PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This order will dispose of the two appeals, first bearing F.A. No.391 of 2010 filed by the OPs and the second bearing F.A. No.397 of 2010 filed by the complainant against the order dated 21.9.2010, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant and directed the OPs in the following manner;

i)            The OPs shall refund the sum of Rs.2,48,368.59 (say Rs.2,48,368/- to the complainant i.e. the amount wrongly debited by the OPs from the home saver account of the complainant on 02.09.2008 and 16.09.2008.

ii)          OPs shall pay compensation of Rs.25,000/- for causing physical harassment, mental agony and pain.

iii)        OP shall pay a sum of Rs.5000/- to the Complainant as costs of litigation.

The above said order was to be complied with by the OPs within a period of 30 days of the receipt of its certified copy by it, failing which the OPs were to pay the sum of Rs.2,73,368/- alongwith interest @18% per annum from the date of filing the present complaint i.e 27.02.2009 till the date of realization, besides paying the costs of litigation i.e. Rs.5000/-. 

2.                           The brief facts of the case are, that the Complainant took housing loan against his residential property and Home Saver A/c and liquidated the entire outstanding after which OPs issued No Due Certificate (in short NDC) and returned all securities/papers including unused cheques on 25.08.2008. It was alleged that subsequently, when the Complainant received the statement of account on 25.09.2008, he found that the OPs had withdrawn Rs.2,48,143.87 on 02.09.2008 as well as Rs.224.72 on 16.09.2008 without any authority from the Complainant and had also earlier charged Rs.22946.30 on the pretext of pre-payment charges which was never disclosed by the OPs. It was further stated that the complainant did not take loan from any other bank for the payment of the loan of OPs, whereas the Complainant had sold his property with due intimation to the OPs and loan account was got adjusted and accordingly NDC was issued by the OPs on 25.08.2008. It was alleged that no prepayment charges can be levied by the bank in the case of payment made by the party except in case of take over of loan account by any other financial institution. Thus the Complainant was also entitled to the refund of Rs.22,946.30. It was further alleged that despite many visits to the office of the OPs, nothing was done by them to redress his grievance.  Ultimately a legal notice was sent to the OPs, but they did not reply the same. Alleging deficiency in service on the part of the OPs, this complaint was filed.      

3.                           In their written reply OPs admitted that the Bank had sanctioned home loans vide two accounts to the Complainant based on the application forms and other relevant documents submitted by him to the bank for the amounts of Rs.4,50,000/- and Rs.12,00,000/- respectively and the same were being repaid through equated money installments (EMIs) till August, 2008 as per the agreed repayment terms and conditions. It was pleaded that for selling the mortgaged property, the Complainant contacted the bank and the loan account of the Complainant could be pre-closed as per the pre-termination quote (PTQ) issued by the bank. The break up of the amount payable by the Complainant was communicated to him. It was stated that the unused security PDCs and No Due Letter were inadvertently sent before clearance of the shortfall amount by the Complainant. Home loan and Home Saver accounts were closed on August 25,2008 and there was no reason for the Complainant to approach the bank as he had deposited the shortfall amount in his Home Saver account on August 30, 2008. It was pleaded that the bank officials were regularly in touch with the Complainant and the Complainant had deposited the shortfall amount based on the clarification provided by the bank. Moreover, the Complainant had not contacted the OPs to intimate him the shortfall in pre-closure. The representatives of the bank had contacted the Complainant and explained the matter and the Complainant insisted for a written clarification which was provided to him vide the bank’s letter dated May 21, 2009. Rests of the allegation made in the complaint were denied and the OPs prayed for the dismissal of the same.

4.                           Parties led evidence in support of their contentions.

5.                           After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint as mentioned in the opening para of this order.

6.                           Feeling aggrieved, the instant appeals have been filed,  one by the OPs for setting aside the impugned order and the other by the complainant for modification of impugned order and enhancement of compensation.

7.                           We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully.  

8.                           The contention of the learned Counsel for the OPs is that the complainant have not paid the entire amount of loan due from him but the No Due Certificate Annexure C-1 and C-2 were issued to him inadvertently, when the sum of Rs.2,48,143.87 plus Rs.224.72 was due and therefore, the OPs/appellants were within its rights to withdraw the said amount from the account of the complainant.  It is argued that the impugned order passed by the learned District Forum is contrary to facts and law and therefore, is liable to be set aside.  In order to prove this fact, the appellant has now, during the pendency of this appeal, moved an application (under order XLI Rule 27 (1) (aa) CPC) for additional evidence to produce exhibit Ad-1/2 alongwith documents Ad-1 and Ad-2. According to him these are copies of bank record showing as to what payment was due from him and what payment he has made to the bank. The learned Counsel argued that these documents prove that the amount was due from the complainant and he was liable to make the payment thereof to the appellant-bank and secondly that Annexure C-1 and Annexure C-2 had been issued to him inadvertently to the effect that nothing was due.  The application for additional evidence is opposed by the opposite party (respondent/complainant in first appeal).

9.                           We have heard the arguments of the learned Counsel for the parties, we are of the view that though these documents should have been produced by the OPs/appellants at the time when they were leading evidence before the learned District Forum, yet these documents are copies of record maintained by the bank in the ordinary course of business and the same should therefore, be allowed. We accordingly allow the application for additional evidence.  The learned Counsel for the complainant did not want to file any evidence contrary to the same.

10.                       Even if the contention of the appellants/OPs is accepted as correct, though the same has not been proved on record, that some amount was due from the complainant, when the No Due Certificates Annexure C-1 and C-2 were issued to him, the appellants are precluded from withdrawing any further amount from the account of the complainant, after the issue of No Due Certificates.  The learned Counsel for the complainant/respondent has argued that when the lump sum payment is being made to the appellant-bank they gave certain concessions to the complainant and it was a conscious decision on the part of the OPs-bank conveyed to the complainant through Annexure C-1 and C-2 that the loan facility was closed and no outstanding remained against the complainant in the said loan accounts. The appellants/OPs returned the undated cheques to the complainant in token of their having applied the mind to the rights of the parties. After issuance of Annexures C-1 and C-2, the appellant-bank is estopped from claiming any further amount from the complainant

11.                       The contention of appellant-bank that the amount of Rs.2,48,143.87 and Rs.224.72 was due from the complainant is an afterthought.  The appellant-bank never informed the complainant before withdrawing the said amount if anything was due from him. No notice was given to the complainant to show cause as to why he should not pay the said amount to the appellant/OPs or why the said amount be not debited to his account.  The complainant has therefore, been deprived of this amount without affording him an opportunity of being heard and such an action on the part of the OPs-bank cannot be excused.

12.                       Not only that the complainant was never informed by the appellant-bank if any such amount is due from him, no reply was sent in this respect in response to the legal notice Annexure C-6 dated 24.11.2008. We are of the opinion that if the amount had been due, there was no hesitation for the appellant-bank to inform the complainant about the outstanding amount and also the reasons as to why they have withdrawn the same on 25.8.2008. We are therefore, of the opinion that in order to cover up the illegal withdrawal of the amount of Rs.2,48,143.87 + Rs.224.72 the OPs have now coined a false excuse to justify the lapse on their part.

13.                       In view of the above discussion, we are of the opinion that the conduct of the OPs in withdrawing the said amount from the account of the complainant was a clear-cut deficiency in service on their part and they are not entitled to retain the said amount. The learned District Forum was therefore, correct in directing the appellant-bank to refund the said amount along with compensation for physical harassment, mental agony and pain.

14.                       The learned Counsel for the complainant (appellant in second appeal) has argued that the OPs were not entitled to Rs.22,946.30 as prepayment charges. This relief was denied by the learned District Forum on the ground that the complainant had agreed to the payment of pre-closure charges and therefore, this recovery was in accordance with contract between the parties.  We are fully in agreement with the said view of the learned District Forum.

15.                       In view of the above discussion we are of the opinion that there is no merit in these appeals and the same are accordingly dismissed. Parties are left to bear their own costs of litigation.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

13^th October, 2011                                                          

                                                                                                      sd/-

[NEENA SANDHU]

PRESIDING MEMBER

Sd/-

 [JAGROOP SINGH MAHAL]

MEMBER

mp