Date of Filing: 27/08/2011
Date of Order:18/10/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 18th DAY OF OCTOBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO.1611 OF 2011
Sri. Venkataswamy Reddy,
S/o. Sri. Ramaiah Reddy,
Aged About 61 years,
R/at: No.824, 4th B Cross,
9th Main, HRBR I Block, Kalyan Nagar,
BANGALORE-560 043.
(Rep. by Advocate Sri. N.V. Suresh) …. Complainant.
V/s
1. The Senior Manager,
Canara Bank, SP & D Wing,
H.O No.112, J.C. Road,
Bangalore-560 002.
2. The Senior Manager,
Canara Bank, No.401, 7th A Main,
4th B Cross, HRBR-II Clock,
Kalyan Nagar, Bangalore-560 043.
(Rep. by Advocate Sri. H.S.Rukkoji Rao) …. Opposite Parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay the sum of Rs.1,48,666/-, are necessary:-
The son of the complainant Mr. Dinesh Reddy had obtained certain loan from the First Opposite party on 28.02.2008 to which the complainant was a coobligent. The complainant is having SB account with the Second Opposite party bearing No.245610100134. The son of the complainant had discharged the entire loan of the first opposite party who issued a clearance letter dated: 10.05.2011 returned the original documents of the property to the son of the complainant and there was no due certificate was also issued. During first week of June-2011 when the complainant went to the second opposite party and got updated her pass book she was surprised and shocked to see that Rs.48,666/- has been taken out from her SB account by the second opposite party, when questioned she was told it is towards of her son’s loan this amount has been deducted. The complainant has not issued any notice nor made any correspondence in this regard. When no due certificate was issued to the son of the complainant the opposite parties cannot recover this much money that too from complainant. Nor there was a lien. Hence the complainant seeking refund of Rs.48,660/- and compensation of Rs.1,00,000/-.
2. In brief the version of the opposite parties are:-
The SB account of the complainant with the second opposite party, the availment of the loan from the first opposite party by the son of the complainant, its discharge, are all admitted and issue of “No Due Certificate” is also admitted. However during middle of May-2011 the regular inspection of the opposite party No.2 was conducted by Inspection Zone, Head Office who found that, in the loan transaction of the son of the complainant certain discrepancy was there in the interest calculation and still the interest of Rs.48,666/- was due and accordingly that was recovered from the complainant’s account as she was the guarantor as Under Section 171 of the Contract Act. All the allegations to the contrary are denied.
3. To substantiate their respective cases the parties have filed their respective affidavits and documents. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether recovery of Rs.48,666/- from the complainant’s SB account by opposite party No.2 without notice to him/without marking a lien on his account/amount is deficiency in service/unfair trade practice?
- What order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the son of the complainant had obtained certain loan from the first opposite party and he has executed certain documents, he has cleared the entire amount as per the calculation of the opposite party No.1 and the “No Due Certificate” was issued, the documents of title were returned to the complainant’s son. Regarding that transaction the complainant was a coobligent. When once “No Due Certificate” is issued by the first opposite party and the loan is discharged on that date the guarrentorship also ceases.
7. It is also an admitted fact that subsequent to the discharge of the loan by the son of the complainant on the ground that there was certain discrepancy in calculation of interest of the loan the Internal Auditors of the Head Office of the opposite party stated certain amount is due towards the loan of the complainant’s son, on that event without notice to the complainant, without marking a lien, the opposite party No.2 recovered Rs.48,661/- from the complainants S.B. account. If any amount is due to the any of the opposite parties then as Under Section 177 of the Contract Act they have to mark a lien, issue notice; if it is not settled then recover that much money. But here that has not been done. This is nothing but an unfair trade practice and deficiency in service.
8. For the loan of the complainant’s son any amount if due it is for the concerned opposite party to issue noticed at least a notice to the complainant’s son ask his explanation that has not been done. Here the complainant’s son is not an insolvent, he has property that was mortgaged to the opposite party No.1. Hence it could have issued a notice to the complainant or to the complainant’s son, but that has not been done.
9. Here once the loan is discharged as per the statement given by the opposite party No.1 hence the question of recovering any money does not arise. If the Auditors of the opposite party No.1, after the clearance of the loan finds that there is any arithmetical mistake and clerical mistake it shoud have raised a dispute and recover it if they are entitled to. But simply recovering the money from the complainants account behind her back is nothing but deficiency in service/unfair trade practice.
10. The decisions cited in (2007) 3 SCC 580 and in Appeal No.4479/2010 dated: 14.06.2011 of our Hon’ble State Commission is in no way applicable to the facts and circumstances of this case. Though there is no dispute above the proposition of law laid down there in. Quoting in extenso the judgments of the higher courts is prohibited under Regulation 18(5) of the Consumer Protection Regulation (2005). In any event the principals stated therein are not applicable to the facts and circumstances of this case.
11. Here the opposite party No.1 has issued “No Due Certificate” to the loan. When that is the case the question of recovering the money from the guarantor subsequent to the discharge of the loan by the second opposite party is nothing but an unfair trade practice and deficiency in service.
12. This order will not come in the way of any of the opposite parties recovering any amount due from the son of the complainant if they are entitled to by instituting proper proceedings if they are entitled to. Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite parties are directed to pay to the complainant the sum of Rs.48,666/- together with interest thereon at the rate of 12% per annum from 30.05.2011 until payment within 30 days from the date of this order.
3. The opposite parties are also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.
4. The opposite parties are directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 18th Day of October 2011)
MEMBER MEMBER PRESIDENT
