CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 25th day of October, 2014
PRESENT : SMT. SEENA. H, PRESIDENT
: SMT. SHINY. P.R, MEMBER
: SMT. SUMA. K.P, MEMBER Date of filing : 23/02/2013
CC / 45/ 2013
Aboobacker Haji, S/o.Uppayi Haji,
Cheerakkattil House, : Complainant
Anamangad P.O, Perinthalmanna Taluk
Rep.by power of attorney holder
Muhammed Haneefa,
S/o.Hamza, Arangodan House,
Pariyapuram P.O, Perinthalmanna,
Malappuram.
(Adv.K.A.A.Sadath)
Vs
Branch Manager,
State Bank of Travancore, : Opposite party
Cherpulassery P.O, Ottapalam Taluk,
Palakkad.
(Adv.John John)
O R D E R
By Smt. Suma. K.P, Member,
The above complaint is filed by the complainant alleging deficiency of service on the part of the opposite party and claiming compensation to pay an amount of Rs.60,000/- .
Complainant is holding a savings bank account 67044147752. The complainant states that on 28/12/2011 he had borrowed an amount of Rs.50,000/- from one Mr.Abdul Nazar, S/o.Saidali Haji, Perinthalmanna, when he was in urgent need of money. To discharge the said liability the complainant had issued the cheque bearing No.78893 dtd.10/03/2012 for the said amount. The complainant submits that inspite of sufficient balance in the account, the opposite party bank illegally dishonoured the cheque without any sufficient reason. Being aggrieved by the dishonour, the above said Abdul Nazar issued a lawyer notice contemplated under Negotiable Instrument Act to the complainant.
The opposite party appeared in the matter and filed version denying all the allegations in the complaint. Opposite party states that complainant had availed several credit facilities from the opposite party bank such as cash credit loan for an amount of Rs.25,000/- in the year 1996. The above said loan was subsequently enhanced to Rs.50,000/- in the year 2001. A medium term housing loan for an amount of Rs.2,40,000/- in the year 2004 was also granted by creating extended mortgage of the property, which was already created by the complainant during the above said cash credit loan of 1996. A medium term loan (Suvidham) for an amount of Rs.20,00,000/- in the year 2007 and an agricultural term loan for an amount of Rs.10,00,000/- in the year 2008 were also provided. As security for the repayment of dues the complainant created equitable mortgage of several of his property by depositing those title deeds. However due to an in advertent mistake, registered Assignment deed No.1121/1996 pledged by the complainant in the opposite party bank at the time of availing the cash credit loan of Rs.25,000/- in the year 1996 was released to the complainant in the year 2008, even though the complainant created extended mortgage over the said property in order to avail the housing loan of Rs.2,40,000/- in the year 2004 and he has not cleared his liabilities. In spite of repeated request the complainant failed to clear the defaulted repayments and hence the opposite party, in exercise of its rights of lien and set off, withheld the amount of Rs.53,000/- available in the SB account of the complainant. The matter was intimated by way of courier. As and when the complainant received the intimation, he colluded with one Abdul Nazar, issued a pre-dated cheque to him to defeat the opposite party bank . The said Abdul Nazar presented the cheque long after the receipt of intimation by the complainant. Secion.171 of the Indian Contract Act 1872 provides the right of lien to the opposite party to withhold the amount in the savings account of the complainant. The bank has acted according to the law. There is no deficiency of service or unfair trade practice on the part of the opposite party bank. The complainant had not suffered any hardship, loss or inconvenience due to any acts of the opposite party bank. The complaint filed by the complainant is on an experimental basis and for an illegal enrichment. Hence the complaint has to be dismissed with cost.
Complainant filed chief affidavits along with documents. Opposite party also filed chief affidavits. Ext.A1-A3 was marked from the side of the complainant. Complainant filed applications of cross examination of opposite party. Opposite party also filed applications of cross examination of complainant. Both the applications were allowed. Complainant was cross examined as PW1. Opposite party was cross examined as DW1. Exts.B1-B13 was marked from the part of opposite party. Opposite party filed petition to examine witness. Application was allowed and the witness was examined as DW2. Evidence was closed and the matter was heard.
The points to be considered are;
- Whether there is any deficiency of service from the part of opposite party?
- If so, what is the relief and cost?
Issue No.1:
It is admitted by the opposite party that the time of availing cash credit loan of Rs.25,000/- the property covered by Deed No.1121/96 measuring 5 acres and 65 cents was offered as security (As revealed in Ext.B6 document no.1 in page no.9). As per Ext.B6, the property scheduled as “B” was mortgaged as security for the payment of housing loan of Rs.2,40,000/-. The fact that complainant created extended mortgage over the property covered by registered assignment deed no.1121/1996 to avail housing loan of Rs.2,40,000/- in the year 2004 is evident from Ext.B10 equitable mortgage register. From Ext.B11 statement of accounts it is obvious that the complainant had defaulted repayment. The fact of defaulted payment was intimated through Ext.B1 notice by the opposite party. The opposite party had intimated the complainant by virtue of Ext.B3 notice that the amount of Rs.53,000/- available in the SB account is withheld in exercise of its right of lien and set off. It was also informed that if any cheque is dishonoured due to this reason, the opposite party bank will not be responsible for any loss or damage of such returns. The cheque issued by the complainant was presented after the receipt of Ext.B3 notice by the complainant. The case of the complainant is that he had already closed the loan account no.57063670913 for an amount of Rs.2,40,000/- and the registered assignment deed no.1126/96 was taken back from the bank. But the opposite party submits that the said deed was handed over to the complainant by mistake, even though the complainant had not repaid the entire loan amount. It is evident from Ext.B10 document that the property covered by assignment deed no.1126/96 was mortgaged for the purpose of loan account no. 57063670913. The opposite party submits that they had returned the said document by mistake, without noting the extension of equitable mortgage over the said property. Due to the said mistake the complainant is benefited as no loss, mental agony or hardship was caused to him. The complainant colluded with one Abdul Nazar issued a pre dated cheque to him but no steps u/s.138 of N.I Act was initiated against the complainant. The complainant had not produced any evidence to the effect that he had closed the loan and cleared his liability. On the other hand opposite party had produced documents to prove that complainant defaulted the repayment of the loan. According to the complainant the loan of Rs. 2,40,000/- was granted to him by virtue of deed no.1039/93 measuring an extend of 14 cents. Admittedly the housing loan was sanctioned on 04/03/2004. But the property covered by deed no.1039/93 was produced before the opposite party only on 12/11/2007. Hence it is clear that housing loan of Rs.2,40,000/- was granted by creating an extended mortgage over the property covered by deed No.1121/96 which is evident from Ext.B10 equitable mortgage register. From Ext.B11 it is clear that complainant had defaulted repayment. Section 171 of Indian Contract Act 1872 clearly states that in the absence of a contract to the contrary the bankers may retain as a security for a general balance of account, any goods bailed to them. Section 171 gives a general lien and it has got to be recognized. It is held in 2003 KSC 3721 that “ Even in the absence of any agreement between a banker and its customer, the banker has a general lien over all forms of deposit or securities made on behalf of the customer. Hence it can be concluded that there is no deficiency of service on the part of the opposite party bank. The opposite party bank has acted in accordance to the law. The Ext.B3 notice was challenged by the complainant as not served. But bank had examined DW2 to prove that such a notice was issued to the complainant. Considering all the above points it is clear that complainant had failed to prove his contentions.
From the above discussions we are of the view that there is no deficiency of service on the part of opposite party.
In the result complaint is dismissed without any cost.
Pronounced in the open court on this the 25th day of October 2014
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Shiny. P.R
Member
Sd/-
Smt. Suma. K.P
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1 - Power of Attorney (Original) dtd.26/03/2012.
Ext.A2 - Pass book of C.Abu, A/c.No.67044147752, State Bank of Travancore, Cherplachery Branch.
Ext.A3 - Registered notice 17/05/2012
Exhibits marked on the side of opposite parties
Ext.B1 - Registered lawyer notice to the complainant dtd.30/1/2012
Ext.B2 - Reply Registered lawyer notice dtd.14/2/2012
Ext.B3 – Letter from State Bank of Travancore to the complainant dtd.12/3/2012.
Ext.B4- Courier Consignment note dtd 14/03/2012
Ext.B5 – Letter about Repayment of loan dt.16/3/2013
Ext.B6- Original application u/s.31(A) of the recovery of debts due to banks and financial institutions Act, 1993
Ext.B7-Order of Debts Recovery Tribunal, Ernakulam dtd.02/04/2013
Ext.B8 - Memorandum of Term Loan Agreement dtd.10/03/2014 (True copy)
Ext.B9 - Sanction Letter dtd 04/03/2004 (True Copy)
Ext.B10-Equitable Mortgage Register extract Page No.1033
Ext.B11- Statements of accounts from 01/03/2004 to 31/12/2004 & 1/1/2005 to
31-12-05 & 1/7/05 to 17/12/13
Ext.B12 - Statements of accounts from 01/08/2008 to 17/12/2013.
Ext.B13- Statements of accounts from 12/11/2007 to 17/12/2013.
Witness marked on the side of complainant
PW1 - Aboobacker Haji
Witness examined on the side of opposite parties
DW1- Raveenran.K
DW2- Ramachandran O.K
Cost Allowed
Nil
