DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 8th day of October 2021
Present : Sri.Vinay Menon.V President
: Smt.Vidya.A, Member Date of Filing: 23/06/2015
CC/92/2015
M.Chandrasekhara Menon
S/o.Kuttan Nair
CICI Vihar,
V/386, Chandranagar Post
Palakkad – 678007
(By Adv.Rajesh M) - Complainant
Vs
- ICICI Bank Ltd.
Rep.by its Managing Director
“Land Mark” Race Course Circle,
Vadodra, India 390007
- ICICI Bank Ltd.
Rep.by its Manager
Near Rappadi Auditorium
Fort Maidan,
Palakkad- 678 001
(Adv.Ramesh M) - Opposite parties
O R D E R
By Sri.Vinay Menon. V, President
- Gist of the pleadings is that the complainant availed a loan of Rs.4,60,000/- from the Thrissur Branch of the opposite parties for purchasing a used car on 5/3/2004. The complainant foreclosed the loan on 7/5/2004 by effecting payment of Rs.4,72,611/-. Eventhough the entire amount due was paid off, the opposite party did not account for the same and initiated various legal proceedings and coercive measures to harass and vex the complainant, until 2013. The opposite party issued a communication dated 12/11/2013 stating that they failed to account the amounts paid on 07/05/2004 and thereafter closed the account. Aggrieved by the sufferings he had endured for over 9 years this complaint is filed.
- The opposite parties filed version countering the complaint pleadings. They stated that the complainant had never sought for closure of account upon payment of Rs.4,72,611/- on 7/5/2004, that the complainant had initiated criminal complaints against the complainant, who is a chronic defaulter, under Section 138 of NI Act, that the adverse reflections in CIBIL records were due to the bad loan account, that the ICICI Bank had acted only in the best interest of their customers and sought for dismissal of the complaint.
- Pleadings and counter pleadings considered, the following issues arise for consideration
- Whether the complaint is barred by limitation?
- Whether the complaint is bad for non-joinder of necessary parties?
- Whether this Commission has territorial jurisdiction to try this complaint?
4 Whether there is effective closure of loan account?
5. Whether there is deficiency in service on the part of the O.P.s?
6. Reliefs and cost, if any.
4. Evidence on the part of the complainant comprise of answers given by the complainant to interrogatories filed by the O.P. Documentary evidence comprised of Exts. A1 to A14. Exts.A1, A4, A10, A11, A13 and A14 were marked without objection. Exts.A2, A3, A5, 6,7,8,9 and 12 were marked subject to proof. As the originals were not filed or affidavit explaining absence of originals were not filed, these documents marked subject to proof are not considered for evidence. Evidence of O.P. comprised of deposition of the manager of O.P., who claims to have personal knowledge of the loan transaction in issue herein. No documents were marked on the part of opposite party.
Issue No. 1.
- Section 24-A of the Consumer Protection Act, 1986 dealing with limitation period reads as follows:
“1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
- Not withstanding anything contained in sub section (1), a complaint may be entertained after the period specified in sub section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period :
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
The Hon’ble Supreme Court as well as the Hon’ble National Commission has on various occasions reiterated that Section 24-A(1) is peremptory in nature, with succor being provided to the complainant by filing an affidavit explaining the sufficient cause as to why he could not file the complaint within the period of two years specified in Section 24-A(1).
In the light of the above, the facts and circumstances of this case needs assaying.
- It is the clear case of the complainant that he had availed a loan of Rs. 4,60,000/- from the O.P.s on 05.03.2004. On 07.05.2004, he foreclosed the entire loan amount by payment of Rs. 4,72,611/- in lumpsum. Yet another important date is 11.11.2013, when the opposite party bank closed the account. What transpired between the nine years and 5 months spanning 07.05.2004 to 11.11.2013 is crucial to decide whether the complaint is barred by limitation or not.
- Cause of action, if any, would commence from the day when the bank had failed to accept the unilateral variance of the loan agreement and lumpsum remittance effected by the complainant. And that would commence when the opposite party bank refused to part with the security cheques. Hence the cause of action, if any accrued on the complainant would commence some time in 2004 when the cheques bounced after 7/5/2004 or when the opposite party refused to handover the cheques or resorted to any action that indicated a contra intention other than the complainant’s intention to foreclose the loan account while the complainant effected payment on 7/5/2004. The two year period for filing the complaint would stand barred by some period around 2006. This complaint having been filed in 2015 is, therefore, on the face of it, grossly barred by limitation by over 9 years.
- At this juncture it would be appropriate to consider whether in the facts and circumstances of the case, the complainant is entitled to claim the benefit of continuing cause of action. It is appropriate to look into the decision rendered by the Hon’ble High Court of Jammu and Kashmir with regard to continuing cause of action in Oriental Insurance Co.Ltd. V/s Chinnar Brick Kiln (AIR 2009 J&K 4). In this case, the Insurance Company had failed to either close or repudiate the claim of the complainant. The complaint was filed with delay. As per Section 18 of the Consumer Protection Act 1987 (Jammu & Kashmir Act) which is pari passu Section 24 A of the Consumer Protection Act 1986, a complaint was to be filed within two years from the date the cause of action has arisen. The Hon’ble High Court of J&K upheld the finding of the lower Fora that there is a continuing cause of action in view of the non closure and non repudiation of the claim by the opposite party.
In another matter where the bank failed to issue NOC, the honourable High Court of Kerala upheld that the complainant could avail the benefit of continuing cause of action where the complaint was filed with a delay of 5 years. (Regional Manager M/s.Indus Ind Bank Ltd. and Anr. V/s. State of Kerala and Others 2019 (3) KLT 313).
9) In this case herein, the opposite party had not closed the loan account nor answered any of the pleas of the complainant. A final decision was taken on the remittance made by the complainant only on 11/11/2013. Guided by the aforesaid decision and the judicial wisdom discussed supra in Chinar Brick Kiln and Indus Ind Bank
Cases, we are of the opinion that this complaint is not barred by limitation as there is continuing cause of action. Issue No.1 found accordingly.
Issue Nos. 2 and 3
10) The complainant is one, as can be seen from the inclusion of the 2nd opposite party and filing of the case in Palakkad, filed under S. 11 (2)(b) of the Consumer Protection Act, 1986, where the opposite party has a branch office. The Hon’ble Supreme Court had in a judgment rendered by it with regard to the interpretation of S.17(2)(b) of the Consumer Protection Act, 1986 reported as Sonic Surgicals Vs. National Insurance Company Ltd. 2010(1)SCC 135, held that branch office means the branch where the cause of action has arisen and not any branch in random. Therefore Thrissur Commission is the appropriate forum to try and dispose off this dispute.
11) After having clarified on that, the question that has to be considered is whether the opposite party has consented to have this dispute adjudicated here at Palakkad and has waived its right to dispute the locus of complaint and has acquiesced to the authority of this Commission. This Commission, being pari passu its authority and powers as that of the Thrissur Commission, is equally competent to try and adjudicate this issue, if not for the question of territorial jurisdiction. Hence orders passed by this Commission would not be void ab initio or a nullity in the eyes of law.
12) The opposite parties entered appearance on 24.07.2015. A version was filed on 08.09.2015. There is no pleading except for a cursory and informal statement in paragraph 2 of the version as to the territorial jurisdiction or the lack of the appropriate opposite party. From third paragraph of the version onwards, the opposite party proceeds with its defence head on, without parrying any allegation stating that it does not have knowledge or notice of the facts and circumstances of the case. They have taken on themselves, even without pointing out to the Thrissur Branch as the responsible party, to explain the facts as if the transaction of the complainant was with them.
13) The opposite parties had filed IA 88/2016 on 11.03.2016 seeking to remove the 1st opposite party from the party array. What prevented the opposite parties from challenging the authority with the same vehemence at the first instance? There was no impediment whatsoever.
14) Now the question is whether the opposite parties, owing to the change in territory, were barred from conducting the complaint in any manner whatsoever. We will have to answer in the negative. The opposite parties were given enough time at every stage of proceeding. There was proper, adequate and sufficient representation and adducing of evidence by the opposite party through DW1. Also, the opposite parties were ably and substantially represented by top notch lawyer who is well versed with law and procedure.
15) The sole conclusion that can be reached from the conduct of opposite party is that they have impliedly waived their right to contest the matter in Thrissur. By so acquiescing, they have concurred, consented and submitted to the authority of this Commission. The same view is held proper law by the various High Courts in (1) Ayyappan Pillai V/s. State of Kerala and Anr. (2009(2)KHC664); (2) Umesh Chandra Saxena V/s. First Additional Civil Judge (Senior Division) Allahabad and Anr. (AIR 2003 All 140); (3) Punjab National Bank and Ors. V/s. M/s. Millen Sales Corporation and Ors. (AIR 1997 Raj 151); and (4) Krishnan V/s. Appu Menon (1980 KLT 388)
16) Furthermore, the opposite parties had made the complainant suffer for over 9 years wherein the bank had utilised the superior resources against the complainant. Raising these two issues at the time of hearing after 6 years, is nothing but a tactics to prolong the hardships of the complainant. Also, in the facts and circumstances of the case which had been hotly, thoroughly and lengthly contested for over 6 years, it would be a travesty of justice to answer issues 2 and 3 in the affirmative and thereby make the complainant run for closure for years more. Hence it is only fair in the interest of justice that (a) non-impleadment of CIBIL or ICICI Bank, Thrissur Branch and (b) non-filing of the complaint at Thrissur would not be fatal and violative of any of the statutory provisions and detrimental to the interest of opposite parties. Issues 2 & 3 found accordingly.
Issue No. 4
17) The vital question that needs to be answered is whether there was an effective closure of the loan account. Had there not been a closure, the conduct of the opposite parties from 07.05.2004 to 12.11.2013 is legal and proper. Per contra, if there is a proper closure, which was left unaccounted for, the conduct of the opposite parties would be illegal and vexatious and would tantamount to deficiency in service.
18) The complainant alleged that he had closed the loan account on 07.05.2004 by remitting Rs. 4,72,611/- in lumpsum. The opposite party disputed this view for over nine years and all through the pendency of this complaint. Case in point of the opposite parties is that there is no effective closure. In paragraph 3 of the version, the opposite parties declares that the complainant was a chronic defaulter and denied the payment of Rs. 4,72,611/- on 07.05.2004 and sought that the claim be put to strict proof.
19) Exhibit A1 is the statement of account of the loan account. The remittance of the lumpsum amount made by the complainant reflects in the credit entry of the account on 30.07.2004. Even if the claim of the complainant that deposit was made on 07.05.2004 is disputed, the entry on 30.07.2004, with value date 23.07.2004 cannot be disputed for a moment.
20) Be as it may, Exhibit A14, is a communication bearing no. L/007295804/2013 – 2014 dated 12.11.2013 issued from the Service Quality Department of the opposite party to the complainant. DW1 has admitted the existence of the said department in his cross examination. Marking of Ext.A14 is not objected to and no evidence was adduced by the opposite party to disprove Exhibit A14. Contents of the said letter is as follows:
“Dear Mr. Menon,
We write with reference to the notice dated September5, 2013 issued on your behalf by Mr. K.N. Vivekanandan, Advocate raising concerns pertaining to outstanding dues on your Auto loan availed from ICICI Bank bearing number LUTHR00001972645 and in this connection, we have to state as under:
Post receipt the notice, we have investigated the concerns raised by you and affirm that you had made the payment of Rs. 472,611/- on July 23, 2004 towards foreclosure of the loan account no. LUTHR00001972645 . However, inadvertently the said loan account remained open in our records.
Upon your bringing it to our notice, we have closed the loan account no. LUTHR00001972645 in our records on November 11, 2013 and currently, there are Nil outstanding dues pending on the said loan account. The same would also be reported to the CIBIL accordingly. We sincerely regret that despite all the good intentions, you had to undergo inconvenience, despite of our best possible care and precautions. We urge you to treat this as an exceptional occurrence and not as an indicator of our commitment to quality customer service.
We affirm that ICICI Bank at all times act with diligence, in good faith, and in no manner prejudicial to the interests of its customers.
Looking forward to your co-operation in helping us serve you better.
Sincerely,
(Signature)
Sirisha A.
Manager – Service Quality.”
A perusal of the said letter, Ext.A14, would throw light on the fact that the complainant had indeed deposited Rs. 472,611/- on 23.07.2004, that the opposite party had failed to close the loan account and that the loan remained live due to negligence on the part of the opposite party and that the closure effected by the complainant is a valid closure and not a variance from the terms and conditions of the loan agreement.
Issue number 4 is held in favour of the complainant that there is a valid closure of the loan account.
Issue No.5
21) The period covering 07.07.2004 to 11.11.2013 was practically living hell for the complainant, with the witch hunt initiated by the opposite party. The complainant had to live under continuous apprehension of legal battles after having parted with the money. Uncertainty clouded the status of the lumpsum amount he deposited towards the closure of loan account. There were numerous legal notices, complaints before Magistrate Courts and demand notices. The non-closure of the account had also adversely affected the CIBIL score of the complainant, for no fault of his.
22) Even imagining for a moment, that, all the aforesaid coercive actions for the moneys outstanding due to failure to account for the amounts remitted, a reading of the version filed by the opposite parties would speak volumes of the attitude of the opposite parties towards the complainant. They have not admitted their error anywhere in the version. Instead, they resort to portrait the complainant as a chronic defaulter. They deny the complainant being a consumer and denies any liability to act based on the lumpsum amount deposited by the complainant. They did not have the decency to own up their lapses and shamelessly continue to berate the complainant with false and vexatious allegations even after issuances of Exhibit A14.
23) It is also strange and unbelievable that for 9 years this huge amount had been lying undetected and did not fall into the radar of auditors or never came into the notice of the bank as an accounting anomaly. What was the status of this money ? How was it utilised ? Was it capitalised or kept in suspense ? The bank has not cared to answer any of these questions.
24) The aforesaid conducts on the part of the opposite parties can only be viewed as harassment and vexatious constituting deficiency in service. The opposite party had resorted to highhandedness and vexatious practices to harass the complainant. Hence issue number 5 is found in favour of the complainant and against the opposite parties.
Issue No. 6
25) The opposite parties were taking advantage of the unequal bargaining power vis-à-vis the complainant. Any laxity in the penalty that ought to provided to the opposite parties would only encourage them to foment such attempts at unjust enrichment at the instances of unsuspecting victims. In view of the findings in issues 1 to 5, we hold that the complainant is entitled to compensation for mental agony, pain, harassments and sufferings he had to undergo in the hands of opposite parties.
26) The opposite parties shall pay the following amounts under the following heads to the complainant:
1. Compensation for deficiency in service and
mental pain, suffering etc. :: Rs. 5,00,000/-
2. Punitive damages :: Rs. 2,50,000/-
3. Cost :: Rs. 50,000/-
Total :: Rs. 8,00,000/-
(Rupees Eight lakhs only)
This order shall be complied within a period of 45 days from the date of receipt of this order.
Pronounced in the open court on this the 8th day of October 2021.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Copy of the bank statement dtd.19/5/2008 of the complainant
Ext.A2 – Copy of receipt dated 7/5/2004
Ext.A3 – Copy of lawyers notice dated 15/11/2007
Ext.A4 – Copy of legal notice dated 19/12/2007
Ext.A5 – Copy of Complaint under Section 138 filed before CJM Thrissur
Ext.A6 – Copy of notice dated 4/6/2008
Ext.A7– Copy of complaint dt.12/6/008 filed before Police Superintendent Palakkad District
Ext.A8 – Copy of reminder notice dated 3/5/2009
Ext.A9 – Copy of communication dated 25/3/2010
Ext.A10 – Copy of demand legal notice dated 24/9/2012
Ext.A11 – Copy of reply notice dated 3/12/2012
Ext.A12 – Copy of reminder notice dated 15/2/2013
Ext.A13 –Copy of demand legal notice dated 17/7/2013
Ext.A14 – Copy of communication dated 12/11/2013
(Exts.A2, A3, A5, A6, A7,A8, A9 and A12 are not proved and not relied on)
Exhibits marked on the side of the opposite party
Nil
Witness examined on the side of the complainant
NIL
Witness examined on the side of the opposite party
DW1 – Joby Sebastian
Cost : Rs.50,000/- allowed as cost of this proceedings.
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020.
