(Delivered on 12/02/2019)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original opposite party (for short O.P.) Nos. 1&2,  feeling aggrieved by an  order dated 16/10/2018 passed by the District Consumer Forum, Wardha,   by which  the  consumer complaint  No. 35/2017 filed by the original complainant /respondent herein   has been partly allowed. We have heard  advocate Mr. Sukhdeve appearing for the  appellant  on the point of admission  of appeal and we have perused  the record of the appeal.

2.         The case of the  original  complainant/respondent  herein  as set out  by him in  the aforesaid  consumer  complaint  in brief  is as under.

a.         The original complainant/respondent  herein  availed  housing loan  of Rs. 5,00,000/- from the appellant No. 1. The said loan  was sanctioned  on 11/07/2012 by the appellant No. 1. The said loan was to be repaid  with interest at the rate of 10.80% P.A. in  240 monthly installments  of Rs. 6000/- each.  The repayment was started  from the month of March-2013. The original complainant / respondent herein  could not pay  those installments  irregularly due to  his  financial  difficulties.   However,  the appellant No. 2 sent a letter dated 10/09/2015 to the respondent  giving  proposal  of one time settlement  by making payment  of Rs. 4,49,142/- in lumsum  to the appellants before 31/12/2015.

b.         The respondent  could not arrange  the amount of Rs. 4,49,142/-.  However, thereafter the appellant No. 2 issued second letter dated 10/08/2016 to the respondent again  giving him proposal of one time settlement of account by paying  Rs. 2,39,284/- to the appellants. Total amount of Rs. 5,93,679/- was due  from the respondent  as on 31/07/2016. But appellants had given  an opportunity  to the respondent  to pay Rs. 2,39,284/- to the appellants by accepting  the said offer which was paid by respondent.  

c.         Thereafter  the appellant No. 1 demanded  from the respondent  additional  amount  of Rs. 3,77,483/- by issuing  letter dated 16/03/2017. The respondent   therefore, issued legal  notice dated 05/05/2017 to the appellants. They  ignored  the same and thus  rendered  deficient  service to the  respondent. The appellants  are not stop by principal of estopal  from claiming  any such  additional amount  by the respondent.  Hence, she filed consumer complaint No. 35/2017 against the appellants  seeking  direction  to them to clear any encumbrance of the mortgage from the land  of the respondent  and to pay him compensation  of Rs. 1,00,000/- for physical  and mental harassment  and litigation cost with interest at the rate of 12% P.A.

3.         The  O.Ps./appellants herein   filed their  common  reply to the said  complaint and thereby they  resisted  the said compliant.  Their submission  in that reply  in brief  is as under.  

            The respondent  cannot take  benefit  of offer of  one time  settlement. He is defaulter  in payment of installments  and  his account  is declared  as “Non Performing  Asset (NPA)”. He was given intimation  from time to time  for repayment of loan with interest and penalty.  He did not give  response  to the same. Therefore,  the appellants  initiated  proceeding against him under  provisions  of  Securitization & Reconstruction of Financial Assets and Enforcement of  Security Act, 2002(for short SARFAESI Act). The notices dated 27/11/2015 & 07/07/2016 have been issued to him for that  purpose. Despite   service of said notices , the respondent has  not  discharged  the loan outstanding  against  him.  The respondent  as per notice dated 16/03/2017 was  called upon  to pay  outstanding  amount of Rs. 3,77,493/-. But he did not  pay the same.  The respondent has  made wrong  interpretation of letter issued  to him. There is no force  in the submission of the respondent  that he was  called upon to  settle  the account under  the scheme. It is denied that  the appellants  rendered  deficient  service  to the respondent. Hence, it was requested  by the appellant  that  the complaint may be  dismissed.

4.         The learned District Consumer Forum below, after hearing  both the parties and considering   evidence  brought on record  accepted the  aforesaid  case of the respondent  and passed  impugned order  and thereby  directed  the original  O.Ps./appellants to issue respondent “ No due Certificate” and to release  the encumbrance of that loan from his land and also  to pay  him compensation  of Rs. 10,000/- for physical and mental  harassment  and  make good of the loss and  order be complied  within 30 days   of  that  date of order.  Thus , feeling aggrieved  by the said order  the O.P. Nos. 1&2  filed  this appeal.

5.         The learned advocate of the appellants  at the stage of  admission  of appeal has brought to our notice  the  letter dated 10/08/2016  and submitted that  though when  letter was  addressed to the respondent  by  the appellants  calling upon  him to pay Rs. 2,39,284/- in one time settlement. But in the same  letter  at its bottom portion  it is mentioned  that  the offer for one time  settlement  will not be  applicable  in case  action has been  taken under SARFAESI Act against  the borrower. Thus, learned advocate of the  appellants  submitted that  the Forum below  has not  properly  considered  the said  condition  mentioned  at the foot of that letter and erred  in partly allowing  the complaint  holding that the loan account  has been  finally settled  on payment of Rs. 2,39,284/- by the respondent. Hence, he requested  that  the appeal  may be admitted for final hearing.

6.         It is not disputed that  in the foot note of the  letter dated 10/08/2016 it is mentioned  that  the offer  given  for one time settlement will  not be applicable  to the account holder against  whom action has been  taken under SARFAESI Act. The appellants also  produced  notice dated 23/07/2015 issued under Section 13(2) of Securitization & Reconstruction of Financial Assets and Enforcement of  Security Act, 2002 (for short SARFAESI Act). The appellants  also produced  another  letter dated 27/11/2015 stating therein that  the appellant has taken  possession of the property  of the respondent as per provisions of Section 13(4) of the SARFAESI Act read with  Rule 8 of the  rules  made under the  said  Act.

7.         It is not disputed  that  after receiving offer  letter dated 10/08/2016 about one time  settlement,  the respondent  paid Rs. 2,39,284/- as mentioned in the said letter  for one time  settlement. The appellants have not  explained  as to why they accepted Rs. 2,39,284/- from the  respondent  which he paid  after receiving  the letter dated 10/08/2016 from the said appellants.

8.         It is also  mentioned  in that offer  letter  dated 10/08/2016 that the appellant bank has launched the  scheme  called as “Mahabank Rahat Yojana” and that  offer is  given to the respondent  to pay Rs. 2,39,284/- for one time  settlement  of his loan account  and said amount  be deposited  till 31/12/2016 by the respondent.  The appellants have not given  cogent  evidence  as to why they issued such  a offer  letter dated 10/08/2016 to the respondent  when they had already  initiated  action against  respondent  under SARFAESI Act for recovery  of outstanding  loan from him.  In our view  the reasonable  inference  can be  drawn  from the offer  letter dated 10/08/2016 that  the appellants  wanted  to get the account  settled  on receiving  Rs. 2,39,284/- from the respondent.  The appellants cannot take  benefit  of  any such foot note  given in that  letter  that offer  will not be applicable to a   case  in which  action is taken  under SARFAESI Act. The issuance of such letter  of one time  settlement  directly to the respondent  giving  him  offer to pay  Rs. 2,39,284/- , itself  is sufficient  to hold that  the respondent  was called upon by the appellants to pay that amount and get  whole  outstanding  loan discharged.

9.         We also find that  at least  the appellants  ought to have refused the deposit  of Rs. 2,39,284/-  from the respondent which  he paid in pursuance  of the aforesaid  offer letter dated 10/08/2016. The  acceptance of Rs. 2,39,284/- by the appellants from respondent   itself  is sufficient  to hold that  the offer given for one time  settlement  was accepted by the respondent and accordingly he paid that  amount  and account has been  thus finally settled.

10.       Therefore,  we hold that  the District Consumer Forum, Wardha passed  proper, correct and legal order and rightly directed  the appellants  to issue “No Due Certificate” to the respondent  and to pay him compensation  of Rs. 10,000/- for  physical and mental  harassment . This appeal  deserves to be  dismissed  at the stage of  admission.  Accordingly, we proceed to pass following  order.

ORDER

i.          The appeal is dismissed  in limine.

ii.          No order as to cost in appeal.

iii.         Copy of order be furnished to both parties, free of cost.