Haryana

Ambala

CC/253/2021

M/s Anand Trading Co. - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

Ashutosh Aggarwal

10 Nov 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	253 of 2021
Date of Institution	:	17.08.2021
Date of decision	:	10.11.2022

 

M/s Anand Trading Co. r/o Village Shahzadpur, P.O. Shahzadpur, Tehsil Naraingarh, Distt. Ambala through its Prop. Sh. Joginder Kumar s/o Sh.Chaman Lal, age 55 yrs.

          ……. Complainant.

                                                            Versus

State Bank of India, Pathreri Branch, P.O. Pathreri, Tehsil Naraingarh, Distt. Ambala through its Branch Manager.

                                                                                   ….…. Opposite Party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member.

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Ashutosh Aggarwal, Advocate, counsel for the complainant.

                             Shri S.C. Jaiswal, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

                   (i) To release the title deed and documents of the mortaged property      and issue No Dues Certificate of the Loan Account                                     No.38362279965.

(ii) To pay the amount of Rs.50,000/- on account of deficiency of service.

(iii) To pay the amount of Rs.50,000/- on account of unfair trade practice.

(iv) To pay the amount of Rs.21,000/- as litigation charges.

(v) To pay legal fee of Rs.25000/-

                                                OR

                     Grant any other relief which this Hon'ble Commission may deems   fit.

2.             Brief facts of the case are that the complainant is a regular customer of the OP and obtained WCTL (Working Capital Term Loan- Loan Account No.38362279965) to the tune of Rs.8,00,000/- from the O.P. against his property- double storey shop measuring 42.55 Sq. Yds. situated at Abadi-Deh, Tehsil Naraingarh, Distt. Ambala comprising Sale Deed No.1865, dated 15-10-2001. One mortgage deed was executed and registered in the office of Sub-Registrar Naraingarh, vide Deed No.3305 dated 28-11-2006 in that regard. Due to the deteriorated market conditions, unforeseen circumstances, policies of the govt., demonetization of currency and taxation aspect, the business of the complainant remained unpleasant resulting to which its account attained irregularity on some account. The complainant in order to keep good financial relationships with the O.P. always tried to maintain his financial discipline intact. The O.P. despite knowing above facts started making pressure upon the complainant to make his accounts regular forthwith and threatened him that it will take the possession of the suit property and shall dispose/sell/auction etc. at throw-away prices. Possession Notice dated 17-03-2020 (Annexure P-1) was also served upon the complainant, wherein a demand of Rs.7,46,651/- was raised inclusive of interest. When the complainant approached the O.P. he was asked to deposit the said amount of Rs.7,46,651/- and was assured that on making payment of the said amount, the title documents/ deed of the mortgaged property will be released and No Dues Certificate will also be issued qua the said loan account. The complainant thus paid total amount of Rs.7,44,942/ (approx.) in the loan account from 17-01-2020 to 31 08-2020 and finally, an amount of Rs.1709/- was left to be paid by the complainant. When the complainant approached the O.P. and requested to take the remaining amount of Rs.1709/- as per statement of account and in return demanded his title deed/ documents of the property and No Dues Certificate of the said loan account, the O.P. flatly refused to do so and on the other hand, demanded recovery charges to the extent of Rs.80,000/- from the complainant. The complainant objected the illegitimate and unlawful demand of the O.P. and to avail his legal right, wrote application/ representation dated 27-04-2021 alongwith Manager's Cheque dated 26-04-2021, Ch.No.001104 amounting to of Rs.2000/- was sent to the O.P. by way of regd. post dated 27-04-2021 but to no avail.  Even, the title documents of the said property have also not been returned.  Hence this complaint.
3.           Upon notice, the OP appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and suppressed the material facts and barred by limitation etc.  On merits, it has been stated that the complainant availed the loan from the OP and operated loan account No.38362279965. He failed to comply with the terms and conditions of the loan and defaulted in making the payment and the loan became NPA. The OP served notices and made several requests to the complainant for regularizing the account and pay the defaulted amount. The complainant overlooked the notice dated 10.10.2019 and failed to pay Rs.7,46,651/- due against said loan account as well as future interest together with incidental expenses cost, charges etc. Even Legal Notice date 16.10.2019 was served upon the complainant but he failed to pay the amount of Rs.7,64,935/- due against him in the said loan account. Consequently, the OP was forced to serve notice dated 10-1-2020 u/s 13 (2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI). Notice of 60 days time was given for making payment and it was made clear that if the complainant fails to pay the amount due, to the tune of Rs.7,46,651/- with interest as on 09.01.2020  alongwith incidental expenses, cost, charges etc. accrued thereafter, the bank will exercise all or any of the rights detailed under Sub Section (4) of Section 13 and under other applicable provisions of the said Act. The Possession notice was duly served through Publication in daily Newspaper to the knowledge of the complainant and the complainant is liable to pay Publication charges and other incidental charges as well as charges of M/s Brisk Recovery Services Private Limited. The said M/s Brisk Recovery Services Private Limited claimed a bill of Rs.85,826/- for giving services in respect of taking symbolic possession and commission on recovery of the amount from the complainant. As per statement of account as well as closure amount, as on 08.04.2022, an amount of Rs.99,617/- plus incidental charges, legal charges and future interest is payable by the complainant. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of Prop. Shri Joginder Kumar as Annexure CW1/A alongwith documents as Annexure C-1 to C-5 and closed the evidence on behalf of the complainant. Learned counsel for the OP tendered affidavit of Gaurav, Branch Manager, State Bank of India, Pathreri, Tehsil Naraingarh, District Ambala as Annexure RW1/A alongwith documents Annexure R-1 to R-17 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties and carefully gone through the case file.
6.           Learned counsel for the complainant submitted that since the entire pending loan amount has been paid by the complainant, though with some delay, therefore, the OP is liable to return the documents of the mortgaged property and issue NOC but by not doing so and on the other hand, demanding amount allegedly paid to M/s Brisk Recovery Services Private Limited for recovery of the loan amount and other miscellaneous charges, it has not only committed deficiency in providing service but has also adopted unfair trade practice. In support of his contention the learned counsel for the complainant has placed reliance on the judgment passed by the Hon’ble Punjab and Haryana High Court, Chandigarh, in the case of Mohinder Pal Singh and another Vs. State Bank of India and another 2012 (1) RCR (Civil) 329.  
7.           On the other hand, learned counsel for the OP submitted that since the complainant failed to repay the loan amount, despite giving number of opportunities, as such, the OP was right in initiating legal proceedings against him, with the assistance of M/s Brisk Recovery Services Private Limited. He further submitted that under these circumstances, the charges are required to be  paid to M/s Brisk Recovery Services Private Limited  for giving services in respect of taking symbolic possession and commission on recovery of the amount from the borrower/Complainant alongwith other miscellaneous charges and the same were rightly demanded from  the complainant.
8.           First we will deal with the objection regarding limitation, it may be stated here that if the period of two years are counted from 17.03.2020 i.e. the date when possession notice Annexure C-1 was issued by the OP, this complaint having been filed on 17.08.2021 is well within limitation. Therefore objection of limitation taken by the OP stands rejected.
9.           It is not in dispute that the complainant obtained WCTL (Working Capital Term Loan- Loan Account No.38362279965) to the tune of Rs.8,00,000/- from the O.P. against his property- double storey shop measuring 42.55 Sq. Yds. situated at Abadi-Deh, Tehsil Naraingarh, Distt. Ambala comprising Sale Deed No.1865, dated 15-10-2001. It is also not in dispute that one mortgage deed was executed and registered in the office of Sub-Registrar Naraingarh vide deed No.3305, dated 28-11-2006 in that regard.
10.           It is also not in dispute that at one point of time, the complainant could not repay the installments towards the said loan, as a result whereof, notice dated 10.01.2020, Annexure R-2 for an amount of Rs.7,46,651/-was issued by the OP to the complainant. Complainant has contended that he had paid  an amount of Rs.7,44,942/-  for the period from 17.01.2020 to 31.08.2020 and only an amount of Rs.1709/- was due to be paid by him to the OP. In support of this contention the complainant has placed on record the statement of loan account Annexure C-2. The complainant has further contended that he requested the OP to take remaining amount of Rs.1709 as per statement of account and issue the NOC and also release the title deed/document of property but the OP refused to do so on the ground that complainant is still liable to make payment of Rs.85,826/- which were demanded by the M/s Brisk Recovery Services Private Limited, vide letter dated 07.11.2020, Annexure R-15, from the OP towards Commission, as recovery of loan amount from the complainant.
11.           A bare perusal of letter dated 07.11.2020, Annexure R-15 having been written by M/s Brisk Recovery Services Private Limited to the OP clearly go to show that an amount of Rs.7,58,260/- stood received by the OP from the complainant towards full and final settlement towards home loan repayment, meaning thereby that against Rs.7,46,651/- the OP has already received Rs.7,58,260/-. However, in this letter, M/s Brisk Recovery Services Private Limited demanded an amount of Rs.85,826/- from the OP to assist it for recovery of the due amount from the complainant. Under these circumstances, the only moot question which falls for consideration is, as to whether, the complainant is liable to pay publication charges and other incidental charges as well as charges of M/s Brisk Recovery Services Private Limited to the tune of Rs.85,826/- alongwith future interest, for giving services in respect of taking symbolic possession and commission on recovery of the amount or not? It may be stated here that in the case Mohinder Pal Singh and another Vs. State Bank of India and another, (Supra), Hon’ble Punjab and Haryana High Court has held that action of bank in engaging enforcement agency and claiming amount paid to such agency is unjustified and untenable. There is no justification to claim legal fee in respect of notices issued under Sections 12(2) and 13 (4)- The bank also cannot claim interest on the amount of expenses including the charges of enforcement agencies, legal fee and advertisement expenses. Thus, in the present case also, we do not hesitate to conclude that the OP by demanding Rs.85,826/-  alongwith allied charges viz. future interest etc.  from the complainant, has committed deficiency in providing service. The complainant is not liable to pay the said charges, especially, when admittedly, against Rs.7,46,651/- the OP has already received Rs.7,58,260/- from him.
12.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP, in the following manner:-

1. To release the title deed and documents of the mortgaged property and issue No Dues Certificate of the Loan Account No.38362279965 to the complainant.   
2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.  

 

      The OP is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of this order. Certified copy of said order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

  Announced:- 10.11.2022.

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President