IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 30th day of July 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri. M.Praveen Kumar,Bsc, LL.B ,Member
CC.No.253/15
Sathyaseelan : Complainant
Manimandiram
Ambipoyka P.O
Kundara, Kollam
V/s
K.Madanan : Opposite Party
Senior Branch Manager
Syndicate Bank, Kundara (Br)
Kollam-691501
[By Adv.T.R.Rajalekshmi]
ORDER
E.M.MUHAMMED IBRAHIM , President
This is a consumer complaint filed by one Sathyaseelan against Senior Branch Manager of Syndicate Bank Kundarta Branch under Section 12 of the Consumer Protection Act praying to return Rs.19181/- being the amount received in excess of loan instalment from the complainant along with interest @ 12% per annum and costs of the proceedings.
2. The averments in the complaint in short are as follows.
On 14.11.05 the complainant availed a house loan of Rs.5,00,000/- from the opposite party bank that he used to pay the loan instalment regularly and if at all payment of any instalment has been defaulted, he used to remit the same at the next month. But the opposite party used to charge certain amount as outgoing and the then manager used to debit the same in the said loan account.
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However he was laid up due to the treatment of Varicose vein and was admitted at different hospitals and in connection with the marriage of his daughter he experienced financial stringency. The monthly instalment of the loan was Rs.5430/-. However while verifying the statement of the loan account he found that the opposite party bank has charged Rs.11,260/- in excess of the loan instalment. He made a complaint before the then manager. But he behaved in an indecent manner. Hence he approached in Ombudsman. By knowing that fact the manager told him that he would retaliate and also filed false statement before the Ombudsman and hence his complaint happened to be dismissed. Again the opposite party used to sent letters by Registered Post and also published the advertisement in the daily news paper with a view to defame the complainant and his family members and there by persuaded him to commit suicide. During these days the complainant was regularly paying more than the instalment amount and therefore there is no need to make any advertisement in the newspaper as he was not a chronic defaulter. However the opposite party manager added of Rs.4262/- to the loan amount as expenses for paper publication. According to the complainant the opposite party manager has been debiting unnecessary expenses and thereby harassing himself and other persons who availed loan. Hence the complaint.
3. The opposite party resisted the complaint by filing a detailed version by raising the following contentions.
The complaint is not maintainable either in law or on facts. However the opposite party would admit that the complainant being the borrower and Sasidharan and Smt.Thankamani ,W/o the complainant as guarantors availed a house loan facility of Rs.5,00,000/- on 14/11/05 as loan a/c No.4502/721/723 from the opposite party bank on executing necessary loan documents on
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condition that the loan amount will be repaid with interest at the rate of 8% per annum or at any rate subject to changes from time to time as per the changes in RBI rate, without any default. Further, at the time of availing the loan facility, the opposite party had created equitable mortgage in respect of 03.24 ares of property in Resurvey No.106/6/2 in Block No.18 of Elampalloor Village in the name of complainant and his wife Thankamony. But after availing the loan amount, the repayment was irregular and the complaint had violated the terms and conditions of the loan agreement and committed heavy default and the account became irregular. Repeated requests and demands were made by the Bank for regularizing the loan account by paying the arrears and keeping the account regular. The opposite party was also forced to send notices repeatedly and personal contacts were also made. In spite of repeated requests and demands made by the opposite party, the complainant has not paid any heed to the same and due to the non payment of instalments the account was classified into NPA category on 30.10.12 as per the guidelines and directions issued by the RBI. Thus, a total amount of Rs.3,59,802/- including principal amount + interest up to 31.07.15 was due to the bank from the complainant along with interest from 01.08.15. As per the direction and guidelines of RBI since, the account was classified into NPA Category the Authorized Officer of the opposite party Bank was forced to invoke the provisions of SARFAESI Act on 27.07.2015 calling upon the complainant and the guarantors to discharge the liability within 60 days from the date of notice. Even after the issuance of notice, the complainant had not cleared, the liability and hence the Bank is forced to take paper publication as per the provisions of SARFAESI Act and RBI guidelines. The complainant is liable to bear the expenses incurred for paper publication. Now as on 30.04.16 an amount of Rs.3,40,080/- paisa 29 is outstanding as balance in the Housing Loan account of the complainant, and the complainant and the sureties are jointly and severally liable to pay the same.
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The details stated in the complaint against the above said true facts are utter falsehood and hence denied by the opposite party.
4.The complainant and his son Sumit as joint borrowers had availed an Education Loan facility of Rs.2,64,000/- on 11/11/2006 from the opposite party bank and the complainant defaulted the repayment in that account also and that account is also became irregular and by taking much effort, the opposite party had included the Education Loan Account in OTS proposal and had settled for Rs.2,90,000/- by giving maximum deduction of Rs.2,94,720/- to the complainant against total dues of Rs.5,84,720/-. As per the information collected by the bank, the complainant is healthy and he is running Raja Sawmill near LMS Hospital, Kundara and is having capacity to repay the amount. The opposite party has not collected even a single pie as excess amount from the complainant and is not liable to pay any amount to the complainant as claimed in the complaint. The complainant has filed the complaint before this forum only to harass the Bank Manager and also as an experimental case to escape from the liability of remitting the dues which he is legally liable to pay.
5.In view of the above pleadings the points that arise for consideration are:-
- Whether the debiting of outgoing charges, notice charges,inspection charges and paper publication charge etc.in the loan account of the complainant is justifiable?
- Whether there were sufficient ground to initiate proceedings under SARFASI Act against the complainant and his sureties?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- Whether the complainant is entitled to get the reliefs as prayed for?
- Reliefs and costs. 5
6.Evidence on the side of the complainant consists of the oral evidence of PW1, Ext.P1 to P3 series and Ext.P4 documents.
7.Evidence on the side of the opposite party consists of the oral evidence of DW1, Ext.D1 to D6 series out of which Ext.D5 has been marked subject proof (but not made absolute).
8.Heard both sides.
9.The learned counsel for the opposite party has also filed notes of argument.
Point No.1to 4
10. For avoiding repetition of discussion of materials these 4 points are considered together. The specific case of the complainant is that he had availed a house loan of Rs.500000/- on 14.11.2005 and was regularly paying the loan instalments. But due to his illness and daughters marriage repayment of few instalment was defaulted. However the opposite party bank had collected certain amount as outgoing and also as inspection charges which is not lawful according to the complainant. The further case of the complainant is that notice under Section 13(2) of the SARFAESI Act was published in the newspaper due to the vengeance of the then manager of the opposite party bank towards the complainant and therefore he is entitled to get back outgoing charges calculated by the bank and charges calculated for paper publication. The complainant claim an amount of Rs.19731/- from the opposite party bank along with interest @ 12% per annum.
11.Now it is to be consider whether the debiting of outgoing charges, notice charges etc. by the opposite party bank is just and proper or due to any vengeance against the complainant as alleged in the complaint. The specific contention of the opposite party is that as the complainant has defaulted payment of loan instalments the bank has sent notice and notice charges has been debited under the head outgoing charges. The complainant when he was in the witness box as PW1 has denied the above case of the opposite party.
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It is brought out in the cross examination of PW1 that he lodged Ext.D2 complaint before Ombudsman and as directed by the Ombudsman Rs.2199 realised by the bank towards the above expenses has been credited to his account which itself as per Ext.P3 order which itself would indicate that the bank has debited certain expenses improperly.
12.Ext.D1 is the statement of loan account of the complainant which would clearly indicate that the complainant has availed the housing loan for a period of 18 and odd years . The first phase of the loan was released on 14.11.2005 and the date of maturity of the loan is 31.12.2023. The complaint is seen filed on 06.10.15 and as on that date the balance to be paid by the complainant is Rs.3,54,333.38. It is further to be pointed out that as on 31.12.2017 the balance outstanding as per Ext.D1 is Rs.286947.80/- only. The period available to repay the loan is as on that day 6 years ie, 72 months. If the complaintant is paying monthly instalment of Rs.5430/- for 5 years out of the remaining 7 years there is every chance of clearing the loan amount and its interest etc. On going through Ext.D1 statement and the oral evidence of PW1 and DW1 we are of the view that classifying the above loan account of the complainant as NPA or calling the complainant as a chronic defaulter is not just and proper especially when Ext.D1 would indicate that the complainant has been paying regularly towards the loan instalment. Even if the complainant failed to remit the exact instalment amount on one or two months, he had seen paid in excess of the instalment prescribed on several occasions which is clear from Ext.P2 series receipts and as on the date of complaint the amount outstanding is less than proportionate amount and interest due from him.
13.The complainant would claim that an amount of Rs.11260/- was debited to his account as outgoing charges and the same was understood by him while he verified the statement. Subsequently the bank on different dates has debited Rs.281, Rs.100/- and Rs.719/- as outgoing charges. The opposite party bank
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has also debited Rs.2199/- by claiming Ombudsman expenses and on 18.09.15 an amount of Rs.4622/- was debited as paper publication charge. According to the complainant all the above debits are improper and illegal and then manager has done the same with a view to put him in trouble by increasing the amount due to the bank and also to justify his action of classifying the complainant as a chronic defaulter. According to the opposite party bank the above expenses has been debited as per the terms of the agreement and also as per the RBI norms. Though the complainant has denied the above contention, the opposite party has neither produced the loan agreement and RBI circular containing the norms nor got it marked in evidence. Therefore the forum is bound to draw adverse inference regarding this aspects as provided under Section 114(g) of the Indian Evidence Act.
14.It is further to be pointed out that after lending a loan of Rs.500000/- at the rate of 8.5% for 18 and odd years the bank has gradually raised interest and as per Ext.D1 statement the rate of interest now charged is 10.6%. After increasing the rate of interest, the charging of Rs.10 or 25 for sending a notice in a postcard or inland letter and that too without justifiable reasons is highly unfair on the part of a nationalised bank. It is also brought out in evidence that without actually verifying the property mortgage the bank has seen realised inspection charges which is also highly unfair and improper. In view of the materials available on record we find no justification to transfer the account of the complainant as NPA and initiate proceedings under the SARFACI Act, and the charges debited claiming charges for paper publication, Advocate fee and other expenses are also unfair. Ext.P4 is the copy of the debit advise issued by the bank indicating the news paper advertisement charge as per Section 13(2) of the SARFACI Act. It is further to be pointed out that the newspaper containing the advertisement has not been produced but produced photocopy of two half pages pieces of a purported news paper, the name of the
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news paper is not seen stated in any of the two such pieces and the same is having no evidentiary value at all. Usually news or notice contained in a news paper is proved by producing the full news paper itself containing that matter along with a receipt or bill issued from the office from where the paper publication was effected and not by producing photo copy of the news items or notice published in the news paper. The bill/receipt issued by the paper publishing company is not seen produced along with the above photo copy of the paper publication Ext.P4/D4 is a self serving document. In the circumstance Ext.P4/D4 and Ext.D5 which has been marked subject proof are not acceptable in evidence. Hence there is absolutely no reliable and convincing evidence to prove that the opposite party bank has spent for Rs.4622/- towards publishing notice in the news paper as claimed in the version.
15.The learner counsel for the opposite party has argued that the complaint is not maintainable before the Consumer Disputes Redressal Forum as the complainant entitled to challenge the proceedings under the SARFACI Act only before Debt Recovery Tribunal. Hence the complaint is hit by the provisions of the SARFACI Act. The above contention is devoid of any merit. What is challenged in the complaint is not the proceedings under the SARFACI Act. But several other acts of the bank such as unauthorised sending notice, levying Inspection charge without conducting any inspection etc. under head outgoing charges and the finding of the bank authorities to transfer the account of the complainant into NPA and making advertisement in the news paper etc. Even if there are ample provisions under the SARFACI Act Section 3 of the Consumer Protection Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. In short the provisions of the Consumer Protection Act give the consumer an additional remedy besides those that may be available under other
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existing laws as held by the Hon’ble Supreme Court in Consumer and Citizen’s Forum Vs.Karnataka Power Corporation 1994(1) CPR. 130.
16. On evaluating the entire materials available on record we come to the conclusion that there is deficiency in service and unfair trade practice on the part of the opposite party bank and hence the complainant is entitled to get bank Rs.19181/- as claimed in the complaint and also entitled to get compensation. These 4 points answered accordingly.
In the result the complaint stands allowed in the following terms.
- Opposite party Bank is directed to credit Rs.19181/- in the Housing loan A/c of the complainant.
- Opposite party bank shall pay Rs.25000/- as compensation to the complainant within 45 days from today.
- Opposite party bank shall pay Rs.5000/- as costs of the proceedings to the complainant.
- The opposite party bank shall also give credit to Rs.25000+5000/- awarded as compensation and cost in the housing loan account of the complainant within 45 days from today failing which the complainant is entitled to realise Rs.49,181/-along with interest at the rate of 10.60% from today till realisation from the opposite party bank and its assets.
Dictated to the Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 30th day of July 2018.
E.M.Muhammed Ibrahim:Sd/-
President
M.Praveen Kumar:Sd/-
Member
Forwarded/by order
SENIOR SUPERINTENDENT
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INDEX
Witness Examined for the Complainant: Sathyaseelan
Documents marked for the complainant
Ext.P1 series : Copy of treatment summary
Ext.P2 series : Copy of statement of account
Ext.P3 : Copy of notice U/S 13(2) of the SARFACI Act
Ext.P4 : Copy of debit advice
Witnesses examined for the opposite parties: Soman
Documents marked for the opposite parties
Ext.D1 : Copy of statement of account
Ext.D2 : Copy of letter
Ext.D3 : Copy of notice U/S 13(2) of the SARFACI Act
Ext.D4 : Copy of debit advice
Ext.D5 : Copy of paper cuttings
Ext.D6 : Copy of letter
E.M.Muhammed Ibrahim:Sd/-
President
M.Praveen Kumar:Sd/-
Member
Forwarded/by Order
SENIOR SUPERINTENDENT
