| Final Order / Judgement | Date of filing:25.05.2017 Date of Disposal:04.05.2023 BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 04th Day of May 2023 PRESENT Mr. K B SANGANNANAVAR: JUDICIAL MEMBER Mrs.M.DIVYASHREE : LADY MEMBER APPEAL NO. 1205/2017 ORDER BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER - This is an appeal filed by OP in CC/39/2013 on the file of District Consumer Disputes Redressal Forum, Bijapur aggrieved by the order dated 01.03.2013.
- The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.
- The brief facts of the case of the complainant before the Forum below would be: He is a borrower of OP/appellant herein had availed a cash credit loan to the tune of Rs.8,00,000/- through the loan account by CC A/c No.331905040060120. Complainant being borrower and customer of OP alleged during 2009-10 OP had wrongly debited a sum of Rs.15,410/- on 11.08.2009, Rs.12,328/- on 27.09.2010 as also Rs.40,703/- as such claimed Rs.68,441/- from OP banker besides claiming Rs.1,00,000/- as compensation towards mental agony. This Complaint was contested by OP/appellant and the Forum below held an enquiry receiving evidence from both, thereby allowed the complaint in part directed OP/appellant to pay a sum of Rs.68,441/- along with interest @ 12% p.a. from 27.09.2010 till actual date of payment and pay Rs.10,000/- for mental agony and Rs.2,000/- towards cost and this is the order now in this appeal on the grounds that Forum did not at all considered since borrower is bound by terms of cash credit loan and he is liable to furnish the monthly stock statements. The system (imbedded software) is common to all banks would cause to the additional interest to be recoverable form the borrower account for non furnishing of monthly stock statements. It is when the complainant did not furnish the stock statement, there is bound to be time bound additional debits as additional interest and the same is not at all reversible. The Forum failed to appreciate these critical aspects, the impugned order is bad in law and deserves to set aside, since OP are all computer abled transactions, there is no scope at all for any wrong debits more particularly in borrower accounts. The Complaint was barred on the ground of delay and latches in as much as the admitted case of the complainant that the debit entries under challenge were of the year 2009. The impugned order is perverse, illegal, tends to support than coming to the aid of an honest litigant and is liable to be dismissed by allowing the appeal.
- Now the Commission to examine whether impugned order passed by District Forum does call for an interference for the grounds of appeal?
- It is not in dispute that complainant being consumer held account since 2004, as he is doing business in the name and style M/s S.S.Mogali Dresses. It is also not in dispute that he has taken cash credit limit up to Rs.8,00,000/- for his business transaction and he kept his account always in regular. However he alleges against his banker, on verification of statement of account for the year 2009-10 found, his banker debited interest from such account, saying to be difference of interest at Rs.15,410/- on 11.08.2009 and on 27.09.2010 at Rs.12,328/- respectively. Further alleged his banker debited Rs.40,703/- to be the difference of interest for the year 2010-11. He alleges though his banker had debited the regular monthly account interest wrongly debited amount on thrice and they were not at all known to him however were revealed only on surprise verification of his statement of accounts.
- According complainant his banker charges illegal interest by debiting his account to an extent of Rs.68,441/- as such sought for the relief to pay illegal deduction of Rs.68,441/- along with interest @ 18% p.a. and sought for compensation for Rs.1,00,000/-.
- On the contrary the OP/appellant contended before the forum below that complainant is not a consumer, since he is carrying business in the name and style of M/s S.S.Mogali Dresses transacted which could not be said they fall with the definition of consumer and service provider under consumer law. Further contention of the OP Banker would be that the alleged transactions were of 2009-10 and 2010-11 respectively are barred by Section 24 of Consumer Protection Act, 1986 and the impugned order is liable to be set aside since forum below failed to appreciate the materials on record.
- In our view in so far as the first contentions that the dispute does not comes within the scope of CPA,1986 is rejected, since the complainant being account holder and the OP being holder of his account are prima faice comes within the definition of consumer and service provider and this aspect was rightly examined by the forum below. The second contention that the complaint is barred by S.24 of CPA, 1986 is again unacceptable from the facts stated by the complainant, since bank entries revealed on his surprise verification of statement of accounts and in such circumstances, he has to be justified to bring to the notice of the OP through legal notice, since OP banker has failed to intimate its customer or account holder before debiting Rs.15,410/-, Rs.12,328/- and Rs.40,703/-. In other words these 03 entries were made by his banker without his notice could be acceptable, since OP banker failed to place any document to shown that they were been notified to the account holder before debiting to the account in question. It is found from record that the complaint is raised during 2013 and in such circumstances, viewed from any angle it cannot be said complaint is barred under Section 24 of Consumer Protection Act, 1986.
- Learned counsel for appellant/OP submits wrong debit of Rs.17,219/- was rectified and the towards other interest so debited were on 02 heads namely 1) Penalty for non-furnishing of monthly stock statements GST outstanding to determine the drawing power and 2) For some time due to lesser interest being charged and the same being detected by the audit, the applicable interest was adjusted and accordingly debited. Further submits sanction advice and the audit report where the shortage of interest is detected, the applicability of penal interest in the event of monthly stock statement is not furnished which was made in terms of sanction advice and submits though all these 03 documents were produced before the Forum below were not at all considered. In this regard, learned counsel brought to the notice of the Commission that borrower has subscribed to sanction advice which is virtually a contract between the borrower and the secured creditor and as per this advice clause-4 provides for Stock statement in Bank’s prescribed format to be submitted every month before 05th of succeeding month. Separate breakup of 90 days older stock/Book Debts to be submitted. Delayed/Non submission attracts 02% penalty. It is thus clear that 02% penalty is attracted to the account. As such when complainant/borrower failed to submit monthly stock statement month on month is liable to pay 02% penalty, was not at all considered by the Forum below.
- It is to be observed herein that as it is not the case of the complainant that audit report is not produced by OP banker and it is also not his case that monthly stock statement month on month was submitted by him to his banker. In such circumstances, when OP/appellant had produced audit report, had shown the interest short claimed from 22.08.2009 to 16.09.2009 to the tune of Rs.40,703/- and also for the period from 09.09.2009 to 27.09.2009 Banker has to act upon and it is quite natural to debit the account of complainant for Rs.40,703/- was not considered by the Forum below before passing the impugned order. Learned counsel rightly submits in so far as wrong debit amount was already credited to the account of complainant, as such question of complainant suffering any mental trauma does not arise to enable him to compensate. Thus from the reevaluating evidence on record as appellant/OP has shown difference in interest charged to the tune of Rs.40,703/- was on the basis of audit report which cannot be refundable or reversible to the account of the complainant by giving credit entry to that effect and in so far as wrong debit of Rs.58,410/- was already credited and when the interest claimed at Rs.12,328/- was towards penalty for not furnishing monthly stock statement as per terms of the loan agreement.
- In view of the above such discussions considering wrong debit, penalty for not furnishing monthly stock statement of Rs.12,328/-, difference in interest @ Rs.40,703/- to be reversed in favour of complainant as alleged by the complainant, does not arise at all. In other words, Forum below has to be held failed to appreciate borrower sanction advice in particular clause-04 and failed to appreciate that as complainant failed to submit monthly stock statement as required, further OP banker has placed audit report to substantiate their contention that they are bound by sanction advice marked as per OP1 which provides for terms and condition and clause-04 required account holder to submit stock statement and enquiry reveals he had failed to submit stock statement, since it is shown error being crept in his account for some time were been acted upon and in so far wrong debit is concerned was subsequently rectified, but facts remain found that the OP-Banker failed to intimate in writing to the complainant for debiting on account of difference in interest on the basis of audit report in 2010 for which some amount of compensation has to be awardable to complainant and not as the Forum below directed in the impugned order at Rs.68,441/- along with interest @ 12% p.a.
- In the above such conclusion, Commission proceeds to allow the appeal in part. Consequently set aside the impugned order dated 19.01.2017 passed in CC/39/2013 dated 12.03.2013 and directed OP1 to pay Rs.15,000/- as compensation for inconvenience and mental agony and Rs.10,000/- towards litigation cost along with interest at the rate of 6% p.a from the date of complaint till realization. The OP is directed to satisfy the award either by crediting to the account of complainant with due information or by depositing with the forum below within 60 days.
- The Amount in deposit is directed to be transfer to the Commission below for needful.
- Send a copy of this Order to the District Commission and parties to the appeal.
Lady Member Judicial Member *GGH* | |
