Punjab

Ludhiana

CC/19/315

Balwinder Kaur - Complainant(s)

Versus

Ludhina Central Cooperative Bank Ltd - Opp.Party(s)

M.S.Sethi Adv.

03 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:315 dated 04.07.2019.                                                        Date of decision: 03.03.2023.

 

Balwinder Kaur 51 year W/o. Late Chamkaur Singh, Village Kailpur, Distt. Ludhiana.                                                                                                                                                                                              ..…Complainant

                                                Versus

1. The Ludhiana Central Cooperative Bank Ltd., B.O. Civil Lines, Ludhiana through authorized official.
2. Zila Parishad, Ludhiana through its chief Executive Officer/SDO.                                                                               …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. M.S. Sethi, Advocate.

For OP1                         :         Sh. Anwar Ali, Advocate.

For OP2                         :         Sh. A.S. Arora, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Succinctly put, the facts of the case are that husband of the complainant Chamkaur Singh was working with opposite party No.2 as Sewadar since 01.08.1981 who retired from the services on 21.03.2016 and later on died on 21.05.2017. The complainant stated that her husband was withdrawing his salary in account No.0393101151756 and customer ID 5478657 maintained with Canara Bank, Bahadur House, Court Road, Ludhiana. After death of Chamkaur Singh on 21.05.2017, on disbursement of pension benefits and allotting PPO account for family pension etc., the complainant received letter dated 09.05.2019 from opposite party No.2,  stating that loan of Rs.2,50,000/- was taken by Late Chamkaur Singh (retired) which has now become Rs.7,09,815/- as on 25.03.2019 as such being legal heirs of late Chamkaur Singh because of paying dues and benefits of the concerned person to her and Govt. has also fixed family pension to her so she is directed to clear/settle the loan with opposite party No.1. Opposite party No.2 also warned the complainant that in case of non settlement of the loan, if any legal action taken by opposite party No.1 then she will be solely responsible. The complainant first time acknowledged regarding taking of loan of Rs.2,50,000/- from opposite party No.1 through letter dated 09.05.2019. The letter dated 04.05.2019 sent by opposite party No.1 to opposite party No.2 was not delivered to the complainant nor it was on record that who has disbursed the payment of Rs.2,50,000/- her husband. Opposite party No.1 cannot disburse loan amount without completing documents nor such amount of Rs.2,50,000/- was traced out from the passbook and bank record of husband of the complainant. The complainant visited opposite party No.1 to know the details of loan of Rs.2,50,000/- they the copy of sanction letter dated 01.03.2012 for loan of Rs.2,50,000/- was provided disclosing that vide loan application dated 29.02.2012 loan of Rs.2,50,000/- is sanctioned subject to repayment of loan within a period of 5 years in 60 monthly installments of Rs.5875/- per month and copy of irrevocable authority dated 14.02.2012 given by her husband to opposite party No.1 and irrevocable letter dated 14.02.2012 duly signed and stamped by opposite party No.2 but they failed to provide the record of disbursement of loan amount of Rs.2,50,000/- to late Chamkaur Singh through reliable mode of payment. The complainant visited opposite party No.2 but it refused to provide any documents pertaining to deduction of installment in the past years and compelled the complainant to enter settlement with opposite party No.1.  The complainant claimed that she is not liable to pay a sum of Rs.7,09,815/- due to lack of agreement with the opposite parties, non-disbursement of loan, wrong scheduling of EMIS and its consequent deductions etc. The services rendered by the opposite parties are deficient and negligent and they are liable to be penalized for adopting unfair trade practice as well. In the end, the complainant made a prayer to debar the opposite parties from claiming disputed amount of Rs.7,09,815/- claimed vide letter 09.05.2019 to declare the said letter as null, void and illegal and also to penalize the opposite parties to the tune of Rs.1,00,000/- with litigation costs of Rs.22,000/-.

2.                Upon notice, opposite party No.1 appeared and filed written statement and assailed the complaint on the ground of maintainability of the complaint, lack of jurisdiction to entertain and try the complaint, and concealment of material facts by the complainant. Opposite party No.1 alleged that husband of the complainant Sh. Chamkaur Singh son of Sh.Joginder Singh, R/o. Village Kailpur, P.O. Dakha, Distt. Ludhiana was working with opposite party No.2 as Sewadar who availed a personal loan of Rs.2,50,000/- in the month of March 2012 repayable within 5 years payable in 60 equal installments of Rs.5875/- per month. His loan account became irregular due to default in making installments and the outstanding balance is Rs.7,09,815/-. While sanctioning loan, husband of the complainant executed loan cum hypothecation agreement in favour of opposite party No.1 and also executed letter of guarantee. Sh. Surjit Singh and Harjit Kaur, employees of opposite party No.2 stood as guarantor for Chamkaur Singh and Chamkaur Singh executed a promissory note, letter of lien and set-off, letter of waiver, letter of acceptance of terms and condition of the sanction letter, receipt of loan amount and irrevocable authority by the employee. Opposite party No.2 employer of Chamkaur Singh also executed an irrevocable letter in favour of opposite party No.1. Opposite party No.1 further alleged that present complaint is a counter blast to the letter dated 04.05.2019 written by it to opposite party No.2 with request to recover the amount due against Sh. Chamkaur Singh and from guarantors Surjit Singh and Harjit Kaur.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 further alleged that the husband of the complainant executed all the documents required for sanction of loan and Rs.2,50,000/- was sanctioned after completing all the formalities. Opposite party No.1 denied any deficiency in service on its part and in the end, prayed for dismissal of the complaint.

3.                Initially, opposite party No.2 did not appear despite service of notice of the complaint through registered post on 18.10.2019 and was proceeded against exparte as per order dated 18.09.2019. However, opposite party No.2 field application for permission to join the proceedings which was accordingly allowed as per order dated 16.01.2020.

4.                The complainant did not formally tender her evidence. However, at the time of filing the complaint, the complainant submitted her affidavit along with documents.

5.                On the other hand, counsel for opposite party No.1 tendered affidavit Ex. RW1/A of Sh. Balhar Singh, Senior Manager of opposite party No.1 along with documents i.e. Ex. R1 is the copy of loan account statement of Chamkaur Singh, Ex. R2 is the copy of loan cum hypothecation agreement, Ex. R3 is the copy of promissory note, Ex. R4 is the copy of letter of guarantee, Ex. R5 is the copy of letter of waiver, Ex. R6 is the copy of letter of lien and set off, Ex. R7 is the copy of authority letter, Ex. R8 is the copy of irrevocable authority by employee, Ex. R9 is the copy of sanction letter, Ex. R10 is the copy of letter dated 04.05.2019 and closed the evidence. The counsel for opposite eparty No.2 tendered affidavit Ex. RA of Sh. Baljinder Singh Grewal, Deputy Chief Executive Officer, Zila Parishad, Ludhiana and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavits and documents produced on record by both the parties. We have also gone through written arguments submitted by opposite party No.1.

7.                Perusal of loan documents including statement of loan account Ex. R1 and loan cum hypothecation agreement Ex. R2 and documents Ex. R3 to Ex. R10 shows that Chamkaur Singh deceased husband of the complainant while working as Sewadar with opposite party No.2 availed personal loan of Rs.2,50,000/- in March 2012 which was repayable in 60 equated monthly installments of Rs.5875/-. Chamkaur Singh retired from his services on 21.03.2016. Unfortunately, he died on 21.05.2017. During this period, the disbursement of pensionery benefits took place and the complainant being wife of deceased Chamkaur Singh also became entitled to family pension. On receipt of letter dated 09.05.2019, the complainant preferred this complaint firstly stating that a loan of Rs.2,50,000/- was never disbursed to her husband and the manner of disbursement, mode of payment and repayment schedule are illegal and devoid of fastening liability upon the complainant. Perusal of statement of  account Ex. R1 shows that immediately on disbursement of loan, deceased husband of the complainant withdrew the said amount in installments. Since it was a personal loan and must have been utilized the same to meet with his family needs. So now it does not lie in the mouth of the complainant to claim that she is not aware of sanctioning and disbursement of any such personal loan. She had tried to shift her liability of her deceased husband on opposite party No.2 by relying upon the letter of guarantee. However, affidavit Ex. RA of Sh. Baljinder Singh Grewal, Deputy Chief Executive Officer of opposite party No.1 emphatically states that the office of opposite party had nothing to do with the said letter and it is for the complainant being legal heir of the deceased to clear the outstanding loan and she has also succeeded properties of her deceased husband. Either deceased Chamkaur Singh or the complainant must have received the pensioner benefits from opposite party No.2.

8.                The deceased husband of the complainant raised loan in the year 2012 and he remained alive till 21.05.2017. During his life time, he did not raise any objection with regard to sanctioning, disbursement or repayment of loan. He never claimed that the said loan was not availed by him or any fraud or mis-representation was ever practiced upon him. The complainant has failed to discharge the initial onus of deficiency in service on the part of the opposite parties. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

9.                From the sequence of aforesaid facts and circumstances, it is evident that the complainant and her family members have not only utilized the loan so disbursed but have also benefitted by the pensionery benefits. The present complaint is malafide and has just been filed to delay repayment of loan amount. So there is no deficiency in services or unfair trade practice on behalf of the opposite parties and this complaint being devoid of any merits is dismissed.    

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:03.03.2023.

Gobind Ram.

 

 

Balwinder Kaur Vs Ludhiana Central Coop. Bank                 CC/19/315

Present:       Sh. M.S. Sethi, Advocate for complainant.

                   Sh. Anwar Ali, Advocate for OP1.

                   Sh. A.S. Arora, Advocate for OP2.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:03.03.2023.

Gobind Ram.