Date of Filing: 04/11/2011
Date of Order: 03/01/2012
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 3rd DAY OF JANUARY 2012
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
C.C. NO.2026 OF 2011
(1) Dr. Y.S. Shiva Prasad,
S/o. Late.Y.Sathyanarayna,
Aged About 49 years,
(2) Mrs. Usha.S,
W/o. Dr.Y.S.Shiva Prasad,
Aged About 46 years,
Both are R/at: No.178,
‘Neelanjana’, V Main,
Duo Heights Layout,
Begur Road, Bangalore-560068.
(Rep. by In person) …. Complainant.
V/s
(1) The Bank Manager,
M/s. ICICI Home Finance Company Limited,
No.5, R.G. Chambers, Industrial Area,
7th Block, Koramangala, Bangalore-560 045.
(Rep. by Sri.Suresh, Advocate) …. Opposite Party.
BY SRI KESHAV RAO PATIL, MEMBER
-: ORDER:-
The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay the sum of Rs.69,980/- and seeking direction to the opposite party to return the cheque Nos. 367728 to 367750 and also to waive the over due amount of Rs.42,494/-, are necessary:-
The complainants availed the loan from the opposite party for the construction of their house and obtained Rs.9,42,000/- on 25.02.2044 which has to be repaid in 192 EMIs. At that time the opposite parties collected 25 cheques bearing Nos. 367726 drawn on South Indian Bank, Christ University Branch, Hosur Road, Bangalore, as guarantee/security. The complainants are paying the loan EMIs promptly without any default. The complainant noticed in the statement of accounts between 30.06.2002 to 16.06.2011 that the opposite parties have charged Rs.42,494/- as over dues. The EMI of Rs.9,980/- with respect to cheque No.367727 dated: 20.05.2003 has not been shown but it was debited in the SB account No.4280 of the complainant. As per the instructions of the opposite parties they have remitted Rs.50,000/- on 28.06.2004, Rs.30,000/- on 28.07.2004, Rs.50,000/- on 28.08.2004. In spite of the above payments the opposite party is demanding the sum of Rs.42,494/- as overdue charges. On enquiry with Mr. Mukund Deshpande, Senior Person of the opposite Bank the complainant was surprised to know that the cheques collected from the complainants have been misplaced/lost by the opposite party and it was wrongly posted. The said Mukund Deshpande to return the said cheques or adjust with the overdue amount he made the complainant run from pillar to post in this regard. The claim of the opposite party for Rs.42,494/- is baseless. Hence the complaint.
2. In brief the version of the opposite party are:-
The complainant is not a consumer. The complaint is barred by time. Obtaining of the loan on 25.02.2004 and it has to be repaid in 195 EMIs are all admitted. The cheque dated: 31.03.2003 bearing No.367726 has been misplaced. The opposite party is a huge organization spread all over the country and probably such incidents occurred cannot be overruled for which as a remedy the opposite party would not levy overdue charges. The repayment schedule commences from 07.05.2003 to 07.04.2005 by mode of cheque payment. The cheques were presented on due date if it is not encashed or lost the complainant sould have known it but he has kept quite. The over due charges is only Rs.21,975/- and not Rs.42,494/-. Hence the opposite party has reversed the over due charges on 29.06.2010. The complainant had reimbursed Rs.1,30,000/- in three consecutive months starting from June-august-2004. The amount of Rs.42,495/- is left to the loan account of the complainant owing to his irregular and late payment starting from the period 28.08.2004 and thereafter between 28.08.2004 and 07.05.2007. The complainant was due Rs.10,868/-, as it was not paid the charges were levied.
3. To substantiate their respective cases, the opposite party has filed the affidavit and written arguments. The complainant did not turn up at all after filing the complaint. Hence perused the records.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the documents on record, it is an admitted fact that the complainants had obtained housing loan of Rs.9,42,000/- and it was disbursed on 25.02.2004 this has to be repaid in EMIs of 192 months. It is also an undisputed fact that the complainant had given 25 cheques to the opposite party bearing Nos.367726 to 367750 drawn on South Indian Bank, Christ University Branch, Hosur Road, Bangalore, as a guarantee/security in advance for realization. It is also an admitted fact that out of the said cheques the cheque No.367727 dated: 20.05.2003 has not been shown towards the EMI, but however in the SB account No.4280 this has been shown. That means though the sum has been received by the opposite party still the opposite party has not accounted for the loan account but however it has charged the complainant the overdue charges. Further the opposite party has lost several cheques and regarding that it has received Rs.50,000/- on 28.06.2004 in cheque No.633441, Rs.30,000/- on 28.07.2004 in cheque No.633442 and Rs.50,000/- on 28.08.2004 in cheque No.633443 i.e., Rs.1,30,000/- in all. That means owing to the mistake committed by the opposite party in loosing or wrong crediting the cheques or not crediting the cheques it has charged the complainant. This is nothing but deficiency in service. The opposite party admits the same.
7. However the opposite party has stated that regarding the overdue charges, they have reversed Rs.21,974/- merely reversing the entry does not mean that they have revered the whole overdue charges. The overdue charges of Rs.21,974/- has been revered. On this overdue charges they have charged penal interest, late fee, etc.. Even that has not been reversed. In any event the opposite party has claimed Rs.42,494/- in the statement of accounts dated: 22.12.2011 this according to the opposite party is towards the loan account. How can that be? there is no answer. The opposite party has not produce any such records to show that this is towards the loan account. The statement of accounts clearly goes to show that this is towards the other charges. Hence this is nothing but deficiency in service. The statement of accounts produced by the complainant clearly goes to show that this amount is claimed by the opposite party towards the overdue and other charges. When all the installments have been paid and the installment became due because of the negligence of the opposite paty itself the opposite party cannot claim this amount from the complainant. This is nothing but deficiency in service.
8. The opposite party is also bound to return the cheques bearing Nos.367726 to 367750 to the complainant. The complainant had paid the amounts due under the cheques admittedly the opposite party have been lost which has to intimate the concerned branch and also intimate the police in this regard. Even that has not been done. Hence there is deficiency in service. The opposite party also cannot claim as to waive the amount of Rs.42,904/- because of its negligence it has caused.
9. Further it was contended that the complainant is not a consumer. How the complainant is not a consumer is not stated. The complainant has obtained loan he is repaying the money he is the customer of the opposite party and he is obtaining service of the opposite party for consideration hence he is a consumer. Further it was contended that the complaint was barred by time till the loan is completely discharged or the loan is closed the account will not become barred by time. The cause of action will arose at any point of time. Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite parties are directed to pay Rs.20,000/- to the complainant within 30 days from the date of this order.
3. The opposite parties are also directed to waive Rs.42,494/- claimed by them within 30 days from the date of this order.
4. The opposite parties are also directed to return the cheques bearing No.367728 to 367750 drawn on the South Indian Bank, Christ College Branch, Bangalore-29 to the complainant within 30 days from the date of this order.
5. The opposite parties are also directed to lodge a police complaint with respect to the cheques stated supra if it is lost. The opposite parties are also directed to write to the concerned Branch of the Bank and to all its Branches to stop payments with respect to the above said cheques in question.
6. The opposite parties are also directed to issue notices through any two Nationalized Daily News Papers one in English and one in Kannada with respect to the lost of the cheques and to honour the person who delivers it back to them.
7. The opposite parties is also directed to pay Rs.2,000/- towards costs of this litigation.
8. The opposite parties are directed to comply to the above said order as ordered at Serial Nos. 2 to 7 and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
9. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
10. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 3rd Day of January 2012)
MEMBER MEMBER PRESIDENT
