Date of Filing: 10.08.2018
Date of Judgment: 06.09.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Sri Mihir Nandy, under section 12 of the C.P Act, 1986 against the Opposite Parties(referred to as O.Ps hereinafter) namely 1) HDFC Bank, Golpark Branch and 2) HDFC Bank, Regional Office, alleging deficiency in service on their part.
The case of the complainant in short is that in the year 2007 he applied for personal loan from the O.P no.1 HDFC Bank and a sum of Rs. 2,10,000/- accordingly was sanctioned. After the sanction of the loan the O.P no.1 had collected 3 blank post dated cheques duly signed by the complainant being no. 367526 to 367528. In the year 2009 complainant approached the O.P no.1 expressing his desire to withdraw the 3 blank cheques and handed over 3 other revised blank cheques which were received by the O.P no.1 and issued customer acknowledgment dated 7.3.2009. Due to some financial difficulties complainant failed to pay some EMIs and ultimately on several conversation and correspondences O.P issued a settlement letter on December, 2010 asking the complainant to pay Rs. 43,600/- as settlement amount in 2 equal installments i.e one on 17.12.2010 of Rs. 21,800/- and other on 20.01.2011 of Rs. 21,800/-. The complainant has paid both the installments; one by cheque and another by cash. But suddenly he was served with summon from the court of Ld. Metropolitan Magistrate wherefrom it appeared that O.Ps have filed a case under 138 of N.I Act against the complainant. The O.Ps have been practicing unfair trade practice as they have issued the aforesaid settlement letter in order to settle the loan amount of the complainant but on the other hand simultaneously presented the cheques for encashment which they were supposed to release from their custody to the complainant. So, the present complaint has been filed by the complainant praying for directing the O.Ps to issue no objection certificate in respect of the personal loan account being no. 11969405 , to direct the O.Ps to pay Rs. 80,000/- as compensation and Rs. 10,000/- towards ligation cost.
The O.P has contested the case by filing written version denying and disputing the allegations made by the complainant contending inter alia that as per the terms and conditions of the sanction of loan the complainant had deposited the cheques. But no revised cheques were issued by the complainant. The cheques issued earlier being no. 367526 to 367528 were not returned as revised cheques were not given by the complainant. The O.P as a good gesture had accepted the request of the complainant and offered to settle the loan amount at Rs. 43,600/-. However, the said offer was subject to the terms and conditions mentioned in the settlement offer letter. Complainant though deposited the cheque dated 18.12.2010 being no. 272666 but requested the O.P not to present till the receipt of confirmation from his side. So, the cheque could not be presented on the request of the complainant himself. Complainant only paid a sum of Rs. 21,800/- in cash on 28.12.2010 which was actually payable by 20.1.2011. But since the complainant violated the terms and conditions of the settlement offer ,the settlement could not be completed and O.P bank became entitled to claim entire outstanding under the said loan account which was Rs., 2,11,133/- as on 22.10.2018. There was continuous default on the part of the complainant. So, bank already initiated proceedings under section 138 of N.I Act. O.P has thus prayed for dismissal of the case with cost.
During the course of the evidence complainant filed affidavit-in-chief followed by filing questionnaire by the O.P and reply by the complainant. Similarly O.P filed evidence followed by filing questionnaire by the complainant and the reply by the O.P and ultimately both parties filed their respective BNA. But after filing BNA complainant stopped taking any step inspite of repeated opportunities given.
However following points require determination:
- Whether there has been any deficiency in service or unfair trade practice on the part of the O.P bank ?
- Whether complainant is entitled to the relief as prayed for?
Decision with reasons
Point no. 1 and 2:
Both the points are taken up for a comprehensive discussion.
At the outset it may be pertinent to point out that there does not appear any dispute about the sanctioning of personal loan of Rs. 2,10,000/- to the complainant by the O.P no.1 and also that complainant had issued 3 cheues being no. 367526 to 367528. However, it is claimed by the complainant that those cheques were blank, duly signed by the complainant which is denied by the O.P. This is also not in dispute that complainant failed to pay some installments and ultimately on discussions a settlement was arrived and a settlement letter was issued by the O.P no.1 on December 2010 whereby the O.P asked the complainant to pay Rs. 43,600/- in equal installment of Rs. 21,800/- each on 17.12.2010 and by 20.1.2011 respectively.
The bone of contention in this case appears to be that according to the complainant he has already paid the amount towards settlement arrived at between the parties of Rs. 43,600/-. He has not filed any original document. However, photocopy of the documents shows that a cheque dated 18.12.2010 being no. 272666 was issued of Rs. 21,800/- and another payment was made of Rs. 21,800/- in cash on m28.12.2010. The O.P has denied about the payment of the entire sum settled between the parties on the ground that cheque being no. 272666 could not be presented on the request of the complainant. So, only cash of Rs. 21,800/- was received by the O.P towards the said installment. Complainant has not filed any document before this Commission that cheque issued by him dated 18.12.2010 being no. 272666 was encashed by the O.P. If the cheque was encashed there was bound to have a document in this regard. So, the contention of the O.P that on the request of the complainant, said cheque was not presented for encashment cannot be ruled out, especially when the cheques issued by the complainant before , which according to the complainant was blank and signed were also dishonoured for which there is also proceedings initiated under section 138 of N.I Act against him. So, unless there is sufficient material before this Commission that both the installments of Rs. 21,800/- towards the settlement was paid by the complainant, the claim of the complainant about payment of entire settlement amount cannot be accepted. If that be so, as per the terms and conditions of the settlement letter in clause 3 and clause 10 which specified that in the event of repayment not being adhered to and any of the cheques being not honoured, the settlement would be null and void and the account holder/complainant would be required to pay the entire outstanding at that point of time and any amount paid in pursuance of the settlement offer till the date of default of the payment shall be adjusted towards the entire dues payable by the account holder as per the agreement. So, as the complainant failed to pay the amount as per the terms and conditions of the settlement letter, the settlement became null and void and so the complainant is liable to pay the amount due towards the loan taken by him which according to the O.P at the relevant point of time was Rs. 2,11,133/-. In such a situation as the complainant has failed to establish his claim about full payment of the amount towards the loan taken by him, he is not entitled to the relief as prayed for.
Hence,
ORDERED
That CC/508/2018 is dismissed on contest.
