Delhi

West Delhi

CC/18/380

BALBIR KHANNA - Complainant(s)

Versus

SBI - Opp.Party(s)

03 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III(WEST)

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI-110058

 

COMPLAINT CASE NO 380/2018

 

IN RE:

 

1. Balbir Khanna

S/o Sh. Sher Singh Khanna

R/o A-2/100, Ashirwad Apartments

Paschim Vihar, New Delhi 110063

 

2. Amit Khanna S/o Sh. Balbir Khanna

R/o A-2/100, Ashirwad Apartments

Paschim Vihar, New Delhi 110 063                                                     ………. COMPLAINANTS

VS

State Bank of India

Through its Branch Manager New Delhi-110 063

Lal Market Branch Paschim Vihar                                              ……….OPPOSITE PARTY

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:           DATE OF DECISION:

14.09.2018 04.05.2023 03.06.2023

 

CORAM

Ms. Sonica Mehrotra, President

Ms. Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

 

Present: Complainant in person.

 

    ORDER

 

Per: Anil Kumar Koushal, Member

 

          Facts leading to filing of the present complaint are summarized hereunder:

1.       Complainant No.1 submits that he is a  customer of  OP Bank, holding a joint Saving Bank A/c bearing No. 35502823742 (sic 00000030074495073) with complainant No.2 since the year 2006.  Complainant No.2 approached the OP  on 10.01.2016, requesting for sanction of a loan of Rs 10.80 Lacs for purchase of a plot, which loan was duly sanctioned against two FDRs pledged as security by  complainant No.2, having a total face value of  Rs. 12 Lacs (Rs 5 Lacs + Rs 7 Lacs) with maturity date of 13-10-2018.  Complainants submit that as per the agreed terms and condition of the loan agreement duly executed with the OP by complainant No.2, the complainants have been paying Rs 10,000/- as monthly instalment towards the principal and interest which was recovered through the said joint Savings Bank wef February 2016 onwards and the complainants never defaulted in paying the instalments regularly to the OP.  As part of loan repayment, complainants also deposited Rs.5 Lacs  on 13-06-2016 and 06-07-2016 through cheques of Rs.3 Lacs and Rs.2 Lacs respectively which were credited by the OP against the Loan Account separately maintained by the OP.

2.       According to complainants, as per the  terms & condition of loan agreement, the OP was authorized to close the Loan Account on the date of maturity of the FDs on 13-10-2018 only. The relevant para of the terms & condition is reproduced below:

“2. I/We authorize your that, on maturity of the said security deposit (i.e. FDs), the Loan Account be closed out of their maturity proceeds and balance, if any, be paid to me/us.”

 

However, in violation of the above terms & conditions and with an evil intention to cause wrongful loss to the complainants and without getting any instructions from the complainants, the OP, hastily and unilaterally closed the Loan Account on 06-07-2018 even prior to the date of maturity of the FDs and thus misappropriated the money from the FD of Rs 5 Lacs.   According to complainants,  the maturity value of  FD of Rs. 5 Lacs on 13-10-2018 was Rs.6,13,358/- which has been pre-encashed by the OP  on 06-07-2018 for Rs.5,91,111/-  without any intimation in this regard to the complainants, resulting in a loss of Rs.22,247/- to the complainants. The complainants thus feel not only cheated due to the unbusiness like attitude of the OP but also suffered mental harassment and agony for which OP is liable to compensate the complainants.  Since the OP despite personal requests did not agree to the stand of complainants,  the complainants sent a legal notice dated 25-07-2018 and personally visited the office of OP on 24-07-2018 but no satisfactory reply was given by the OP.  Complainants are claiming the loss of Rs.27,747/- (Rs.22,247 + Rs.5,500/- being cost of legal notice) along with compensation of Rs.1,00,000/-.  Hence the present complaint:

3.       The complainants claim the following relief :

a) To revive the Loan Account or in the alternative

b) To pay Rs.1,27,747/- as compensation for the loss and injury and

               inconvenience caused for the deficiency of service by the OP.

 

c) To pay Rs. 10,000/- by way cost of litigation to  the complainants.

4.       Complainants filed with the complaint, copies of two FD accounts, statements of account of the loan account No.00000035502823742 of complainant No.2  from 01.01.2016 to  30.7.2018.

5.       Upon admission of the complaint on 25.09.2018, notice was issued to OP who filed reply thereto.  OP submitted that the complainant  has presented distorted and incorrect version of facts before this Commission. The Complaint is not maintainable and liable to be dismissed on the basis of understated submissions/objections, which are without prejudice to one another.  

6.       OP submitted that the present complaint is not maintainable before this Commission as the present complaint is being moved neither by the complainant nor by his authorized representative. It is submitted that  Mr. Amit Khanna/complainant No.2  is the borrower in the credit facility and he is the beneficiary of the FDs in question and the alleged Mr. Balbir Khanna has no authority to file the present complaint. Neither the complaint is signed by Mr. Amit Khanna nor Mr. Amit Khanna has filed affidavit in support thereof and only Mr. Amit Khanna is shown to be  complainant no.2. Hence, the present complaint is not maintainable and liable to be dismissed at first instance.

7.       OP submitted that complainant no.2 has committed breach of the Loan Agreement entered into by him with the answering OP by defaulting in payment of installments of loan amount and hence, the complainants are not entitled to approach this Commission as  they are trying to take advantage of their own wrong. According to OP, complainant no.2 has committed repeated defaults in paying the dues as agreed under the aforesaid loan agreement and as such cannot file a complaint against the financer/OP. The complainant No.2 is guilty of suppressio vary and suggestio falsi. The Hon'ble National Commission in the case of Chellappan Vs Kerala Financial Corporation, 2003(2) CPC 265; (2003)) 1CPR 32; 2002(3) CPJ 46, has held that where the complainant is at default throughout, the complaint was not maintainable and hence, he is not entitled for any relief from this Commission. Therefore, the OP  was left with no other option except to realize the outstanding amount from the FD pledged as security by  complainant no.2.

8.       OP denied that  complaint no. 1 is its  customer, holding a joint Saving Bank A/c 35502823742 with the complainant no. 2 since the year 2006.  It is submitted that the captioned Bank Account is the loan account opened by the OP in respect to the credit facility availed by  complainant no.2 and  complainant no. 1 has nothing to do with same account.  OP denied that as per agreed terms and conditions of the loan, duly executed with the OP, the complainants have been paying Rs.10,000/- as monthly installments towards the principal and interest which was recovered through the said joint saving bank account w.e.f. February 2016 onwards and the complainants never defaulted in paying the installments regularly to the OP. It is submitted that the aforesaid credit facility was extended to  complainant no. 2 only for 24 months @ 8.5% p.a. interest which was to be repaid till 14.1.2018  and since February, 2016, if the complainant no. 2 is paying Rs. 10,000/- per month as installments of loan of             Rs.10,80,000/-, it would not even fetch the principal amount and falsity in the submissions of the complainants is evident from this very fact.    Still a huge amount was unpaid on the part of complainant no.2 as on 14.01.2018 and when complainant no.2 did not pay to the OP the outstanding amount as per the agreed terms and conditions of credit facility,  even after passing of considerable time,  the OP  was left with no other option except to realize the outstanding amount from FD pledged as security by  complainant No.2.

9.       OP also denied that as per the said terms & conditions of the agreement, the OP was authorized to close the Loan Account on the date of maturity of the FDs on 13.10.2018 only.  It is also  denied that in violation of the above terms & conditions, in order to cause wrongful loss to the complainants and without getting any instructions from the complainants, the OP, hastily and unilaterally closed the loan account on 06.07.2018 even prior to date of maturity of the FDs and misappropriated the money from the FD of Rs.5 Lac. The terms and conditions of the credit facility are reproduced herein:

“10. In this connection, I/We promise to service the interest on my/our said Banking Facility at monthly intervals. In case, I/We fail to service the interest for 3 months the bank shall be at liberty to realize the said security(s)/deposit(s) prematurely to adjust the outstanding in my/our said banking facilities without any reference, in this regard to me/us. After such adjustment if any balance is payable by me/us, we undertake to pay the same immediately without prejudice to your right of lien/set off in respect of any other account(s) with you either jointly or severally."

Further, as per  Clause 2 of Loan Agreement specified Securities:

“2. Depositor agree that upon default by the borrowers or any of them in repayment, on demand, all or any sum of dues/money secured as aforesaid or in the case of any of the borrower or my/our becoming bankrupt or in the event of breach of any of the terms and conditions of the sanction of banking facility, the Bank should be entitled immediately or at any time thereafter to realize the said securities (including dividend on shares) (even by premature closure of the security(s)/deposit(s) and apply the net proceeds in or towards the discharge of the money hereby secured."

Therefore, the OP, within the ambit of  terms and conditions of loan agreement, has realized the said security/FD only when  complainant no.2 had not paid the agreed outstanding amount to the OP even after expiry of tenure of credit facility and even after grant of considerable time for making the payment of outstanding amount and the complainant has duly authorized the OP in this regard and hence, no loss was sustained by the complainant by  realization of the FD by the OP.

10.     OP also denied that maturity value of the FD of Rs.5 Lac on 13.10.2018 was     Rs.6,13,358/- which has been pre-closed by the OP itself on 06.07.2018 for Rs.5,91,111/- without any intimation in this regard, resulting into a loss of Rs.22,247/- to the complainants.  It is rather the complainant no.2 who did not maintain the financial discipline which constrained the OP to realize the amount from the security.

11.     OP submitted that since no cause of action has ever arisen in favour of the complainants to file the  present complaint against the OP, the present complaint is liable to be dismissed  with costs.

12.     OP attached with its reply, copies of Gazette of India notification dated 02.05.1987, loan application, arrangement letter and loan agreement executed between the complainant No.2 and the OP, certified copies of statement of account of loan account of complainant No.2 for the period from 14.1.2016 to 16.11.2018.

13.     Being dissatisfied with the  averments of OP as taken in its written statement, complainant No.1 filed rejoinder and  disputed all of them.  According to complainant N.1, there is evasive and non specific denial throughout and the complaint filed by the complainants is deemed to be admitted by the OP on this count alone. OP has thus not approached with clean hands and is not entitled to be even heard by this Commission as held by Hon. Supreme Court in its various judgments.

14.     Complainants submitted that complainant no.2 who is admittedly borrower in the credit facility is not the only beneficiary of the FDs. OP has suppressed the material fact that the loaned amount has been transferred to the joint saving bank account of complainant no.1 and complainant no.2, maintained with the OP since 2006. The monthly regular installments of the loaned amount were also paid by transferring the installments from saving bank account to the loan account. Both the accounts are thus linked accounts. It had been the duty and responsibility of Complainant no.1 & 2 to oversee that the installments are regularly paid without any default to the loan account. Complainant no. 1 has a right to relief and same interest as complainant no. 2, in case of alleged default, if any, and premature credit of the FD by OP to the joint saving bank account which happens to be the issue in the case herein. The present complaint is thus maintainable.

15.     Complainants denied that complainant No.2 has committed breach of loan agreement entered by him with the OP by defaulting in payment of installments of loan amount. It is submitted that the OP has not substantiated the averment with evidence on record.  The  OP has not disclosed the dates of repeated defaults in paying the dues as agreed under the loan agreement. The given citation of Hon'ble National Commission is not applicable in the facts and circumstances of this case. The statement of loan account  filed by the OP is incomplete and fabricated.

16.     Complainants vehemently denied that the OP was left with no other option except to realize the outstanding amount from the FD pledged as security by Complainant No.2.  The OP has intentionally suppressed the material fact from this Commission, without verifying the details of the loan account bearing No.35502823742 which is linked to the joint Saving Bank A/c of the Complainants. Further, the OP has filed a fabricated copy of the Loan Account which does not disclose the linkage of the Loan Account with the Joint Saving Bank A/c.  It is submitted that both the complainants are the customer of  OP having Joint Saving Bank A/c No.30074495073 since the year 2006. It is vehemently denied that the Complainant No.1 has nothing to do with the loan account as alleged by the OP.

17.     Complainants denied that the  credit facility was extended to Complainant No.2 for a period of 24 Months. It is submitted that as per Clause 2 of the loan application, the OP was authorized to close the loan account only on maturity of the FDs pledged with the OP out of the maturity proceeds and balance, if any, was to be paid to the Complainant No.2. As per the documents on record, the loan account was to be closed on the date of maturity of the FD on 13-10-2018 and not on 14-01-2018 as alleged by the OP. The complainants had been paying Rs.10,000/- per month regularly as instalments towards loan account till July 2018 when suddenly it was closed prematurely on 06-07-2018 without any intimation to  Complainant No 2 by wrongly mentioning "For personal use".  According to complainants, the OP is misleading this Commission by citing the wrong para of the terms & condition of the credit facility, since the Complainant No.2 has never committed default in repayment of the instalments towards the loan amount, the para No.2 and 10 as cited by the OP are not applicable in the facts and circumstances of the case. The relevant applicable para No.7 is reproduced hereunder  for ready reference of this Commission:

“7. "Depositors declare that on maturity of the security/deposits, the proceeds of the said security will be utilized to clear all outstanding/liabilities in the said banking facility and after such adjustment, the balance, if any, in the said security be paid to the Depositor by banker's cheque or by credit to the A/c No.........."

18.       According to complainants, the OP has further misread the date of maturity of FDs as 14-01-2018 instead of 13-10-2018. The falsity of this fact can be proved as monthly installment of the loan amount has been accepted and accounted for in loan account by OP even after 14-01-2018 till July 2018 when the loan account was suddenly closed without any rhyme and reason on 06-07-2018 though the complainant had deposited the installment of loan amount for the month of July 2018 also. If the date of maturity of the FDs was 14-01-2018 as contended by the OP, the loan account should have been closed on this date rather than on 06-07-2018. Further the OP is deficient in service as both the FDs are still lying with the OP, who has neither issued any release letter after the closure of the loan account nor disclosed as to the fate of the FDs as required under the rules.  The OP is clearly liable for deficiency of service and unfair trade practice in as much as after closing the loan account, the OP is required to intimate the complainants by means of "security release letter" by enclosing the FDs. It is reiterated that the complainants herein are unaware as to the fate of the FDs which are still lying with the OP who is dealing with the FDs as per its whims and fancies.  Complainants reiterated and reaffirmed the prayers made in the complaint.

19.     Evidence by way of affidavit was filed by the respective parties and they exhibited the documents filed on record.  Complainant No.1  filed his written arguments.  However, OP failed to file their written arguments and accordingly their right to  file the same was closed on 04.5.2023.  Oral arguments  on behalf of complainants were  addressed by complainant No.1.   Accordingly, orders in terms of provisions of Section 38(3)(C) of the CP Act, 2019 were reserved.

20.     The first objection raised by the OP is with regard to locus of complainant No.1 in filing and signing  the complaint with his own affidavit  though name of complainant No.2 who took the loan of Rs.10.80 lakhs with interest @ 8.5% p.a.  from OP has also been mentioned in the memo of parties.  No affidavit of complainant No.2 has been filed on record.  

21.     It may be noted that the loan to purchase  a property was taken by complainant No.2 from the OP.  The FDs pledged as security  for securing the  said loan were also in the name of complainant No.2.  The only logic given  by complainant No.1 in filing the present complaint  was that the joint SB A/c No.30074495073 from which  complainant No.2 used to transfer the   loan instalments  amount to his Loan Account No.35502823742 being maintained by the OP specially for the purpose of said loan, was linked with loan account.    It may be noted that the loan account of complainant No.2 does not mention name of complainant No.1.   The OP Bank has not kept any lien on the alleged joint SB A/c of complainants to recover the loan amount.  For this purpose, the OP had already secured its interest by taking two FDRs of Rs.5 and Rs.7 lacs from complainant No.2 from which the balance loan amount was to be recovered in case of default by complainant No.2.   

22.     In this connection it is worthwhile  to  take note of judgment of Hon’ble SCDRC, Uttarakhand in the case of Arvind Singh Bisht vs Parakh Imaging Centre, decided  on 11 December, 2014 which was a case  of  son and father in which case the son had filed the case on behalf of his father who was alive,  without any authority. While relying upon the judgment of Hon’ble NCDRC in the casse of Amita Sharma Vs. B.H.E.L. and others, the Hon’ble SCDRC, Uttarakhand  observed as under:

“6. The perusal of the consumer complaint shows that at the time of filing of the consumer complaint, Sh. Chandan Singh Bisht, the father of the complainant was alive. The complainant has not filed any authority to show that his father had authorised him to file the consumer complaint on his behalf. The complainant has also not filed any Power of Attorney executed by his father in his favour, thereby authorizing him to file the consumer complaint on his behalf and doing the needful in the matter. Since no such document was filed on record and hence it can not be said that the complainant falls under the definition of "consumer" as provided under the Consumer Protection Act, 1986 and it also can not be said that the complainant had a right to file a consumer complaint on behalf of his father, when the medical negligence has been alleged by the complainant in regard to the C.T. scan report of his father issued by the opposite party and when at the time of filing the consumer complaint, the father of the complainant was alive.”

 7. In the case of Amita Sharma Vs. B.H.E.L. and others; II (2013) CPJ 505 (NC), the consumer complaint was filed by Smt. Amita Sharma on behalf of her husband. It was held by the Hon'ble National Commission that there is nothing on record that the complainant's husband had been incapacitated in any manner or was prevented in any manner whatsoever from filing the consumer complaint and that the complainant had not been authorized by her husband to file the consumer complaint on his behalf. It was held by the Hon'ble National Commission that the complainant is not a consumer. In the case of Ram Niwas Soni Vs. Vaish Model Sr. Sec. School and others; II (2013) CPJ 396 (NC), the consumer complaint was filed alleging excess amount of fees charged in admission. The consumer complaint was filed by the complainant on behalf of his major son without any authorization. It was held that the complainant has no locus standi to file the consumer complaint and that the complainant did not fall within the purview of consumer”   

23.     Following the aforesaid rulings, we hold that complainant No.1 had no locus to file and sign the present  complainant  without the authority of complainant No.2. All the correspondence exchanged  by the OP was with complainant No.2, be it the loan application form, the loan arrangement letter and other correspondence relating to loan account.  The FDs pledged to secure the loan were in the name of complainant No.2.  Accordingly, on this short point, the complainant is dismissed as not maintainable.

24.     It is a settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case as was observed by Hon'ble National Commission in Koshy Varghese Vs HDFC Bank Ltd III (2017) CPJ 52 (NC).

25.     Even otherwise on facts, there are so many disputed questions of fact and law  involved in this case which remained unanswered and cannot be decided in the summary proceedings under the CP Act, for which extensive evidence will have to be led by the parties before the Civil Court, as under: 

26.     The  complainants submit that the loan was to continue until the maturity of two FDRs in question on 13.10.2018 and reliance in this regard is placed on para 2 of the loan application form which was to the following effect:

“2. I/we hereby authorize you that on maturity of the said security(s)/Deposit(s), the loan account be closed, out of their maturity proceeds and the balance if any be paid to me/us.”

However, the OP submits that the loan was to be repaid in 24 months and in support of this, it has also placed on record a statement of loan account which says that the term of the loan was 24 months.  He OP has relied upon clauses 10 and 2 of the loan papers as quoted above.  We do not find any clear reflection of the period of loan either in the loan application form or in the loan Arrangement Letter or the statement of accounts of said loan issued by the OP to  complainant No.2. Further, the complainant submits that it was agreed  between the complainant No.2 and OP that the instalments amount shall be Rs.10,000/- p.m. which is though not disputed by the OP but the said figure nowhere finds mention in the loan documents issued to complainant No.2.  The OP Bank has disputed the claim of complainant No.2 as to how within remaining period of three months of maturity of the FD in question, complainant No.2 would have made the payment of remaining amount without prematurely encashing the FD of Rs.5 lacs. 

27.         The contention of complainant No.1 is that the OP has prematurely closed the FD of Rs.5 lakhs of complainant No.2 on 6.7.2018 without giving notice to him, which the OP has not been able to explain as no such notice sent to complainant No.2 about closure of the loan account has been filed on record by the OP.   Further, the  statement of loan account issued by the OP  for the period 01.1.2018 to 30.6.2018 shows a balance of Rs.4,22,964/- as on 30.6.2018 to be paid by the complainant No.2 because of which the OP had to forclose  the FD of Rs.5 lakhs pledged by complainant No.2 to recover the remaining amount of loan of Rs.4,23,457/-.   The complainant No.1 has not been able to prove on record, if the FD  of said amount had not  been prematurely foreclosed by the OP Bank on 06.7.2018 instead of 13.10.2018, as to how complainant No.2 was to pay back the remaining loan amount of Rs.4,23,457/- within the remaining period of three months of the said FD.          Further, according to complainant No.2 if the loan term was to expire on 14.1.2018, as to how  the OP continued to take loan instalments upto 6.7.2018 when finally it prematurely encashed the FD of Rs.5 lakhs tendered as security  by complainant No.2.

28.         Further the contention of  complainant No.1 that the two FDs are still with the OP, is belied by the fact that as per the statement of account  of alleged joint SB A/c filed by the complainant No.1, the amount of prematured  FD of Rs.5 lakhs, amounting  to Rs.5,91,111/- has been credited to the said joint SB A/c of complainants on 6.7.2018  and then debited with the balance loan amount of Rs.4,23,457/- on the said date.   

29.     In Synco Industries vs State Bank Of Bikaner And Jaipur, decided on 15 January, 2002, Hon’ble Apex Court has held as under:

“Given the nature of the claim in the complaint and the prayer for damages in the sum of Rupees fifteen crores and for an additional sum of Rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is on appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, and figure in damages can be claimed without having to pay court fees. This, in that sense, is an abuse of the process of the Consumer Forum.”

 

The above resolve of the Hon’ble Supreme Court, by relying on its another judgment in the case of Oriental Insurance Co. Ltd. v. Munimahesh Patel, (2006) 7 SCC 655 was reiterated in the matter of CMD, City Union Bank Ltd. V.R. Chandramohan, 2023 SCC OnLine SC 341, decided on 27-3-2023 with the following observations:

“12. The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it.

30.     For the foregoing reasons, complainant No.2 if so advised,  may approach the Civil Court for redressal of his grievance. The complaint is dismissed with such liberty, with no order as to costs.

          A copy of this order shall be supplied free of cost  to parties to the dispute in the present complaint,  upon a written requisition being made in writing  in the name of President of the Commission in terms of Regulation 21 of the Consumer  Protection Regulations, 2020.  File be consigned to record room after pronouncement of order.

 

 (Richa Jindal)                            (Anil Kumar Koushal)                   (Sonica Mehrotra)

    Member                                       Member                                   President