Orissa

Dhenkanal

CC/18/2017

Ajit Kumar Pradhan - Complainant(s)

Versus

The B.M. SBI Dhenkanal - Opp.Party(s)

02 Nov 2017

ORDER

BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                C.C.Case No. 18 of 2017

Ajit Kumar Pradhan, aged about 44 years

S/o late Iswar Chandra Pradhan,

At/Po: Korian, P.S: Town,

Dist: Dhenkanal-759013                                                      ……………….Complainant

                                                                Versus

The Branch Manager,

State Bank of India, Bazar Branch,

Gandhi Mandir Road, Dhenkanal Town,

PS: Town, PO/Dist: Dhenkanal-759001                            …………………Opp. Party

Present: Sri Badal Bihari Pattanaik, President,

                  Miss Bijayalaxmi Satapathy, Member

Counsel: For the complainant:   P.K.Mishra & Associates

                  For the Opp. Party: B. Prakasa & Associates

Date of hearing argument: 30.10.2017

Date of order: 2.11.2017

                                                                                JUDGMENT

Sri Badal Bihari Pattanaik, President

                The complainant has filed this case alleging deficiency of service and unfair trade practice on the part of the Opp. Party U/s 12 of Consumer Protection Act, 1986.

                1) Brief facts leading to the case is that the petitioner has availed a loan of Rs. 9.00 lakhs on 31.12.2009 for purchase of a private car and by the end of May-2014 he repaid a sum of Rs. 10,86,491/-.  Since he incurred huge loss in his transport business he could not repay his dues for which notice was sent by the Opp. Party to repay the dues and on receipt of notice the petitioner repaid a sum of Rs. 10,000/- to the Opp. Party Bank and made an application to the Opp. Party to settle the loan amount on O.T.S Scheme on 16.2.2016 and his offer was to repay a sum of Rs. 1.00 lakh.   Some days after submission of the said application the Opp. Party summoned the petitioner to the Bank and instructed him to give his higher offer as the offer given by him was on the lower side.  Therefore, the petitioner made an offer of Rs. 1.50 Lakh on 31.3.2016 and as the Branch Manager advised him to deposit 30% of the offer amount without which the application cannot be processed, he deposited a sum of Rs. 45,000/- on the same day.   It was intimated to him verbally that his application has been sent to Angul Regional Office for formal approval and he will be subsequently intimated to deposit the rest amount.  When the petitioner was awaiting to receive the intimation to his surprise received a demand/seizure notice  dt. 18.2.2015  on 25.1.2017 wherein the petitioner was directed to pay a sum of Rs. 3,44,275/- within ten days from the date of receipt of notice or else to face legal action as per law.  It is the specific case of the petitioner that his OTS application dated 31.3.2016 remained undisposed of which amounts to deficiency in service and issue of  demand notice amounts to  unfair trade practice without disposal of the said application.  Since the Opp. Party played hide and seek the petitioner has knocked at the door of the Forum for the reliefs prayed for in the complaint petition.

                2) After receipt of notice from this Forum, the Opp. Party appeared through his Advocate and filed written version.  In his written version the Opp. Party challenged the status of the petitioner as a consumer as it is a dispute between the borrower and the Banker.  The Opp. Party stated that the vehicle was purchased for commercial purpose which has been duly registered with R.T.A, Bhubaneswar as commercial vehicle bearing Regd. No. OR-02 BC-3330.  One Indulata Pradhan stood guarantor for the loan and mortgaged her property by virtue of the mortgaged deed dated 31.2.2009.  As per the terms of the agreement between the Bank and the borrower it is clearly mentioned that the Bank will seize the vehicle in the event of default by the loanee.  Since the borrower was regular defaulter and his plea of loss in business was false the Bank took recourse of Section 13 (3) (2) of the SARFAISE ACT-2002 on 30.7.2012.  On receipt of the notice the petitioner deposited a sum of Rs. 10,000/- and made a so motto   application for OTS for Rs. 1,00 lakh which was rejected by the Bank.  Again he made an application by enhancing the offer money of Rs. 1.5 lakhs along with Rs. 45,000/- for processing O.T.S application.  Since the application was under the category of “Loan against deposits and specified security” it could not be entertained which was outside the scope of the O.T.S scheme of the Bank.  So accordingly, the   application was rejected and the amount deposited towards his processing fees of O.T.S application was adjusted towards his loan account.  Notice was sent to him on 18.1.2017 which was inadvertently mentioned as 18.1.2015 for repayment of the dues.  In view of the provisions of SARFAISE ACT this Forum lacks jurisdiction and it is prayed for dismissal of the case with cost.

                3) The petitioner in order to prove his case has filed the copy of application dated 16.2.2016, copy of O.T.S Application dated 31.3.2016, copy of the deposit slip showing deposit of Rs. 45,000/- on 31.3.2016, demand notice of the Bank dated 18.2.2015, one postal receipt dated 24.1.2017, letter dated 15.3.2017 of O.P. Bank to Ajit Pradhan and Indulata Pradhan, letter dated 15.2.2017 to Indulata Pradhan and letter dated 1.7.2017 to Ajit Pradhan.  The petitioner has filed his own evidence in shape of affidavit along with the evidence of another person Manoj Ku. Mohapatra.  On the other hand the O.P has filed  E-circular dated 14.6.2017 of S.B.I on O.T.S Scheme, copy of one scheme namely Rim Samadhan, copy of the loan agreement and the latest Circular  of R.B.O, Angul on O.T.S scheme of the Bank.  The O.P has filed the evidence in chief by the Branch Manager of S.B.I, Bazar Branch, Dhenkanal.

4)            The only point involved in this case as to whether the petitioner is entitled to avail the O.T.S Scheme of the Bank or not?  The O.P Bank has filed the copy of the latest scheme of the Bank issued by S.B.I Corporate Center, Mumbai wherefrom it can be clearly ascertained that the Bank has introduced the scheme on 14.6.2017 under which the loan of the petitioner can be considered under OTS scheme.  The letter dated 1.7.2017 of the O.P clearly shows that the O.P Bank is interested to settle the matter also through Banks OTS/compromise settlement.  So there is no barrier on the part of the O.P. Bank to consider the OTS application of the petitioner in view of the OTS scheme of the Bank now in force.

5)            The Opp. Party has stated that they have rejected the O.T.S application of the petitioner dated 31.3.2016 and has adjusted the processing amount deposited by the complainant against his loan account.  Even though the Bank has stated to have rejected the loan application of the loanee/petitioner and regarding adjustment of his upfront amount of 30% amounting to Rs. 45,000/- deposited on 31.3.2016 not a single document has been filed by the O.P. Bank to show that his application has been rejected and such rejection and adjustment of the upfront amount de3posited by the petitioner.  In absence of any document, the plea of the Opp. Party is not acceptable in the eyes of law and such plea is rejected. Further it is found that the order of rejection was not communicated to the petitioner.  Learned counsel for the O.P. vehemently argued that the petitioner is a chronic defaulter and despite several notice as the petitioner failed to clear up the dues action U/s 13(2) of the SARFAISE Act was initiated and notice was sent on 30.7.2012.  But the O.P has not filed any document to show that several notice was issued to the petitioner and lastly U/s 13 (2) of SARFAISE ACT notice was issued to the petitioner on 30.7.2012.  In absence of such document we are unable to accept the stand taken by O.P that this Forum has no jurisdiction to entertain the dispute as per Section 34 of SARFAISE ACT.  Opp. Party further argued that notice was issued U/s 13 (2) of SARFAICE act   to the petitioner on 15.3.2017, so this Forum has no jurisdiction to entertain this case.  On perusal of record it is seen   after initiation of this case and after appearance by the O.P he has issued this notice U/s 13 (2) of SARFAISE ACT.  So when  after initiation of the consumer case the O.P has issued notice U/s 13 (2) of SARFAISE ACT we are of the view that such notice under SARFAISE Act will not debar the Forum to adjudicate upon this case and O.P intentionally issued the said notice to take advantage of SARFAISE ACT.  Hence the stands taken by the O.P. is rejected.  Further it is a settled principle of law as has been decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case of CORPORATION BANK VRS MASOOD AHMED KHAN & OTHERS in RP. No-3165 of 2007 decided on dtd. 04/04/2008 that the petitioner bank can take shelter under Securitization Act only if their hands are clean but it cannot perpetuate a fraud and collusion with the builders and thereafter argue that it protected by the Securitization Act. In the case at hand Op. Bank has not come with clean hands .

6)            Therefore, in view of the above findings we think it just and proper to direct the Opp. Party Bank to consider the O.T.S application of the petitioner/loanee dated 31.3.2016 as per the prevailing guide lines of the Bank and to treat the amount of Rs. 45,000/- deposited by the complainant as the processing fees for consideration of the O.T.S application which will be in the interest of justice. Hence ordered.

                                                                                ORDER

                The complaint is disposed of on the aforesaid findings with a direction to the Opp. Party to consider the O.T.S application of the petitioner/loanee dated 31.3.2016 as per the prevailing guide lines of the Bank and to treat the amount of Rs. 45,000/- deposited by the complainant as the processing fees for consideration of the O.T.S application without insisting the complainant for fresh O.T.S application and deposit of further processing fees.  In the peculiar facts and circumstances parties are left to bear their own cost. 

 

                     Sd/-                                                                                        Sd/-

(Miss Bijayalaxmi Satapathy)                                         (Badal Bihari Pattanaik)

                Member                                                                      President