For the Complainant                           -  Mr. SanjibMitra, Advocate

For the OPs 1 to 5                              -Mr. ParthaSarathi Mukherjee, Advocate

For the OP-6                                      - Mr. KaushikMukhopadhyay, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This complaint case originated from an application u/s.12 of the C.P. Act, 1986.

The facts of the case are that the complainant availed Home Loan from the OP-4/ICICI Bank Ltd. having its Serampore Branch and EMIs were debited from his S.B. Account No. 160801502154. Complainant closed the said S.B. Account and EMIs were debited from his another S.B. Account being No. 161601503077 maintained with OP-7. Complainant failed to pay monthly instalments of Home Loan to OP-4 since January, 2018 on account of insufficient fund. Home Loan was availed for purchase of a property owned by OP-6 who also confirmed regarding handover vacant possession of the said property vide letteraddressed to the OP-1but OP-6 did not vacate the said property. The matter was reported to OP-1 who did not assist the complainant in this regard. Being dissatisfied with the approach of OP-1, complainant did not pay any further EMIs of Home Loan. The OP Bank debited Rs. 1,57,459/- from Current Account No. 161605000268 lying with OP-2 Bank on account of non-payment of EMIs against Loan Account No. LBCAL-000022-11790 though the current Account opened in the name of M/s R.I.D., a Proprietorship Firm.

Further case of the complainant is that he availed two HomeLoanfrom the OP Bank against Loan Account Nos. LBCAL 00003863122 andLBCAL 00002279635 and had paid an excess amount against those two Home Loan. Despite request the OP Bank did not credit the excess amount to Loan Account No. LBCAL 00002211790. The action on the part of the OP ICICI Bank is illegal arbitrary, malafide and current Account No. 161605000268 was not lien against Home Loan Account No. LBCAL00002211790. Hence, the complainant approached the Forum by way of consumer complaint claiming to set aside the restriction of lien on Current Account No.  16160500026, direct the OPs to release Rs. 1,57,459/-, compensation of Rs. 1,00,000/- and litigation costRs. 50,000/-.

The OPs 1 to 5 by filing a joint written version disputed and denied the allegations made by complainantstating that the complaint is bad for mis-joinder and non-joinder of necessary parties. The specific case of the answering OPs is that the complainant obtained three loan facilities from the ICICI Bank Ltd. and Home Loan Account No. LBCAL 9163195722 is closed. Home Loan Account No. LBCAL 00002211790 was sanctioned in the joint name of the complainant and his wife Smt. Puja Sharma vide sanctioned letter dated 27.09.2014. The ICICI Bank Ltd. disbursedRs.42,00,000/- + Insurance premium against said loan account. The complainant and his wife availed said loan and executed several loan documents in connection with Loan Account No. LBCAL 000002211790. The property against whom loan was sanctioned is mortgaged to the ICICI Bank Ltd. as collateral security. Complainant and his wife are defaulter in making payment of EMIs against Home Loan Account No. LBCAL 00002211790 for which the Bank was constrained to issue notice to the complainant and his wife in respect of three loan accounts including Home Loan Account No. LBCAL 00002211790. By the said notice, the OP Bank communicated to the complainant that in default of payment they will initiated proceeding under SARFAESI Act, 2002 for realization of outstanding dues including interest. Despite repeated request and reminder, the complainant and his wife failed to regularize the Home Loan Account being No.  LBCAL 00002211790and the loan account was classified as NPA. The OP Bank also issued notice u/s 13 (2) of SARFASI Act, 2002 demanding Rs. 44,35,529/- from the complainant and his wife against Home Loan Account within 60 days from the date of receipt thereof. In spite of notice u/s 13 (2) of the SARFASI Act, 2002 the complainant and his wife did not make payment and regularize loan account. The OP Bank took symbolic possession of the mortgage property u/s 13 (4) of the SARFASI Act, 2002. The complainant and his wife also failed to make payment against Loan Account No.  LBCAL 00002211790.

Further case of the answering OPs is that the complainant is the sole Proprietor of R.I.D and maintaining a Current Account being No. 161605000268 from OPs Lansdowne Branch. For recovery of the outstanding dues of Home Loan Account No.  LBCAL 00002211790 the OP Bank exercised banker’s general lien U/s 171 of the India Contract Act and debited a sum of Rs. 1,57,459/- from the said current account towards outstanding dues. Vide letter dated 18.06.2018 the OP Bankrequested the complainant and his wife to pay Rs. 1,12,995/- with further interest at the agreed rate. The complainant and his wife failed to make payment as per demand letter dated 18.06.2018. The matter of debit of Rs. 1,57,459/- was informed to the complainant vide letter dated 30.06.2018. The answering OPs denied that the action taken by them is illegal, arbitrary and malafide which cause serious jeopardize the business of the complainant. The OP Bank has statutory right U/s 171 of the Indian Contract Act, to exercise general lien for recovery of money due to the Bank and no prior information and/or authorization from the defaulting borrower is required to exercise general lien.The instant consumer complaint is not maintainable U/s CP Act, 1986 as proceeding under SARFASI Act, 2002 has already been invoked. The answering OPs have denied the allegations of deficiency in service on their part and also prayed for dismissal of the complaint with exemplary cost.

Initially, the OP-6 appeared by filing Vakalatnama but ultimately failed to file any WV within the statutory period as prescribed in the CP Act, 1986. Thus, the case has proceeded ex parte against the OP-6.

Despite service of notice, OP-7 did not turn up to contest the case. As such, the case has also proceeded ex parte against the OP-7.

In the light of the pleadings of the parties, the following points have been raised for the sake of proper and effective adjudication of the case.

1) Whether theOP Bank illegally debited Rs. 1,57,459/- from Current Account No. 161605000268 of M/s. R.I.D., a Proprietorship Firm against Loan Account No. LBCAL00002211790?

2) Whether there is any deficiency in service and/ or unfair trade practice on the part of the OPs 1 to 5 and 7?

3) Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3:-

All the points are taken up together for sake of convenience and brevity in discussion.

The parties to the case have tendered evidence through affidavit.

They have also given reply against the questionnaire set forth by their adversaries. Besides the same, the parties have relied upon several documents in support of their respective cases. At the time of final hearing, both parties have filed BNAs.

The pleadings of the parties clearly depict that the complainant claiming himself to be a ‘consumer’ within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986has lodged the instant complaint against the OP Bank on the allegation of deficiency in services for illegal debit of Rs. 1,57,459/- from Current account No. 161605000268 of M/s R.I.D., a Proprietorship Firm against Loan Account No. LBCAL00002211790. The fact remains that the complainant and his wife availed Home Loan ofRs. 42,00,000/- plus Insurance Premium from the OP ICICI Bank Ltd. against mortgage of property. The materials on record indicate that the complainant and his wife were defaulter in making EMIs’ for which the loan account became NPA. It is also true that the Bank issued loan recall notice dated 21.05.2016 demanding payment of Rs. 44,35,529/-  and subsequent notice U/s 13 (2) of SERFAESI Act, 2002 was also issued against Home Loan Account No. 00002211790. On perusal of the WV, it would reveal that the symbolic possession of the mortgage property was taken U/s 13 (4) of the SERFAESI Act, 2002.

Mr. SanjibMitra, Ld. Advocate for the complainant has submitted that the complainant is the proprietor of M/s R.I.D., a Proprietorship Firm and maintained a Current Account being No. 161605000268 to OP ICICI Bank having its Lansdowne Branch and the OP Bank illegally debited Rs. 1,57,459/- from the said Current Account against Home Loan Account No. LBCAL00002211790. Such action of the OP Bank is malafide and there is deficiency in service on the part of the OP Bank. The OP Bank has no authority to debit such amount against Home Loan Account as the Current Account is in the name of the M/s. R.I.D., a Proprietorship Firm.

Per contra, Miss. Sumita Roy Chowdhury, Ld. Senior Advocate for the OPs ICICI Bank Ltd. has submitted that the complainant and his wife did not pay the EMIs. Consequently, there lies no rub for the Bank to adjust the amount lying in the Current Account of the complainant. She has further submitted that prior to adjustment of Rs. 1,57,459/- letters dated 15.06.2018, 30.06.2018 and 27.08.2018 were issued to the complainant and his wife. Complainant himself admitted in the complaint petition that he failed to make payment of EMIs since January, 2018. Ld. Advocate for the OPs Bank has argued that Bankers have General Lien on all securities left with them by their customers.  Lien is an enforceable right given under the statue until a debt from the later is paid. According to her, Section 171 of the Indian Contract Act gives the authority to a Bank and is also judicially recognized to mark lien for recovery of dues/claim. Section 171 of the Contract Act is clear, which is reproduced as under:-

171. General lien of bankers, factors, wharfingers, attorneys and policy brokers Bankers-Bankers, factor, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods, bailed to them, unless there is an express contract to that effect. Bankers, factors, wharfingers, attorney of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.”

The Hon’ble Supreme Court in syndicate bank vs. Vijay Kumar AIR 1992 SC 1066, was pleased to hold that, “In mercantile system the Bank has a general lien over all forms of securities of negotiable instruments deposited by or on behalf of the customers in the ordinary course of banking business. The bank has the liberty to adjust from the proceeds of the two FDR’s towards the dues to the Bank and if there is any balance left that would belong to the depositor.”

The complainant was aware that there is no contract between the OP Bank and him to the effect that the Bank will help the borrower to take possession of the property from OP-6. Thus, the allegation of the complainant regarding help to take possession of the property from OP-6 is nothing but mere illusory.

Ld. Advocate for the complainant has argued that he had availed two Home Loan being Nos. LBCAL00003863122 and LBCAL0000279635 from the OP Bank and had paid an excess amount against those Home Loan but no document is forthcoming on the part of the complainantto substantiate his claim though the OP Bank has denied such allegation of excess payment. In our considered view, this case, for apt adjudication on merit regarding excess payment against Home Loan Account Nos. LBCAL00003863122 and LBCAL0000279635 requires recording of oral evidence and providing documentary evidence as per the provisions of the Indian Evidence Act, 1872 and adherence to substantive and procedural provisions of the code of Civil Procedure, 1908, best undertaken in a Civil Court.

The complainant being himself a defaulter in paying EMIs. His intention is malafide. Fairness cannot be a one-way street. Where the complainant/ borrower has no genuine intention to repay and adopts pretexts and ploys to avoid payment of EMIs like in the present case, he cannot make the grievance that the Bank has not acted fairly. We have no hesitation in holding that there is any deficiency in service and/or unfair trade practice on the part of the OP/Bank. A banker has in the absence of agreement to the contrary, a lien on all bills and securities of the customer in the ordinary course of banking business in respect of any balance that may be due from such customer.

Based on the above discussion, the complaint petition is without merit and liable to be dismissed. As such, complainant is not entitled to get any relief as prayed for.

Thus, all the points under determination answered in the negative.

Hence,

Ordered

That the complaint case be and the same is dismissed on contest against the OPs 1 to 5 and also dismissed ex parte against OPs 6 & 7.

No cost is imposed upon any of the parties.