Complaint presented on  16.04.2012

                                                                Order pronounced on  :  11.03.2016

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

FRIDAY THE 11th  DAY OF MARCH 2016

C.C.NO.95/2012

A.Victor Vijayakumar,

Son of Mr.Peter Anthony,

108, Brinda Block,

Mahalakshmi Malika,Doshi Housing,

6 Justice Ratnavel Pandian Road,

Golden George Nagar,

Mogappair East,

Chennai – 600 107.

                                                                                       ..... Complainant

..Vs..

Date of complaint                                  : 20.04.2012

Counsel for Complainant                      : M/S. G.Ramdoss

Counsel for  1^st  Opposite party               : M/S. S.Namasivayam

Counsel for 2^nd  Opposite Party                     : R.Ramani

                                                                   M/S.Sampathkumar & Associates

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant was employed in Dubai and he had opened and maintained a NRE Account with the 1^st Opposite Party.  He had availed a Housing Loan for a sum of Rs.20,50,000/-  with the 2nd Opposite Party. For the purpose of repayment of loan the 2^nd Opposite Party had obtained an ECS mandate duly signed by the Complainant with the start date as 27.06.2010 and the end date were given as 27.03.2011. After some time the 2^nd Opposite Party staff approached the Complainant and corrected the end date in the ECS mandate as until loan closure. However, the 2^nd Opposite Party presented EMI debit for an amount of Rs.25,144/- for  the month of March 2011, it was returned by the 1^st Opposite Party for the reason mandate not received. When the Complainant contacted the 2^nd Opposite Party, he was informed that the ECS mandate was given until loan closure. The Complainant paid the March EMI through demand draft. The EMI for the month of April 2011 was dishonored for the reason of insufficient funds.  Since the Complainant was having sufficient funds in his account with the 1^st Opposite Party and contacted the 1^st Opposite Party through e-mail, the 1^st Opposite Party sent a reply dated 07.05.2011 that the ECS debit presented on 28.03.2011 has been returned for the reason mandate not received and when the ECS debit presented on 27.04.2011 for the reason insufficient funds instead of the actual reason mandate not received. Again ECS debit for the month May 2011 was returned by the 1^st Opposite Party that the ECS mandate was not received. The Complainant settled the amount for the ECS mandate returned through demand drafts. The Complainant made several correspondences through e-mail with the Opposite Parties about the returned ECS mandate. AT his request the 2^nd Opposite Party furnished a copy of ECS mandate given by him and the same revealed that the ECS mandate was given as until loan closure. Once again the Complainant contacted the 1^st Opposite Party man Mr.Kuldip Kulkarni  through mail to ensure that the ECS for the month of June and subsequent months presented the same should be honoured as his account is having sufficient fund.  Mr.Kuldip Kulkarnii confirmed the ECS mandate valid date has been extended. The 2^nd Opposite Party having obtained the ECS mandate from the Complainant until loan closure and the same had not sent to the 1^st Opposite Party for necessary action and instead of sent a copy of the ECS mandate which had the end date as 27.03.2011. Therefore the 2^nd Opposite Party committed Deficiency in Service and due to such act for 3 months ECS debit was not cleared by the 1^st Opposite Party.  Hence the Complainant issued a lawyer notice to the 2^nd Opposite Party and same was returned as left and however the 2^nd Opposite Party has received the 2^nd notice sent by him and the same was not replied by the 2^nd Opposite Party. Hence the Complainant filed this Complaint that the 2^nd Opposite Party committed Deficiency in Service claiming compensation with litigation expenses.

2.WRITTEN VERSION OF THE 1^ST OPPOSITE PARTY IN BRIEF:

          This Opposite Party is not a necessary party in this Complaint. This Opposite Party admits that the Complainant maintaining an NRE Savings Account from 21.09.2006 with him and he has also availed a home loan from the 2^nd Opposite Party and gave an ECS mandate for the period from 27.06.2010 to 27.03.2011. Other than the above mentioned ECS mandate no other mandate was received by this Opposite Party. The claim dated 28.03.2011 returned as there was no mandate and however while returning the claim it was inadvertently mentioned for insufficient funds. Subsequent verification by the Complainant reveals that the ECS mandate until loan closure given to the 2^nd Opposite Party by the Complainant and the same was not passed on to this Opposite Party and therefore this Opposite Party is not liable and he has not committed any Deficiency in Service and prays to dismiss the Complaint.

3.WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF

          This Opposite Party admits that the Complainant availed a housing loan of Rs.20,50,000/-  and also issued an ECS mandate from his account with the 1^st Opposite Party for  repaying the said loan.  This Opposite Party denies that he had mentioned the start date as 27.06.2010 and end date as 27.03.2011 at the time of obtaining the Complainant signature in the ECS mandate. In fact the ECS mandate was filled up, signed submitted to the 1^st Opposite Party before that the same was submitted to the Opposite Party.  In fact this Opposite Party while receiving the ECS mandate so registered with the 1^st Opposite Party  pointed out the error committed by the Complainant in filing the end date as 27.03.2011 and adviced the Complainant to correct the end date and inform to the 1^st Opposite Party and get the same registered with them. The Complainant made corrections in the copies submitted with this Opposite Party endorsing until loan closure as end date and he has not communicated the such change to the 1^st Opposite Party.  The Complainant ought to have informed the 1^st Opposite Party about the change made in the ECS end date and having failed to do so, the 1^st Opposite Party has returned the demand made by this Opposite Party  to deduct EMI from the Complainant account and therefore this Opposite Party has not committed any Deficiency in Service and hence prays to dismiss this Complaint.

4.POINTS FOR CONSIDERATION:

          1.Whether there is deficiency in service on the part of the opposite parties?

          2.Whether the complainant is entitled to any relief? If so to what relief?

5.POINT:1

          The admitted facts are that the Complainant was having an NRE Account with the 1^st Opposite Party and he availed a housing loan of Rs.20,50,000/- from the 2^nd Opposite Party and for the repayment  of EMI for the said loan, the Complainant gave an ECS mandate to deduct the EMI from his account which was maintained by the 1^st Opposite Party and the  request ECS debit  by the 2^nd Opposite Party for the months March, April and May 2011 was returned by the 1^st Opposite Party for want of ECS mandate  and the Complainant for those months paid the EMI through demand drafts.

          6. The Complainant would contend that  initially he gave ECS mandate for the period  start date as 27.06.2010 and the end date has 27.03.2011 and some time thereafter  the staff of the  2^nd Opposite Party approached this Complainant  and in the ECS mandate end date corrected as until loan closure and the Complainant signature was obtained and  the 2^nd Opposite Party after having obtained the Complainant’s signature for the ECS mandate with the end date being until loan closure, had not sent the same to the 1^st Opposite Party for necessary action, resulting the demand for the months March, April and May 2011 was returned by the 1^st Opposite Party for want of ECS mandate.  

          7. The 1^st Opposite Party would contend that he has received the ECS mandate for the period from 27.06.2010 to 27.03.2011 from the 2^nd Opposite Party and however subsequently the ECS mandate until loan closure given to the 2^nd Opposite Party by the Complainant was not passed on to this Opposite Party and therefore the ECS debit request by the 2^nd Opposite Party for the months March, April and May 2011 was returned for want of ECS mandate.

          8. The 2^nd Opposite Party would contend that initially the Complainant gave  the ECS mandate for the period  from 27.06.2010 to 27.03.2011 to this Opposite Party  and this Opposite Party  informed the Complainant that the repayment over a longer term and end date has 27.03.2011 is an error committed by him and therefore the Complainant advised to correct the end date and submit a copy of the corrected ECS mandate to the 1^st Opposite Party and though the Complainant corrected ECS mandate for the period from 27.06.2010 to until loan closure in his ECS mandate the same was not communicated the change to the 1^st Opposite Party by the Complainant and further initially the ECS mandate was given only to the 1^st Opposite Party and this Opposite Party is not bound to communicate the ECS mandate to the 1^st Opposite Party and hence this Opposite Party is no way liable for return of ECS debit and prays to dismiss this Complaint.

          9. According to the Complainant he gave ECS mandate to the 2^nd Opposite Party for the period from 27.06.2010 to 27.03.2011 and later the 2^nd Opposite Party obtained his signature for the ECS mandate with the end date as until loan closure and such a fact was not communicated by the 2^nd Opposite Party to the 1^st Opposite Party for necessary action. The 1^st Opposite Party also says the 2^nd Opposite Party has to obtain the ECS mandate and sent to them. The ECS mandate given by the Complainant is available at page 29 of the Complainant typed set. In the said ECS mandate initially the end date was given as 27.03.2011 and after 2^nd Opposite Party staff contacted the Complainant then the end date 27.03.2011 scored off and written as until loan closure and for such correction the Complainant has also subscribed his signature in the said form.  Ex.A11 sent by the 1^st Opposite Party with a copy of the ECS mandate to the Complainant and in the said form the end date is 27.03.2011.  The 1^st Opposite Party would say that he received ECS mandate from the 2^nd Opposite Party on 28.05.2010. The 2^nd Opposite Party would say that the Complainant failed to make correction in the ECS mandate available with the 1^st Opposite Party as until loan closure as done by him in the form available with the 2^nd Opposite Party,  and hence the ECS debit was not cleared by the 1^st  Opposite Party.

10. Now the point is whether the Complainant has to furnish ECS mandate with both the Opposite Parties or only at the branch where he availed the housing loan or where the Complainant is having his account.  Ex.B2 is the copy of the ECS mandate filed by the 1^st Opposite Party with end date as 27.03.2011. In the bottom of the said mandate the 1^st Opposite Party bank round seal and another seal is available with a signature of the authorized signatory of the City Bank that the particulars furnished above are correct as per our records. Whereas the corrected ECS mandate available in page 29 of the typed set also bears the City Bank Seal as available in Ex.B3. The Complainant has not filed any ECS mandate that bearing the seal of the 2^nd Opposite Party bank. Therefore the city bank seal available in the ECS mandate proves that the ECS mandate given only at the first Opposite Party bank by the Complainant and thereafter a copy of the same forwarded   to the 2^nd Opposite Party by the 1^st Opposite Party and that is why the ECS mandate bears the seal of the 1^st Opposite Party. Therefore the 2^nd Opposite Party is not at fault in not sending the ECS mandate to the 1^st Opposite Party and on the other hand it is the 1^st Opposite Party has to send the ECS Mandate to the 2^nd Opposite Party. Hence as such the 2^nd Opposite Party has not committed any fault. There is no relief sought against the 1^st Opposite Party and only against the 2^nd Opposite Party. Since the 2^nd Opposite Party has not committed any fault, it is held that the 2^nd Opposite Party has not committed any Deficiency in Service and accordingly this point is answered.

11. POINT:2

          Since the 2^nd Opposite Party has not committed any Deficiency in Service and no relief sought against the 1^st Opposite Party, the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 11^th day of March  2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1          copy of the loan agreement between the Complainant and 2^nd Opposite

                     Party

Ex.A2         E-mail dated 05.05.2011 sent by the Complainant to 1^st Opposite

                     Party

Ex.A3          E-mail dated 06.05.2011 sent by the Complainant to 1^st Opposite

                     Party

Ex.A4         E-mail dated 06.05.2011 sent by the 1^st Opposite Party to the

                     Complainant

Ex.A5         Letter dated 07.05.2011 sent by the 1^st Opposite Party to the

                    Complainant 

Ex.A6         Letter dated 07.05.2011 sent by 1^st Opposite Party to CIBIL

Ex.A7         Letter  dated 07.0.2011 sent by 1^st Opposite Party to 2^nd Opposite

                     Party        

Ex.A8         E-mail dated 10.05.2011 sent by 1^st Opposite Party to the

                     Complainant

Ex.A9         E-mail dated 16.05.2011 sent by the 2^nd Opposite Party to

                     Complainant along with copy of the ECS mandate.

Ex.A10       E-mail dated 12.06.2011 sent by the Complainant to 1^st Opposite 

                     Party

Ex.A11       E-mail dated 13.06.2001 sent by a 1^st Opposite Party to the

                     Complainant along with coppy of the ECS mandate

Ex.A12       E-mail dated 23.06.201 sent by the Complainant

Ex.A13       Lawyer notice dated 25.07.2011 sent by the Complainant to the

                     Opposite Parties

Ex.A14       Copy of the returned cover from the 2^nd Opposite Party

Ex.A15       Copy of the reply notice sent by the 1^st Opposite Party

Ex.A16        Copy of the letter dated 06.09.2011 sent by the Complainant to the

                      post office

Ex.A17        Letter dated 09.09.2011 sent by the post officer regarding proof of

                     delivery.

LIST OF DOCUMENTS FILED BY THE 1^st  OPPOSITE PARTY:

Ex.B1         Copy of Power of Attorney

Ex.B2         ECS Mandate for 27.06.2010 to 27.03.2011

Ex.B3                   Letters dated 07.05.2011

Ex.B4                   Letter dated 19.09.2011

LIST OF DOCUMENTS FILED BY THE 2^nd   OPPOSITE PARTY:

                                               ….NIL…..

MEMBER – II                                                                       PRESIDENT