DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANDHAMAL,
PHULBANI
C.C.NO.01 OF 2014
Present: Sri Rabindranath Mishra - President
Miss Sudhira Laxmi Pattanaik - Member.
Sri Chakadola Mallick - Member.
Sri Pradeep Chandra Mishra aged 60 years
S/O: Late Sunam Chandra Mishra.
At: Masterpada. PO/PS: Phulbani
Dist: Kandhamal - 762001 at Present – United
Theological School Mission Road, Cuttack -753001. …………. Complainant.
Versus.
1. Chief Manager,
State Bank of India, Phulbani branch.
AT/PO/PS: Phulbani Dist: kandhamal
2. Biraj Mohan Behera
S/O: Late Balakrishna Behera, Masterpada
3. Bikram Bihari Behera
S/O: Late Balakrishna Behera, Masterpada
SL 2&3 are of Masterpada,PO/PS: Phulbani Town
Dist: Kandhamal.
4. Kumar Kundan Singh
S/O: Vakil Singh At/PO: Masterpada
PS: Phulbani Dist: Kandhamal ……………… Opp. Parties.
For the Complainant: Sri R.K Pradhan, Advocate, Phulbani
For the O.P No.1: Sri S.K. Mohapatra and his associates.
For O.P No.2, 3& 4: Sri Ashok Kumar Behera, Advocate, Phulbani.
Date of Order: 31-03-2015
O R D E R
The case of the Complainant in short is that he had taken a loan of Rs. 5,00,000/- on 18-03-2003 from the Opposite Party No.1 for the purpose of construction of his house by giving mortgage his land bearing Plot No. 630/870 of Khata No. 138/199 of Mouza Ollenbatchnagar. He deposited the loan and interest regularly in connection of his loan account No. 10812300021 of S.B.I Main Branch of Phulbani but after the marriage of his daughter and sudden death of his father he could not repay the loan dues since the year of 2008. Due to financial difficulty he
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requested the O.P. No.1 for One time settlement but the O.P No.1 remained silent without extending any co-operation. Thereafter due to bad luck he was suffering in
cancer and became ruined for his treatment. As a result of which he compelled to sell his above landed properties to Opposite Party No.2 & 3 by executing a power of attorney in favor of one M. Manoj Kumar Patra who sold the land to Opposite Party No.2 & 3. Subsequently the adjacent plot/ building was sold to Opposite Party No.4 by O.P No. 2 & 3 as per his desire as he had given the possession of the said building to him. The Complainant requested the O.P No.2 to 4 to contact the O.P No.1 for One time settlement and to close the account but they intimated to him that the O.P.No.1 was not cooperating to close the account by One time settlement. The Opposite Party No.1 was also not giving the correct position of the loan account to him. He also reported the matter to the O.P No.1 through his advocate on 25-10-2010 in reply to his pleader notice but the O.P No.1 gave a notice on 10-12-2013 through registered post to repay Rs. 4, 62,483.00 with further interest and incidental expenses. Hence, he has filed this complaint due to willful negligence and non cooperation of O.P No.1 to close his account. The relief claimed by the Complainant stated as follows:
1.The Opposite Party No.1 may be directed to settle up the matter by one time settlement deducting the interest imposed after 25.10.2010, the date of intimation to the Bank.
2.The Opp. Party No.1 may be directed not to take any action to realize the above amount before disposal of the present case.
3.An interim order to stay the realization of the claim amount as per notice of Opp. Party No.1 be passed.
4. Compensation of Rs. 20,000/- be granted for willful negligence and harassment of Opp. Party No.1 to his consumer.
The case of the Opposite Party No.1 as per his version is that the Complainant had availed the said loan by way of creating an equitable mortgage of the entire landed property stood in his name and by executing security documents being present and signed quite supposed to be abide by the terms and conditions stipulated therein specifically not to transfer the said property in any manner . The Bank has no knowledge regarding the marriage of his daughter and sudden death of his father and also regarding the disease of cancer and the same are designed for the purpose of filing of this complaint. Apart from this Bank has also no knowledge regarding execution of Sale deed in favor of O.P No.2,3 & 4 relating the mortgage property which is not tenable under law. The Complainant never remained in contact with the bank all along despite of several notices issued against him. The Bank never neglected for providing any short of service to the Complainant for which there cannot be an allegation against the Bank relating to any sort of negligence. This case is not maintainable as the same has not come under purview of
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section 2(d) of Consumer Protection Act and there is no deficiency in service caused on behalf of the Bank. Hence, the Complaint is liable to be rejected with cost.
The case of the Opposite Parties No.2, 3&4 as per their joint version is that when the loan account of the Complainant was declared as NPA at that time the outstanding amount was Rs. 2,52,125.24 and the O.P No.4 had negotiated with the O.P No.1 for a compromise as he was in physical possession over the property of the Complainant . As the Complainant is a senior citizen and wanted to avail OTS scheme, he approached the OP No.1 through O.P No.4 on several occasions and waited for six years but no action was taken by the O.P No1 to close the loan account. The loan outstanding was escalated beyond the imagination and against the principles of law due to fault of O.P No.1 which hits the “Law of dandupat” which speaks that the interest should not be more than the principal. The land schedule particulars are not correct as reflected in the notice dated. 10-12-2013 issued by O.P No.1 to the Complainant. The house of the Complainant is situated over 2 plots bearing No. 630/870 and plot No. 518/630 which was originally stands recorded in the name of Sunama Chandra Mishra, the father of present Complainant. The Opposite Party No.1 has not verified the property physically and not tallied with the documents and the practical position of the land at the time of mortgage which proves the malafide and fraudulent intentions of the Bank Authorities amounts to unfair and monopolies of trade practice and deficiency of service .The Complainant was not owner of Plot No. 518/630 of khata No 120 of Mouza Olenbatch Nagar at the time of execution of the disputed mortgage . On the relevant time the Opposite Party No.4 was in possession over the house situated over the said plot by keeping mortgage from Sunam Chandra Mishra, the father of the Complainant .They admitted the facts of the Complainant and stated to allow the Complaint in the interest of justice as the Opposite Party No.4 is in physical possession over the case land .
In view of above pleadings of both the parties we are framing the following issues for better adjudication of the Complaint:
(1) Whether the Complaint is maintainable under the purview of C.P Act?
(2) Whether the Complainant is entitled to get any relief as per his prayer?
Before answering the above issues we have gone through the complaint petition and versions filed by O.P No.1 and O.P No.2 to 4 separately. We have also gone through the documents filed by the Complainant and O.P no.4 in support of their case. We have heard the learned counsels appearing for both the parties. It is submitted by the learned counsel of the Complainant that in the mean time the amount of interest is going to be increased from the capital amount. He also submitted that when the Complainant is willing to settle his matter through the process of One time settlement, the same should be considered in the principle of
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natural justice. On verification of records it reveals that it is a transaction which initiated in the year 2003 and in the mean time 12 years has already been passed.
The statement of loan account was not filed by any of the parties. The learned Advocate appearing for O.P No.1 raised objection on the submission of the Complainant but we find sufficient force on the submission of the counsel of the
Complainant .It is seen from the pleader notice dated. 28-09-2010 sent on behalf of the O.P No.1 to the Complainant that the outstanding dues was Rs. 3, 11,367.00/-
with up-to-date interest .The Complainant was interested to close the loan transaction on One time settlement, which is reflected in his reply dated 25-10-2010. After the said reply there is absolutely no evidence to prove that the O.P No.1 sent any notice to the Complainant for recovery of the loan amount. We are not able to understand the reason why the O.P Bank waited more than 3 years without taking any effective steps for recovery of the loan amount from the Complainant. Apart from this the schedule mentioned in the notice dated 10-12-2013 and the pleader notice dated. 28-09-2010 is contradictory to each other. It is admitted fact that one residential building is situated over both the plot bearing No. 630/870 vide khata No. 138/199 and plot No. 518/630 vide khata No 120 of Mouza Ollenbatchnagar . The R.O.R of both the plots stand recorded in the name of Prdeep Chandra mishra, the Complainant and Sunam Chandra Mishra, the father of the Complainant respectively. It is strange that only plot No. 630/870 was mortgaged for the purpose of loan. In case of non recovery of the loan amount the execution process will be complicated as per provision of law. The claim of the Bank is also time –barred.
In this case the Complainant had availed the service of the O.P Bank in the capacity of beneficiary and become a Consumer as per provision of C.P Act. So, he is entitled to get relief as per his prayer when the mortgage process is complicated and the loan transaction is very old and the O.P No.1 has not filed any valid documents in order to ascertain the clear position of the loan account of the Complainant. So, the prayer for settlement of the loan transaction can not be denied in the principle of natural justice. Accordingly the above 2 issues are answered in favor of the Complainant.
At the time of giving the pleader notice to the Complainant on 28-09-2010 the outstanding dues of the loan was Rs. 3, 11,367.00/- It is submitted by the learned counsel of the Complainant in his written argument to allow suitable installments for the settlement of loan transaction. Due opportunities should be given to the Complainant especially when he is willing to repay the loan amount. The demand of interest from the said date is not sustainable in the eye of law. Hence, the prayer of the Complainant is allowed as this C.P Act is a beneficiary legislation and liberal construction is to be made. Hence, the Complainant is directed to deposit Rs.1, 00000/- before the Opposite party No.1(O.P.Bank) within 30 days from the date of receipt of this order and to clear up the rest amount of Rs. 2, 11,367.00/- in five equal monthly installments. The Opposite Party No.1 is directed to receive the said amount from the Complainant or from his authorized
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agent and close up the loan account of the Complainant after receiving the above mentioned amount from the Complainant. The Opposite Party No.1 shall not demand any further interest towards the said loan account. In the above circumstances we are not awarding any compensation in favor of the Complainant.
The Complaint is partly allowed and the C.C is disposed of on contest. The interim order passed on 27-01-2014 by the Forum is hereby vacated Supply free copies of this order to both the parties.
MEMBER MEMBER PRESIDENT
