Kerala

StateCommission

A/516/2018

SYNDICATE BANK - Complainant(s)

Versus

SATHYASEELAN - Opp.Party(s)

P BALAKRISHNAN

02 May 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 516/2018

JUDGMENT DATED : 02.05.2019

 

(Appeal filed against the order in CC.No.253/2015

on the file of CDRF, Kollam)

PRESENT

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

SRI.RANJIT.R                          : MEMBER

SMT.BEENA KUMARI.A           : MEMBER

 

APPELLANT

Syndicate Bank, Kundara(B), Kollam – 691 501

Rep.by its Chief Manager, Sri.Anil Menon.M

 

        (BY Adv.Sri.P.Balakrishnan)

 

                                VS

RESPONDENT

      Sathyaseelan, Manimandiram, Ambipoyka.P.O

      Kundara, Kollam – 691 501

 

                (Party in person)

 

 

                                           JUDGMENT

SRI.T.S.P.MOOSATH                :JUDICIAL MEMBER

              Opposite party in CC.No.253/2015 on the Consumer Disputes Redressal Forum, Kollam, in short, the district forum has filed the appeal against the order passed by the district forum by which they were directed to credit Rs 19,181/- in the account of the complainant and to pay Rs 25,000/- as compensation with cost of        Rs 5000/- to the complainant.

                                2.     The averments contained in the complaint are in brief as follows. On 14.11.2005 the complainant availed a house loan of Rs 5,00,000/- from the opposite party bank. He used to pay the loan instalments regularly and if at all payment of any instalment has been defaulted, he used to remit the same at the next month. But the opposite party used to charge certain amount as outgoing and the then manager used to debit the same in the said loan account. However, since he was laid up due to the treatment of varicose vein and was admitted at different hospitals and in connection with the marriage of his daughter he experienced financial stringency. The monthly instalments of the loan was Rs 5430/-. However, while verifying the statement of the loan account he found that the opposite party bank has charged Rs 11,260/- in excess of the loan instalment. He made a complaint before the then manager. But he behaved in an indecent manner. Hence he approached in Ombudsman. By knowing that fact the manager told him that he would retaliate and also filed false statement before the Ombudsman and hence his complaint happened to be dismissed. Again the opposite party used to sent letters by registered post and also published the advertisement in the daily newspaper with a view to defame the complaint and his family members and there by persuaded him to commit suicide. During these days the complainant was regularly paying more than the instalment amount and therefore there is no need to make any advertisement in the newspaper as he was not a chronic defaulter. However, the opposite party manager added of Rs 4262/- to the loan amount as expenses for paper publication. According to the complainant the opposite party manager has been debiting unnecessary expenses and thereby harassing himself and other persons who availed loan. Hence the complaint.

                                3.     The opposite party filed version raising the following contentions. The complaint is not maintainable either in law or on facts. However the opposite party would admit that the complainant being the borrower and Sasidharan and Smt.Thankamani, w/o the complainant as guarantors availed a house loan facility of Rs 5,00,000/- on 14.11.2005 as loan A/c.No.4502/721/723 from the opposite party bank on executing necessary loan documents on condition that the loan amount will be repaid with interest at the rate of 8% per annum or at any rate subject to changes from time to time as per the changes in RBI rate, without any default. Further, at the time of availing the loan facility, the opposite party had created equitable mortgage in respect of 03.24 ares of property in Resurvey No.106/6/2 in Block No.18 of Elampalloor Village in the name of complainant and his wife Thankamony. But after availing the loan amount, the repayment was irregular and the complaint had violated the terms and conditions of the loan agreement and committed heavy default and the account became irregular. Repeated requests and demands were made by the Bank for regularizing the loan account by paying the arrears and keeping the account regular. The opposite party was also forced to send notices repeatedly and personal contacts were also made. In spite of repeated requests and demands made by the opposite party, the complainant has not paid any heed to the same and due to the nonpayment of the instalments the account was classified into NPA category on 30.10.2012 as per the guidelines and directions issued by the RBI. Thus, a total amount of Rs 3,59,802/- including principal amount + interest up to 31.07.2015 was due to the bank from the complainant along with interest from 01.08.2015. As per the direction and guidelines of RBI since, the account was classified into NPA category the authorized officer of the opposite party Bank was forced to invoke the provisions of SARFAESI Act on 27.07.2005 calling upon the complainant to discharge the liability within 60 days from the date of notice. Even after the issuance of notice, the complainant had not cleared, the liability and hence the bank is forced to take paper publication as per the provisions of SARFAESI Act and RBI guidelines. The complainant is liable to bear the expenses incurred for paper publication. Now as on 30.04.2016 an amount of Rs 3,40,080/- paisa 29 is outstanding as balance in the Housing loan account of the complainant, and the complainant and the sureties are jointly and severally liable to pay the same. The details stated in the complaint against the above said true facts are utter falsehood and hence denied by the opposite party.  The complainant and his son Sumit as joint borrowers had availed an education loan facility of Rs 2,64,000/- on 11.11.2006 from the opposite party bank and the complainant defaulted the repayment in that account also and that account is also became irregular and by taking much effort, the opposite party had included the Education Loan Account in OTS proposal and had settled for Rs 2,90,000/- by giving maximum deduction of Rs 2,94,720/- to the complainant against total dues of Rs 5,84,720/-. As per the information collected by the bank, the complainant is healthy and he is running Raja Sawmill near LMS Hospital, Kundara and is having capacity to repay the amount. The opposite party has not collected even a single pie as excess amount from the complainant as claimed in the complaint. The complainant has filed the complaint before this Forum only to harass the bank manager and also as an experimental case to escape from the liability of remitting the dues which he is legally liable to pay.

                                4.     The complainant was examined as PW1 and Exts P1 to P4 were marked on his side. DW1 was examined on the side of the opposite party and Exts.D1 to D8 were also marked.

                        5.     Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the opposite party has preferred the present appeal.

                        6.     Heard both sides. Perused the records.

                        7.     There is no dispute to the fact that on 14.11.2005 the complainant had availed a housing loan of Rs 5,00,000/- from the opposite party. According to the complainant he had been paying the loan instalments regularly and if at all the payment of any instalment was defaulted he used to remit the same on the next month. The allegation of the complainant is that the opposite party had debited the amounts from his loan account as inspection charges, notice charges and outgoing charges, On verification of the statement of his account he found that by way of different occasions the opposite party has debited an amount of Rs 11,260/- from his account. So he had filed complaint before the Banking Ombudsman. But that complaint happened to be dismissed. Thereafter by way of different occasions under different heads, the opposite party had debited the amount of Rs 7,340/- from his account. Thus according to the complainant the opposite party had debited Rs 19,181/- from his account and according to the complainant the opposite party has no right to debit those amounts under various heads and he is entitled to get credit of those amounts in his account. The opposite party contended that they have not deducted any amount from the account of the complainant unauthorizedly and they had debited the amounts towards the expenses and they had debited the amount as per the terms of the agreement and are also as per the RBI norms. The statement of the complainant that the complaint filed by him before the Ombudsman was dismissed is not correct. The Ombudsman has partly allowed the prayer of the complainant and after that he had filed the present complaint with false allegations. The complainant is not entitled to get any relief against the opposite party. The district forum found that the opposite party bank has debited the amount of Rs 19,181/- from loan account of the complainant and they have no right to deduct those amounts and the opposite party was directed the credit Rs 19,181/- in the loan account of the complainant. The district forum found that there was deficiency in service and unfair trade practice on the part of the opposite party and the opposite party was directed to pay            Rs 25,000/- as compensation together with cost of Rs 5000/-. The opposite party has filed the appeal challenging that order.

                        8.     The opposite party has contended that the complaint is not maintainable before the forum as the complainant is entitled to challenge the proceedings under the SARFAESI Act only before the Debt Recovery Tribunal and so the compliant is hit by the provisions of the SARFAESI Act. The district forum found that what is challenged by the complainant in the complaint is not the proceedings under the SARFAESI Act, but several other acts of the bank, deducting amounts under various heads, as outgoing charges, inspection charges etc. Further even if there are provisions under the SARFAESI Act, Section 3 of the Consumer Protection Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions and any other law for the time being inforce. So the Consumer Protection Act gives the consumer an additional remedy besides those that may be available under the existing laws. The district forum found that the complaint is maintainable before the forum. We consider that there is no ground / reason to interfere with the said finding of the district forum.

                                9.     The counsel for the appellant submitted that the finding of the District forum that the appellant / opposite party had debited Rs 19,181/- from the account of the complainant improperly is without any basis. The counsel for the appellant submitted that in Para 13 of the order of the district forum it is stated that according to the opposite party bank the expenses has been debited as per the terms of agreement and also as per the RBI norms. Though the complainant has denied the above contentions, the opposite party has neither produced the loan agreement and RBI circular containing the norms nor got it marked in evidence. Therefore, the forum is bound to draw adverse inference regarding these aspects as provided under section 1114(g) of the Indian Evidence Act. The counsel for the appellant submitted that the said statement of the district forum is not correct. The opposite party had produced the agreement executed by the complainant infavour of them and it was marked as Ext.D7.Ongoing through the proceeding paper and records of the lower forum, it can be seen that the opposite party had produced the true attested copy of the loan agreement and it was marked as Ext.D7 on 24.04.2018. So the finding of the district forum that the opposite party has not produced the loan agreement and hence an adverse interference has to be drawn regarding the statement of the opposite party that they had debited the amount as per the agreement is in correct and baseless. As per clause 7of Ext.D7 agreement, “ in case the borrower fails to pay insurance premium, other charges, expenses etc the bank shall be at liberty to debit the same in the loan account of the borrower and charge interest /overdue interest on such aggregate balance in the loan account”. In Clause 8 of Ext.D7 it is stated that the rate of interest, other charges, expenses etc shall be subject to change from time to time as per the Credit risk rating system PTLR of the bank and or otherwise as per the directives of the RBI in this behalf from time to time. In clause 9 of Ext.D7 it is stated that the borrower agrees that if the stipulated instalments together with interest other charges expenses etc are not paid on due dates the arrears in the loan account shall bear overdue interest at the rate fixed by the bank from time to time until such arrears are paid in full.

                                10.   According to the complainant the opposite party bank has deducted an amount of Rs 11,260/- from his account under various heads such as the inspecting charges, notice charges, outgoing charges etc. It is stated by the complainant that he had filed a complaint before the Banking Ombudsman with respect to the deduction of these amounts by the opposite party bank from his account. It is stated by the complainant that said complaint happened to be dismissed. But it is stated by the opposite party that the complaint of the complainant before the Banking Ombudsman was not dismissed and by the order dated 09.09.2015 the bank was advised to credit back the inspection charges levied in the loan account. The prayer of the complainant with respect to the other amounts were not allowed by Ombudsman. It is stated by the opposite party that they had credited the amount of Rs 2200/- in the account of the complainant. On a perusal of Ext.D1 it can be seen that on 14.09.2015 the opposite party had credited an amount of Rs 2199/- in the account of the complainant, as per the direction of the Ombudsman. It is the case of the opposite party that Ombudsman had already considered the claim of the complainant and the Ombudsman advised the bank to credit Rs 2200/- to the account of the complainant and the claim of the complainant with respect to the other amount was not allowed by the Ombudsman and hence the complainant cannot raise any claim with respect to those amounts. The said contention is not correct. From the copy of the order of the Ombudsman dated 09.09.2015 it can be seen that the Ombudsman observed that the complainant is liberty to approach any other forum for redressal of his grievance. It is the case of the complainant that the opposite party has debited the total amount of Rs 7340/- by way of three occasions towards insurance premium charges. It is known to an ordinary prudent man that for all House loans insurance is compulsory. As per clause no.7 on Ext.B7, the opposite party can debit the said amount paid towards the insurance premium from the loan account of the complainant. The remaining amount is Rs 1720/- which the opposite party has deducted as outgoing charges, notice charges etc by way of different occasions. As found by the district forum the deduction of those amounts and debiting those amounts from the loan account of the complainant is not justifiable and it is not proper on the part of the opposite party. So the complainant is not entitled to get credit of that amount in his account. It is the case of the complainant that after the filing of the complaint before the Ombudsman with respect to the amount of Rs 11,260/- the opposite party had debited Rs 7921/- by way of five occasions under different heads. According to the complainant on 31.12.2014 the opposite party debited an amount of Rs.281/- from his loan account. The counsel for the appellant submitted that the said amount is included in the claim made by the complainant with respect to the amount of Rs 2200/- before the Ombudsman and it was allowed. So the claim with respect to that amount cannot be considered again. According to the complainant on 03.03.2015 the amount of Rs 100/- was deducted from his loan account. The opposite party stated that the said amount was deducted towards notice charges. So the opposite parties debit that amount from the loan account of the complainant. It is stated by the complainant that the amount of Rs 2,199/- was debited from his account towards Ombudsman charges. The district forum stated that the opposite party has deducted that amount towards Ombudsman expenses. The counsel for the appellant submitted that the statement of the complainant and the statement made in the Order of the district forum that on 14.09.2015 the amount of Rs 2199/- was debited from the loan account of the complainant is incorrect. Ongoing through Ext.D1 it can be seen on that on 14.09.2015 no amount was deducted by the opposite party towards the Ombudsman expenses. Further it can be seen that same date opposite party credited Rs 21,99/- in the loan account of the complainant. It is the case of the complainant that on 18.09.2015 the opposite party has debited an amount of              Rs 4622/- towards paper publication. It is stated by the appellant / opposite party that the complainant violated the terms of agreement and committed default in payment of the instalments and in spite of repeated requests and demands the complainant did not pay the instalments. So his loan account was classified into NPA category as per the guidelines and directions issued by the RBI. As per the directions and guidelines of RBI since the account was classified into NPA category, the Authorized officer of the bank was forced to invoked the provisions of the SARFACI Act on 27.07.2015 calling upon the complainant and guarantors to discharge the liability within 60 days from the date of notice. The notice was returned and hence the bank was forced to take paper publication on 24.08.2015, as per the provisions of SARFACE Act and RBI guidelines. The opposite party has debited the amount of Rs 4622/- towards the expenses for paper publication and the complainant is liable to pay that amount. In Paragraph 12 of the Order of the district forum it is sated that as per Ext.D1 statement and the evidence of PW1 and DW1 the forum is of the view that classifying the loan account of the complainant as NP1 is not just and proper. It is the case of the opposite party that the complainant defaulted in making payments of the instalments and even after repeated request he did not pay the amount. Hence the loan account was classified into NPI as per the guidelines of the RBI. The question whether the classification of the loan account of the complainant as NPI account was correct and is not matter to be decided in the present compliant by the forum and it has to be considered in appropriate proceedings before the appropriate forum. Further the complainant has no specific case that the said act of the bank is illegal. The district forum did not consider the contention of the opposite party that they had spent an amount of Rs 4622/- towards publishing notice in newspaper and they are entitled to debit that amount from the account of the complainant. The district forum found that there is no reliable and convincing evidence to prove that the opposite party has spent Rs 4622/-towards publishing notice in the newspaper. It is stated by the district forum that the the opposite party has produced only photocopy of two half page pieces of newspaper and they have not produced the bill regarding the paper publication. On a perusal of the lower court records, including the proceeding paper it can be seen that on 24.04.2018 the opposite party produced the original paper publication with a petition to accept the copy, after verifying with the original and it was allowed and paper publication was produced as Ext.D8. Along with the appeal the appellant has produced the copy of the newspaper containing the notice against the complainant and 21 other persons. They had also produced the bill for Rs 97064/-, the charges regarding the paper publication. It is submitted by the counsel for the appellant that the publication of notice in the newspaper as per the SARFAESI Act is with respect of 21 borrowers including the complainant and the expenses to be met by each borrower is Rs 4622/- which the complainant is liable to pay to the bank. In these circumstances it can be seen that the opposite party can debit an amount of Rs 4622/- towards publishing notice in newspaper from the loan account of the complainant. It is case of the complainant that on 20.07.2015 the opposite party debited an amount of Rs 719/- as outgoing charges. It is stated by the opposite party that the said amount is the amount spent for obtaining Encumbrance Certificate and they can debit the amount from the loan account of the complainant. The opposite party has not adduced any evidence to show that the said amount of Rs 719/- debited from the loan account to the complainant on 20.07.2015 was the amount spent to obtaining encumbrance certificate. There is no justification on the side of the opposite party in debiting that amount of Rs 719/- from the loan account of the complainant.

 

              11.     On evaluating the entire materials, we can see that the finding of the district forum that the opposite party had deducted an amount of Rs 19181/- from the loan account of the complainant improperly and the complainant is entitled to get back that amount, to be credited in his account is not correct. The actual amount to which the complainant is entitled to get back is Rs 2439/- (1720+719). The district forum found that there was deficiency in service and unfair trade practice on the part of the opposite party bank. Considering the evidence, facts and circumstances of the case we consider that there is no reason / ground to interfere with the said finding of the district forum. The district forum directed the opposite party to pay an amount of Rs 25,000/- as compensation., Rs 5000/- as cost and it was also directed that the said amount of Rs 30,000/- is to be credited in the loan account of the complainant otherwise the full amount will carry interest till realization. We consider that the compensation and cost ordered by the district forum is on the higher side and those have to be reduced to Rs 10,000/- and Rs 2500/- respectively. The direction of the district forum to pay the interest on the amount, in case of failure of crediting the amount ordered as compensation and cost within 45 days of the date of the order is to be set aside.  We do so. So the order passed by the district forum has to be modified.

              In the result, the appeal is partly allowed. The order passed by the district forum is modified as follows.

1. The opposite party bank is directed to credited to Rs 2439/- in the Housing loan account of the complainant.
2. The opposite party bank is directed to pay Rs 10,000/- as compensation and Rs 2500/- as cost to the complainant.

 

                        Parties are directed to suffer their respective costs.

 

                  At the time of filing of the appeal the appellant has deposited Rs 12,500/-. The respondent / complainant is permitted to obtain the release of the said amount, on proper application, to be adjusted and credited towards the compensation and cost ordered, as above.

 

T.S.P.MOOSATH              : JUDICIAL MEMBER

 

RANJIT.R                         : MEMBER

 

BEENA KUMARI.A           : MEMBER

 

 

Be/

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NUMBER 516/2018

JUDGMENT DATED :02.05.2019