Punjab

Moga

CC/17/49

Jagdeep Singh - Complainant(s)

Versus

Kotak Mahindra Bank - Opp.Party(s)

Sh.Dinesh Kumar Garg

11 Oct 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 49 of 2017

                                                                                      Instituted on: 17.05.2017

                                                                                      Decided on: 11.10.2017

 

Jagdeep Singh, aged about 32 years son of Sher Singh, resident of Village: Daddahoor, District Moga.

                                                                                ……… Complainant

 

Versus

1.       Kotak Mohindra Bank, Branch Nakodar Road, Shahkot, through its Manager.

 

2.       Kotak Mohindra Bank, Branch Namdev Chowk, Jalandhar, through its Manager.

 

3.       Kotak Mohindra Bank, Building no.21 Infinity Park, Gen. A.K. Vidya Marg, Malad East, Mumbai, through its Managing Director.

 

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Dinesh Kumar Garg, Advocate Cl. for complainant.

                   Sh. V.K. Bansal, Advocate Cl. for opposite parties.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Kotak Mohindra Bank, Branch Nakodar Road, Shahkot, through its Manager and others (hereinafter referred to as the opposite parties) directing them to issue No Due Certificate in respect of loan case vide a/c no.597044005989. Further they may be directed to pay Rs.50,000/- as compensation for causing to complainant mental tension, harassment and agony or any other relief which this Forum deems fit and proper in the circumstances of the case be granted.

2.                Briefly stated the facts of the case are that the complainant has obtained loan/limit facility from ING Vvysa Bank Ltd, Jalandhar on 21.11.2012 to the tune of Rs.2,25,00,000/- by way of mortgage his land situated in the area of village Daddahoor District Moga. The wife of the complainant Hardeep Kaur also mortgaged her land against this facility as security. The Rapat no.401 dated 04.06.2014 got entered in the revenue record with regard to this mortgage of property in favour of bank. Later on ING Vvysa Bank Ltd. was merged in Kotak Mohindra Bank and the loan file of the complainant was transferred to the Kotak Mahindra Bank i.e. opposite party no.1. The complainant also availed the loan/limit facility of Rs.2,71,96,000/- from HDFC Bank Ltd. G.T. Road, Moga by mortgage his land of village Daddahoor, District Moga vide Rapat no.133 dated 23.12.2016 and repaid the loan/limit facility of Rs.2,25,00,000/- of the opposite parties, through HDFC Bank Ltd. Moga. Nothing remained due towards the complainant. The complainant maintained his account with opposite party no.1. The complainant requested the opposite parties to issue No Due Certificate, but the same has not been issued. There is no ground or reason for not issuing the said certificate. No Due certificate is most urgent and complaiannt has to deliver to the HDFC Bank Ltd. Moga. Complainant also served a legal notice dated 28.04.2017, but to no effect. The complainant was being harassed unnecessarily. The service rendered by opposite parties are deficient one and due to the act and conduct of opposite parties, the complainant has suffered huge mental tension and agony. Hence this complaint.

3.                Upon notice, opposite party nos.1 to 3 appeared through their counsel and filed written reply taking certain preliminary objections that this Forum has got no jurisdiction to hear and try the present complaint as the loan was disbursed to Jagdeep Singh at Jalandhar and the documents were also executed at Jalandhar. On merits, it is submitted that vide resolution dated 31.07.2017 Sh. Narain Jeet Singh is authorized to represent the bank/Kotak Mohindra Bank Ltd. in any court of law, Consumer Court, Tribunal, in conenction with legal proceedings initiated by or against the bank and to appear before this Forum. The true facts are that as one Parminder Singh of village Kot Nihal Singh wala District Moga obtained a loan of Rs.40,00,000/- from ING Vasya Bank, Jalandhar on 26.03.2012 and at that time the complainant Jagdeep Singh s/o Natha Singh stood as guarantor of Parminder Singh and executed guarantee bond dated 26.03.2012 in favour of ING Vysya Bank Ltd. Branch Jalandhar. As per para 9 of the Guarantte Bond the guarantor/complainant Jagdeep Singh declares that “notwithstanding anything here in contain he shall be deemed to be and consider to be persons personally liable individually and jointly to pay the debt and the borrower shall be considered as there duly consituted agent of each of them so that any payment of any portion of debt or any interest thereon or any acknowledgement in writing by the borrower of the debt shall be deemed to be for and on behalf of and as the agent of each of the guarantor that the same shall on and from said date of payment of acknowledgement starts against each of the guarantor and also a fresh of period of limitation in respect of debt or loan granted. Parminder Singh obtained the loan amount of Rs.40,00,000/- from ING Vvysa Bank Ltd. Branch Jalandhar, the said ING Vvsya Bank Ltd. later on merged into Kotak Mohindra Bank Ltd. and Parminder Singh did not follow the financial discipline of the opposite party bank as per the agreement executed by Parminder Singh and Jagdeep Singh complainant. Rs.47,43,249-98 which includes interest upto 31.05.2017 and plus interest from 01.06.2017 is due towards Parminder Singh Dhaliwal and complainant Jagdeep Singh being guarantor of Parminder Singh. As per section 128 of Indian Contract Act, 1872, the liability of the surety is coextensive with that of principle debtor, unless it is otherwise provided by the contract. So, as per the guarantee bond dated 26.03.2012, the complainant is individually/jointly liable to repay the loan amount granted to Parminder Singh Dhaliwal. As the complainant is liable to repay the loan amount with interest which was granted to Parminder Singh Dhaliwal, the complainant is not entitled to get the No Due Certificate as the amount of Rs.47,43,249-98 plus interest is due towards the bank and payable by the complainant. The opposite parties is a financial institution and due to non deposit of amount by Parminder Singh and the complainant, it suffered a lot. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint has been made.

4.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit as Ex. C-1 and copies of documents Ex.C-2 and Ex.C-8 and closed the evidence. 

5.                On the other hand, opposite party tendered in evidence affidavit of Sh.Narainjit Singh, Area Manager, Kotak Mohindra Bank as Ex.OPs-1 and copies of documents Ex.OPs-2 to Ex.OPs-4 and closed the evidence.

6.                We have heard ld. counsel for the parties and have very carefully gone through record placed on file.

7.                The case of the complainant is that on 21.11.2012 he obtained loan/limit facility from ING Vvysa Bank Ltd to the tune of Rs.2,25,00,000/- by way of mortgage his land situated in the area of village Daddahoor District Moga. Later on ING Vvysa Bank Ltd. was merged into Kotak Mohindra Bank and loan case of the complainant was transferred to Kotak Mohindra Bank  i.e. opposite party no.1. Now, the complainant obtained loan from HDFC Bank Ltd. G.T. Road, Moga to the tune of Rs.2,71,96,000/- by mortgaging his land of village Daddahoor, District Moga and repaid the entire loan taken by him from opposite party bank. Now, nothing is due towards the complainant. After clearing the loan of opposite party bank, he requested them to issue no due certificate, but they refused to issue no due certificate without any ground or reason. No Due certificate is most urgent and essential for complainant to submit it with HDFC Bank and to release the land which is mortgaged with opposite party bank. He requested many times to opposite part to issue no due certificate, but to no effect. Due to the act of opposite parties the complainant has suffered mental tension, harassment and agony, which amounts to deficiency in service and trade mal practice on the part of opposite parties.

8.                On the other hand, ld. counsel for opposite parties admitted that the complainant obtained loan from them by mortgaging his land with bank as alleged by complainant. They further admitted that complainant repaid the entire loan amount to them and nothing is due towards him. Ld. counsel for opposite parties argued that one Parminder Singh of village Kot Nihal Singh wala District Moga obtained a loan of Rs.40,00,000/- from ING Vasya Bank, Jalandhar on 26.03.2012 and in that loan complainant Jagdeep Singh stood as guarantor of Parminder Singh and executed guarantee bond in favour of Bank. As per guaranttee bond the complainant individually and jointly liable to repay the loan amount granted to Parminder Singh. The loan of said Parminder Singh is still due and an amount of Rs.47,43,249.98p which includes interest upto 31.05.2017 is due towards said Parminder Singh and complainant being guarantor of said Parminder Singh is liable to repay this amount with interest to the bank and till the repayment of loan taken by Parminder Singh no due certificate cannot be issued to complainant and there is no deficiency in service on the part of opposite parties. Moreover, ld. counsel for opposite parties argued that this Forum has no territorial jurisdiction to try and decide the present complaint as no opposite party is residing or working in the territorial jurisdiction of this Forum. The complainant obtained laon at Jalandhar and executed documents at Jalandhar. So, this Forum at Moga has no territorial jurisdiction to try and entertain the present complaint.

9.                On it, ld. counsel for complainant argued that as per section 11 of Consumer Protection Act, the Forum in whom jurisdiction cause of action or part cause of action arises has the jurisdiction to try and decide the complaint. In the present case, the land the subject matter which is mortgaged with the bank as security of loan, situated at Village Daddahoor, District Moga. The mortgage deed regarding mortgage of land in favour of the bank was also executed at Moga. As such, the part cause of action arose within the territorial jurisdiction of this Forum. This Forum is fully competent to try and decide the present complaint. Now on the main point regarding loan of said Parminder Singh, ld. counsel for complainant argued that it is correct that complainant stood as guarantor of Parminder Singh, however, said Parminder Singh obtained the loan from the bank after mortgaging his land as security with them, the loan of said Parminder Singh is regular and he is not defaulter of the bank, the account of said Parminder Singh in active status. Moreover if it presumed that account of said Parminder Singh is not regular in that case also the bank has first right to recover this amount from the property of said Parminder Singh, which is mortgaged with them as security of the loan i.e. primary security and if anything remains due then in that case, they can recover that amount firstly from Parminder Singh and from his property, if in any case they failed to recover their entire amount from said Parminder Singh then in that case they can claim balance amount from the complainant being guarantor i.e. too by adopting legal procedure and in any case they cannot hold the property of the complainant which was mortgaged with them in some other loan case.

10.              From the above discussion, we are of the opinion that it is admitted by the opposite parties that the complainant has already repaid entire loan amount taken by him from them and they have not issued no due certificate to him on the ground that he stood guarantor to someone else loan account is not a pulsible reason for non issuance of no due certificate, as admittedly they have already got mortgaged the loan of borrower in that account as security of the loan and that loan is regular account. The complainant is only a guarantor in that account and without adopting any legal procedure; they cannot hold the property of the complainant in lieu of the loan for which the complainant stood guarantor. These acts of opposite parties amount to deficiency in service and trade mal practice on their part. Hence the present complaint is allowed and opposite parties are directed to issue No Due Certificate to complainant regarding his loan account no.597044005989. Further opposite parties are directed to pay Rs.5000/-(Five thousand only) as compensation on account of mental tension, agony and harassment suffered by the complainant and to pay Rs.2000/-(Two thousand only) as litigation expenses to the complainant. Compliance of the order be made within 30 days of the receipt of the copy of this order, failing which, the complainant shall be entitled to initiate proceedings under section 25 & 27 of the Consumer Protection Act. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

Announced in Open Forum

Dated: 11.10.2017

                                                (Bhupinder Kaur)                    (Ajit Aggarwal)

                                                      Member                                   President