Heard learned counsel for both sides.
2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The case of the complainant in brief is that the complainant has availed loan of Rs.90,000/- for purchase of power tiller from the OP – Bank on condition to pay back the same in instalments with interest. Complainant stated to have paid all the instalments up to 15.12.2006. In 2007, due to breakdown of the power tiller no payment was made. However, complainant has purchased three Kamadhenu fixed deposit scheme certificates. It is alleged by the complainant that on 25.7.2006 without notice to the complainant the OP adjusted the fixed deposit amount against the loan amount pending. Complainant alleged that he has not given any information about doing so. It is further alleged that OP should have applied Agricultural Debt Relief Scheme, 2008 to adjust loan amount but not his fixed deposit. Therefore, he found deficiency in service on the part of the OP and filed the complaint.
4. OP filed written version stating that they have adjusted the fixed deposit amount against the loan amount for payment. There is no any wrong on the part of the OP and they have general lien overall deposits of complainant. So, there is no any deficiency in service on their part.
5. After hearing both sides, learned District Forum passed the following order:-
“xxx xxx xxx
The complaint is allowed on contest and the OP Bank is directed to refund Rs.9,026/- (Rupees nine thousand twenty six) only being the direct loss sustained by the complainant due to premature closure of the three K.D.Rs pay Rs.12,000/- (Rupees twelve thousand) towards depriving the complaint the fruits of Agricultural Debt Relief Scheme – 2008, Rs.2100/- (Rupees two thousand one hundred) being the refund of SD AFM 855 29.12.06, Rs.10,000/- (Rupees ten thousand) towards mental agony, deficiency in service etc. and Rs.5,000/- towards cost of litigation. The payment of the above sums for Rs.38,126/- to be made within one month from the date of this order failing a fine of Rs.100/- (Rupees one hundred to be realized from the OP Bank for each day of default till payment.”
6. Learned counsel for the appellant submitted that complainant admittedly has incurred loan from the OP – Bank. It is admitted fact that the OP did not pay such amount. Learned counsel for the appellant submitted that the learned District Forum committed error in law by applying Agriculture Debt Relief Scheme, 2008 which was promulgated in the year 2008 whereas the loan period related to 2006. He submitted that the scheme being prospective in nature cannot be applied retrospectively. He submitted that there is general lien under Contract Act and there is no any wrong in adjusting the fixed deposit maturity amount against the loan amount. Hence, he submitted to set aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that the OP without any notice to the complainant has prematurely adjusted the Kamadhenu Fixed Deposit Certificates and as such he suffered loss. Had there been any sort of outstanding the OP – Bank should have informed the complainant. Therefore, he submitted that the learned District Forum has passed the impugned order rightly. He supports the impugned order.
8. Considered the submission of learned counsel for respective parties and perused the DFR including the impugned order.
9. It is admitted fact that the learned District Forum has considered the case by taking agricultural debt relief scheme, 2008. But it is promulgated in the year 2008 but all the allegations relate to the year 2006. It is also admitted fact that the complainant has opened three Kamadhenu Fixed Deposit Certificates and also the complainant has incurred loan. It is also admitted fact that the complainant has not paid the entire loan amount due to his illness. Section 171 and 176 of the Contract Act speak that the loan can be adjusted by exercising general lien over all the deposits of the loanee. When the Kamadhenu Fixed Deposit maturity amount has been adjusted against the loan amount of the complainant, we are of the view that the learned District Forum has not applied judicial mind to the facts and law applicable as they are misconceived.
10. In view of the above, we are of the view that the learned District Forum has passed the impugned order illegally and improperly which is liable to be set aside and is set aside.
The appeal stands allowed. No cost.
DFR be sent back forthwith.
Statutory amount deposited be refunded to the appellant with interest accrued thereon, if any on proper identification.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
