DATE OF FILING: 09.01.2014
DATE OF DISPOSAL: 10.08.2017.
O R D E R
Dr. N. Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in banking service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated, the case of the complainant is that the complainants No.1 & 2 are mother and son respectively where complainant No.2 was an unemployed youth and both are consumers of O.P.No.1 holding Saving Bank Account No.8599 with O.P.No.1 and availed a term loan from O.P.No.1 for an amount of Rs.4,90,000/- to construct the first floor shopping arcade on the existing building to earn their livelihood, where O.P.No.1 is the UCO Bank, Branch at Berhampur, O.P.No.2 is the Zonal office of O.P.No.1 and O.P.No.3 is the First Appellate Authority of the Bank under R.T.I. Act, 2005. The complainants availed the aforesaid term loan vide loan Account No.1946 (Old Loan Account No. 69/190, T.L-70/32) on dated 07.08.2002 by mortgaging their only house property with O.P.No.1 standing on a plot near Rampa Street, near Gata Bazar, Berhampur, District-Ganjam, property schedule on the same day with O.P.No.1 and was paying installments up to 16.03.2006 to the tune of Rs.1,81,684/- and thereafter become defaulter due to some financial problems. The complainants are deprived of the certified copies of aforesaid documents being not provided by O.P.No.1, thereby are in dark in respect to contents of the documents, rate of interest charged, installment schedules, terms and conditions etc. therein. The O.P.No.2 in its notice U/S 13(2) dated 14.5.2009 reflecting the untrue aggregate amount of outstanding dues as Rs.6,23,312/- inclusive of interest up to dated as on 30.9.2008, where the furnished statement of accounts reflects at Rs.6,17,424/- as on the date 29.09.2008, thereby misled the complainants. It is also alleged that the notice U/S 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(for short SARFAESI Act) served on the complainants by O.P.No.1 & 2 in contravention to the mandatory Section 13(3) of the Act, being no such details of the outstanding amount payable was ever furnished to the satisfaction of Section 13(3) to which the complainants are having lawful right to know and are entitled thereto. Sri P. Raj Gopal Rao, Advocate as well as related as husband and father to complainant No.1 & 2 respectively after receiving the aforesaid notice, representing the complainants approached personally as well as vide his lettered dated 29.06.2009 and letters dated 3.7.2009 and on 7.7.2009 to O.P.No.1 and 2 respectively, stating the fact of payment of Rs.1,81,684/- by the complainants from 5.10.2002 to 16.3.2006 and offered to settle the loan with the payment of Rs.3,50,000/- as full and final settlement which were ignore by O.Ps in violation of law thereto. Complainant No.1 preferred a representation to O.P.No.2 vide her letter dated 17.07.2009 reiterated the fact of payment of loan amount to the tune of Rs. 1,81,684/- up to date 16.3.2006 and offered to settle the loan with payment of Rs.4,00,000/- as full and final settlement which was also not replied in violation to Section 13 (3-A) of the said Act. Mr. P. Raj Gopal Rao, Advocate while delivering the aforesaid letter dated 17.07.2009 at Zonal Office to O.P.No.2 on dated 17.07.2009 he was informed that the Authorized Officer of O.Ps took over the possession of the mortgaged property on dated 17.7.2009 U/S 13(4) of the Act by affixing the said notice thereon at Berhampur and the said notice was not served to the complainants and further O.P.No.2 turned down the request to verify the details of the loan account of the complainants and forced to be agreed for O.T.S. at Rs.6,00,000/- under the threat of sale proceeding of the property soon. At last, in order to save the mortgaged property from distress sale in the Public Auction and further to save their self respect and reputation, complainants succumbed to pressure on dated 19.08.2009 to settle the loan account under O.T.S. at Rs.6,00,000/- within dated 31.08.2009 without availing any such relaxation of about 20% under O.T.S. scheme and further without verifying the correctness of the loan account and further more hurriedly settled the loan account at Rs.6,00,000/- on dated 28.8.2009 vide her letter dated 28.8.2009 to O.P. No.1 and further requested to furnish the details of loan account where statement of accounts was not furnished to which the complainants are entitled and having right over it. The complainant No.1 further vide her letter dated 21.10.2009, 5.10.2010 and 10.9.2011 requested O.P.No.1 to furnish the full details statement of loan account from 7.8.2002 till final payment but O.P.No.1 did not furnish nor replied the said letters received vide acknowledgment. Aggrieved complainant No.1 sought the aforesaid information for the period dated 26.6.2003 to 21.12.2007 and the rate of interest charged under R.T.I. Act, 2005 vide her application dated 08.02.2012 to the Public Information Officer, UCO Bank, Zonal Office, Bhubaneswar. As no information was received by the complainant No.1 since dated 08.02.2012 from P.I.O aggrieved with filed Memorandum of Appeal U/S 19(1) of R.T.I. Act, 2005 on dated 22.06.2012 before the First Appellate Authority, UCO Bank, Bhubaneswar herein called O.P.No.3. In the meanwhile the P.I.O. furnished the statement of accounts vide its letter No. ZO/BBSR/LAW/34/2012-13 dated 12.07.2012 enclosing information for the period dated 22.12.2007 to 31.10.2009 and from 6.1.2007 to 30.11.2007 where the furnished statement of account does not reveal the statement of loan account for the period 26.6.2003 to 21.12.2007 and further does not disclose the rate of interest as written in para-3 of letter dated 12.7.2012 which was sought in particular. Aggrieved with the aforesaid letter of O.P.No.3 the complainant filed one complaint before the Banking Ombudsman, Odisha, C/o Reserve Bank of India, Bhubaneswar on dated 02.01.2013 where the Banking Ombudsman in its letter No. BO (BHU) No. 2710/12749/2012-13 dated 14.01.2013 expressed its lack of jurisdiction and directed to approach any other grievance redressal authority in the matter in accordance with the law. The complainants have paid Rs.1,29,000/- to loan account during the period from dated 26.06.2003 to 16.03.2006 which has not been taken in to account while computing the loan account by O.P.No.1. The statement of accounts furnished under R.T.I. vide Annexure 13, 13-A, 13-B and 17 supra reveals that near about an amount of Rs. 9,800/- was charged excess towards interest that has been applied to the term loan account of the complainants from 26.06.2003 to 31.12.2006. The O.P.No.1 deliberately has not furnished the statement of account of the term loan. The Bank has charged unjustified interest deliberately thereby even after payment of Rs. 1,29,000/- during 26.06.2013 to 06.01.2007. The furnished statement of accounts reveals that the O.P.No.1 & 2 after dated 29.09.2008 loaded interest further on the amount of Rs.6,17,424/- to the tune of Rs.43,613/- till 30.05.2009 out of which the complainants has paid Rs.37,725/- apart from O.T.S. amount Rs.6,00,000/- paid on dated 28.08.2009 where the total paid amount of O.T.S. stands at Rs. 6,37,725/- which is illegal and the Bank fraudulently by suppressing the material fact from complainants extracted loan amount higher than the agreed amount. The O.P. Bank No.1 has deliberately loaded unjustified interest in complainant’s term loan account and illegally demanded Rs.6,23,312/- as on 30.09.2008 in the notice under Section 13(2) of the Act and affixed possession notice U/S 13 (4) of the Act on the complainant’s property where the Annexure 13-A reveals that the loan account stands as on 29.09.2008 to the tune of Rs.6,17,424/- and further loaded interest illegally and compelled them to hurriedly settle their account under O.T.S. Scheme for Rs.6,00,000/-without allowing any benefit under O.T.S. and on 19.08.2009 the complainant in order to save their property, self respect and reputation in the locality succumbed to the pressure of the O.P. Bank No. 1 & 2 without availing an opportunity to verify the correctness of loan account. This act of the O.P. Bank is highly irregular and illegal since they have not given an opportunity to the complainant to ascertain the correctness of the account which amounts to violation of natural justice. It is settled principle of law that the Bank has an obligation to furnish correct statement of accounts of its customers failing which it amount to deficiency in service on their part, wherein the present case O.P.No.1 and 2 have failed to furnish the correct full statement of loan accounts thereby deliberately suppressing the material facts, suppressing rate of interest thereto. In view of the above allegation, the complainants alleging deficiency in service on the part of the O.Ps, have filed this consumer complaint with the prayer to direct the O.Ps to pay compensate as follows in the interest of justice:
a)Loss of money due to excess charges of
interest on the loan account from
26.06.2003 to 31.12.2006 Rs.9,800.00
Interest loaded after issue of
Notice i.e. after dt.30.098.2008 Rs.43,613.00
Amount paid by the
Complainant after notice not
adjusts to OTS Rs.6,00,000/- Rs.37,725.00 Rs. 91,138.00
b) Loss of money due to distressed sale of
the mortgaged property. Rs. 9,00,000.00
c) Mental agony. Rs. 5,00,000.00
d) Litigation charges. Rs. 10,000.00
Total claim of compensation Rs.15,01,138.00
3. Upon notice the O.Ps filed version through his advocate. It is stated that the petition filed by the above named complainants is not at all maintainable and the averments made there in are also baseless, false, fabricated and concocted and the complainants are put to strict proof of the same and the allegations which are not specifically not admitted herein are deemed to be denied by the O.Ps in toto. The complainant has admitted to have availed a Term Loan from the O.P.No.1 amounting Rs.4,90,000/- for the construction of their shopping arcade at Berhampur on 07.08.2002 by mortgaging their property and had agreed to repay the entire loan amount with its accrued interest thereon from time to time and for the said purpose they had also given a guarantor who had assured to repay the term loan amount if the complainants fail to repay the loan amount along with its interest. The complainants have deposited the installments up to 16.03.2006 to the tune of Rs.1,81,684/- is admitted by the O.Ps but subsequently failed to pay the installments. When the complainants failed to deposit the installments their account became N.P.A. and for this the O.P. are duly bound to communicate the complainants about the same because it goes without saying and the complainants are aware of the same that they are the defaulters in paying the installments and nowhere it has been made mandatory that the bank of the O.Ps are to communicate the same to its customers. After lapse of a long period of three years when the O.Ps Bank did not get any repayment so in order to give a reasonable opportunity to the complainants as per the law issued a notice on 14.05.2009to both of them U/s 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) giving sixty days time to clear their outstanding liability owing to the Bank to the tune of Rs.6,23,312/- inclusive of interest as on 30.09.2008 along with future interest as per the contractual rate on the aforesaid amount together with incidental expenses, cost, charges etc. if they fail to repay the aforesaid amount which has been acknowledged by the complainants. In the meantime it has been learnt by the O.Ps that the complainants have sold some portion of the mortgaged property without their knowledge and permission thereby they have committed a fraud with the O.P. Bank and when it was brought to their knowledge then they have offered and expressed their interest to clear up the outstanding loan amount on O.T.S. and have offered very less amount than the actual outstanding loan amount which was not accepted by the O.Ps Bank and ultimately when they apprehended that their mortgaged property will be auctioned in public so they have deposited a sum of Rs.6,00,000/- as agreed by them which is quite self explanatory from the letter of one of the complainants (Smt. P.Bhagya Lakshmi) dated 28.08.2009. The statement for the period from 25.06.2003 to 06.01.2007 could not be granted to the complainant because during this period the entire data of the bank of the O.Ps were being processed by computer so the manual statement was not available and this fact has been intimated to the complainants by the O.Ps as such the allegation of deficiency from their side does not arise. The allegation of payment of Rs.1,29,000/- during the period from 25.06.2003 to 16.03.2006 made by the complainant has not been taken into account while computing the loan account by the O.P.No.1 is totally discarded because the said amount has been taken to account while computing the loan account. The serving notice U/S 13(2) of the Act, served on the complainants by the O.P.No.1 & 2 is not in contravention of the mandatory provision of Section 13(3) of the said Act and this notice can be served when the account of a loanee become N.P.A. and he or she becomes a defaulter for a long time despite repeated notices from the said of the bank to pay the outstanding amount. The case filed by them is having no merit of its own and they have not come up with a clean hand to get their grievance redressed so this Forum may be graciously pleased to dismiss the petition against the complainants in the best interest of justice otherwise the O.Ps will be highly prejudiced.
4. On the date of final hearing of the consumer dispute, we have heard the arguments advanced by the learned counsels for the complainant as well as for the O.Ps and have also carefully gone through the materials placed on the case record and perused it.
On perusal of the case record, it reveals in this case the present complainants are loanee under the O.P. No.1 who issued a notice on 14.05.2009 to them under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for recovery the loan outstanding amounts of Rs.6,23,312/- from the complainants against a term loan of Rs.4.90 Lac sanctioned on 07.08.2002 vide loan account No.69/190 TL 70132. The term loan was sanctioned in favour of the complainants on execution of an agreement and mortgage of properties with the O.P. No.1 and accordingly installments were fixed for repayment of loan amounts. The borrowers deposited a sum of Rs.1,81,684/- with O.P.No.1 in their loan account for the period 05.10.2002 to 16.03.2006 and thereafter the complainants remained defaulter of the loan. As a result, the complainants on 17/07/2009 requested the O.P.No.1 to make settlement of the loan account as the complainants were agreed to pay Rs.4,00,000/- towards repayment of the loan. However, on 28/08/2009 the complainants expressed their interest through a letter addressed to O.P.No.1 with copy to O.P.No.2 to make settlement of the loan account on OTS basis on payment of Rs.6,00,000/- towards closure of the loan account. The complainants thereafter on 21.10.2009 wrote a letter to the O.P.No.1 to furnish statement of accounts pertaining to aforesaid loan describing discrepancies in the statement of accounts issued by the O.P.No.1 on 03/09/2009 for the period 22/12/2007 to 28/08/2009 along with a request to return the title deeds and to issue no dues certificate in favour of the complainants. Thereafter the complainant on 05/10/2010 wrote a letter to the O.P.No.1 mentioning that bank has collected more amounts and also threatened to initiate legal proceedings against O.P.No.1. On further perusal of the case record we also find that the complainants on 10/09/2011 wrote another letter through registered post with AD to the O.P.No.1 demanding statement of accounts from O.P.No.1. It further revealed that the complainants on 08/02/2012 also sought for the information from O.P. No.2 under Right to Information Act, 2005 requesting to furnish certified copies of statement of accounts for the period 26/06/2003 to 21/12/2007 pertaining to the aforesaid loan account of the complainants. The O.P. No.2 in his letter bearing No.ZO/BBSR/LAW/34/2012-13 dated 12/07/2012 furnished the information i.e. computerized statement of accounts for the period 22/12/2007 to 31/10/2009 and statement of loan account covering period from 06/01/2007 to 30/11/2007 mentioning that the interest charged to loan account is available in the aforesaid statement for the relevant period. However, the complainant were not satisfied with the statement of accounts furnished through RTI application and on 22/06/2012 again filed an appeal under RTI Act to the First Appellate Authority. However, the complainant No.1 on 27/07/2012 submitted a memo to the First Appellate Authority mentioning that the information sought was not provided to her by the Public Information Officer of O.P. No.2 but disposed of the appeal on 16/07/2012 as a result requested for review of the same in the said letter. The First Appellate Authority of O.P.No.2 in his letter bearing No.CIRCLE/BBSR/L-RTI/20/2012-13 dated 15/09/2012 disposed of the review memo and furnished the statement of accounts available with them for the period 25/06/2003 to 06/01/2007 and expressed their inability to furnish statement of accounts for other period since they were unable to retrieve data from magnetic tape in spite of their best efforts. However, the matter did not stop there and the complainant No.1 on 02/01/2013 again redressed her grievances before Banking Ombudsman and the Banking Ombudsman in his letter No.BO(BHU) No.2710/12749/2012-13 dated 14th January, 2013 intimated the complainants mentioning that you have settled your loan account through a compromise with UCO Bank on One Time Settlement (OTS) basis and the loan recovery/ OTS is not covered under the ambit of Banking Ombudsman Scheme, 2006 and rejected her complaint with the request to redress her grievances before any other grievance redressal authority.
5. In view of the above and as per arguments of complainants, the points in this dispute are to be decided by this Forum - whether the O.Ps are liable to pay compensation of Rs.15,01,138/- with interest at rate of 12% per annum to the complainants for deficiency in service and towards loss of money due to excess charge of interest and distress sale of property, mental agony and cost of litigation?
6. To adjudicate the above points in dispute, we would like to state that on perusal of the materials on record, it reveals that it is a dispute of recovery of outstanding loan dues amounting to Rs.6,23,312/- by the O.Ps from the complainants through a notice dated 14.05.2009 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and enforcement of Security Interest Act, 2002 in view of the agreement executed by both parties. It is also a fact not in dispute that the complainants are chronic defaulters of the loan sanctioned by the O.Ps since the loan account was declared Non Performing Assets on 31.03.2009. On request made by one of the complainants, the loan account was settled by the O.P. No.1 through One Time Settlement on payment of Rs.6,00,000/- by the loanee as is evident from the letter dated 28/08/2009 of the complainant No.1 through a compromise deal between the loanee and the bank. On further perusal of materials placed on the case record and bilateral correspondences between parties, one of the complainants on different occasions requested the O.P.No.1 for the statement of accounts which was furnished by the O.P.No.1 to the complainants as discussed above. However, the complainants was dissatisfied with the statement of accounts furnished by the O.Ps and have resorted to legal action against the O.Ps before different grievance redressal agencies demanding detail statement of accounts for the entire period beginning from 07/08/2002 up to final payment including under RTI Act, 2005 to know the rate of interest charged for the period 26/06/2003 to 21/12/2012. On the contrary in the present complaint, it is a matter of surprise that the complainants instead of praying for a direction to the O.Ps for issuance of statement of accounts pertaining to the aforesaid loan account, have prayed to direct the O.Ps to pay an amount of Rs.15,01,138/- as compensation along with interest at the rate of 12% per annum towards excess charge of interest & distress sale of property by the O.Ps and for mental agony and to pay cost of litigation and for deficiency in service on part of the O.Ps. In the aforesaid context, we would like to view that the complainants have failed to produce any cogent and convincing documentary evidence regarding their pecuniary loss caused due to deficiency in service by the O.Ps for which they are liable to pay such huge amount as compensation and cost. We are also not inclined to accept the contention of the complaints that the notice issued by the O.Ps is illegal under Section 13(2) of the Securitization and Reconstruction of Financial Assets and enforcement of Security Interest Act, 2002 since it is one of the statutory duties of bank to recover the loan outstanding dues through this special Act. Besides that in our opinion we would also like to say that when a loan dispute is resolved with bank through compromise on payment of amounts as agreed by the loanee, the complainants can’t contend that the bank is deficient in service for excess charge of interest or distress sale of property. It is also a fact that there is nothing placed on record to prove the allegations of the complainant that due to the aforesaid notice the complaints suffered pecuniary loss or mental agony and rather the petitioners were benefited from the compromise deal since the O.P. No.1 has exempted Rs.23,312/- from the total outstanding dues and settled the loan account on payment of Rs.6,00,000/- on the basis of One Time Settlement. With regard to the allegation of the complainants that the bank is deficient in service due to non-supply of statement of accounts to the loanee, we are of the view that in this case as per the materials placed on record and on perusal of the bilateral correspondences for statement of accounts, we find that the O.Ps bank has tried their level best to satisfy the complainants by furnishing the statement of accounts from time to time as requested by the complainants through letters and RTI application but unfortunately the complaints were not satisfied. It is also a fact that in the present consumer complaint, the petitioners not prayed in their complaint to direct the O.Ps to issue statement of accounts to the complainants relating to the aforesaid loan account for the period as discussed above. In the above fact and circumstances, we are therefore, not interested to direct the O.Ps to supply the statement of accounts to the complainants since in this case the petitioners not prayed for statement of accounts for the period as discussed above but prayed to pay compensation for pecuniary loss and deficiency in service on part of the O.Ps which is not proved on record. In view of the foregoing discussions and considering the fact and circumstances of the case, we are of the view that the claim of the complaints for compensation of Rs.15,01,138/- along with interest at the rate of 12% per annum is not sustainable under law and simultaneously not entitled any for any cost. In view of the above, we dismissed the case of the complainant against all O.Ps due to devoid of merit.
7. In the light of the foregoing discussions, we do not find any deficiency in service on part of the O.Ps hence we feel that there is no merit in the present complaint filed by the complainants and therefore the complaint of the complaints dismissed. Considering the fact and circumstances of the case, the parties shall bear their own cost of these proceedings. The case of the complainant stood disposed off accordingly.
8. The order is pronounced on this day of 10th August 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
