DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 10th day of May, 2019
C.D Case No. 51 of 2016
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Smt. Sulochana Mahal
W/o: Late Umakanta Mahal
Vill/Po: Nayakanidihi,
Ps: Nayakanidihi,
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Branch Manager, State Bank of India, Basudevpur Branch
At/Po/Ps: Basudevpur,
Dist: Bhadrak
2. Sri Bijay Kumar Nayak
S/o: Late Ramakanta Nayak,
Vill/Po: Lunga,
Ps: Basudevpur,
Dist: Bhadrak
…………………………..Opp. Parties
Counsel For Complainant: Mr. P. K. Ray, Adv & Associates
Counsel For the OP No. 1: Mr. A. K. Mishra, Adv
Counsel For the OP No. 2: Set Ex-Parte
Date of hearing: 22.11.2017
Date of order: 10.05.2019
BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice.
The facts of the complaint are to the effect that the complainant is a widow family pensioner of the State Govt, as her deceased husband Late Umakanta Mahal was retired primary school teacher. After retirement of the husband of complainant, he had been drawing his pension through State Bank of India and the amount of pension was credited in every month to his SB account maintained with State Bank of India Basudevpur Branch and after his demise the complainant, being the wife of deceased Umakanta Mahal, opened an SB account No- 31550831120 with OP No. 1 to get her family pension to be credited to his account regularly in every month. The OP No.1 bank did not allow withdrawal from her pension account on the plea that the complainant has given an undertaking to OP No. 1 to debit required amount of loan installment from the SB account and to credit to same to the loan account of OP No. 2 which is absolutely false, fabricated and a well designed conspiracy against the complainant. When the complainant came to know about the deduction from his SB account by OP No. 1 without any authority and standing instruction given by her, she raised objection with OP No. 1 requesting OP No. 1 not to deduct the loan installments from her SB account as she was not the guarantor of loan availed by OP No. 2. To her ill luck, OP No. 1 did not pay any heed to the submission and request of the complainant rather went on deducting the amount despite of several oral objections as OP No. 1 did not receive any written objection from the complainant. It is worth mentioning that OP No. 1, in nexus with OP No. 2, made an arrangement to deposit Rs 2,000/- per month in SB account of complainant by OP No. 2 and took the plea that the matching amount of deduction made from the complainant’s account which would not create any problem for the complainant to withdraw money from her account. This practice continued for 8 months from November 2012 to August 2013 in a continual manner after which no credit posting was made in the account of the complainant and therefore the complainant started suffering from financial front from the month when OP No. 2 stopped depositing the amount. Despite all of her efforts for resolution of the problem by OP No. 1, when she could not be able to draw money from her account to meet her expenses for medicine etc the complainant finding no other way took shelter in the Consumer Forum for redressal of her grievance for admission and adjudication of this case and for a direction to the O.Ps to credit the amount to her account matching to the amount deducted from her account, to credit the loan account of OP No. 2, along with interest, cost and compensation.
OP No. 2 neither appeared before the Forum nor submitted any written version as a result of which he was set ex-parte.
OP No. 1 objected the allegations made in the complaint and contested the case. The advocate engaged by OP No. 1 to conduct the case has raised the question of maintainability as the complainant is not a consumer within the meaning of Sec- 2 (d) (1) of CP Act 1986. Further in complying para wise averments made in complaint, OP No. 2 has also stated that it has not committed any wrong nor violated any provisions of Act and rule by transferring the required amount of EMIs from the SB account of the complainant relying on written mandate given by the complainant declaring that the bank is at liberty to realize loan installment amount from her SB account in which the family pension is being credited regularly in every month. Further the answering OP has also stated that the complainant and her deceased husband had stood guarantee of the loan and after demise of her husband the bank had been deducting the EMI amount from the SB account of complainant which is permitted by law. Hence the complaint of the complainant is devoid of merit and liable to be dismissed with exemplary cost.
Admittedly OP No. 2 is the borrower of loan from OP No. 1 who had borrowed housing loan which was repayable by the borrower and the husband of the complainant was the guarantor of the loan. Other than above facts all the allegations made in the complaint were disputed by the OP No. 1.
After going through the complaint and the written version it is observed that the following points are very much important and relevant to be discussed to reach at the conclusion.
1. The complainant has alleged that she opened a SB account with OP No. 1 bank after demise of her husband to get the family pension credited to her account and therefore she opened the said account bearing No- 31550831120 on dt. 22.12.2010. It is also relevant to state that the husband of the complainant died in the year 2008 and since then the complainant had not received family pension from the Govt. The arrear pension amount from 2008 was credited to her account which was also drawn by her to maintain her livelihood. But subsequently in the year 2012 during the month of May, the financing bank started deducting from her SB account without any authority and credited the deducted amount to the loan account of OP No. 2 which is absolutely unlawful and illegal. It is also supplemented by the complainant that because of such whimsical and unlawful decision of OP No. 1, the complainant was prevented to draw her pension money from her account maintained with the bank as a result of which the complainant even could not afford for her medicine etc. Arbitrary deduction without any authority and standing instruction from the account of complainant amounts to unfair trade practice and neglecting sincere requests of complainant to stop deduction from her account also amounts to deficiency of service. On the contrary OP No. 1 submitted in stating that the complainant and her husband were the guarantor of the loan availed by OP No. 2 and also had given written undertaking authorizing the bank to deduct the amount from her account till the loan account is fully liquidated in support of which OP No. 2 has submitted a Xerox copy of the undertaking as evidence. On perusal of the Xerox copy of the document, complainant filed objection in stating that the document adduced by OP No. 2 as evidence is fake and forged and the signature of the complainant appears on the document is in genuine and also forged.
2. Secondly the complainant has alleged in stating that OP No. 2 is the principal borrower of the loan in discussion where the deceased husband of complainant was the guarantor. When the payment to the credit of the loan account was irregular causing overdue of the loan, it was the first and foremost duty and responsibility of the banker i.e. OP No. 1 to proceed against the principal borrower to recover the loan or to adopt legal action against the borrower before resorting to deduction from guarantor’s account. It is pertinent to mention here that the complainant is neither a borrower nor the guarantor of the loan and effecting any deduction from the personal account of a third party is a clean violation of settled position of law, Banking Act and Rule and directives and guideline issued by the Reserve Bank of India to that effect. On the other hand the OP No. 1 countered in submitting that on the strength of written undertaking given by the complainant, the OP Bank has effected deduction from her account by way of transfer and in crediting the same to the loan account of OP No. 2.
Gone through the complaint, written versions submitted by O.Ps, perused materials available on record and observed as detailed below.
i. The complainant has alleged as to she is not the guarantor of loan nor she has signed in the written undertaking as produced by the OP No. 1. On this particular point OP No. 1 was directed to furnish the written under taking given by the complainant and to furnish the original letter of hypothecation and guaranty of the loan executed by the guarantor. Instead of submitting the documents sought for, OP No. 1 has submitted a Xerox copy of an appraisal note of the bank’s authority which generally assessed by the bank at the time of pre-sanction verification. This clearly shows that the OP No. 1 has suppressed the actual fact in apprehending the discloser of the truth.
ii. The OP No. 1 has relied on only document that is the undertaking given by the complainant empowering the bank to deduct the required EMI from her SB account and accordingly the OP bank has transferred the amount of Rs 2,000/- per month till liquidation of the loan. On scrutiny of the document it is observed that the signature appears on the document of OP No. 1 does not match with the signatures appear on different documents submitted by complainant and signatures appear on the complaint as well as Valkatanama. Therefore it is believed that the signature of the complainant has been forged by the OP No. 1. Secondly the date and account number mentioned in the written undertaking has been erased and manipulated and the original document has not been marked exhibited at the time of hearing. As such this leads to believe that the OP No. 1 has submitted a manipulated Xerox copy of the document it relies upon.
iii. The Act of effecting deduction from the SB account of the complainant regularly to credit the loan account of the borrower till liquidation prior to proceeding against the borrower and without issuing any advice to the complainant soon after the transaction is effected is unlawful and illegal.
In view of the above facts and circumstances and with reference to the relevant documents on record, we are of the opinion that the OP No. 1 has undoubtedly resorted to unfair trade practice and despite of several requests made by the complainant to stop deduction, the act of irresponsiveness of OP No. 1 amounts to deficiency of service and therefore liable to payback the deduct amount together with interest, cost and compensation. Hence it is ordered;
- ORDER
The complaint be and the same is allowed with cost and compensation. The OP No. 1 is directed to payback the amount of Rs 54,000/- together with interest payable on Recurring Deposit matching to the rate of interest prevailing during month of May 2012 and to pay a sum of Rs 10,000/- as compensation for mental agony and harassment along with Rs 5,000/- as cost of litigation within a period of 30 days unfailingly. Failure to comply this order shall warrant additional interest @ Rs 7% per annum on the ordered amount from the date of order till the date of payment.
This order is pronounced in the open Forum on this day of 10th May, 2019 under my hand and seal of the Forum.
