Kerala

StateCommission

A/15/102

UNION BANK OF INDIA - Complainant(s)

Versus

MUHAMMED YOUSUF C A - Opp.Party(s)

R JAGADISH KUMAR

09 Sep 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NO.102/15

JUDGMENT DATED :09.09.2015

 

(Appeal filed against the order in CC.No.257/2012 on the file of CDRF, Alappuzha order dated : 28.02.2014)

PRESENT

 

SRI.K.CHANDRADAS NADAR           : JUDICIAL MEMBER

SMT.A.RADHA                                 : MEMBER

SMT.SANTHAMMA THOMAS           : MEMBER

 

APPELLANT

 

Union Bank of India,

Alappuzha Branch,

Kabeer Plaza, CCSB Road,

Mullackal, Alappuzha – 688 011

Rep.by its Branch Manager,

 

Appellant is rep.by

S.S.Promoda,

Manager (Law),

Union Bank of India,

Regional Office, Statue,

Thiruvananthapuram

 

(By Adv.Sri.R.Jagadish Kumar)

 

Vs

RESPONDENTS

 

1.Muhammed Yousuf.C.A

Daya Manzil,

P.H.Road, Alappuzha

 

2. Ajmal.C.Y

S/o.Muhammed Yousuf,

Daya Manzil,

P.H.Road, Alappuzha

 

        (R1 by Adv.Sri.G.S.Kalkura)

 

JUDGMENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

        Appellant was the opposite party in CC.No.257/2012 in the CDRF, Alappuzha. The first complainant had availed trade loan from the opposite party to run his hardware shop on the strength of an equitable mortgage created over an extent of 2.26 ares of property in Aryad South Village in Ambalappuzha Taluk. It is alleged in the complaint that when the appellant / opposite party threatened the first complainant with coercive measures including proceedings under SARFAESI Act, he somehow arranged funds and repaid the loan. The further allegation is that even after the loan was settled the opposite party failed to release the title deed deposited for the purpose of creating equitable mortgage. It is alleged that the second complainant had availed education loan for his studies and against norms, the opposite party had insisted for surety for the loan transaction. The second complainant has completed his studies. But the opposite party is making illegal demands. They had obtained sixty signed cheque leaves from the complainants which is not envisaged in the scheme. The second complainant is ready and willing to repay the loan when he gets suitable placement. The failure to return original title deed even after settling the loan and obtaining surety for the educational loan amounts to deficiency in service. Hence the complaint.

        2.     In the version filed by the appellant / opposite party it is contended that educational credit facility of Rs.2,00,000/- was granted to the complainants. The wife of the first complainant and the mother of the second complainant stood as guarantor for the educational loan granted to the complainants by the opposite party. Creation of equitable mortgage by the first complainant is admitted. As per the letter evidencing the deposit of title deeds or memorandum dated 01.08.2009 executed by the complainant, the mortgage relating to the property will hold good as security to the educational loan granted to the second complainant as well. The complainants have further executed demand promissory note and educational loan agreement on 01.08.2009 and the mother of the second complainant executed agreement of guarantee on the same day.  Hence the complainants as well as their assets are liable to be proceeded against for recovering the debt due under the educational loan. The opposite party is entitled to retain the title deeds of the property till the amount due under the educational loan is settled. The allegation that the opposite party demanded the second complainant to issue 60 signed cheque leaves is false. There is no deficiency in service on the part of the opposite party.

        3.     Before the consumer forum the first complainant gave evidence as PW1. Ext. A1 was marked on the side of complainants. The opposite party adduced no oral evidence, but marked Exts.B1 to B4 on their side. The consumer forum holding that the bank was not justified in retaining the title deed found that complainants were entitled to relief. Accordingly the opposite party was directed to hand over the original title deed of the first complainant to him. Cost of Rs.1000/- was allowed. The opposite party is challenging the correctness of the order.

        4.     The consumer forum reasoned that retention of title deed after settling the liability under the trade .loan and obtaining security for educational loan is not justifiable and amounts to deficiency in service. The consumer forum further held that the bank is not justified in insisting on collateral security for educational loan flouting the express direction in the notification and circular of concerned authority. It may be mentioned at once that no such notification or circular is brought in evidence. On the contrary, Ext.B1 promissory note and Ext.B2 loan agreement were jointly executed by the complainants. So complainants 1 & 2 are under the obligation to repay the educational loan. Apart from that the mother of the second complainant and wife of the first complainant has executed guarantee agreement for the educational loan. As rightly pointed out by the consumer forum, the opposite party has no case that the liability under the trade loan was not settled as alleged in the complaint. But as per Exts.B1 & B2 both the complainants are under an obligation to discharge the educational loan. The obligation to repay the loan begins on getting employment and PW1 admitted during examination that second complainant his son was employed. So it appears that the appellant retained the title deeds to enforce repayment of the educational loan. The question is whether this can be termed as deficiency in service. It is pertinent to mention that once loan is availed repayment of loan is the obligation of the debtor and in the matter of repayment no service or deficiency in service is involved. So the finding of the consumer forum that the appellant committed deficiency in service by demanding or enforcing repayment of the loan is erroneous and is liable to be set aside. Hence the appeal is liable to be allowed.

        In the result, the appeal is allowed. The order of CDRF, Alappuzha in CC.No.257/2012 dated 28.02.2014 is set aside. The complaint is dismissed. The parties are directed to bear their respective costs in this appeal.

        K.CHANDRADAS NADAR         : JUDICIAL MEMBER

 

 

A.RADHA                                 : MEMBER

 

 

SANTHAMMA THOMAS           : MEMBER

 

     BE/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NO.102/15

JUDGMENT DATED :09.09.2015

 

                                                                 BE/