DATE OF FILING: 20.01.2016
DATE OF DISPOSAL: 03.01.2018.
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in banking service against the Opposite Party (in short the O.P.) and for redressal of his grievances before this Forum.
2. The brief fact of the case of complainant is that he being a loanee availed a loan of Rs.7,39,000/- from the O.P. Bank for purchasing a Mini Truck bearing Registration No.OR-07-V-3254 on 14.09.2010. Accordingly, the O.P. bank fixed EMI of Rs.17460/- to be paid for repayment of the loan amount. It is also stated that the complainant was regular in payment of EMI and has paid all the installments as per the directions of the O.P. Surprisingly the O.P. has levied extra interest on the complainant without any information and intimation to the complainant and as such though the loan was discharged completely, the O.P. is now demanding extra Rs.1,41,105/- through a notice dated 01.10.2015, which the complainant is not liable to pay in any manner and illegal demand is amounts to deficiency of service and unfair trade practice on part of the O.Ps. It is further alleged that the O.P. has prejudicially acted in derogation of the prescribed legal norms under the provisions of banking laws and had not complied the said information within the statutory stipulated period which is nothing but a sheer procedural irregularity prescribed under banking laws. Due to wrongful/ illegal acts of O.Ps, the complainant has filed this consumer complaint alleging deficiency in service on the part of the O.Ps and has prayed to direct the O.Ps to pay compensation of Rs.90,000/- towards physical and mental harassment and Rs.10,000/- towards cost of litigation in the best interest of justice.
3. Upon notice the O.P. ban appeared through learned counsel Shri B.K. Mohanty, Advocate and filed his written version on 09.05.2016 and written argument on 07.09.2016. In the written version/argument it is stated that the averments made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations, which are not specifically admitted herein. It is submitted that being requested by the complainant its application dated 26.08.2010 for a term loan of Rs.7,93,000/- for purchase of a Mini Truck TATA-709 to utilize the same for business purpose, the loan was sanctioned by the O.P. Bank. The Bank sanctioned the loan of Rs.7,93,000/- to the complainant to meet the expenditure of purchase the Mini Truck as per terms and conditions of its arrangement letter dated 01.09.2010, wherein the complainant has signed accepting the terms and conditions stated therein. It was interalia agreed between complainant and this O.P. in the aforesaid arrangement letter dated 01.09.2010, hypothecating the vehicle as stated herein above that the complainant shall repay the said loan amount of Rs.7,93,000/- by 60 monthly installments each installment being Rs.17,460/- and the first installment was to be paid to this O.P. on 01.10.2010 and the last installment falling due on 01.09.2015. It was interalia agreed that the complainant shall pay interest at the rate of 4.50% margin above the base rate which is presently 7.50% per annum, present effective rate 12.00% p.a. calculated on daily products at monthly rests. It was also agreed that bank shall at any time and from time to time be entitled to vary the margin based on the Credit Risk Assessment of the borrower and the base rate at its discretion. The complainant has also executed one agreement of loan-cum-hypothecation on 01.09.2010 wherein he agreed that the request for grant of loan was constitute the basis of the agreement and the loan was inter alia be governed by the terms mentioned therein. The borrower was repay to the Bank, the amount of the loan together with interest, as per arrangement/sanction letter which forms part of this agreement in 60 Equated Monthly Installments (EMI) of Rs. 17,460/- each, which number is, however, subject to change depending upon changes in rate of interest (in floating rate loans) and any other debits raised in the account like insurance charges, fees, etc. The first EMI of the loan shall be payable on 1st October 2010 and the last installment falls due on 01st September 2015. It was interalia agreed that in the event of a default in payment or any irregularity in account, the bank reserves the right to levy a higher rate of interest as it deems fit. The complainant failed to repay the installments regularly. So, this O.P. Bank issued several notices of demand on 07.01.2015, 06.02.2015, 07.04.2015, 08.05.2015, 04.06.2015, 07.07.2015, 25.09.2015 and finally issued the seizure notice on 01.10.2015, but in vain. The entire transaction is reflected in the Statement of Account and the said statements of account along with copy of the notices are filed with the list of documents. The complainant failed in his commitment to repay the loan and in spite of demands has not repaid the outstanding loan amount and with an ulterior motive and to complicate the matter and to prevent the bank to recover its dues, has filed this complaint petition without any valid grounds. This case involves complex question of facts, evidence and law. It involves the interpretation of the contract and other complex questions relating to the rights and liabilities of the banker and borrower. Hence, this Forum has no jurisdiction to admit the case and try the same and the matter can be properly adjudicated in the civil court. This complaint petition is barred by limitation and the same has not been properly valued. The complaint is not maintainable due to non-joinder and mis-joinder of the party, hence this O.P. prayed to dismiss the case in the interest of justice.
4. Today the learned counsel for the O.P. bank is present and the complainant is on call absent and not filed steps to proceed with this case for final hearing. This case was posted on 16.11.2016 for hearing and accordingly the matter was heard in presence of both parties and on the same date the complainant was directed to file Statement of Accounts regarding loan repayment and accordingly the matter was posted for further hearing on 21.12.2016. However, despite several opportunities were allowed to the complainant, he neither proceed with the case nor preferred to comply the order dated 16.11.2016 of this Forum and consecutively remained absent from 27.03.2017 to till 09.01.2017. Since, in this consumer dispute the complainant is not proceeding with the case and has remained absent since 27.03.2017, the Forum decided to dispose of the matter on merit as per Section 13 2(c ) of Consumer Protection Act, 1986 as the same was heard partly on 16.11.2017 in presence of both parties.
5. We have heard the learned counsel for the O.P. Bank and perused the pleadings and carefully gone through the materials placed on the case record. On merit, it is not in dispute that the present complainant is a loanee under O.P. Bank who sanctioned a loan of Rs.7,39,000/- in favour of the present complainant to purchase a Mini Truck bearing Registration No.OR-07-V-3254 as per the loan agreement dated 14.09.2010 and the EMI of said loan repayment was fixed monthly at Rs.17,460/- to be paid through 60 Equal Monthly Installments by the present complainant. As contended by the learned counsel for the complainant through written submission, he was regularly making payment of the loan installment without fail but the O.P. bank illegally demanded a sum of Rs.1,41,105/- through a notice dated 01.01.205 which the complainant is not liable to pay and it is deficiency in service on part of the O.P. Hence, the complainant has filed this consumer dispute praying to direct the O.P. to pay Rs.90,000/- towards compensation for harassment and Rs.10,000/- as cost of litigation in the interest of justice.
6. On the contrary, the learned counsel for the O.P. in his submissions contended that the present complainant is a loanee who availed a loan from O.P. Bank for a sum of Rs.7,39,000/- and the loan was sanctioned vide arrangement letter dated 01.09.2010 with the terms and conditions as stated therein to repay the loan in 60 Equal Monthly Installment of Rs.17,460/- each to the O.P. bank. Accordingly, the first installment was scheduled to be paid on 01.10.2010 and the last installment was falling due on 01.09.2015. It is further submitted that as per the loan agreement the complainant was agreed to pay interest @ 4.5% p.a. margin above the base rate which is presently 7.5% p.a., the present effective rate is 12% p.a. calculated on daily products at monthly rates. It is also submitted that as per the letter of loan agreement, the bank shall at any time and from time to time entitled to vary the margin based on the Credit Risk Assessment of the borrower and the base rate at its discretion. It is further submitted that the said agreement of loan-cum-hypothecation dated 01.09.2010 complainant was to pay the equated monthly installments starting 01.10.2010 and the last installment was scheduled to be paid on 1.09.2015 but the complainant/borrower failed to repay the installments regularly. Hence, the O.P. Bank issued notice of demand on 07.01.2015, 06.02.2015, 07.04.2015, 08.05.2015, 04.06.2015, 07.07.2015, 25.09.2015 and finally issued the seizure notice on 01.10.2015 but all went in vain. It is specifically contended that the relationship between the complainant /borrower and the Bank is banker/borrower and is governed by the letter of contract. Since the complainant failed to make repayment of the loan amount, the O.P. Bank has initiated recovery process by issuing seizer notice and has also filed a recovery suit in the Court of Civil Judge, Senior Division, Berhampur vide C.S.No.218 of 2016. He further submitted that in this case complex issues are involved and the complainant being a loan defaulter a civil suit has already been filed against him thus so this Forum has no jurisdiction to adjudicate the dispute hence the case may be dismissed with costs.
7. We have perused the written submissions of both parties and verified the documents like letter of loan agreement, statement of accounts and other materials to corroborate their arguments. On careful perusal of materials we find that the present complainant is a chronic defaulter of loan and from the date of first hearing when this Forum directed the complainant to produce statement of account of loan repayment, he failed to proceed with the case and not complied the order dated 16.11.2016 even after several opportunities were allowed him as discussed above. He neither preferred to comply the order nor remained present for final hearing of the dispute. It is also a fact not in dispute that due to loan default by the complainant the O.P. Bank has initiated recovery process by filing a civil suit vide No.218 of 2016 to recover an amount of Rs.1,55,513/- from the complainant as on 22.07.2016. In the foregoing context and considering the pleading of parties, in our considered view, we would like to say that the complainant being a loanee has failed to make repayment of the loan availed from the O.P. bank and has violated the terms and conditions of letter of agreement dated 01.9.2010 executed between both parties. Further, as per the intimation of the learned counsel for the O. P. bank, the complainant has already given his consent through a conciliation process to repay the loan dues on the basis of one time settlement hence the present case deserves no merit for consideration. Since in this case, a civil suit is pending and the complainant has agreed to make repayment of the loan dues as per the reconciliation made between the bank and the borrower, we feel that this case has no merit to consider hence deserves to be dismissed.
8. In the result, the complaint of the complainant is ordered to be dismissed due to devoid of merit. However, in the peculiar facts and circumstances of the case we are not inclined to award any cost.
9. The order is pronounced on this day of 3rd January 2018 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
