Date of filing:-16/02/2018.
Date of Order:-08/05/2019.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 15 of 2018.
Balkrushna Mishra S/o. Late Narendra Mishra, Nilibandh Pada. P.o./P.s/Dist-Bargarh ..... ..... ..... Complainant.
Vrs
Brach Manager, Andhra Bank, Chadheigaon Branch, P.o./P.s/Dist. Bargarh.
..... ...... ..... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri S.K.Mahapatra, Advocate with other Advocates.
For the Opposite Party :- Sri S.K. Purohit, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.08/05/2019. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Facts of the case;-
The case of the Complainant in nut shell is that he has incurred a house Loan from the Opposite Party Bank for an amount of Rs.7,00,000/-(Rupees seven lakh)only by entering a written agreement with the Opposite Party and was repaying the installment amount of the said loan regularly but in the mean time due to some unavoidable circumstances he could not repay the installment amount as a result of which the Opposite Party threatened him to seize his house, thereafter being terrified somehow managed to repay the entire amount of his rest amount of loan in time.
And in furtherance to his case to his utter surprise he found that the Opposite Party has deducted some big amounts of money from his account without his permission or intimation unreasonably in different phase for different purpose such as Rs.82,960/-(Rupees eight two thousand nine hundred sixty)only towards the processing of seizure, Rs.50,000/-(Rupees fifty thousand)only towards SARFASEI, Rs.10,575/-(Rupees ten thousand five hundred seventy five)only towards filing of CAVEAT in the High Court of Odisha and an amount of Rs.5,500/-(Rupees five thousand five hundred)only towards legal opinion and E.C. charges without any reason though the Complainant has already paid the entire amount of his loan amount prior to the intimation of the seizing process which is as per him is violative to the principle of natural Justice and over enthusiastic.
Therefore being helpless approached before the Opposite Party in writing giving copy to the Zonal Manager, DDM NABARD, and to the Chief General Manager, Bhubaneswar informing the same and praying for refund of the aforesaid amounts to which the Opposite Party assured him to refund but to no effect, which is as per him amounts to deficiencies in rendering service and also unfair trade practice, for which the cause of action arose, And in support of his case has relied upon the following documents (i) The copy of the Notice (ii) Copy of the Account statement of loan account bearing No.076330100007259.
Perused the record and heard the Advocate for the Complainant and prima facie found to be a genuine case hence admitted and notice was served on the Opposite Party and in response the Opposite Party appeared and filed his version.
The rival contention of the Opposite Party is an evasive one to the case of the Complainant but at the same time has admitted to have sanctioned the said loan amount to the Complainant and has disbursed the Loan amount of Rs.7,00,000/-(Rupees seven lakh)only in his account No.076330100007259 with an agreement with the Complainant that he would repay the amount @ Rs.7,500/-(Rupees seven thousand five hundred)only per month and when he did not repay the installment has rightly initiated action against him under the SARFAESI Act declaring the said account of the Complainant as NPA and has contended to have rightly deducted the amounts as per the averments made by the Complainant justifying his deduction as legal as it was a loan account and as the Complainant did not repay the said installments in time and has been served with Notice and thereafter has initiated all the required steps as per law and hence claims not to be deficient in giving him service but such deduction and the initiation of the proceeding as alleged action initiated against the Complainant is as per law.
And also has contended in it’s version that the Complainant has repaid the entire amount with interest and the alleged different charges. And it is very much pertinent to mention here is that prior to such action of the Opposite Party has served the Notice to the Complainant on Dt.10.11.2015 but as he did not respond to the same so he took symbolic possession of his house on dt.11.02.2016 U/S 13 (4) of the Act, and also further mentioned in it’s averment that as the Complainant did not co-operate the Opposite Party resorted to file a case U/S 14 of the Act before the D.M. Bargarh for taking physical possession of the same and the Collector was pleased to allow the petition and directed the S.P. Bargarh to help the Opposite Party in taking physical possession of the same for which in the process the expenses to meet all the formalities has taken the charges from the Complainant/Loanee rightly as per the provision of the Sarfasei Act u/s 13 (7), And hence claims not to have deducted the alleged amount illegally as such the O.P. has prayed before the forum to reject the petition as lack of merit in the case .And in it’s support has filed a written arguments to substantiate his case .
Having gone through the Complaint with accompanied documents and the version and the written arguments placed before us by the learned counsel for the Complainant the following points of issues is to be taken in to consideration for adjudicating the case.
Whether the case is maintainable in the present form in the Forum, and whether there is any un-fair trade practice and deficiencies in rendering service on the Part of the Opposite Party ?
Whether the Complainant is entitled to any relief ?
While dealing with answering issues with regard to it’s maintainability of the case in the present form, delving deep in to the materials available in the entire record, it has been observed by us that it is an admitted fact that the Complainant has incurred a House Loan from the Opposite Party and also it has been admitted by the Complainant that he has defaulted in repaying the loan amount in a schedule manner in the schedule time but it is also an admitted fact being admitted by the Opposite Party in it’s version it’self that the Loan amount has been repaid by the Complainant, but the disputes for adjudication remains with the disputed point as to whether the Opposite Party has extracted excess amount of money from the Complainant in an arbitrary manner having not being permitted by the Complainant and the manner in which he has deducted the alleged amount is in accordance with Law or not.
In the aforesaid context after verifying the materials available in the record having gone through the statement of account and Law relating to the same it reveals that it is a fact that the said Section.13(7) of the Sarfaesi Act, the said law in the instant of initiation of such proceeding empowers the secured creditor to incur the charges of the same from the Loanee having being complied with all the required formalities of the Law but in the instant case it is observed that though the Opposite Party is said to have followed all the formalities in accordance with the provision envisaged in the section 13 (7) and section 14 of the Act, there is not even a scrape of paper filed before us by the Opposite Party to prove it’s averment to be substantiated, furthermore the amount of deduction alleged to have been deducted is much more, more so do not substantiate with any documents to that effect, in such circumstances the claim of the Complainant that he has never been intimated prior to filing of the proceeding under the said Act cannot be brushed aside in view of the Law of the Natural Justice proper opportunity of being aware of the facts in which manner any thing is being done against him and as such in our view such action of the Opposite Party proved to be a case of un-fair trade practice and deficiencies of service and genuine one on our part to deal with matter within the ambit of the Consumer Protection Act 1986 in view of provision u/s 3 of the same which is in an addition to any other Law for the time being in force but not in derogation to the same. In view of the aforesaid facts and circumstances the case is maintainable in the Forum in it’s present form and also the aforesaid action of the Opposite Party against the Complainant is proved to be a case of deficiencies of service and un-fair trade practice on his part against the Complainant. Hence considering the above facts and circumstances of the case our view is expressed in favor of the Complainant.
Secondly with regard to the Issue No. 2(two) as to whether the Complainant is entitled to any relief, As it has been admitted by the Opposite Party to have refunded the extra amount of Rs. 30,833/-(Rupees thirty thousand eight hundred thirty three)only to the Complainant, it has become crystal clear that the Opposite Party has deducted the money in an arbitrary manner without giving the proper calculation of the actual amount spent in due discharge in imposition of the aforesaid Law against the Complainant hence such acts of the Opposite Party has made us to belief the allegation labeled against the Opposite Party is a true and genuine one which compels us to express our view against the Opposite Party. Accordingly our view is expressed against him, hence our order follows .
-: O R D E R :-
Hence the Opposite Party is directed to refund the Complainant an amount of Rs. 82,960/-(Rupees eighty two thousand nine hundred sixty)only and also directed to pay an amount of Rs.35,142/-(Rupees thirty five thousand one hundred forty two)only after adjustment of the refunded amount of Rs.30,833/-(Rupees thirty thousand eight hundred thirty three)only, and in total amount of Rs. 1,18,102/-(Rupees one lakh eighteen thousand one hundred two)only with an interest @ 6 % (six percent) per annum from the date of filing of the case till date of Order and an amount Rs.2,000/-(Rupees two thousand)only as litigation expenses within thirty days from the date of receipt of the Order in default of which the amount would carry an interest @ 9%(nine percent) per annum till the actual realization of the amount.
In the result the Complaint is allowed against the Opposite Party and the same is pronounced in the open Forum and accordingly disposed off to-day i.e.on Dt. 08.05.2019.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W)
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