CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM Present Sri. Santhosh Kesavanath P. President Smt. Bindhu M. Thomas, Member K.N. Radhakrishnan, Member CC No. 191/2009 Tuesday, the 21st day of October , 2010 Petitioner : 1) Salikumar V.P Vadakkathu House, Nattakom P.O, Kottayam. 2) C.K. Shiny W/o. Salikumar V.P --do— (By Adv. Jaison Paliyil) Vs. Opposite party : State Bank of Travancore, Civil Station Branch, Kottayam reptd by its Branch Manager. (By Adv. Thomas Mannanal) O R D E R Sri. Santhosh Kesavanath P., President. Case of the petitioner filed on 30..6..2009 is as follows: Petitioners are joint borrowers of a loan from the opposite party bank. Petitioners availed a loan for Rs. 2,50,000/- for repair and maintenance of their residential house. The loan is availed by mortgage of landed property and deposit of title deed with opposite party . According to the petitioners they repaid Rs. 1,20,980/- towards the loan amount. Petitioners were served with a demand notice dtd: 27..9..2007 for an amount of Rs. 2,82,179/- alleged to be issued, under section 13(2) of SRFAESI Act. Since the notice lacks statutory requirement on 10..10..2007 petitioners filed objection. But opposite party did not considered the objection. Aggrieved petitioners approached the Hon’ble High Court of Kerala as per WP(C) No. 4418/08. Hon’ble High Court of Kerala disposed the petition directing the opposite party’s to consider the aforesaid objection and to pass orders in accordance with section 13(3) of the act. On 16..4..2008 opposite part’s issued a letter, stating to be in compliance with the -2- direction of Hon’ble High Court of Kerala. Petitioner received the same and as reply issued a lawyers notice dtd: 28..5..2008. Opposite party replied the same as per letter dtd: 30..6..2008 along with a copy of the statement of account up to 1..7..2008. As per the statement of account petitioner had repaid Rs. 1,20,980/- and balance due was only 2,24,585/-. On 12..8..2008 opposite party filed CMP No. 3589/08 before the CJM, Kottayam seeking assistance to take possession of the mortgage property of the petitioner. Meanwhile, before taking possession, petitioner moved before the High Court of Kerala as per WP(C) No. 26505/08. Hon’ble High Court of Kerala on 2..9..2008 disposed the petition directing the petitioners to pay 1/3rd amount within one month and rest in 4 equal monthly installment. Complainant accordingly paid the entire amount in compliance with the order of Hin’ble High Court of Kerala. Opposite party satisfied and the petition before CJM Court has been, “not pressed” accordingly petition has been closed. On 5..5..2009 petitioner served a letter to the opposite party requesting to return the title deed deposited with the opposite party . But opposite party replied through lawyers notice Dtd: 11..6..2009 demanding further amount of Rs. 1,30,889/- for return of title deeds. According to the petitioner opposite party has no right to demand further amounts. Act of the opposite party in demanding exorbitant amount amounts to clear deficiency in service. So, petitioner’s prays for a direction to the opposite party to return the title deeds and other documents. Petitioner also prays for a direction to the opposite party not to proceed against the property of the petitioners. Petitioners claims Rs. 2,500/- as compensation for mental agony and hardship and costs of the proceedings. Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party petitioners are not consumers as defined under Consumer Protection Act and there is no ‘consumer dispute’ in this case. Petitioners availed, a housing loan for Rs. 2,50,000/- on 6..1..2003 from the opposite party. Loan is availed on a collaterally secured equitable mortgage of 2 ares 38 sq. mts of property of the petitioner’s in favour of the bank. Petitioners also deposited the title deeds pertaining to their property. -3- After availing the loan petitioners defaulted in repayment of loan installments. The loan has been classified as a non-performing asset, on 30..4..2006, in accordance with directives of the Reserve Bank of India . On 27..9..2007 the authorized officer of the bank issued notice under section 13(2) of the Securitization Act 2002, demanding payment of Rs. 2,82,179/-, as on 31..8..2007, together with interest. Opposite party filed petition before the Chief Judicial Magistrate Court, Kottayam under section 14 of Securitization Act for taking possession of the secured asset. While so the petitioners approached Hon’ble High Court of Kerala challenging the proceedings under section 14 of Securitization Act. Hon’ble High Court permitted the petitioners to pay 1/3rd of the amount due within one month from 2..9..2008 and balance amount to be paid in 4 equal monthly installment starting from 1..11..2008. Since the petitioner did not comply with the order of the High Court. Opposite party filed memo before the CJM Court, Kottayam. Seeking direction to the Commissioner advocate to take possession and effect delivery of the property. Meanwhile the petitioner had effected payment of Rs. 1,87,500/- on various dates. On 30..3..2009 and subsequent days the petitioner approached the opposite party and requested not to take possession of the property and they are offered to pay the balance amount within 10 days. Believing the promise of the petitioner on 6..4..2009 opposite party bank submitted before the Chief Judicial Magistrate Court that the bank is not pressing the proceedings under the SARFEASI Act. The statement of account submitted by the petitioners is a statement of NPA account without interest with effect from 1..5..2006 since as per RBI directives, interest cannot be applied to NPA account. In the demand notice under the SARFAESI Act , demand was raised for Rs. 2,82,179/-, as on 31..8..2007 together with future interest. According to the opposite party an amount of Rs. 1,34,164/-being the interest, with effect from 23..7..2009, is due from the petitioner to the bank. On deposit of the same opposite party is ready to return the document as soon as the loan account is closed by remitting the full dues. Opposite party contented that there -4- is no deficiency in service on their part and they pray for dismissal of the petition with their costs. Points for determinations are: i) Whether there is deficiency in service on the part of the opposite party? ii) Relief and costs? Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A8 documents on the side of the petitioner and Ext. B1 and B2 documents on the side of the opposite party. Point No. 1 Petitioner alleges deficiency in service on the part of the opposite party on the ground that opposite party has not returned the title deeds deposited by the petitioner at the time of availing the loan. According to the opposite party petitioner has not remitted the entire loan amount so the title deeds deposited by the petitioner cannot be returned. According to the petitioner he repaid Rs. 1,20,980/- till 2007. Opposite party on 2..8..2007 issued a notice to the petitioner under section 13 (2) of the SARFAESI Act. Copy of the notice issued to the petitioner is produced and same is marked as Ext. B1. As per B1 notice the demand is for Rs. 2,82,179/- petitioner as reply to Ext. B1 notice issued a letter to the opposite party. Copy of the letter produced is marked as Ext. A1. As per Ext A1 petitioner requested for a certified copy of the statement of account relied on by the opposite party for issuing Ext. B1 demand notice. As per section 13 (3) of SARFAESI Act notice referred to in Sub Section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non payment of secured debts by borrower. Further more, as per section 13 (3) (a) of the SARFAESI Act 2002 on receipt of the notice, if the borrower makes any representation or raises any objection, secured creditor shall consider such representation or objection and proceed accordingly. Here in this case opposite -5- party failed to give details of the amount demanded as per section 13 (2) of SRFAESI Act. ‘Deficiency’ is defined in Consumer Protection Act section 2 (g) as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any time being in force or has been undertaken to be perform by a person in pursuance of a contract or otherwise in relation to the service. In our view the opposite party has not performed in a manner which is required to be maintained by law for the time being, amount to deficiency in service. Subsequently for legal compliance of the provisions of SARFASI Act the petitioners approached the Hon’ble High Court of Kerala. Copy of the judgment pronounced by the Hon’ble High Court is produced and same is marked as Ext. A2. As per Ext. A2 Hon’ble High Court directed the opposite party to pass order in terms of section 13 (3) of the SARFAESI Act. As per Ext. A2 direction opposite party issued the letter dtd: 16..4..2008 said letter produced is marked as Ext. A3. Ext. A4 is the lawyers notice as reply to Ext. A3 letter. Subsequently the opposite party issued another letter to the petitioner’s counsel it is marked as Ext. A5. In Ext. A5 it is stated that the opposite party attached a certified copy of the statement of account showing exact balance of the loan account including interest charged by opposite party as per RBI guide line. They further, stated that the re-payment period was 20 years. Ext. A5 (a) is the certified copy of the account as on 1..7..2008. In Ext. A5 (a) it is certified that as on 1..7..2008 outstanding amount is Rs. 2,24,585/-. Ext. B1 demand is for Rs. 2,82,179/- ie. on 2..9..2007. Admittedly opposite party on 12..8..2008 filed CMP with vide No. 3589/08 before the CJM, Kottayam. Petitioners again approached the Hon’ble High Court and the Hon’ble High Court allowed the petitioners to pay 1/3rd amount of the due loan amount within one month and rest in 4 equal monthly installment from 1..11..2008. The verdict of the Hon’ble High Court in WP(c) 26505/08 is on 2..9..2008. In accordance with the order according to the petitioner he paid the entire amount before 6..4..2009 thus the CMP has been ‘not pressed’ as settled. Opposite party -6- produced detailed statement of account and same is marked as Ext. B2. Ext. B2 statement of account is not at par with Ext. A5(a) document, which is issued on the basis of the High Court Order. Further more, in Ext. A5 reply opposite party stated that the Ext. A5 (a) statement includes interest as per RBI guide lines. According to the opposite party Ext. A5 (a) statement is a statement without calculating the interest. Further more definite case of the opposite party is that the petitioners were defaulter from the very beginning itself. As there was default in re-payment from 30..3..2003 to 30..3..2006 the account of the petitioner had been classified as non performing assets on 29..4..2006. Counsel for the opposite party vehumently argued that Ext. B1 notice is issued without prejudice to the banks right to initiate such other actions for legal proceedings as it deems necessary under applicable provisions of law. Whenever an account become NPA interest will not be applied. Hence along with amount shown in Ext. B1 notice interest, with effect from 29..4..2006, has to be added to arrive at actual dues. The CMP pending before the CJM Court was not pressed believing the promise of the petitioners on 6..4..2009 that the petitioners are ready to pay balance amount within 10 days. Ext. A8 is the certified copy of the order produced by the petitioner in CMP 3985/09 of CJM, Kottayam. In Ext. A8 it is stated that petitioners represented matter as settled. Petition dismissed as ‘not pressed’. CMP 3589/08 was filed on 12..8..2008. WP(c) No. 26505/08 was disposed by the Hon’ble High Court on 2..9..2008. On 6..4..2009 Ext. A8 order was passed by the CJM, Kottayam. So, from the probabilities we presume Ext. A8 order by the CJM, Kottayam was pursuant to the payment of entire amount as submitted by the petitioner. From Ext. B2 statement of account it can be seen that in between 2..9..2008 and 6..4..2009 an amount of Rs. 2,24,585/- has been remitted by the petitioner. So, from the document on record we are of the view that opposite party was satisfied with manner and nature of remittance made by the petitioner. Further more, opposite party has not stated any where in Ext. A5(a) statement or Ext. B1 that amount of interest was not applied. Further more in Ext. A5 (a) certificate opposite party certified that the amount shown in Ext. A5 (a) statement -7- of account includes the interest charged as per RBI guide lines. In our view the opposite party is estopped from claiming further amounts. So the act of the opposite party in demanding excess amount in our view amounts to deficiency in service. So, point No. 1 is found accordingly. Point No. 2 In view of the finding in point No. 1, petition is allowed. In the result the opposite party is directed to return the title deeds and other documents deposited by the petitioner with the opposite parties with within 30 days of the receipt of the copy of this order. Considering the facts and circumstances of the case no cost and compensation is ordered. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 21st day of October, 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N Radhakrishnan, Member Sd/- APPENDIX Document for the Petitioner Ext. A1: Copy of letter Dtd: 10..10..2007 issued by Salikumar V.P to the Branch Manager, SBT. Ext. A2: Copy of order in WP(c) No. 4418/08 Ext. A3: Copy of the letter dtd: 16..4..2008 issued by the SBT to the petitioner. Ext. A4: Copy of reply to the lawyers notice Dtd: 28..5..2008 Ext. A5: Copy of letter Dtd: 30..6..2008 issued by the opposite party to Adv. Jaison Paliyil Ext. A6: Letter issued by first petitioner to the Manager, SBT Dtd: 5..5..2009. Ext. A7: Reply lawyers notice to the petitioner Dtd: 11..6..2009 Ext. A8: Copy of order sheet Dtd: 6..4..2009 in CMP 3589/08 Documents for the Opposite party: Ext. B1: Notice under Section 13(2) Dtd: 2..9..2007 Ext. B2: Detailed statement of account No. MTL 299310 from 1..1..2003 to 31..12..2003. By Order, Senior Superintendent amp/5 cs.
| | [HONORABLE Bindhu M Thomas] Member[HONORABLE Santhosh Kesava Nath P] PRESIDENT[HONORABLE K.N Radhakrishnan] Member | | 
