice of the complaint, opposite parties appeared through their counsel Sh.Ajay Gulati Advocate and filed written reply contesting the same. They took up certain preliminary objections therein interalia that this Forum has got no jurisdiction to try and entertain the present complaint; the complaint is not maintainable being false, frivolous and vague and has been filed without any basis and the same my kindly be dismissed with compensatory costs; the complainant has not come with clean hands before this Forum; the complainant is estopped to file the present complaint by his own act and conduct; no deficient services have been rendered to the complainant as alleged in the complaint. On merits, submitted that the complainant took a Start Home Loan of Rs.3,00,000/- from the opposite party bank on dated 10.4.03 and to secure the said loan the complainant created an equitable mortgage by way of deposit of original Title Deed bearing Vasika no.5554 dated 8.9.1989 in favour of the opposite party bank. The loan was obtained by the complainant, vide Home Loan Account no.654475100001701. The loan is still pending and as per the records of the bank and as per statement of account of the loan account of the complainant, amount of Rs.74,914/- is still due as on dated 30.5.15 including interest upto date. Further submitted that the complainant himself has admitted that he became defaulter in repaying the loan amount to the opposite party bank. No Compromise as alleged was effected with the opposite party. Further submitted that the loan account of the complainant become disorder as the complainant had failed to adhere the repayment schedule of the loan amount alongwith interest with the opposite party bank and therefore, the bank had left no other alternative except to initiate proceedings against the complainant under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called SARFESI Act). A registered/A.D notice dated 7.6.10 was served upon the complainant u/s 13 (2) of Sarfesi Act and symbolic possession of the mortgaged property was taken subsequently on dated 16.09.10. Inspite of all, the complainant intentionally did not repay the loan amount alongwith interest. However, when a possession notice dated 16.09.10 under rule 8 (1) of the Security Interest (Enforcement Rules 2002) was issued, the complainant had requested the then branch manager of the Bank of India not to proceed further under the provisions of Sarfesi Act etc. and seek some time to deposit the entire loan amount. As per records, the complainant deposited some amount in his loan account, but again failed to pay the remaining outstanding amount with the opposite party. The complainant is in the knowledge that amount of Rs.74,914/- is still due against him. There was no mutual settlement between the complainant and the bank as alleged. Further denying the contents of all other paras of the complaint, opposite party prayed for the dismissal of the complaint.

4.                In order to prove his case, the complainant tendered in evidence

his affidavit Ex.C-1 and copies of documents Ex.C-2 and Ex.C-3 and closed his evidence.

5.                To rebut the evidence of the complainant, the opposite party tendered affidavit of Sh.Naginder Singh, Deputy Manager, Bank of India Ex.O.P.No.1 and copies of documents Ex.O.P.No.2 to Ex. O.P.No.4 and closed the evidence of opposite party.

6.                 We have heard the complainant in person and learned counsel for the opposite party and have also carefully gone through the record.

7.                On the basis of evidence on record, the complainant has vehemently contended that he had obtained bank loan for an amount of Rs.3,00,000/- by depositing title deed/sale deed dated 8.9.1989. The complainant could not return the entire loan amount in time due to illness. In the year 2011, the complainant compromised the matter with the opposite party and the opposite party agreed to the proposal of the complainant to deposit the amount of Rs.2,34,300/- in all through installments. As per the instructions of the opposite party, the complainant paid the due amount of Rs.2,34,300/- as on 25.07.11 through installments, the details of which is as under:-

i)       Rs.1,00,000/-                 on dated 29.7.11

ii)      Rs.70,000/-                    on dated 6.8.11

iii)     Rs.40,000/-                    on dated 11.8.11

iv)     Rs.24,300/-                    on dated 29.9.11

                   Since the complainant has paid the entire due amount in the year 2011 as per mutual settlement reached between the parties, the complainant is entitled to return of title deed/sale deed. But, however, instead of honouring the mutual settlement, the opposite party started demanding a sum of Rs.67,440/- allegedly due towards the complainant. The opposite party is deficient in service. It has been contended that complaint may be allowed and complainant may also be granted compensation for mental torture as well as physical pain, besides opposite party may be directed to pay the costs of litigation to the complainant.

8.                On the other hand, learned counsel for opposite party has vehemently contented that the complainant was the defaulter and notice under the provisions of The Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFESI Act) had already been served upon him. The complainant has failed to repay the loan amount as per terms and conditions of the loan agreement. The complainant relies upon the application dated 20.07.11 moved by him to the Branch Manager, Bank of India, Dala Branch, Moga, wherein, he intended to repay the full and final amount of the bank on 25.7.11. There is no alleged mutual agreement vide which the complainant was asked by the bank to pay the amount due as on 25.7.11 through instalments. Moreover the alleged letter Ex.C3, relied upon by the complainant is unilateral in nature. The alleged letter has no binding effect upon the opposite party, because, the bank authorities have not allowed the alleged request of the complainant. There is no time frame within which the alleged instalments were to be paid nor there was any number(s) of the instalment(s) or amount(s) thereof. As such, the alleged letter Ex.C3 cannot termed to be bilateral or a mutual settlement interse parties. There is no deficiency in service on the part of the opposite party. The demand raised by the opposite party for an amount of Rs.74,914/- as on 30.5.15 is due and payable by the complainant on account of loan facility availed by him. Complaint deserves to be dismissed and the same may be dismissed.

9.                We have given thoughtful consideration to rival contentions.

10.              There is no denying the fact that the complainant had obtained loan facility to the tune of Rs.3.00 lac from the opposite party on dated 10.04.2003 and to secure the said loan the complainant created an equitable mortgage by way of deposit of original title deed bearing Vasika no.5554 dated 08.09.1989 in favour of the opposite party bank. The complainant failed to abide by the terms and conditions of the disbursement plan and he became a defaulter. It is not proved on record that in the year 2011, the opposite party allowed the complainant to deposit the amount of Rs.2,34,300/- in total through installments. The alleged letter, copy whereof is Ex.C-3 is unilateral in nature. There is nothing on record to show that the bank entered into any mutual agreement regarding alleged due amount or the alleged amount was allowed to be paid to the bank through installments. As per the copy of statement of account Ex.OP4, a sum of Rs.74,914/- is due and payable uptil 30.05.15 by the complainant on account of loan facility availed by him. There is no deficiency in service on the part of the opposite party. Until and unless the entire loan stood discharged, the opposite party is within its right to retain the security document i.e. original sale deed with it. Instant complaint is nothing, but an abuse of the process of law. The complaint is meritless and therefore, the same deservers to be dismissed. Consequently, the instant complaint is ordered to be dismissed accordingly. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

 

                   (Bhupinder Kaur)          (Vinod Bala)        (S.S. Panesar)

               Member                         Member                   President

 

Announced in Open Forum.

Dated:11.08.2015.