This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants, Sri Sunil Kr. Mukherjee and Sri Debasis Mukhopadhyay that the complainants have several accounts including pension, Savings Bank and Loan account with the opposite. party Bank and the complainant no.1 was compelled to take House Building loan of Rs. 3,00,000/- from the opposite  party Bank on 9.1.2004 with EMI @ Rs. 2,400/- for the term of 15 years, vide Loan Account No. NC9328 and the complainant no. 1’s Pension Account is with the opposite party Bank so it was decided that the EMI of Rs. 2,400/- would be automatically deducted from the said account. The rate of interest of the said loan was not stated in the agreement. Though the EMI was stated Rs.2,400/-but since inception the opposite party Bank realizes Rs.3000/- illegally from the Pension Account without further information. The said loan was given in 3 installments. Complainant no. 2 stood as Guarantor for his father i.e. complainant no. 1.

The complainants also state that the complainant no. 1 further took Rs. 1,00,000/- as House Building Loan which was sanctioned on 9.11.2005 at the interest of 8% p.a. under floating rate with EMI of Rs. 1,000/- under Loan account no.NC0038. It was agreed that EMI to be deducted from complainant no. 1’s Savings Bank Account No.1682000100000448 and for this reason the complainant no. 1 instructed the opposite party Bank to deposit monthly interest of his 2 MIS Policy with the opposite party Bank giving monthly interest of Rs. 785/- and Rs. 683/- is totaling of Rs.1,468/- in the said Saving Account but since 26.6.2014 monthly interest of Rs.683/- is not deposited in said Savings Bank Account and the said complainants cannot find out where it is deposited.

The complainants also state that the complainant no. 1 applied for Pension Loan of Rs. 1,50,000/- and the opposite party bank sanctioned the said loan on 3.7.2012 under Loan Account No.PD26874 with EMI @ Rs. 3,471/- and to be automatically deducted from Pension Account and this complainant no. 1 has two house building loans with EMI @ Rs. 2,400/- at interest @ 8% p.a. (floating) and Rs. 3,471/- also at interest 8% p.a. (floating) and a Pension Loan with EMI @ Rs. 1000/- at 13.15% p.a. interest and out of those 3 loans bank arranged to deduct EMI of Rs.2,400/- and EMI of Rs. 3,471/- directly from Pension Account and EMI of Rs.1000/- directly from total MIS deposited in Savings Bank Account. So, it is clear that there was no change to default by this complainant.

The complainants also state that the opposite party bank served a notice upon the complainant no.2 who stood as a guarantor stating that the Loan Account No. NC9328 and 0038 are going to be declared NPA for nonpayment of EMI and outstanding dues is Rs.2,48,952/-andRs.76,489.00/-respectively. The complainants astonished as according to system of paying EMI there should not be defaulter by this complainant. So, he filed quarries before the Inspection and Audit Department of opposite party bank under RTI Act. From the answer it is found that this complainant had been defaulted in respect of above stated 3 loans and the complainant first time come to know about tricky activities by the opposite party bank. It is really funny in as much as EMIs are automatically to be deducted by the opposite party bank without any scope of intervention or instruction by these complainants. If those loan accounts are running irregular, the opposite party bank is responsible. The opposite party bank never informed the complainant any irregularity. Rather the opposite party bank deducted total Rs. 45,000/- from another Savings Bank Account without seeking instruction from these complainants. Recently since 3.5.2014 the opposite party bank is deducting Rs. 3,500/- instead of Rs. 3,480/- for the Account No. NC0038.

The complainants also state that the activities of the opposite party bank are not acceptable for these complainants and clearly amount to deficiency in service. The complainant no. 1 suffers from mental agony, physical strain as well as economical loss and the cause of filing the present application arises on and from the date of notice.

Complainants filed the complaint petition praying direction upon the opposite party to hold an order that the complainant no. 1 is not a defaulter and the notice dt. – nil and served upon complainant no. 2 is illegal and has caused damage in social reputation of the complainants and to transfer MIS of Rs. 683/- to Savings Bank account No.1682000100000448 and to regularize the deposit and to pay a sum of Rs. 1,00,000/- as compensation for physical and mental agony and cost of the proceeding and any other order or orders to which petitioner is entitled to according to law.

The opposite party bank contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that the opposite party bank served the notice upon the complainant no. 2 who stood as a guarantor, stating that the loan account no. NC 9326 & 0038 are going to be declared as NPA for nonpayment of EMI and outstanding dues of Rs. 2,48,952/- & Rs.76,489/- respectively and the three loans have been sanctioned by the opposite party bank in favour of the complainant no.1 and the complainant no. 1 becomes the ‘borrower’ of the three loans and whereas the complainant no. 2 stood as a guarantor and from the three aforesaid loans two are ‘house building’ loans vide account no. NC 9328 limit of Rs. 3 lacks and another NC 10038 limit of Rs. 1 lacks and the rest is a ‘personal loan’ vide account no. PD 26874 limit of Rs. 1.5 lacks and being a ‘borrower’ the complainant no. 1 is fully liable and responsible for his sanctioned loans and on the other hand being a ‘guarantor’ the complainant no.2 hold the position as good as a borrower and his liability is co-extensive with the ‘principal borrower’ and the ‘guarantor’ of the loan jointly and severally liable with the ‘principal borrower’ in respect of the loan.

The opposite party bank also states that the complainant no.1 defaulted from October, 2012 to February,2013 and accordingly transferred to NPA category on 17.4.2013 and the complainant no.1 back to regular account on 7.1.2014 and thereafter further became NPA on 23.4.2014 and the opposite party bank has been compelled to transfer Rs.23,200/- from the Savings Account of the complainant no.1 to make it regular and there is a shortfall of 23 installments from the inception of the account and that is why the outstanding amount is still very higher i.e. Rs.2,02,444/- by paying Rs.3,000/- the account is not going to be adjusted (50 installments left) and as per the letter of the Authority dt. 9.1.2004 the complainant no.1 had agreed to pay Rs.3,000/- p.m. to be credited to the loan account NC 9328 every month as per sanction letter dt. 29.12.2003 and a ‘persona loan’ of Rs. 1.5 lacks vide account no. PD 26874 which was also became NPA on 19.7.2014 and further due to non-payment of installment from October, 13 to March, 14, the bank has been compelled to recover Rs. 10,300/- from his savings account no. 0338731 and accordingly the said personal loan is running regular, on 17.7.2014 the amount recovered from the savings account of the complainant no. 1 is Rs. 23,200/- to be credited in the account no. NC 9328, Rs. 1,800/- to be credited to NC 10038 and Rs. 10,500/- to be credited to PD 26874 and the opposite party bank is duty bound to the Head Office and the Branch Offices are only carrying out the direction of the Head Office and they are always trying to maintain the regularity of the accounts instead of being NPA and the Branch Office has given the borrower sufficient time to repay the overdue amount and usually the Bank gives notice before hand and after elapse of sufficient time of more than fifteen days, the Bank will apply over the ‘right of set off’.

The opposite party bank also states that since 26.6.2014 the monthly interest for FD accounts no. 5100115028 which is Rs.785/- is transferred to HBL account no. NC9328 and monthly interest on FD account no. 5100115019 of Rs. 683/- is transferred to NC 10038 save the account from becoming NPA and the account no.10038 became NPA on 17.4.2013 as the EMI amount is not enough to cope up with the loan outstanding including principal plus interest for its liquidation in due course of time and the complainant no.1 has been intimated about the fact verbally the quantum of installment fixed was not enough as the rate of interest has been increased from 8% to 10.25% & accordingly the quantum of interest should have been increased in such a level so that the overdue amount of loan may be liquidated in due course of time and to this effect the complainant no. 1 has been informed by the opposite party bank but all the marathon efforts taken by the opposite  party bank has ended in fiasco.

The opposite party bank also states that the account no.9328 has been opened under floating option i.e. subject to change of installment from time to time and when loan was sanctioned on 29.12.2003 rate of interest was 7.75%, now it is 10.27% so the complainant no. 1 was requested to pay installment by enhancing its quantum in order to  adjust the loan within 15 years, so whenever the overdue amount occurs the opposite party have no other option then to adjust the overdue amount from any source which are under the custody, it may be any account, here it is savings account, otherwise the account would be NPA and the complainants have utterly violated the terms & conditions of the loan which are being allowed by the opposite party bank, not only that they have defaulted in payment of EMI against the loan which are running over due and no deficiency in service has at all taken place in respect the loan account of complainant no. 1 and the complainant no.1 has filed the instant complaint unnecessarily, if the loan file has been meticulously examined, then in that case, it will be detected that all long the complainants being a borrower and guarantor used to have co-operation from the side of the opposite party bank and the incident which are being highlighted in this complaint are not at all the deficiency in service but with mala fide intention these complainants have filed this false complaint without any reason, that each and every procedure has been adopted by the opposite party bank in connection with the accounts under the due process of law and this out and out false claim which are not entertain able. Hence, the instant complaint is liable to be dismissed with exemplary cost.

Complainant filed evidence on affidavit which is nothing but replica of complaint petition. Opposite Party also filed evidence on affidavit.

Both sides files written notes of argument which are taken into consideration while passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants Sunil Kumar Mukherjee & Debasis Mukhopadhyay are ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the opposite parties carried on unfair trade practice/rendered any deficiency in service towards the Complainants?

4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

DECISION WITH REASONS

               In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainants Sunil Kumar Mukherjee & Debasis Mukhopadhyay are ‘Consumers’ of the opposite party?

               From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainants herein are the consumers of the opposite party, as the complainants being the customer of the opposite party bank took loans following the terms and conditions of loan agreement.  So, they are entitled to get service from the opposite party as consumers.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

            Both the complainants and opposite  parties are residents/having office address within the district of Hooghly. The complaint valued as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?

The complainants, in their argument assailed that they have several accounts including Pension, Savings Bank and Loan Account with the opposite party Bank and the complainant no.1 compelled to take House Building loan of Rs. 3,00,000/- from the opposite party Bank on 9.1.2004 with EMI @ Rs. 2,400/- for the term of 15 years, vide Loan Account No. NC9328 and the EMI of Rs. 2,400/- would be automatically deducted from the Pension Account of the complainant No.1. Though the EMI was stated Rs.2,400/-but since inception the opposite party bank realizes Rs.3000/- illegally from the Pension Account without further information. Subsequently the complainant no. 1 further took Rs. 1,00,000/- as House Building Loan on 9.11.2005.  It was agreed that EMI to be deducted from complainant no.1’s Savings Bank Account No.1682000100000448 and for this reason the complainant No.1 instructed the opposite party Bank to deposit monthly interest of his 2 MIS Policy with the opposite  party Bank giving monthly interest of Rs. 785/- and Rs. 683/- is totaling of Rs.1,468/- in the said Saving Account but since 26.6.2014 monthly interest of Rs.683/- is not deposited in said Savings Bank Account and the said complainants cannot find out where it is deposited. Further it is assailed that complainant no.1 applied for Pension Loan of Rs.1,50,000/- and the opposite party bank sanctioned the said loan on 3.7.2012 under Loan Account No.PD26874 with EMI @ Rs. 3,471/- and to be automatically deducted from Pension Account and this complainant no. 1 has two house building loans with EMI @ Rs. 2,400/- at interest @ 8% p.a. (floating) and Rs. 3,471/- also at interest 8% p.a. (floating) and a Pension Loan with EMI @ Rs. 1000/- at 13.15% p.a. interest and out of those 3 loans bank arranged to deduct EMI of Rs.2,400/- and EMI of Rs. 3,471/- directly from Pension Account and EMI of Rs.1000/- directly from total MIS deposited in Savings Bank Account. Complainants also state that the opposite party bank served a notice upon the complainant no. 2 who stood as a guarantor stating that the Loan Account No. NC9328 and 0038 are going to be declared NPA for nonpayment of EMI and outstanding dues is Rs.2,48,952/-and Rs.76,489/-respectively. So, he filed quarries before the Inspection and Audit Department of opposite party bank under RTI Act. From the answer it is found that this complainant had been defaulted in respect of above stated 3 loans and the complainant first time come to know about tricky activities by the opposite party bank. It is really funny in as much as EMIs are automatically deducted by the opposite party bank without any scope of intervention or instruction by these complainants. If those loan accounts are running irregular, the opposite party bank is responsible. The opposite party bank never informed the complainant any irregularity. Rather the opposite party bank deducted total Rs.45,000/- from another Savings Bank Account without seeking instruction from these complainants. Recently, since 3.5.2014 the opposite party bank is deducting Rs. 3,500/- instead of Rs. 3,480/- for the Account No. NC0038.

 According to these complainants the activities of the opposite party bank are not acceptable for these complainants and clearly amounts to deficiency in service. The complainant no.1 suffers from mental agony, physical strain as well as economical loss and the cause of filing the present application arises on and from the date of notice. So the complainants filed the instant complaint petition praying directions upon the opposite party as incorporated in the prayer portion of the complaint petition.

            The opposite party bank in his argument averred that he served the notice upon the complainant no.2 who stood as a guarantor, stating that the loan account no. NC 9326 & 0038 are going to be declared as NPA for nonpayment of EMI and outstanding dues of Rs. 2,48,952/- & Rs.76,489/- respectively and the three loans have been sanctioned by the opposite party bank in favour of the complainant no.1 and the complainant no. 1 becomes the ‘borrower’ of the three loans and whereas the complainant no. 2 stood as a guarantor and from the three aforesaid loans two are ‘house building’ loans vide account no. NC 9328 limit of Rs.3 lacks and another NC 10038 limit of Rs. 1 lacks and the rest is a ‘personal loan’ vide account no. PD 26874 limit of Rs. 1.5 lacks and being a ‘borrower’ the complainant no. 1 is fully liable and responsible for his sanctioned loans and on the other hand being a ‘guarantor’ the complainant no.2 hold the position as good as a borrower and his liability is co-extensive with the ‘principal borrower’ and the ‘guarantor’ of the loan jointly and severally liable with the ‘principal borrower’ in respect of the loan.

The opposite party bank also states that the complainant no.1 defaulted from October, 2012 to February,2013 and accordingly transferred to NPA category on 17.4.2013 and the complainant no.1 back to regular account on 7.1.2014 and thereafter further became NPA on 23.4.2014 and the opposite party bank has been compelled to transfer Rs.23,200/- from the Savings Account of the complainant no.1 to make it regular and there is a shortfall of 23 installments from the inception of the account and that is why the outstanding amount is still very higher i.e. Rs.2,02,444/- by paying Rs.3,000/- the account is not going to be adjusted (50 installments left) and as per the letter of the authority dt. 9.1.2004 the complainant no.1 had agreed to pay Rs.3,000/- p.m. to be credited to the loan account NC 9328 every month as per sanction letter dt. 29.12.2003 and a ‘personal loan’ of Rs. 1.5 lacks vide account no. PD 26874 which was also became NPA on 19.7.2014 and further due to non-payment of installments from October,13 to March, 14, the bank has been compelled to recover Rs.10,300/- from his savings account no.0338731 and accordingly the said personal loan is running regular, on 17.7.2014 the amount recovered from the savings account of the complainant no. 1 is Rs. 23,200/- to be credited in the account no. NC 9328, Rs. 1,800/- to be credited to NC 10038 and Rs. 10,500/- to be credited to PD 26874 and the opposite party bank is duty bound to the Head Office and the Branch Offices are only carrying out the direction of the Head Office and they are always trying to maintain the regularity of the accounts instead of being NPA and the Branch Office has given the borrower sufficient time to repay the overdue amount and usually the Bank gives notice before hand and after elapse of sufficient time of more than fifteen days, the Bank will apply over the ‘right of set off’.

The opposite party bank also averred that since 26.6.2014 the monthly interest for FD accounts no. 5100115028 which is Rs.785/- is transferred to HBL account no. NC9328 and monthly interest on FD account no. 5100115019 of Rs. 683/- is transferred to NC 10038 save the account from becoming NPA and the account no.10038 became NPA on 17.4.2013 as the EMI amount is not enough to cope up with the loan outstanding including principal plus interest for its liquidation in due course of time and the complainant no.1 has been intimated about the fact verbally the quantum of installment fixed was not enough as the rate of interest has been increased from 8% to 10.25%.

The opposite party bank  further averred that the account no.9328 has been opened under floating option i.e. subject to change of installment from time to time and when loan was sanctioned on 29.12.2003 rate of interest was 7.75%, now it is 10.27% so the complainant no.1 was requested to pay installment by enhancing its quantum in order to adjust the loan within 15 years, so whenever the overdue amount occurs the opposite party have no other option then to adjust the overdue amount from any source which are under the custody, otherwise the account would be NPA and the complainants have utterly violated the terms & conditions of the loan not only that they have defaulted in payment of EMI against the loan which are running over due and the complainant no.1 has filed the instant complaint unnecessarily and with mala fide intention. That each and every procedure has been adopted by the opposite party bank in connection with the accounts under the due process of law and this is out and out false claim which are not entertainable.

After perusing the complaint petition, written version, evidence on affidavit, written notes of argument, documents in the case record and hearing the Ld. Advocates of the complainant petition it appears that the complainant No.1 took three loans i.e. two house building loans and one personal loan from the opposite party bank and paying the installments and owing to failure of installments the loans turned to NPA. As a result the opposite party bank realized lum sum amount from the complainant for collecting due amount but the complainant failed to comply the directions of the opposite party bank in accordance with the notices. In this arena the complainant filed the instant complaint petition praying directions upon the opposite party as incorporated in the prayer portion.  It appears from the documents that the opposite party sanctioned loan to this complainant as per agreement and tried their best to get the loan refunded but the complainant failed to repay the same in time so the loans became NPA. During the period of NPA the opposite party bank has been compelled to recover Rs.10300/- from the savings bank of the complainant and accordingly the personal loan became regular. Subsequently the opposite party on 17.07.2014 recovered a sum of Rs.23,200/- in the account No.NC 9328, a sum of Rs.1800/- to be credited in the account No.NC 10038 and a sum of Rs.10500/- to be credited to PD 26874. Dispute cropped up in between the parties when the opposite party bank realized a hand sum amount from the savings account of the complaint as well as well the outstanding amount escalated due to non deduction of installments in time although there was a specific direction to deduct installments from the pension accounts and from the proceeds of the fixed deposits. But it is not clear from the case record as well as documents how a huge amount of outstanding dues accumulated in the accounts of the complainants. The pension account of the complainant No.1 lies in the opposite party bank and the fixed deposits are in the custody of the said opposite party then how a huge amount was accumulated. As there is no question to pay the installments by the complainants from the outside money.  So if any default causes in the loan account of the complainants then it may cause due to deficiency of service on the part of the opposite party bank as opposite party failed to deduct the amount of installments from the pension account of the complainant No.1 lying in the opposite party bank. Bank has the instruction to deduct the installments from the accounts specified in the loan agreement then how the question of outstanding amount arises due to nonpayment of installments. So from the above discussion the opposite party cannot evade the responsibility of deducting the installments from the accounts lying in his branch. If any fine imposed in the loan accounts of the complainants for nonpayment of installments in time then the complainants are not liable for that. So the deficiency of service of the opposite party is well established as the complaint petition is deserved to be allowed with cost and compensation.   

So we are in a considered opinion that the bank has collected as well as tried to collect sufficient money from his loanee by the name of outstanding dues and no further dues in the form of fine for default can be collected from these complainants. The opposite party is directed to regularize the savings bank account by the depositing the proceeds of the MIS. But the opposite party is at liberty to collect the principal Amount alongwith interest in the loan accounts as per agreement by the deducting the defaulting charges if any.

   4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

                The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of this opposite party, so the Opposite Party is liable to pay compensation for deficiency of service.

Hence it is ordered that the complaint case being No.188 of 2014 be and the same is allowed in part on contest with a cost of Rs.5000/- against the opposite party.

            The opposite party is directed to regularize the savings bank account by the depositing the proceeds of the MIS and inform the complainants regarding their liability in respect of loan accounts within 15 days deducting the penalty charges imposed for default.

 The opposite party is directed to pay compensation of Rs.10000/- for mental pain and agony within 45 days from the date of this order.

            At the event of failure to comply with the order the Opposite Party  shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post forthwith, for information & necessary action.