BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 28th day of December, 2009
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER
C.C No.139/2009 Between Complainant : Tom Jose (Thomas) Kumbalankal House, Pannimattam P.O. Thodupuzha, Idukki District. (By Adv: K.M. Sanu) And Opposite Party : Manager, The Canara Bank, Thodupuzha Branch Thodupuzha P.O. Idukki District. (By Adv: Biju Mathew)
O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
The complainant availed a loan of Rs.5,50,000/- from the opposite party bank on 31.7.2002 as Housing Loan and another amount Rs.2,25,000/- on 25.10.2004 as agricultural loan. The repayment period for the housing loan was 10 years and interest was 10.25%. The opposite party assured that the interest would be reduced to 7.25% if the complainant clears all the dues. So the complainant paid Rs.57,300/- to the opposite party bank as 3 instalments on 19.10.2004, 25.10.2004 and on 27.10.2004. But the opposite party never made any reduction of interest as per the assurance. Due to destruction in agriculture and low market value of crops, the complainant was not able to repay the agricultural loan properly. The amount Rs.99,800/- deposited in the Savings Bank Account of the complainant was withdrawn by the bank and accounted in the agricultural loan on 29.9.2006. A recovery charge of Rs.5,000/- was also received from the complainant by the opposite party. The property given as security for the loan was kept in auction by the opposite party without completing the tenure of loan. The opposite party received hike interest at the time of closing the loan, an amount Rs.1,11,349/- was received as hike interest. The opposite party denied the benefit of Agricultural Waiver and Write off scheme introduced by the central government in 2008, even though the loan was completely due on 29.9.2006. The opposite party only offered the benefit of Rs.40,978/- as per the scheme. But the complainant is entitled to get the Write off benefit of Rs.1,51,022/- from the opposite party. The opposite party initiated SARFAESI Act proceedings against the complainant after recalling the revenue recovery proceedings and entire loan was closed on 6.6.2008. So the petition is filed for getting the benefit of the Agricultural Write off scheme offered by the central government and also for compensation. 2. A written version was filed by the opposite party. The opposite party admitted that the complainant availed two loans from the opposite party bank. The housing loan was always irregular till the account got closed. Hence there is no question of extending lower rate of interest during the tenure of the loan. The averment that the complainant has remitted Rs.57,300/- in 3 instalments is not true. He only remitted Rs.47,300/- in that loan. There was no remittance in the overdue KCC account. So the opposite party adjusted the credit balance of Rs.99,800/- availed in his Savings Bank account towards KCC loan. There is no record to prove that the opposite party received Rs.5,000/- as R.R commission. If it was paid, it was done as per the existing guideline of the opposite party as they had to pay R.R commission of 5% if remittances are received by the opposite party directly in R.R initiated accounts. After SARFAESI Act action was initiated, the complainant settled the account in one time settlement. The opposite party have charged appropriate rate of interest and not charged in excess of the applicable rate. As the party was cultivating more than 5 acres of land, when KCC was availed, he was eligible for only 25% of the over dues as on 31.12.2007 as debt relief. The complainant had not remitted the dues as per the order of the Hon’ble High Court in 5 monthly instalments on or before 1.4.2008. Action under SARFAESI Act was reinstated after giving due notice to the complainant. The complainant is given eligible relief under the Debt Relief scheme. The complainant has to pay the contracted, floating rate of interest for Housing Loan account. So the petition is liable to be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?
4. The evidence consists of the oral testimony of PW1 and PW2 and Exts. P1 to P7 marked on the side of the complainant. The oral testimony of DW1 and Exts.R1 to R11 marked on the side of the opposite parties.
5. The POINT :- The complaint is filed for getting the benefit under Agricultural Debt Waiver and Debt Relief scheme declared by the central government in the agricultural loan availed by the complainant. And also against the hike interest charged by the opposite party in the housing loan. The complainant was examined as PW1. The copy of the statement of accounts of the housing loan for the period from 25.10.2004 to 21.5.2009 is marked as Ext.P1. Ext.P2 is the statement of account from 31.7.2002 to 21.5.2009 of the agricultural loan. PW1 availed a Housing loan for Rs.5,50,000/- from the opposite party on 31.7.2002. At the time of availing the Agricultural loan on 25.10.2004 for Rs.2,25,000/-, the opposite party assured that if the dues of the housing loan is cleared, the interest of the loan would be reduced from 10.25% to 7.25%. As per the assurance, PW1 paid Rs.57,300/- and 4 instalments in advance. In 2004, the rate of interest of housing loan was below 7.5%. PW1 was not able to repay the loan because of destruction in agriculture and low market value of the agricultural crops. Without the knowledge of PW1, the opposite party unanimously deducted Rs.99,800/- from the Savings Bank account of the complainant and accounted in the agricultural loan on 29.9.2006. Recovery charge of Rs.5,000/- was also received from the complainant for that amount, it is quite illegal and against the prevailing law. The property was kept in auction when the loan became due eventhough the period of loan was 10 years. The opposite party received a hike interest of Rs.1,11,349/-. The complainant received only a benefit of Rs.40,978/- as per the Agricultural Debt Relief scheme introduced by the central government. But the complainant is entitled to get benefit of Rs.1,51,022/- as per the scheme introduced by the government. The order from the Hon’ble High Court was received by the complainant to pay the loan in instalments, at the time when the property was kept in auction. But the opposite party withdrawn the revenue recovery proceedings and continued the SARFAESI Act proceedings. They recovered the entire amount on 6.6.2008 The opposite party cannot compulsorily recover the agricultural loan without completing the period of loan. The opposite party deliberately denied the benefit of Rs.1,51,022/- as per the scheme of the central government. Ext.P4 is the notice issued by the opposite party stating that the proceedings under SARFAESI Act would be initiated against the complainant. Ext.P6 is the lease agreement created between the complainant and one Mr. Mathai Mathai, Poovathunkal, for pineapple cultivation. Ext.P7 is the letter received from the Thahasildar, Thodupuzha, stating that the revenue recovery proceedings were recalled. PW2 deposed that the property of his father was given to the complainant as per the lease agreement for cultivating pineapple. The lease agreement was for a property of 4 acres and 50 cents of land. As per the request of the bank manager, another agreement was created by avoiding 2 acres of land which was already cultivating with rubber. That is marked as Ext.P6. The opposite party was examined as DW1. At the time of availing the loan, an agreement was signed by the complainant which is marked as Ext.R1. As per Ext.R1 agreement, interest was fixed as 11% and if the complainant make a default in payment, there would be a penal interest of 2%. It is also written in Ext.R1, as clause 6, eventhough the interest rate decreases in the future, the complainant should pay the agreed interest rate. PW1 was a chronic defaulter and he is entitled to pay the penal interest. There was an OTS facility given to the complainant, so the complainant paid Rs.45,000/-,and Rs.1,99,000/- in OTS scheme. The agreement of hypothecation dated 25.10.2004 is marked as Ext.R2 which created at the time of availing agricultural loan. The loan application for the kissan credit loan is marked as Ext. R3. The tax receipt was also produced by the complainant. Ext.R4 is the lease agreement created between one Mathai, Poovathunkal house and PW1. Ext.R5 (series) is the copy of the tax receipts of the complainant’s property and that of the said Mathai. The agricultural loan should be renewed in every year. As per the bank lien the amount of Rs.99,800/- was diverted to the agricultural loan of the complainant from Savings Bank account of the complainant. The revenue recovery was initiated, but no amount was collected as per the revenue recovery proceedings. After that a paper publication was given for auction, the complainant approached the Hon’ble High Court and the Hon’ble High Court ordered to pay the entire amount in instalments before 1.4.2008. The order from the Hon’ble High Court is marked as Ext.R8. PW1 never paid entire amount as per the order of the Hon’ble High Court, so notice was issued to PW1 stating that SARFAESI Act proceedings would be initiated against the complainant. The OTS facility was given to the complainant and the complainant agreed to repay both the loans with an amount of Rs.6,04,000/-. So the complainant closed the accounts on May 2008. Ext.R7 is a letter received from the complainant stating that he agreed to pay Rs.6,04,000/- for closing the loan. The complainant comes under the category of Other Farmer and so he is entitled for Agricultural Debt Relief scheme on 31.12.2007, so that relief of 25% was given to the complainant when he paid the entire amount. Even though the complainant closed the loan amount, the benefit of Rs.40,978/- was given in the account of the complainant as per the Debt Relief scheme. Copy of the Agricultural Debt Waiver and Debt Relief scheme, 2008, circular No.126/2008 dated 24.5.2008 is marked as Ext.R9.
Ext.R1 is an agreement created by the complainant and opposite party bank at the time of availing the loan in which the complainant agreed and signed the interest rate of loan which is fixed as 11%. But the loan became due and so the complainant entitled to pay the penal interest also as per the agreement. Ext.R2 is the loan agreement created between the complainant and the opposite party bank for the kissan credit account and the interest rate is written in that as 12.5% in which also the complainant agreed and signed. When the loan amount became due and the opposite party initiated revenue recovery proceedings against the complainant, the complainant approached the Hon’ble High Court and the Hon’ble High Court directed to pay the amount of Rs.1,50,000/- within one month from 25th October, 2007 and the balance amount shall also be paid in 4 equal monthly instalments from 1st January, 2008. Subsequent instalments will be payable on 1st of every succeeding month. But the complainant was not able to pay the instalments properly, so the bank initiated SARFAESI Act against the complainant. So the complainant closed the entire loan account. As per the circular issued from the government dated 24.5.2008, the complainant is eligible for the benefit of OTS rebate of 25% of the eligible amount subject to the condition that the farmer pays the balance amount of the eligible amount because the complainant is other farmer as per the circular dated 24.5.2008. Ext.R4 is the agreement created between the complainant and one Mr.Mathai, stating that 4 acres and 50 cents of land was given as lease to the complainant for cultivating pineapple. Tax receipts of the complainant’s property and the property of the land owner also produced. More over, the complainant approached the Hon’ble High Court against the opposite party at the time when the opposite party started revenue recovery proceedings against the complainant. The Hon’ble High Court also directed the complainant to pay the entire loan amount in instalment scheme. But the complainant was not able to pay the instalments as per the directions of the Hon’ble High Court. So we think that the matter is already decided by the Hon’ble High Court once and it is not proper to interfere in the same matter again. Hence the petition dismissed.
Pronounced in the Open Forum on this the 28th day of December, 2009.
Sd/- SRI. LAIJU RAMAKRISHNAN (PRESIDENT) Sd/- SMT. SHEELA JACOB (MEMBER) Sd/- SMT. BINDU SOMAN (MEMBER) APPENDIX Depositions : On the side of Complainant : PW1 - Tom Jose PW2 - Sibi Mathew On the side of Opposite Parties : DW1 - George Mathew Exhibits : On the side of Complainant : Ext. P1 - Statement of Account for general advances for the period 25.10.2004 - 21.05.2009 of Canara Bank, Thodupuzha Branch, dated 22.05.2009 Ext.P2 - Statement of Account for general advances for the period 31.7.2002 - 21.5.2009 of Canara Bank, Thodupuzha Branch, dated 22.5.2009 Ext.P3 - Repayment statement of Housing Loan of the complainant. Ext.P4 - Notice No.LPD.13371/10728 issued by Canara Bank, Thodupuzha Branch, to the complainant, dated 18.6.2009. Ext.P5 - Letter dated 2.4.2008, issued by Canara Bank, Thodupuzha Branch to the complainant. Ext.P6 - Copy of the lease agreement created between the complainant and Mr. Mathai Mathai. Ext.P7 - Letter No.B4.21684/09, from the Thahasildar, Thodupuzha, dated 14.10.2009 to the complainant. On the side of Opposite party : Ext.R1 - Housing Loan Agreement dated 31.7.2002 between the complainant and Canara Bank Ext.R2 - Agreement and Deed of Hypothecation dated 25.10.2004 Ext.R3 - Application cum Aooraisal form for Kisan Credit Card Scheme (KCCS) Ext.R4 - Lease Agreement dated 24.7.2004, between Mr.Mathaia and the complainant. Ext.R5(a) - Tax receipt of land of the complainant. Ext.R5(b) - Copy of tax receipt of land of Mr.Mathai. Ext.R6 - A consent granting letter by Mr. P.M.Mathai to the Manager of Canara Bank, Thodupuzha, dated 24.7.2004. Ext.R7(a) - Letter by the complainant to the Manager of the Canara Bank, Thodupuzha, dated 31.5.2008. Ext.R7(b) - Letter dated 31.5.2008 from the Thodupuzha Service Co-operative Bank Ltd, to the Manager, Canara Bank, Thodupuzha. Ext.R8 - Order from the Hon’ble High Court, Kerala, dated 25th October, 2007. Ext.R9 - Copy of the Agricultural Debt Waiver and Debt Relief Scheme, 2008, circular No.126/2008. Ext.R10 - Statement of Account for general advances for the period 31.7.200 - 30.9.2009 of Canara Bank, Thodupuzha, dated 2.10.2009. Ext.R11 - Statement of Account for general advances for the period 25.10.2004 - 30.9.2099 of Canara Bank, Thodupuzha, dated 2.10.2009
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