SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint for getting an order directing opposite party to pay a sum of Rs.1,00,000/- to the complainant together with cost of the complaint
Brief facts of the case are that the OP sanctioned an educational loan of Rs.2,50,000/- for the study of complainant’s daughter Miss Nadiya K P P. As per the stipulation of the educational loan the loan liability is expected to be repaid from 2008. It is submitted that the daughter has already repaid substantial amount towards loan liability and he himself paid a total sum of Rs.50,000/- towards the loan liability. The OP has suppressing the material facts relating to the financial transaction in connection with the said educational loan. Complainant submitted that he was entitled to get loan subsidy declared by the State and Central governments. As per various State and Central government orders moratorium for loan taken up to 28/02/2009 was declared. Moratorium benefits were denied to the complainant’s daughter. The OP is not entitled for compound interest as per the regulation of educational loan. OP calculated interest in violation of the guidelines issued by Govt. of India in connection with educational loan. Further submitted that as per Govt. regulation loan up to Rs.4,00,000/- no security required. As per GO(P)No.65/2017/Fin dated 16/05/2017, some considerable benefits are entitled to the daughter of complainant. The method of calculation which is being adopted by the OP is unjustifiable. Complainant filed WP(C) No.27396/2016 before the Hon’ble High Court of Kerala and revenue recovery proceedings were stopped. Now the OP has stated that the loan is taken over by Reliance Asset and Reconstruction Company and the OP is intending to take coercive steps against the complainant by adopting the assistance of the above said company. On connection with the educational loan no recovery proceedings against the complainant is legally permissible either directly or indirectly. Further submitted that the OP bank illegally detained the original of title deed of the complainant and the same is in the illegal custody of the OP. The action of OP would amounts to serious unfair trade practice and deficiency of service towards the complainant. Hence the complaint.
After receiving notices, OP filed version stating that the complainant is a business man and his daughter Nadiya P P K had jointly availed two education loans from the OP. The 1st loan 1,32,000 on 29/08/2002 for pursuing B. Sc course by Nadiya from Harur Muthu Arts & science college for women, Harur, Dharmapuri. They executed loan agreements in favour of the OP guaranteeing repayment of the loan on 29/08/2022, as a security for the said loan guaranteeing over his property measuring 50 cents in Cherukunnu Village in favour of the OP by depositing his title deeds. The complainant and his daughter agreed to repay the said loan in 60 equal monthly installments of Rs.3,000/- from 1 year after completion of the course or 6 months after getting job whichever is earlier. The first installment paid on August 2005. After passing the BSc. Course and before repaying the existing loan, the complainant and Nadiya again approached the OP for 2nd loan of rs.1,80,000 in September 2005 for completing the MSc. Biotechnology course from the K V M Engineering College Kothamangalam. The complainant agreed to repay the said loan in 84 equal monthly installments commencing from one year after completion of the course or 6 months after getting job whichever is earlier. As collateral security for the 2nd loan the complainant extended the equitable mortgage already created in favour of the OP over his mortgaged property. It is submitted that even after getting employment the complainant and his daughter neglected and failed to repay the loan installments as agreed upon and hence both the loan accounts became non-performing assets. The terms and conditions of the loans availed are governed by the loan agreements executed by the complainant and his daughter in favor of the OP in 2002 and 2005. The complainant or his daughter have not raised any question about the rate of interest payable and charge in their loan account, repayment terms of the loans, security offered for getting the loan or on the govt. subsidy all these years and hence the complainant is stopped form raising such contentions in the present complaint on the principle of doctrine of limitation. The eligible subsidy amount as and when sanctioned by the Govt. to the student/borrower is paid through the loan accounts maintained by the student/borrower with the OP. The subsidy amount of Rs.30,978/- in respect of the 1st education loan was credited in the loan account No. 57016312591 on 26/06/2014. The subsidy amount of Rs.52,660/- in respect of the 2nd loan was also credited in the loan account No.67002493202 on 26/06/2014. Further alleged that as per Govt. regulation loan up to Rs.4,00,000/- no security required for the education loan is not factually correct. It is at the discretion of the OP bank whether to grant any loan, including education loan and calculated interest in excess and against the guidelines issued by the Govt. For education loan is false and hence hereby denied. It is submitted that the interest subsidy is available only to those borrower who pays the agreed EMI regularly without any default and that during the course period EMI with interest is not demanded from the borrowers but they are liable to pay the said amount after completion of the course or within 6 months from the date of getting employment whichever is earlier. The complainant or his daughter is not eligible for benefit available under guidelines in education loan repayment support scheme implemented by the Govt. in Kerala as per GO(P) No.65/17/ Fin dated16/05/2017. The complainant and his daughter deliberately defaulted in repaying the loan installments as promised. They paid only Rs.56,000 in the 1st loan account and Rs.8000 in the 2nd loan account. The complainant or his daughter failed to pay any amount thereafter and hence both the loan accounts were classified as Non-performing Asset. Subsequently although the complainant vide his letter dated 11/09/2012, admitted his loan liability and inability to repay the loan outstanding, he promised to repay the entire loan outstanding soon but failed to comply his promise. Therefore, the OP was compelled to initiate revenue recovery proceedings against the complainant and his daughter in 2013. The RR authorities however, send demand notices to the complainant and his daughter only in 2015. The demand notice was Rs.6,15,390/-, this included outstanding interest, fees receivable by the RR Authorities and their other expenses. Subsequently on assignment of the loans by SBT to Reliance ARC the RR initiate d by the OP was not pressed.
The complainant is therefore, not entitled for any relief from this OP. Hence, prayed for the dismissal of the complaint.
Complainant and OP adduced their evidence. Complainant has filed chief affidavit and documents. He has been examined as Pw1 and marked Ext.A1 to A4. On the side of OP1 bank, bank manager of OP1 filed his proof affidavit and marked Ext.B1 to B10. Both witnesses were cross-examined by the other party. After that learned counsel of complainant and OP made oral argument and the OP’s learned counsel filed written argument note also.
The point for consideration is
- Whether there is any deficiency in service on the part of the OP bank for recovering the loan amount from the complainant?
- Whether the complainant is entitled to get compensation from OP bank?
Complainant’s case is that complainant and her daughter had jointly taken education loan of Rs.2,50,000/- for the study of his daughter Miss Nadiya. It is submitted that the daughter has already repaid substantial amount towards loan liability and he himself paid a total sum of Rs.50,000/- towards the loan liability. Complainant submitted that he was entitled to get loan subsidy declared by the State and Central governments.
Further, submitted that OP is not entitled for compound interest as per the regulation of educational loan. OP calculated interest in violation of the guidelines issued by Govt. of India in connection with educational loan. Further alleged that as per Govt. regulation loan up to Rs.4,00,000/- no security required. Further, OP bank is not entitled for interest during the study period. Another allegation is that the OP bank illegally detained the original of title deeds of the complainant.
OP submitted that the title deeds, were received as collateral security for the loan availed by the complainant and the complainant extended the equitable mortgage already created in favour of the OP over his property. Further contended that the terms and conditions of the loans availed are governed by the loan agreements executed by the complainant and his daughter in favour of the OP in 2002 and 2005. Hence the present complaint is barred by limitation. Further, contended that the eligible subsidy amount as and when sanctioned by the govt. to the borrower is paid through the loan accounts maintained by the student with the OP. The subsidy amount of Rs.30,978/- in respect of the 1st education loan was credited and Rs.52,660/- in respect of 2nd loan was also credited in the loan amount on 26/06/2014. OP submitted that as per regulation for loan up to 4 lakh no security is required for the education loan is not correct. It is at the discretion of the OP bank whether to grant any loan, including education loan, to any loan applicant considering the repaying capacity of the loan applicant. Here to enable the complainant to get the loan, complainant volunteered to create equitable mortgage over 50 cents of his property in Cherukunnu village, in favour of the OP, as security for the 1st loan of Rs.1,32,000/-, and accordingly the loan was sanctioned in 2002, and the complainant deposited his title deeds with the OP. The complainant availed the 2nd loan of Rs.1,80,000/- in 2005, before closing he 1st loan. Therefore, the complainant extended the equitable mortgage already created in favour of the OP for the 2nd loan as otherwise the complainant would not have got the 2nd loan before closing the 1st loan. Further, contended that the interest payable by the borrower is as per the terms and conditions contained in the loan agreements executed by the borrower. According to the OP, they have not charged any excess interest from the complainant against the guidelines issued by the govt. OP submitted that the complainant and his daughter deliberately defaulted in repaying the loan installments as promised. They paid only Rs.56,000 in the 1st loan account and Rs.8000 in the 2nd loan account. The complainant or his daughter failed to pay any amount thereafter and hence both the loan accounts were classified as Non-performing Asset. Subsequently although the complainant vide his letter dated 11/09/2012, admitted his loan liability and inability to repay the loan outstanding, he promised to repay the entire loan outstanding soon but failed to comply his promise. Therefore, the OP was compelled to initiate revenue recovery proceedings against the complainant and his daughter in 2013. The RR authorities however, send demand notices to the complainant and his daughter only in 2015. The demand notice was Rs.6,15,390/-, this included outstanding interest, fees receivable by the RR Authorities and their other expenses. Subsequently on assignment of the loans by SBT to Reliance ARC the RR initiate d by the OP was not pressed.
OP pleaded that as per the terms and conditions of the Assignment Agreement, if the complainant has any grievance in connection with the education loans availed by him from this OP, he has to take up the issues directly with Reliance ARC who only has the authority to redress his complaint.
According to the OP until the entire loan amounts outstanding in the complainant’s loan accounts is repaid, the complainant is not entitled to get back the title deed and since the entire loan documents including title deeds, to the Reliance ARC as per the terms of the Assignment Agreement (Ext.B11), the complainant can approach Reliance ARC of return of the documents on settlement of the outstanding payable in his loan amounts.
As per the version of OP, it is revealed that as the complainant and his daughter defaulted in repaying the loan installments both the loan accounts were classified as Non-performing Asset, the OP bank was compelled to initiate revenue recovery proceedings against the complainant and his daughter in 2013. The demand notice was for Rs.6,15,390/- and this included outstanding interest, fees receivable by the RR Authorities and their other expenses. Subsequently on assignment of the loans by SBT to Reliance ARC the RR initiated by OP was not pressed. As per the B-11 Assignment Agreement dated 27/06/2015 Reliance Asset Reconstruction Co. Ltd. has taken over the loan account of the complainant and his daughter U/s 5 of the SAFAESI Act. As per B-11 Assignment Reliance has taken over 8431 loans of SBI including loan NO.1708 of Nadia for Rs.64,986 and Loan No.1723, in the name of the complainant for a total consideration of Rs.1,33,379 as on 31/03/2001. As per the said agreement from 26/06/2015, the OP bank is barred from initiating any recovery proceedings against the complainant. As per the said agreement form 26/06/2015, the OP bank is barred from initiating any recovery proceedings against the complainant. As per Sec.5 (2) of the said Act the Bank is the lender and on acquisition of the loan, such acquisition be deemed to the lender and all the rights of such bank shall vest in such company in relation to such financial assets As per S.6 of the Act, the bank is not required to give notice of acquisition to the borrower, However, the complainant as per the A-2 Judgment of the High Court dated 16/10/2016 is aware the loan has been taken over by RARC and that the reason why the bank did not continue the RR Proceedings initiated against the complainant and Nadia. As per Ext B11 Assignment agreement, and as admitted by the complainant, the complainant has not remitted loan amount to the OP bank. The OP bank has also not taken any recovery proceedings against the complainant and his daughter. As per B11, from 27/06/2015, the complainant cannot initiates any legal proceedings against OP Bank in connection with the loans taken over by RARC. Hence the complaint filed on 01/10/2017 against OP. Bank is not maintainable.
Based on the discussion above the complaint is barred by limitation and moreover since SARFASSI proceedings were initiated, this complaint is not maintainable before this commission.
In the result complaint is dismissed.
Exts.
A1- Photocopy of title deed
A2- Photocopy of judgment
A3- Print out of news paper(marked with objection sustains)
A4- Reminder notice issued OP No.2
B1- Complaint against OP before Munsif court OS No.270/2019
B2- Letter issued by OP2 to complainant’s daughter
B3, B4- Bank statements
B5- copy of loan order
B6- Agreement
B7- Application form of 2nd loan
B8- Agreement dated 19/09/2005
B9- Letter issued by OP to complainant dated 07/12/2015
B10- RR Notice dated 07/12/2015
B11-Agreement between complainant and OP2
Pw1-Complainant
Dw1-OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
