BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.2157/2011

DATED THIS THE 25^th JULY 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -                                                   

Sri.N.P.Krishnappa,

S/o. late Papaiah,

Aged about 40 years,

R/at no.19, Building no.114/4,

Lakshmi Narasimha Nilaya,

Yoga Narayana Road,

K.R.Puram east,

Bangalore - 36                                                    

V/s

Opposite party: -                             

                                                Sri.G.S.Seshu Babu,

                                                Branch Manager,

                                                M/s. Andhra Bank, AGM,

                                                Cook town branch,

                                                No.9 D Cross layout,

                                                Bangalore - 84

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to pay compensation of Rs.5.00 lakhs.

2. The brief facts of the complaint can be stated as under.

The complainant has availed a loan a sum of Rs.4.00 lakhs for construction of building and for that, the branch manager has replied that his balance amount is due a sum of Rs.68,504=00, but since 2005 the bank authorities have not sent any balance due letter to him till today. When the complainant asked to supply sanction letter in respect of loan construction to him, the OP has sent letter dated 17-9-2011, but the OP has not issued sanction letter of construction loan for the year 2005. When the complainant requested to issue construction loan sanction letter presently in the bank, they have stated that, they are not able to give sanction letter and he has informed the same to Andhra bank, Zonal office and Head office and handed over the letter and taken acknowledgement on 2-11-2011. The complainant has personally reported that, he has not received any construction loan sanction letter, but official of the OP told him to sit upto 4.00 p.m. on that day, but he sat upto 12.130 p.m. and told to go to attend his duty and official of the OP told to send the same through registered post, but still then, the complainant has not received the said construction loan sanction letter. The OP has sent notice under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. The OP is postponing under one or the other pretext to issue construction loan sanction letter, the OP sent letter stating that, the complainant has to vacated his house and handover the possession failing which, they will take possession of the secured assets. While sanctioning of construction loan 180 installments were granted with regard to ground floor and 120 installments for the period of 10 years, second loan of 15 years period, he is having 30 installments, the balance due to bank each installments Rs.4,250=00. For the second loan only 96 installments were due to OP each installments Rs.2,600=00. He has received a sum of Rs.3,35,000=00 towards the first loan and Rs.5,00,000=00 towards the second loan, but the complainant has not received the said amount. The complainant has paid through salary deduction upto date in respect of the first loan, the complainant has been remitting Rs.2,600=00 p.m. by hand and he has been remitting the said loan installments regularly. The second installment has been remitted to Ramamurthy nagar branch through online. The complainant is BMTC bus driver and on account of issuance of notice by OP, he has been harassed and suffered mental agony as the OP has not issued construction loan sanction letter, so he has come up with the present complaint.

3. After service of the notice, the OP has appeared through its counsel and filed version, contending interalia as under:

The complainant approached the OP requesting for housing loan and considering the request of the complainant sanctioned two housing loans namely housing loan limit of Rs.3.5 lakhs and Rs.5.00 lakhs against mortgage of the property i.e. land and buildings situated at western portion of the property, site no.19, Khata no.114/4 situated at Krishnarajapuram village, Bangalore. In consideration of the said loan granted, the complainant executed various documents in favour of the OP. The complainant defaulted in payment of loan availed by him in respect of both the said loans, so the accounts have been classified as non performing assets. Subsequently, the OP issued a notice to the complainant under section 13 (2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act for recovery of Rs.5,63,192=00 towards the first housing loan and Rs.2,20,975=00 towards housing loan no.2 with subsequent interest as per the agreement. Inspite of the notice, the complainant failed to make payment to clear the liability. The OP denies para no.1 to 6 of the complaint, the contention of the complainant that, the OP has not sent any balance due letter is not true. It is true that, that complainant had requested for loan sanction letter alongwith other documents. The OP has supplied all the documents whatever the amount remitted by the complainant towards housing loan has been accounted in the loan accounts of the complainant and this fact has also been informed to the complainant. The complainant has approached this forum without any cause of action, since the details sought by him and already been extended by the OP. The claim of Rs.5,000=00 made by the complainant towards expenses incurred and Rs.5.00 lakhs claimed as compensation is baseless and without any basis. The OP has taken action for recovery of the amount due from the complainant in normal course of business. The complainant has approached this forum only for the reason that, the OP has demanded repayment of the loan by invoking the provisions of the SARFEASI Act. The complainant has not made any case for compensation, so the complaint of the complainant may kindly be dismissed with cost.

4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP as prayed in the complaint?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

point no.1, the complainant is not entitled 

to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced copies of letter of the OP, notice issued by authorized officer of Andhra Bank, Copies of legal notice and two letter copies of recommended loan of complainant, copies of bank challan for having paid EMIs, copy of pass book of the complainant, statement of account and five more documents alongwith list dated 1-7-2013 and one letter copy dated 28-5-2012 and copies of letter of OP alongwith memo dated 1-7-2013. On the other hand, one Suresh Babu, Asst. General Manager working in OP bank has filed his affidavit by way of evidence and produced order copy passed in SA 609/2011 by the Debits Recovery Tribunal, Bangalore, and two letter copies of Banking ombudsman and two letter copies of OP and postal acknowledgement copies. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.

7. One N.P.Krishnappa, who being the complainant has stated in his affidavit that, he had requested the OP through his requisition under RPAD seeking copies of loan sanction letter of his alongwith relevant documents of the second loan sanctioned in the year 2005 bearing account no.009130029001608. He was granted loan Rs.4.00 lakhs for construction of building by the OP. In reply to his letter the branch manager had sent letter stating that he was due of Rs.68,504=00 to the branch vide letter dated19-9-2011, but since 2005 the bank authorities have not sent any balance due letter to him. The OP has not issued sanction letter of loan bearing no.009130029001608 till today from 2005. For his request the OP has stated that, they are not able to give the sanction letter, then he approached Zonal office and head office on 17-9-2011 and gave requisition personally and he personally requested the Zonal office to give construction loan sanction letter, the office officials have told him to wait from 10.00 a.m. to 4.00 p.m. and waited upto 12.30 p.m. and thereafter the zonal officers told that they will send the said copies by post, but till today, he has not received any copies from the OP. The OP had sent notice under section 13 (2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 for enforcement of secured assets. Till today the OP has not issued construction of building loan sanction letter. The OP sent letter to vacant their house and handover the possession. The OP sanctioned the first loan for ground floor and EMIs was fixed for 120 installments for 10 years and the second loan was granted for construction of first floor for 180 installments for 15 years. He is having 30 installments balance due to the OP, each installment to Rs.4250=00 and he has paid installments through his salary deduction from his employer M/s. BMTC, Bangalore. For the second loan balance amount only 96 installments are due to OP bank having each installment of Rs.2,600=00. The first and second loan letters is only one letter, he has received the first loan amount of Rs.3,35,000=00, and the second loan amount of Rs.4,00,000=00, but the OP mentioned as the first loan of Rs.3,50,000=00 and the second loan of Rs.5,00,000=00 and he has not received this amount, he has been paying EMI regularly in his salary till today with respect to the first and second loan, he has not kept due of any installments. He has remitted two installments to Ramamurthy nagar branch through online. He is a consumer with the OP, it is duty of the OP to give him service and satisfy the requirements of its customers and due to that he was made to suffer lot and he is made to pay extra interest on the loan amount. The OP is denying to issue sanction letter and has not released Rs.1,45,000=00, so he filed the present complaint, so order be passed as prayed for.

8. Document no.1 of the complainant letter is copy of complainant addressed to OP bank stating that, during approval of loan, the EMI was fixed as Rs.2,500=00 for 180 installments and out of it, he has paid 80 installments and paid the amount upto 14-9-2011 and requested to give information as to how much loan was sanctioned and furnish the loan sanction letter. Document no.2 is letter dated 7-10-2011 issued by authorized officer of Andhra Bank under section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of security Interest Act addressed to complainant stating, that he has defaulted in repayment of loan and he is liable to pay Rs.5,62,192=00 and Rs.2,20,978=00 towards housing loans alongwith interest as per the agreement and he is called upon to pay the loan amount alongwith interest within 60 days failing which the bank will take possession of secured assets. Document no.3 is letter of OP dated 19-9-2011 addressed to the complainant stating that there are two EMIs of Rs.5,200=00 pending in the earlier months and there is an over due of Rs.68,504=00 and requested to pay Rs.68,504=00 and requested the complainant to come to branch, immediately for re-fixing of EMIs, in view of hike in interest rate. Document no.4 is legal notice of complainant addressed to the Asst. General Manager, Andhra Bank stating that, there is no any over due amount of Rs.68,504=00 as demanded in the letter of bank, the complainant is ready to pay the balance loan amount in monthly installments as agreed and OP proceeds to initiate any proceeding and it is ready to defend the case. Document no.5 is copy of letter of complainant to OP dated 2-11-2011 requesting to issue loan approval form to him. Document no.6 is letter of complainant dated 17-9-2011 addressed to the General Manager, Andhra bank requesting to issue loan particular details of loan account no.009130029001608. Document no.7 is recommendation of loan of OP stating that, loan of Rs.4.00 lakhs was sanctioned for construction of house in the name of complainant, rate of interest was 8.25 % p.m and it is repayable in 180 EMIs of Rs.2426=00. The copies of bank challan were produced by the complainant to show that he has paid installments from 2007 to 2009. Next document is copy of pass book of complainant existing in the OP bank wherein we found payment of house loan of Rs.2600=00 as on 3-11-2011. Last document is copy of housing loan account statement of complainant and in that statement as on 25-3-2006 an amount of Rs.3,47,972=00 was existing in the name of complainant.  The complainant has produced copy of statement of his housing loan account from 15-12-2004 to 16^th Sept. 2005 and during Sept. 2005 the complainant was due a sum of Rs.4,48,758=00. The copy of pass book of the complainant is produced and that pass book does not show payment of EMIs regularly to the OP bank.

9. By reading the evidence of complainant, it is revealed that, he has paid EMIs upto date, he has not committed any default in payment of housing loan installments. But the documents of the complainant do not throw any light with regard to payment of EMIs of housing loan availed upto date. The oral evidence of the complainant that, he has been paying the housing loan amount regularly without committing any default is not corroborated by documentary evidence.

10. At this stage, it is relevant to have a cursory glance at the material evidence of OP. One Suresh Babu who being the Asst. General Manager of OP bank has stated in his affidavit that, the complainant has approached the OP for housing loan. So, considering the request of the complainant, they sanctioned two housing loans namely housing loan limit of Rs.3.5 lakhs and Rs.5.00 lakhs against the land and buildings of the complainant and the complainant has executed various documents in the name of the OP, but the complainant defaulted in repayment of loan availed by him in respect of both loans, so his accounts have been classified as non performing assets, and they issued a notice to the complainant under section 13 (2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act for recovery of Rs.5,63,192=00 towards the first housing loan and the second loan of Rs.2,20,975=00 towards another housing loan alongwith subsequent interest as per the agreement. Inspite of it, the complainant failed to make repayments. The complainant has requested for loan sanction letter alongwith other documents, and the OP furnished sanction letter and other documents as prayed for. The complainant was informed that he has to pay the over due amount of Rs.68,504=00. so in view of default committed by the complainant, the OP has issued a notice under section 13 (2) of SARFEASI Act. Whatever payment made by the complainant has been taken into account. The amounts claimed in the complaint are without any basis, the OP has taken action for recovery of the amount due from the complainant. The complainant cannot maintain the present complaint as the complainant has defaulted in paying the loan installments. The OP has not committed any deficiency of service as stated in the complaint. The complainant is not entitled any relief, so the complaint be dismissed, in the interest of justice and equity.

11. The OP has produced one order copy dated 30-5-2013 passed in SA 609/2011 by Debits Recovery Tribunal, Bangalore and that order copy goes to show that, the present complainant has preferred an appeal before the Debits Recovery Tribunal, Bangalore, challenging the notice issued by OP under section 13 (4) of SARFAESI Act, and after hearing the appeal on merits, the Debts Recovery Tribunal, Bangalore has dismissed the appeal with cost. The OP has produced one copy of letter of banking ombudsman dated 22-10-2012 addressed to the complainant stating that, they are unable to proceed further under clause 13 (a) of the Banking Ombudsman scheme and if the complainant desires, he can approach any other redressal forum.

12. So making careful scrutiny of the oral and documentary evidence of both parties, in the light of order passed by the Debit Recovery Tribunal, Bangalore, it is made unambiguously clear that, the complainant after availing the two housing loans from the OP bank by signing relevant documents has failed to pay EMIs regularly as per the loan sanction letter. In view of committing default in repayment of loan amount, the OP got issued a notice under section 13 (4) of SARFAESI Act calling upon the complainant to pay the balance amount of housing loan, failing which, the OP bank will taken action for taking possession of the property under the said Act. The complainant being aggrieved by the notice issued by the OP has preferred an appeal before the Debts Recovery Tribunal, Bangalore and that appeal was heard on merits and dismissed with cost.

13. So taking the oral and documentary evidence of the OP and compare the same with the material evidence of complainant, we are of the view that, the oral and documentary evidence of the OP are more believable trustworthy and acted upon than the material evidence of complainant. In view of availing the housing loan by complainant after execution of relevant documents, it is the duty of complainant to pay the loan installments regularly. Having failed to pay the loan amount regularly, the OP has no option but to taken action against the complainant for making recovery of loan amount alongwith interest as per the banking rules and regulations. In fact, action taken by the complainant in making recovery of loan amount from the complainant is in accordance with the banking rules, regulations and guidelines of RBI, we do not find any negligence and deficiency of service on the part of the OP in taking action against the complainant for recovery of housing loan from the complainant. On the other hand, the complainant is himself defaulter in paying the housing loan, and accordingly, we hold that, the complainant who comes to the forum seeking relief has utterly failed to prove this point with clear cogent and consistent material evidence that, the OP is negligent and there is deficiency of service on the part of the OP as prayed in the complaint. So we answer this point in a negative.

          14. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No cost.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 25^th day of July 2013).

MEMBER                                 PRESIDENT