Chandigarh

DF-II

CC/258/2019

Aditi Joseph - Complainant(s)

Versus

Stated Bank of India - Opp.Party(s)

Devinder Kumar Adv.

10 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	258/2019
Date of Institution	:	29.04.2019
Date of Decision	:	10.02.2023

 

                     

            

 

 

Aditi Joseph w/o Dr.Sumit Joseph permanent r/o H.No.49, Shivalik Vihar Nayagaon, Tehsil Kharar, District Mohali presently residing at Brampton Canada

                 ...  Complainant.

Versus

 

State Bank of India, SCO 13, Sector 20-D, Chandigarh through its Branch Manager.

 

…. Opposite Party.

 

 

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
		SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Devinder Kumar, Counsel of complainant Sh.J.K.Babbar, Counsel of OP.

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     The complainant, who is Special Attorney Holder of Ms.Aditi Joseph wife of Dr.Sumit Joseph, has filed the present complaint under Section 12 of the Consumer Protection Act, 1986  alleging therein that Ms.Aditi Joseph took loan vide a/c No.65127019277 for purchase of Tata Safari bearing registration No.PB-65P-4240 from the OP. However, no schedule of payment was ever supplied except the loan card (Annexure C-2). Due to some unavoidable circumstances, some EMIs could not be paid then the loanee through the complainant requested the Bank to regularize the loan account and paid Rs.40,000/- on 24.04.2018 (Annexure C-11) and Rs.71,000/- on 29.08.2018 & 31.08.2018.  Subsequently, the complainant requested the Bank to pay the total outstanding loan and the OP-Bank directed him to pay Rs.53,000/- for clearance of the loan amount, which was paid in one go through but the same was adjusted into two installments. The OP handed over the documents i.e. NOC, Form No.35A and statement of outstanding amounts etc. and it came to the notice of the complainant that a sum of Rs.31,495.40 was outstanding against the loan account and accordingly he sought the refund of overcharged amount of Rs.21,505/- and even wrote letters dated 31.10.2018 and 26.10.2018 (Annexure C-6 & C-7) to this effect.  Finally, the complainant served a legal notice dated 09.03.2019 upon the OP which was replied by the OP in a vague and evasive manner vide reply dated 22.03.2019.  Alleging that the aforesaid acts of omission and commission on the part of the OP amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OP to refund the overcharged amount along with interest, compensation for mental agony and physical harassment as well as litigation expenses.

 

2.     In its written version, the OP while admitting the factual matrix of the case has pleaded that the complaint has been filed by the SPA (complainant) but no SPA has been placed on record. It has further been stated that the complainant was very well aware about the schedule of re-payment of the loan amount as he had signed the loan documents after fully knowing about the monthly installments.  The complainant deposited Rs.12,500/- on 24.04.2018 instead of Rs.40,000/-. Similarly, the complainant deposited a sum of Rs.45,045/- on 29.08.2018 and 31.08.2018 instead of Rs.71,000/-. Further, the Bank Manager personally calculated the outstanding loan amount and informed that a sum of Rs.53,720/- along with interest is required to be deposited in the loan account and he further informed the complainant that after declaration of the loan account as NPA due to constant defaults in repaying the loan amount, the calculation of interest is not shown in the loan account statement, rather the interest has to be calculated separately after NPA period. It has further been stated that entire outstanding amount of Rs.53,720/- was deposited and not a sum of Rs.53,000/- on 31.10.2018. It has been denied that the bank overcharged a sum of Rs.21,505/- as claimed. The complainant was very made aware that the interest has to be calculated manually after declaration of the account as NPA for further period from the date of NPA to the date of receipt of the entire outstanding amount.  It has further been stated that after the date of NPA i.e. after 29.06.2017, no interest was charged in the loan account rather at the time of final settlement of the loan, a total interest of Rs.22,225/- was only charged on 31.10.2018. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, the OP prayed for dismissal of the complaint.
3.     The complainant filed replication to the written reply of the OP controverting its stand and reiterating his own.
4.     The parties filed their respective affidavits and documents in support of their case.
5.     We have heard the Counsel for the parties and have gone through the documents on record including written submissions.
6.     The OP took specific preliminary objection in the written statement that Dr.Joseph K.Masih is not competent to file the present complaint on behalf of Ms.Aditi Joseph wife of Dr.Sumit Joseph as he is not holding an attorney to file the present complaint on behalf of Ms.Aditi Joseph wife of Dr.Sumit Joseph.   Besides this, the fact regarding being still alive of the SPA has not been mentioned in the complaint.
7.     The ld. counsel for the complainant has tried to controvert this stand of the OP by drawing out attention to the special power of attorney dated 07.06.2013. We have gone through said special power of attorney dated 07.06.2013. The perusal of the said special power of attorney dated 07.06.2013 reveals that it does not give any power to Dr.Joseph K.Masih to file and institute the present complaint on behalf of Ms.Aditi Joseph wife of Dr.Sumit Joseph before this Commission. 
8.     The above said ‘Special Power of Attorney dated 10.06.2013’ does not empower Dr.Joseph K.Masih to file the present complaint before this Commission and it relates to some other matter and it was used to file the present complaint despite the fact that it does not empower so to Dr.Joseph K.Masih. Hence, it is not a valid Special Power of Attorney to file the present complaint.
9.     In order to find out the legal consequences of filing the written statement and other proceedings without having competent authority to do so, the judgment of the Hon'ble Supreme Court of India in the case reported as (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” is important. In para no.11 of the judgment,  it has been held as under:-

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

        Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) SCC 30 that the

“bare authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

        The Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G. Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.

10.     Since the present complaint has not been filed by the authorized person holding a valid and legal power of attorney, hence, the same is not maintainable before this Commission and the same deserves to be dismissed.
11.     In view of the above discussion, the present complaint is dismissed. The parties are left to bear their own costs.
12.     The pending application(s) if any, stands disposed of accordingly.
13.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced 10/02/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (PRITI MALHOTRA) MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER