DATE OF FILING : 17-08-2010.
DATE OF FINAL ORDER : 30-11-2010.
Sri Balaram Santra,
son of Late Najendra Nath Santra,
residing at Kona, Pilot Bagan, P.O. Kona,
P.S . Liluah, District–Howrah………………………………Complainant.
- Versus -
1. Branch Manager,
State Bank of India,
Howrah Branch.
2. Chief Manager,
State Bank of India,
Howrah Branch,
Both of 9, G.T. Road, Howrah Maidan,
P.O. & P.S. Howrah,
District – Howrah…………………………………… Opposite parties.
P R E S E N T
1. Hon’ble President : Shri J. N. Ray.
2. Hon’ble Member : Dr. Dilip Kr. Chakraborty.
3. Hon’ble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representative for the complainant : Shri Tapas Kr. Panja,
Smt. Anindita Santra,
Ld. Advocate.
Representative for the opposite party nos. 1 & 2
: Shri Bhupendra Nath Mondal,
Ld. Advocate.
F I N A L O R D E R
This is to consider an application U/S 12 of the C.P. Act, 1986 praying for release of pension account and compensation towards deficiency in service.
Fact of the case, in brief, is that the complainant has a pension account lying at the State Bank of India, Howrah Branch, at Howrah Maidan, being pension account no. 11030604824. The complainant took a loan of a sum of Rs. 75,000/- on 18-10-2006 from his pension account for the purpose of treatment of his wife who is suffering from cancer. The complainant has no other alternative income except this pension and that is why he applied for this Pension Loan before the o.ps. The complainant took this loan with condition to deduct as EMI of Rs. 1957/- directly from his pension account by the o.ps. and this deduction of EMI of Rs. 1957/- ( directly from his pension account ) will be continued for 48 months and the complainant agreed with this condition. The o.ps. did not comply with the aforesaid condition whereas the complainant requested several times to deduct the aforesaid EMI. The complainant requested the o.p. no. 1 by letters dated 04-01-2007 and 03-02-2007 but the o.ps. did not comply with the same. After a long period o.ps. suddenly deducted an amount of Rs. 4,000/- on 02-07-2010 directly from the complainant s pension account whereas the EMI of the aforesaid loan was only Rs. 1957/-. The o.ps. had done this without any intimation or permission of the complainant. On 03-08-2010 when the complainant went to the SBI, Howrah Branch for withdrawing his pension then the o.ps. refused to pay any amount to the complainant and return his self cheque vide no. 879928 of Rs. 8,000/- and informed the complainant that his pension account is locked by the o.ps. and for this reason no amount would be withdrawn from the aforesaid pension account. On 03-08-2010 the complainant did up to date his pass book of his pension account and he got knowledge that on 02-07-2010 Rs. 4,000/- was withdrawn mentioning Direct DR TRF to 011030869133 and on 21-07-2010 set hold Rs. 50,000/- and on 02-08-2010 Rs. 4,000/- as OS DEP TFR. After knowing that the complainant became shocked and tensed due to such illegal act of the o.ps. Then the complainant enquired about this matter and the authorized officer of loan department disclosed that Rs. 50,000/- interest was already accrued upon the principal loan amount and the o.ps s aforesaid agent intentionally mislead the complainant and forced to take an another loan of Rs. 1,25,000/- from the complainant s pension account to repay the earlier loan amount Rs. 75,000/- and Rs. 50,000/- towards interest ( total Rs. 1,25,000/- ). O.ps s agent was forcing the complainant to take this further loan. The complainant refused to take any further loan and the o.ps. threatened the complainant. Due to such illegal conduct of the o.ps. the complainant is suffering from tremendous tension and mental agony and requested the o.ps. several times to open the pension account. On 05-08-2010 the complainant gave a written complaint to the o.ps. requesting for payment of his pension. But the o.ps. did not pay any heed. On 06-08-2010 complainant sent an advocate s letter to the o.ps. and also to the Chairman of the Human Rights Commission but the o.ps. did not take any necessary step. Therefore, the complainant prays for release of his pension account. As per condition of loan the o.ps. conduct is illegal and there is a gross negligence on their part. Therefore, the complainant prays for open / release of his pension account no. 11030604824 and make the account easy to operate for withdrawing the pension only deducting the EMI of Rs. 1,957/-. Complainant also prays for compensation and litigation cost. Complainant has also stated that o.ps. claim is barred by law of limitation. So o.ps. cannot claim any amount. Hence the application.
O.ps. no. 1 & 2 appeared before this Forum and filed written version.
In their written version o.ps. denied all material allegations against them. O.ps. stated that the complainant s allegation are mostly false, frivolous and certain allegations are purely matters of record. O.ps. have admitted that the complainant took a loan from the SBI Howrah Branch of a sum of Rs. 75,000/- on 18-10-2010 from his pension account and on condition the complainant would pay through EMI. But it reveals from the statement of account that the complainant has intentionally failed and / or neglected to pay EMI to the bank. On the other hand the complainant was not maintaining any amount to his pension account and withdrawing the pension regularly from the bank without paying EMI towards his loan. The o.ps. have also submitted that the complainant took a loan from the bank and the terms and condition was imposed that If any pension defaulted to make payment of loan, then the Bank may recover the dues amount at any time and the court has no jurisdiction to interfere the matter. On the other hand the Forum may direct the complainant to pay the loan amount to the bank forthwith because the bank s money is public money. The loan is secured by the pension account and the bank has full authority to realize the loan amount from the complainant at any point of time. But here the complainant has no intention towards payment of his loan. So the complainant is not entitled to get any relief as prayed for. O.ps. prays for an order directing the complainant to make payment of the loan amount without any delay. Hence o.ps. prays for rejection of this application with compensatory cost.
Therefore, in view of the pleading of the parties following points arose for determination :
- Is there any deficiency in service on the part of the o.ps. no. 1 & 2 by not clearing the EMI properly and locking the pension account of the complainant ?
- Is the complainant entitled to get an order in terms of Section 14 of the C.P. Act, 1986 ?
DECISION WITH REASONS :
POINTS NO. 1 & 2 :
Both the points are taken up together for the sake of convenience of discussion and for brevity.
It is admitted fact that the complainant took a loan from SBI Howrah Branch from his pension account on 18-10-2006 for sum of Rs. 75,000/-. It is also admitted fact that according to the demand promissory note ( D.P. Note ) dated 18-10-2006 the condition was to deduct Rs. 1,957/- as EMI directly from the pension account and the deduction will be continued for 48 months. From the documents it is revealed that according to the terms and conditions o.ps. did not start the EMI from the very next month. It is also observed from the statement of bank account that the EMI was not started properly. The xerox copy of demand promissory note ( D.P. Note ) was annexed by the o.ps. From this document Forum has observed that for the aforesaid loan the complainant filled up the demand promissory note ( D.P. Note ) with condition the rate of interest is 11.05% per annum at monthly rates in 48 equated monthly installments ( EMIs ), commencing from the month of October, 2006. We have further observed that the dates are also written when remittance are to be made i.e., 28-10-2006 to 28-09-2010 and amount to be remitted periodically Rs. 1,957/- only.
The counsel for o.ps. has argued that the EMIs were not started because there is insufficient fund on 28th of each month. So the system could not operate the EMIs. We have also observed that – EMIs beginning from the month of October already been taken in the relevant records – is written in the D.P. Note. In October, 2006 the balance was not insufficient to deduct Rs. 1,957/- as EMI. After that on the next month on the day of 28th ( i.e., on 28-11-2006 ) the complainant’s account balance was below Rs. 1,957/-. Upto February, 2007 on the day of 28th the complainant balance was certainly below Rs. 1,957/-. But if this is the only reason for not starting the EMIs the o.ps. did not give any letter to the complainant or did not intimate him in any way.The passbook of the complainant also did not reflect anything about the nonpayment of loan by way of EMI. The o.ps. s bank SBI should inform the complainant in proper way. It is also observed from the bank statement that on 28-03-2007, 28-04-2007 the balance was more than Rs. 1,957/-. But the o.ps. did not start the EMIs at that time. Moreover, when the complainant was a defaulter on the very next month after taking the loan the o.p. bank should inform him immediately with the calculation of extra interest charge. But the o.ps. did not start the EMIs not for one or two months but it started after a long period of 44 months. And in the D.P. Note the amount of EMI was Rs. 1,957/-, but after so many months the operation of EMI was started with an amount of Rs. 4,000/- without informing or intimating the complainant. The counsel for o.ps. has argued that due to defaulting period the interest would be certainly high. Therefore, the amount of deduction was Rs. 4,000/- per month. But the o.p. Bank did not show any calculation how the EMI amount would be Rs.4000/-.
The Forum has also asked the o.ps. why the o.ps. had locked the pension account of the complainant. The pension account was closed for 26 days. The counsel for o.ps. argued that the pension account was locked to compel the attendance of the complainant which is totally illegal. Bank may recover its loan and should recover its loan but the condition should be informed to the complainant by proper way. But in this case the bank did not inform him at any point of time to repay his loan and the bank whimsically started to deduct Rs. 4,000/- as EMI and locked his pension account which is not a legal way from the part of the bank. The o.ps. cannot show any document which reveals that the o.ps. informed the complainant to maintain his balance on the 28th of the month after sanctioning the loan. Moreover, o.ps. also could not show any paper which reveals that the bank has informed the complainant to start EMI by any other way as the system was not working properly. O.ps. also did not inform the complainant why Rs. 4,000/- was deducted per month and on which basis. The locking of pension account is totally illegal and unfair act of the bank.
The counsel for o.ps. also argued the EMIs were not started due to computer. But the computer is a nothing but a machine. It is certainly operated by the staff of the bank. If the EMIs were not started due to computerized system that is obviously the fault of the Bank. It shows a clear deficiency in service of the o.ps Bank. So the responsibility falls upon the o.ps. Bank.
The complainant has argued that the o.ps. cannot claim any amount as this is barred by law of limitation. The period of loan ended on 28-09-2010. The answering o.p. replied that this is purely discretion of the bank. Section 45(O) sub-section (2) of Banking Regulation Act mentions that Notwithstanding any thing to the contrary contained in the Indian Limitation Act, 1908 ( 9 of 1908 ) or ( Section 543 of the Companies Act, 1956 ( 1 of 1956)) or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any director or banking company which is being wound up for the enforcement by the banking company against any of its directors of any claim based on a contract express or implied ; and in respect of all other claims by the banking company against its directors, the period of limitation shall be twelve years from the date of the accrual of such claim ( or five years from the date of the first appointment of the liquidator, whichever is longer ).
On scrutiny of the papers and the documents ( annexed by the complainant and the o.ps.) on record along with affidavit ( filed by the complainant ) and counter affidavit ( filed by the o.ps. ) we have observed that the bank did not inform / intimate the complainant for insufficient fund for first few months after sanctioning the loan. Also there is no reflection in the complainant s pass book in this regard. After few months though there is no insufficient fund the o.ps. bank did not start EMI at that time. Again, after 44 months when the bank started to deduct the laon as EMI the amount was Rs. 4,000/- instead of Rs. 1,957/- ( as per D.P. Note ). This is also not informed by the bank. Moreover, the o.ps. locked the pension account suddenly without giving intimation to the complainant.
One point should be mentioned here. After filing the complaint before this Forum the complainant has prayed for an interim relief under Section 13(3b) of C.P. Act, 1986 to open/ release the pension account. The Forum has given an order ( vide Order No. 5 dated 27-09-2010 ) for opening the complainant s account forthwith till disposal of the case and also not to deduct any amount from the pension account till disposal of the case. After this order the o.p. has opened the Pension Account of the complainant but o.p. has started the deduct Rs. 1,957/- ( on 01-10-2010 & 01-11-2010 ). The o.p. has deducted Rs. 4,000/- on 02-07-2010 Rs. 4,000/- on 26-08-2010, Rs. 1,957/- on 01-09-2010, Rs. 1,957/- on 01-10-2010, Rs. 1,957/- on 01-11-2010. The o.p. bank has already deducted Rs. 13,871/- but also refunded Rs. 4,000/- on 01-10-2010 ( which was deducted on 26-08-2010 ) after passing the Forum s order for interim relief. Therefore, at this moment the o.p. bank has deducted Rs. 9,871/- towards interest and EMI for the aforesaid loan of the complainant.
Therefore, the Forum has come to the conclusion that there is certainly clear negligence and deficiency in service on the part of o.ps. for which the complainant has suffered a loss and mental anxiety.
But the complainant has to repay his loan by paying EMIs of Rs. 1,957/- for next 48 months. The o.ps. bank cannot claim any further interest as there is negligence on the part of the o.ps. bank. The complainant must not suffer for the negligence of the o.ps.
Therefore, for the reasons recorded herein the complainant is entitled to get an order in terms of Section 14 of the C.P. Act, 1986.
Points no. 1 & 2 are accordingly decided.
In result, the application succeeds.
Hence,
O R D E R E D
That the consumer complaint is allowed on contest against o.ps. no. 1 & 2 with cost assessed Rs. 1000/- .
That the complainant shall get refund of Rs. 9871/- from o.ps. no. 1 & 2 which amount was debited by the o.ps. Bank towards interest and EMI of the loan in question within 30 days hereof.
That the complainant shall also get a compensation of Rs. 5,000/- on account of harassment & mental agony caused by the o.ps. no. 1 & 2.
That the o.ps. bank are hereby directed to start EMIs of Rs. 1,957/- afresh from the next month ( December, 2010 ) for the next 48 months without imposing further interest.
That the complainant is hereby directed to maintain his balance on 28th day of each month to deduct Rs. 1,957/- ( EMI ) by the o.ps. bank towards loan upto next 48 months.
That the o.ps. no. 1 & 2 are directed to pay the aforesaid amount to the complainant within 30 days hereof, in default the o.p. no. 1 will pay @ 8% per annum interest on the aforesaid amount from the date of order till recover.
Supply copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME. ( Smt. Samiksha Bhattacharya)
Member, C.D.R.F., HOWRAH
