Punjab

Ludhiana

CC/14/640

Sonu Thakur - Complainant(s)

Versus

State Bank of Patiala - Opp.Party(s)

Nitin Kapila

21 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA. Consumer Complaint No. 640 of 12.09.2014 Date of Decision : 21.07.2016 1.Sonu Thakur s/o Shri Pritam Singh Thakur, 2.Pritam Singh Thakur son of Sh.Lachhman Das Both residents of 1962, Street No.2, Opp. Jai Maa Chintapurni Mandir, Shivpuri, Ludhiana. ….. Complainants Versus State Bank of Patiala, (Retail Assets Credit Processing Cell), Bharat Nagar Chowk, First Floor, Ludhiana. …Opposite party (Complaint U/s 12 of the Consumer Protection Act, 1986) QUORUM: SH.G.K.DHIR, PRESIDENT MRS. BABITA, MEMBER COUNSEL FOR THE PARTIES: For complainants : Sh.Nitin Kapila, Advocate For OP : Ms.Mandeep Kaur, Advocate proxy counsel for Sh.Alok Mohindra, Advocate PER G.K.DHIR, PRESIDENT 1. Complainant no.1 is the son of complainant no.2. Complainant no.1 for pursuing his studies in degree of Bachelor of Commerce from Deakin University, Malvem Victoria, Australia required huge amount and that is why, loan of Rs.15 lac was contracted from OP bank on due execution of loan documents. OP created equitable mortgage by deposit of title deeds of property bearing M.C.No.B-II-1937, Near Birla Quarter, Sekhewal, Shivpuri, Ludhiana and property bearing M.C.No.B-II-1333/20-C, Surya Complex, Sekhewal, New Shivpuri, Near Budha Nala, Ludhiana. Smt. Meena Thakur(mother of complainant no.1 and wife of complainant no.2) stood as 3rd party guarantor in addition to the creation of equitable mortgage by deposit of title deeds. OP sanctioned loan of Rs.15 lac by issue of letter dated 7.11.2005 with the date of confirmation vide letter dated 24.11.2005. As per repayment schedule, loan amount was payable in 84 monthly installments commencing from the course period plus one year or six months from the service of the candidate, whichever is earlier. Rate of interest was settled @11.50% p.a. BPLR + 1%. Repayment schedule was duly adhered to by the complainants because they had been making the payment regularly from time to time. After adjusting of the installments, a balance of Rs.1/- stood due from the complainant in his account on 3.9.2013. Complainants paid the said amount, but OP intentionally reflected a balance of Rs.1/- by showing deposit of Rs.27,199/-. Copy of the statement of account shows the last payment made on 3.9.2013. To foist false liability on the complainants, OP intentionally, willfully and knowingly sent a letter dated 27.8.2014 addressed to the complainant no.1 for raising illegal demand of Rs.3,62,531.79P. That amount was called upon to be deposited by the complainant no.1 through letter dated 27.8.2014. Whatever was due against the complainants, the same had already been paid by them on 3.9.2013 and as such, Op liable to issue ‘No Due Certificate’ and to release the deposited documents. However, despite requests, OP failed to do the needful and as such, complainants by pleading deficiency in service on the part of OP, sought directions to be issued against OP for calling upon them to issue ‘No Due Certificate’. Even request made for quashing the demand of Rs.3,62,531/- as referred above. Compensation for mental pain and physical harassment of Rs.50,000/- also sought. 2. In the written statement filed by OP, it is pleaded interalia as if complaint is not maintainable because proceedings under the SARFAESI Act had already been initiated by issue of notice dated 15.9.2014 under Section 13(2) of above said Act. Besides, the complainants are guilty of withholding and suppressing the material facts. Complainants have knowledge qua their liability of paying a sum of Rs.3,65,574.03P as on 14.9.2014. This fact was admitted by the complainant no.1 in writing, due to which, complainants are estopped by their act and conduct from filing the present complaint. Complainant no.1 through writing dated 26.9.2013 acknowledged his liability of paying of Rs.3,45,000/- as due on that date. Complainants cannot be permitted to resile from that admission. OP is claiming the amount from the complainants, which is payable by them as per the terms and conditions of the written contract entered between the parties. No cause of action ever accrued to the complainants to file the present complaint. Besides, intricate question of law and facts requiring elaborate evidence are involved and as such, this Forum has no jurisdiction. There is no negligence or deficiency in service on the part of OP. Admittedly, the complainants approached OP for the grant of credit facilities by way of an education loan and thereafter, on due execution of documents and creation of equitable mortgage with respect to the properties mentioned above, a loan of Rs.15 lac was disbursed after sanction thereof through letter dated 30.11.2005. Loan amount was disbursed by OP in favour of Educational Institution, from where, the complainant no.1 had to complete his degree of Bachelor of Commerce. Admittedly, loan was repayable in 84 monthly installments. Op duly issued the sanction letter dated 24.11.2005 and the same was received by the complainants under their signatures. As per the terms and conditions of the sanction letter, complainants liable to pay interest @1% above the LTPLR, which was 10.50% p.a. at the time of inception of loan. However, effective rate of interest at the time of inception of loan was @11.50% p.a. That rate of interest was subject to revision from time to time. Complainants shall be deemed to have notice of changes in the rate of interest, whenever effected of the LTPLR by way of display/notification/publication in the newspaper etc. In case of default of payment, complainants liable to pay penalty interest @2% p.a. over the above agreed rate of interest. As per the grant of credit facilities, the amount of loan along with interest and other charges were to be repaid in 84 monthly installments. Those installments had to commence one year after the completion of the course or after six months of getting of job, whichever is earlier. Interest during moratorium/repayment holiday period chargeable on simple basis, but thereafter, on compound basis. Complainants repaid some of the amount by way of installments. The paid amount was duly reflected in the statement of account maintained by OP in ordinary course of their business. Inadvertently, OP charged simple interest even after the moratorium period and as such, for removing the said anomaly noticed by OP on 23.9.2013, OP wrote letter to the Bharat Nagar Chowk Branch mentioning that an amount of Rs.3,44,477.13P to be recovered from the borrowers as on 23.9.2013. The breakup of the amount which should have been recovered and which was actually recovered, the same was duly reflected. Factum of incorrect calculation of the interest was brought to the notice of complainants and thereafter, they acknowledged their liability through letter dated 26.9.2013 written by complainant no.1 to the AGM, State Bank of Patiala, Bharat Nagar Chowk, Ludhiana. Through that writing, complainant no.1 specifically mentioned that he understands that an amount of Rs.3,45,000/- approximately is outstanding against him. Request was submitted for release of the original documents of one of the property by the complainant no.1 and after accepting that request, OP allowed for release of the documents pertaining to property No.B-II-1937, Shivpuri, Near Birla Quarter, Sekhewal, Ludhiana. That acceptance was made through letter dated 30.9.2013. In compliance of the same by considering the request of the complainant, documents with respect to the above referred property No.B-II-1937 were released and the complainants submitted writing dated 30.09.2013 in their own hands. Complainants were duly aware of their liability, but despite that they are not paying the due amount and that is why, notice under Section 13(b) of SARFAESI Act served upon the complainants as well as upon Smt.Meena Thakur for calling upon them to pay the amount of Rs.3,65,574.03P as outstanding due on 14.09.2014. In view of initiation of proceedings under the SARFAESI Act, jurisdiction exclusively remained with the DRT at Chandigarh and not of this Forum. Each and every other averment of the complaint denied by disclosing that complainant no.1 under his own hands on 26.9.2013 acknowledged the liability. 3. Complainants to prove their case tendered in evidence affidavit Ex.CA of complainant no.2 Sh.Pritam SinghThakur along with documents Ex.C1 to Ex.C14 and thereafter, their counsel closed the evidence. 4. On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RW1/A of Sh.Harminder Kumar Jain, Authorized Officer of OP along with documents Ex.R1 to Ex.R12 and then closed the evidence. 5. Written arguments not submitted by any of the parties. Oral arguments alone heard and records gone through minutely. 6. Undisputedly, loan of Rs.15 lac was contracted by the complainants on due execution of loan documents and after creating equitable mortgage with respect to two properties mentioned in letter Ex.C1=Ex.R2 of date 24.11.2005. Loan application Ex.R1 in this respect was submitted by the complainants. After going through clause 9(iii) of Ex.C1=Ex.R2, it is made out that interest during moratorium period to be received in time by the Branch Manager. So, certainly distinction between moratorium period and non moratorium period is worked out. Counsel for the complainants takes us through Ex.C12, the copy of statement of account for arguing that Rs.27,200/- in fact were due in the loan account of the complainant as on 3.9.2013, out of which, Rs.27,199/- was credited for leaving the balance of Rs.1/- only. In view of this entry of date 3.9.2013 incorporated in Ex.C12, it is vehemently contended by the counsel for the complainants that actually whole of the due loan amount along with interest has been repaid by the complainants to OP, due to which, OP is under obligation to issue no due certificate. Despite that letter Ex.C13 dated 27.8.2014 has been issued for raising demand of Rs.3,62,531.79P and as such, it is contended that action of OP is illegal. These submissions advanced by the counsel for the complainants though looks ex-facie correct but in fact those are not because after going through letter Ex.R3 dated 30.11.2005, it is made out that 1% concession in interest during the moratorium period will be granted if full interest is paid during the moratorium period. The interest to be debited quarterly/half-yearly on simple basis during the repayment holiday/moratorium period as per Ex.R3. However, this interest to be charged on compound basis during non moratorium period is submission of the counsel for OP. The rate of interest is subject to revision from time to time as per clause 3 of Ex.R3. Interest on the loan to be charged at LTPLR 1% p.a. over LTPLR which currently was 10.50% p.a. with quarterly rests.That rate of interest is subject to revision from time to time and complainants to be deemed to have notice of changes in the rate of interest, whenever the changes in LTPLR displayed/notified at/ by the branch/published in newspaper/made through entry of interest charged in the passbook/statement of account sent to the complainant. In the event of a default in the payment or any irregularity in account, penal interest @2% p.a.chargeable over the agreed rate of interest is also a fact borne from clause 3 of sanction letter Ex.R3 of date 30.11.2005. So, in case, the bank charged simple rate of interest even during non moratorium period, then the same will be against the terms and conditions of the loan agreement. 7. The loan liability of student to extinguish only when the outstanding against the loan account becomes nil on payment of residual amount, if any. That condition incorporated in the terms and conditions of the loan agreement produced on record as Ex.R4. As during non moratorium period, compound interest was not charged and that is why, for rectifying the mistake, letter Ex.R5 was sent to the Chief Manager of State Bank of Patiala, BNC Ludhiana on 23.09.2013. Complainant no.1 through letter dated 26.9.2013(Ex.R6) admitted that he was made aware of the error in calculation of interest charges by the bank. So, certainly, complainant no.1 was made aware of contents of letter Ex.R5 and that is why, he through letter Ex.R6 acknowledged as if outstanding amount of loan of Rs.3,45,000/- is due against him. After acknowledging this liability of outstanding amount of Rs.3,450,000/- approximately, the complainant no.1 had aspired for release of the documents of property No.B-II-1937 situate near Birla Quarter, Sekhewal, Shivpuri, Ludhiana. After acceding this request Ex.R6, loan documents with respect to the property No.B-II-1937, Shivpuri, Near Birla Quarter, Sekhewal, Ludhiana were released by finding that for recovery of the outstanding amount of Rs.3,44,478.13P( as due on 30.9.2013), the documents pertaining to property no.B-III 1337/20C, Sekhewal, New Shivpuri, Surya Complex, Near Budha Nullah, Ludhiana, will be sufficient security. Recommendations for release of documents with respect to the property No. B-II-1937 situate near Birla Quarter, Sekhewal, Shivpuri, Ludhiana were made by the Chief Manager of OP bank vide letter Ex.R7 of date 30.09.2013.So, Certainly, submissions advanced by counsel for OP has force that after written acknowledgment of liability by the complainant no.1 through letter Ex.R6, documents pertaining to mortgaged property no. B-II-1937 situate near Birla Quarter, Sekhewal, Shivpuri, Ludhiana, were released on the request of the complainant no.1 himself. As these documents were released on the request of the complainant no.1 after acknowledgement of his liability of paying the outstanding amount of Rs.3,44,478.13P and as such, certainly the complainants estopped by their act and conduct from denying their liability now because the said amount claimed as the recoverable amount after disclosing the complainants about the mistake in charging simple interest instead of compound interest during non moratorium period. Being so, deficiency in service on the part of OP is not there. Rather, OP put forth the demand of outstanding loan amount of Rs.3,62,531.79P properly by issuing notice Ex.R8 dated 15.9.2014 to the complainants, but Ex.R8A to guarantor Smt.Meena Thakur. Possession Notice in pursuance of initiating the proceedings under Section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (second) Act, 2002(herein before in short referred as SARFAESI Act) placed on record as Ex.R9 was issued properly. As the proceedings under the SARFAESI Act duly initiated by OP and the complainants estopped from denying their liability of paying the outstanding amount in view of the written acknowledgment contained in letter Ex.R6 and as such, the complaint has been filed for circumventing the due process of law initiated by Op. There is no deficiency in service on the part of OP because they issued possession notice by invoking the provisions under the SARFAESI Act after obtaining acknowledgment of liability from the complainant no.1 through letter Ex.R6. 8. As a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules. 9. File be indexed and consigned to record room. (Babita) (G.K. Dhir) Member President Announced in Open Forum Dated:21.07.2016 Gurpreet Sharma.