Haryana

Yamunanagar

CC/620/2012

M/S Bhagwati Bala Sundri Udyog - Complainant(s)

Versus

State Bank Of India - Opp.Party(s)

S.C.Jindal

20 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 620 of 2012.

                                                                                          Date of institution: 12.06.2012   

                                                                                          Date of decision: 20.03.2017

M/s Bhagwati Bala Sundri Udyog, HSIDC, Industrial Estate, Manakpur, Jagadhri, Distt. Yamuna Nagar through its sole Prop. Smt. Veena Rani Goel wife of Sh. Ashok Kumar Goel r/o C-2/374 Roshan Shah Street, Devi Bhawan Bazar Jagadhri.

…Complainant.

                                    Versus

State Bank of India, Main Bazar, Jagadhri Yamuna Nagar Road, Yamuna Nagar through its Branch Manager.

                                                                                                         ...Respondents

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                         SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Sh. S.C.Jindal, Advocate for complainant.

                         Sh. P.K. Kashyap, Advocate for respondent.

 

ORDER  (Ashok Kumar Garg, President)

 

1                    The present complaint has been filed by Smt. Veena Rani Goel being the proprietor of firm M/s Bhagwati Bala Sundri Udyog, (hereinafter referred as complainant) under section 12 of the Consumer Protection Act 1986 as amended upto date.

2.                     Brief facts of the present complaint, as alleged in the complaint, are that complainant  in order to earn her livelihood started her small scale business and to run the business she secured cash credit limit of Rs. 12,00,000/- by pledging her immovable property situated at (H.S.I.D.C.) Industrial Estate Manakpur, Jagadhri in favour of respondent State Bank of India ( hereinafter respondent Bank will be referred as OP Bank). The complainant could not succeed in her business and proved a failure being a lady and a new comer. Since the limit with the Op Bank remained in operation for about 4 years, the complainant planned that the value of immovable property may yield good amount as the property rates in the market were at peak and therefore she requested the officials of Op Bank that she was not in a position to adjust the outstanding amount of the Bank and requested them to allow her to dispose off immovable properties already given under security to the Op Bank and assured them that she will adjust the sale proceeds in to her limit account and remaining excess amount would be utilized in her family affairs but the OP Bank put off the matter on one pretext or the other. Later on, complainant came to know that OP No.1 Bank has sold the plot in question to someone without any intimation and knowledge of the complainant. The OP Bank failed to intimate to the complainant the day, time and date of alleged sale of the plot in question and as such the action of the Op Bank is totally against the natural justice. The complainant visited the office of OP No.1 and enquired about the alleged sale proceed and settlement of her lawful and genuine CC Limit account but the OP Bank never wanted to pay the excess amount received from the sale proceeds which is lawful and genuine claim of the complainant but trying to find out flimsy grounds to reject the approach of the complainant. Even, the OP Bank has refused to give the copy of statement of account to the complainant and ultimately the complainant had to arrange the same from the internet which is showing all the entries and as on 19.07.2011, Rs. 13,64,895.32 is lying in excess after paying all the full dues of the Bank. It has been further mentioned that complainant issued a cheque in favour of Mayank Goel for Rs. 50,000/- on 20.05.2012 and on its representation, the Op Bank refused to honour the same and returned the same vide memo dated 22.05.2012 with the remarks “ account stopped” despite the fact that account is still having amount in the account of more than Rs. 14,00,000/-. In this way, the OP Bank has harassed the complainant and has delayed in release of excess amount which is lawful claim of the complainant, hence there is a deficiency in service and unfair trade practice on the part of OP Bank and lastly prayed for directing the OP Bank to release the amount of Rs. 13,64,895.32 i.e. excess amount lying credited on account of sale proceeds in CC Limit account after adjusting the bank dues on 19.07.2011 and also further to pay interest on the excess amount and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OP Bank appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, there is no cause of action; complainant is estopped from filing the present complaint by her own act and conduct; complainant has concealed the true and material facts and has not come to this Forum with clean hands. The true facts are that complainant had obtained the CC Limit Facility from the Op Bank but has remained failed to adhere the financial discipline and inspite of repeated requests of the officials of Op Bank, she has remained failed to repay the amount and her account was declared NPA on 31.05.2010. Thereafter, in order to recover the amount, the OP Bank started proceedings under SARFAESI Act and the property mortgaged with the Op Bank were sold in order to recover the loan amount. After adjusting the loan amount, a sum of Rs. 13,64,895.32 were found excessive except the expenses incurred by the OP Bank in proceedings of SARFAESI Act   as well as interest of NPA account from 31.05.2010 to 19.07.2011 i.e. total Rs. 3,55,922/- and after deducting this amount i.e. Rs. 3,55,922/- on account of expenses etc. the balance amount of Rs. 10,08,973/- was lying with the OP Bank but the complainant has not approached the OP Bank to collect the same. It has been further submitted that complainant has filed the captioned complaint before this Forum directly without approaching the Op Bank and Op Bank after receiving the notice from this Forum has already released the amount to the tune of Rs. 10,08,973/- to the complainant by pay order No. 896966 dated 18.08.2012, which has been duly received by the counsel for the complainant in court on 24.08.2012 and on merit it has been stated that proceedings under SARFAESI Act   were well within the knowledge of the complainant since beginning till disposal of the property. The complainant has put forward false and frivolous story, the complainant has herself not come to the Op Bank either to get statement of account or excess amount. Rest contents of the complaint were denied and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint as there was no deficiency in service or unfair trade practice on the part of OP Bank.

4.                     In support of case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as photo copy of account statement for the period from 01.04.2008 to 30.09.2011 as Annex. C-1 to C-7, Photo copy of Bank memo dated 22.05.2012 as Annexure C-8, Photo copy of cheque amounting to Rs. 50,000/- dated 20.05.2012 as Annexure C-9 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the Op Bank tendered into evidence short affidavit of Suresh Sharma, Asstt. Manager as Annexure RW/A and documents such as photo copy of bank account statement for the period from 01.04.2010 to 18.08.2012 as Annexure R-1 and closed the evidence on behalf of OP Bank.

6.                     We have heard the learned counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     It is not disputed that complainant firm had obtained a CC Limit of Rs. 12,00,000/- by pledging her immovable property in favour of Op No.1 Bank for running her Small Scale Business. It is also not disputed that complainant failed to repay the same due to which the Op Bank sold out the property of the complainant firm by starting proceedings under SARFAESI Act . It is also not disputed that an amount of Rs. 10,08,973/- was lying with the Op Bank as excess amount after adjusting the loan amount as well as other expenses of interest etc. as mentioned in para No.4 of the written statement filed by the Op Bank. It is also not disputed that OP Bank paid the excess amount i.e. amounting to Rs. 10,08,973/- to the complainant by pay order No. 896966 dated 18.08.2012 during the pendency of this case on 24.08.2012 in the court.

8.                     Learned counsel for the complainant during the course of argument restricted his argument to the extent for claiming interest and compensation on the excess amount of Rs. 10,08,973/- which was lying with the OP Bank since 19.07.2011 after selling the immovable property of the complainant under SARFAESI Act and draw our attention towards the account statement Annexure C-7. Learned counsel for the complainant further argued that the Op Bank had paid this amount after filing the present complaint in the court on 24.08.2012 vide pay order No. 896966 dated 18.08.2012.

9                      On the other hand, learned counsel for the Op Bank argued that there is no deficiency in service or unfair trade practice on the part of OP Bank as the complainant herself has not approached to the Op Bank for collecting the excess amount and lastly requested for dismissal of complaint.

 10.                  After hearing both the parties, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of OP Bank as from the perusal of account statement (Annexure C-7) it is duly evident that Op Bank sold the immovable property of the complainant firm for a sum of Rs. 20,43,750/- and received the same amount which was credited in the account of the complainant with the OP Bank on 19.07.2011. Further, it is also duly evident from this account statement (Annexure C-7) that after adjusting the loan amount pending against the complainant an amount of Rs. 13,64,895/- was found excess in the account of the complainant as on 19.07.2011. Further, after that the Op Bank deducted an amount of Rs. 3,55,922/- from the account of complainant on account of Guard expenses SARFAESI Auction expenses, Publication expenses and NPA Interest from 31.05.2010 to 19.07.2011 and in this way an amount of Rs. 10,08,973/- was remained in excess in the account of the complainant with the Op Bank and this fact has been admitted by the Op Bank in its written statement in para No.4 of the preliminary objections. It is also admitted that this amount i.e. Rs. 10,08,973/- has been refunded to the complainant during the pendency of this case before this Forum on 24.08.2012 vide pay order bearing No. 896966 dated 18.08.2012.

11                    The only plea of the OP Bank that complainant himself has not approached the OP Bank is not tenable firstly there was no reason why the complainant will not approach to the Op Bank for taking huge amount lying with the OP Bank and secondly it was the duty of the OP Bank to refund the same immediately to the complainant firm but the Op Bank has failed to do so. Even no such documentary evidence has been placed on file by the Op Bank vide which the Op Bank has ever informed or called to the complainant for balance amount credited in his account. The version of the Op Bank is also falsify from the perusal of bank memo dated 22.05.2012 Annexure C-8 and photo copy of cheque amounting to Rs. 50,000/- dated 20.05.2012 Annexure C-9 as this cheque issued by the complainant was returned to the complainant with the remarks account stop. Meaning thereby that OP Bank was not ready to disburse a single penny to the complainant out of huge amount till 22.05.2012 whereas the huge amount of near about  Rs. 10,08,973/- was lying credited in the complainant firm since 19.07.2011 in excess which constitute the deficiency in service on the part of Op Bank.

12                    The second plea of the counsel for the Op Bank is that complainant firm does not fall under the definition of consumer as the loan in question was taken for commercial purpose and as such the complaint is not maintainable and is liable to be dismissed. In support of his contention he placed reliance upon the case law titled as Mtar Technoligies Pvt. Ltd. Vs. State Bank of India, CCSR No. 4002 of 2013 decided on 17.09.2013 passed by the Hon’ble State Commission Hyderabad but this plea of the OP Bank is also not tenable. To wriggle out the aforesaid contention, it is duly evident that as the loan was obtained by the complainant for running small scale business of his livelihood, by means of his self-employment and not for making profits. Therefore, his case falls within the explanation under section 2(1)( d) of the Consumer Protection Act and as such the complaint is very well maintainable and same view has been held in case titled as Sanjay Kumar Joshi Vs. Municipal Board Luxmangarh and others, 2014(3) CPC page 496. Moreover, the OP bank has not taken any specific plea in his written statement, so, the plea of the OP Bank has no weightage.

13                    So, taking into account the above noted facts and law referred above, we are of the considered view that the Op Bank has wrongly and illegally withheld the excess amount of the complainant for a long time i.e. near about one year which constitute the deficiency in service and unfair trade practice on the part of Op Bank.

14.                   Resultantly, we partly allow the complaint of complainant and direct the Op Bank to pay interest at the rate of 7% per annum on the amount of Rs. 10,08,973/- from the date when this amount was recovered after auction i.e. on 19.07.2011 till the date of payment i.e. 18.08.2012 and also to pay Rs. 3000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 20.03.2017.

 

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

                                                                                           DCDRF Yamuna Nagar

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER