Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order : 30.11.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to refund the amount of  Rs. 81,000/-              ( Rs. Eighty One Thousand only ) along with interest @ 12% from the date of withdrawal till payment.
2. To direct the opposite parties to pay Rs. 1,00,000/- ( Rs. One Lakh only ) as compensation.
3. To direct the opposite parties to pay Rs. 20,000/- ( Rs. Twenty Thousand only ) as litigation costs.

2. The facts of this case lies in a narrow compass which is as follows:-

Complainant has asserted that he is a account holder of opposite party no. 1 (The Bihar State Co – Operative Bank, New Secretariat ) in which the complainant deposited Rs. 81,482/- in several installment till 29.02.2008 vide annexure – 1 when the complainant came for withdrawal from the bank he got knowledge that he has only Rs. 482/- in his account. Thereafter, the complainant approached opposite party no. 1 and he was shocked to know that as the complainant was guarantor of Sri Ramadhya Mahto hence the bank deducted amount of Rs. 81,000/- from his account because Ramadhya mahto had not paid his personal loan. The complainant was surprised because loanee Ramadhya Mahto was in Government service and hence his loan amount can be easily deducted from his salary account but instead of taking appropriate measure against loanee towards realization of his loan account, the opposite parties had deducted the same from the account of the complainant without any information to complainant. The complainant thereafter wrote several letters vide annexure – 2 and 3 to authority of the bank for redressal of his grievance but no steps was taken.

On behalf of opposite parties a written statement has been filed stating therein that Sri Ramadhya Mahto an employee working in New Secretariat canteen of labour department Government of Bihar, had taken a personal loan of Rs. 60,000/- from opposite parties. The aforesaid loan was disbursed to the loanee by way of transfer of the loan amount of Rs. 60,000/- to SB account no. 01-3078. This complainant stood as a guarantor for the aforesaid loanee and had executed several legal documents in this regard. The authority of the opposite parties approached in this regard to loanee and the guarantor for payment of aforesaid loan and when the loan amount was not paid then the bank set – off the outstanding loan amount of the guarantor i.e. complainant by way of making withdrawal of Rs. 81,000/- from the account of the complainant. In Para – 15 of the written statement the opposite parties has stated as follows, “In any case the opposite parties were not underany legal obligation to give prior notice to the complainant to set – off the amount by making withdrawal from the account of the complainant in terms of letter of General lien and set – off duly executed by the complainant in the capacity of a guarantor and the loanee.”

On behalf of opposite parties an additional written statement has been filed stating, “ Pursuant to the letter of the bank the department of the borrower intervened into the matter and could be able to recover a sum of Rs. 62,633/- which was received by the bank vide cheque no. 847234 dated 07.01.2010. it may be mentioned that out of Rs. 62,633/- a sum of Rs. 8,649/- was credited towards the personal loan account of Ramadhya Mahto ( borrower) & the balance amount to the tune of Rs. 53,984/- was transferred to SB account no. 01-0871 of Nagendra Mahto guarantor ( complainant).

On behalf of the complainant a written argument has been filed on 11.08.2011 from which it appears that complainant has received Rs. 53,984/- in his account on 09.04.2010. the complainant has asserted as the complainant has received Rs. 53,984/- out of Rs. 81,000/- the rest amount of Rs. 27,016/- was not paid by the bank.

We have narrated the case of respective parties in forgoing paragraphs.

It is an admitted fact that complainant had deposited Rs. 81,482/- in his account out of which the opposite parties have set off Rs. 81,000/- as the original loanee Ramadhya Mahto defaulted in payment of personal loan of which this complainant has stood guarantor.

It is needless to say that as the complainant had stood guarantor, hence the opposite parties had right to set –off the loan amount of the defaulted loanee subject to some rules and regulation and complying the principle of natural justice. Although the opposite parties have asserted that before adjusting Rs. 81,000/- from account of complainant towards repayment of loan of the defaultee Ramadhya Mahto, the opposite party no. 1 had approached the loanee i.e. Ramadhya Mahto as well as guarantor i.e. complainant but not a single chit of paper has been annexed with written statement in order to show that any letter / reminder etc. has been issued to the complainant informing him regarding non – payment of loan amount by original loanee i.e. Ramadhya Mahto rather from perusal of Para – 15 of written statement it has been asserted that “In any case the opposite parties were not underany legal obligation to give prior notice to the complainant to set – off the amount.” Thus the opposite were under impression that as the complainant has stood guarantor by executing documents to this effects hence they have unlimited rights to adjust deposit of the complainant towards defaulting loan amount without any information to the loanee and the complainant.

It is needless to say that in several citations it has been held by Hon’ble Court as well as National Commission that prior to adjusting the loan amount from the deposit of the guarantor the bank has to give appropriate notice to the guarantor for the same.

Apart from it, the bank has to exhaust all remedy available for realizing the loan from the loanee and thereafter the deposit of guarantor may be adjusted after giving him information. This principle also correspondents with the principle of natural justice. In the present case it is admitted fact that original loanee Ramadhya Mahto was a Government servant but not a single chit of paper has been filed by opposite parties in order to show that even the controlling officer of the original loanee Ramadhya Mahto was informed about the defaults in payment of loan amount by Ramadhya Mahto. Had the opposite parties would have requested the Government authorities in this regard ? then the picture would be otherwise but despite doing so they found easy escape goat in the form of the complainant and as such they have adjusted the deposit of the complainant without informing him in this regard hence we find and hold that by doing so the opposite parties have committed serious deficiency in service.

However it is admitted case that the opposite parties have returned Rs. 53,984/- to the complainant but the rest amount of Rs. 27,016/- has not been paid by the opposite parties to the complainant. Hence we direct the opposite parties to return Rs. 27,016/- to the complainant with 9% interest within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite parties will have to pay an interest @ 12% on the said amount of Rs. 27,016/- till its final payment.

Opposite parties are further directed to pay Rs. 10,000/- ( Rs. Ten Thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.

Accordingly, this complaint stands allowed to the extent referred above.

                             Member                                                                              President