As per Hon’ble President. Mr. Shekhar Muley.
1. This complaint is filed against the Opposite Party No.1 for its deficient service in the matter of payment of loan installments by Electronic Credit System (ECS) mode.
2. The complainant is a businessman and has a saving bank account (a/c) with Sitabuldi branch of OP1. He had availed a loan from the OP2 to the tune of Rs. 71 lakh for which Equated Monthly Installment (EMI) of Rs. 90,056/- was payable by him. For that purpose he had given standing instructions to OP1 to debit the said amount from his saving bank a/c and credit the same to his loan a/c with OP2 through Electronic Credit System (ECS) facility on 7th day of every month. He received a letter from OP2 that ECS for the months of January 2015 to March 2015 were not cleared by OP1 and ECS were returned by OP1 on account of insufficient balance. On inquiry with OP1 it was found that on all three occasions when ESC were declined, he had more than sufficient funds in his a/c. Despite that the OP1 wrongly returned the ECS and failed to credit the EMI amount to OP2. He was made to pay consolidated payment of all three EMIs along with penal charges and interest to OP2. All this was due to deficient service of the OP1 and due to that his reputation also suffered. He made complaint to the OP1 which was replied by it and admitted the fact that there was sufficient balance in his a/c. Despite his request and complaints, the OP1 failed to rectify its mistake. Hence, this complaint to direct OP1 to pay him Rs. 29,809/- which is actual loss caused to him, Rs 1 lakh for compensation and cost.
3. The OP1 filed reply at Ex. 13 and denied the allegation of deficiency in service. Admitting the saving bank a/c of the complainant with its branch, his loan from OP2 and ESC mandate given to OP2, it is stated that entire process of ECS is conducted as per direction of RBI. The OP1 i.e. Destination bank is not responsible for deducting ESC amount. It is denied, three ECS for the months of January to March 2015 were not cleared by the OP1 and the same were returned on account of insufficient funds. It is denied despite there was sufficient balance the ESC were not cleared. It is stated that in Feb 2015 the complainant paid one EMI through cheque. The document filed by him is denied as it was never issued by any authorised person on behalf of OP1 and no mistake was acknowledged by the OP1. It is further submitted the OP2 was responsible for non lodgment of the ECS of him with OP1. ECS process is an automatic process conducted by computer and the OP1 is not responsible for deduction. Alleging that the complainant has not come with clean hands and made a baseless allegations against it, it is prayed to dismiss the complaint.
4. The OP2 filed a pursis, Ex.11, that it is a formal party to the complaint as nothing is alleged or claimed against it and it will accept the order of the forum.
5. Heard the counsels for the complainant and OP1. None present for the OP2. Perused documents, rejoinder and notes of argument. Our findings with reasons are as under.
FINDINGS AND REASONS
6. Facts which may be taken as undisputed, are that the complainant has saving bank a/c with one branch of OP1. He had taken loan from OP2 and its repayment was being done from said saving bank a/c for which he had given ECS mandate to the OP2. It is also not in dispute, despite the ECS mandate, his three EMI for the months of January 2015 to March 2015 were not paid to OP2 and so he had to pay those EMIs later with penal charges and interest. According to him, there was sufficient balance in his bank a/c when the ECS were returned. So, the question is why the ECS mandate was not honored for those three months.
7. Counsel for the complainant submitted when ECS mandate was given for payment of EMI it was the duty of the OP1 to deduct the amount of EMI and credit the same to his loan a/c with OP2. He submitted the complainant had sufficient balance in the a/c when his three ECS for January to March 2015 were returned on account of insufficient funds. Statement of a/c is filed which shows on 3rd January2015 there was balance of Rs. 94,088/-, on 30th January 2015 Rs. 1,84,088/- was balance and on 5th March 2015 Rs. 1,98,819/- was balance. Thus it can be said that on the dates of EMI debits he had sufficient balance to pay EMIs. However, surprisingly on 2nd Feb 2015, he paid one EMI of Rs. 90,056/- by cheque. He did not disclose nor did explain this fact in his complaint as to why he paid that EMI by cheque.
8. Counsel for the OP1, referring to this payment by cheque has contended, this was a mischief played by the complainant. He contends, the complainant might have instructed the OP2 to stop sending ECS to the OP1 and therefore he paid the EMI by cheque. He submits, therefore, it was necessary for the OP2 to come forward to clarify whether ECS mode was discontinued by the complainant. In reply, counsel for the complainant submitted the cheque was given by way of abundant precaution against failure of ECS, because the complainant was under impression that there might not have been sufficient balance in the a/c. The explanation is not that much convincing, but even mischief also cannot be inferred merely because the EMI was paid by cheque.
9. It is submitted by the counsel for the OP1 that it is not the responsibility of OP1 to deduct the EMI amount through ECS from the a/c of the complainant and entire responsibility regarding receipt of ECS amount is of the OP2. Because, ECS mandate was received by the OP2. The ECS process operates as per directions of RBI. In fact, neither party has filed copy of Rules framed by RBI in respect of ECS mode of payment. The OP1 should have filed it if it is relying on such process and denying its responsibility to deduct the amount.
10. It is further submitted by the counsel for the complainant that to the written complaint to the OP1, its Ass. General Manager acknowledged the fact of return of three ECS and technical reason was ascribed to non payment. The counsel for the OP1 has not only denied this letter of Ass. G.M. but also said that it was given by an unauthorized person and therefore not binding on the OP1. He also denied the written complaint given to the OP1 and alleged it has no seal or acknowledgement of the OP1 and is a created piece of evidence. It is true that the written complaint to the OP1 dated 25/6/2015 filed as Annex-3 has no seal of the OP1, but the letter of Ass. G.M to the OP2 regarding return of ECS is difficult to be ignored as fake evidence. It is written on letter head of the OP1 with stamp of the OP1 bank. Most importantly, it is not alleged by the OP1 that the letter does not bear signature of its Ass. G.M. Authenticity of author of the letter is not disputed, but authority of the author to give such letter is disputed and denied. We fail to understand that a person of stature of Ass. G.M. of a Bank has no authority to give such letter explaining the reason for return of ECS. The OP1 could not show whether any action was taken against the officer for giving such letter nor any classificatory letter or corrigendum was issued by the OP1 to OP2 or to the complainant in this regard. Therefore, in absence of cogent evidence to discard this letter, we accept it. In view of this letter, all the contentions made on behalf of the OP1 do not stand a chance for further scrutiny.
11. The complainant has succeeded in establishing that the OP1 failed to pay three EMI by ECS to the OP2 despite there being sufficient balance in the a/c of the complainant. It his grievance that due to return of ECS, payment of EMI could not be made in time and therefore penal charges and interest were levied to the tune of Rs. 29,809/-. This has not been denied by the OP1. Considering our findings, action of the OP1 in returning the ECS was not proper and justified. Hence, the complainant is entitled to credit of this amount to his a/c as he was not liable to pay that penalty because of fault of the OP1. The OP2 is made a formal party as nothing is alleged or claimed against it. We, therefore, allow the complaint only against the OP1 and pass following order.
ORDER
- The complaint is allowed against the OP1, Bank of Maharashtra, who is directed to pay a sum of Rs. 29,809/- to the complainant.
- The OP1 is further directed to pay compensation of Rs. 10,000/- for mental agony and Rs. 5000/- towards litigation cost to the complainant.
- The order shall be complied within 30 days from receipt of the order copy.
- No order against the OP2, L & T Finance, Ltd.
- copy of the order shall be supplied to all the parties free of cost.
