West Bengal

Dakshin Dinajpur

CC/90/2019

Smt. Mili Mandal, W/O- Sunil Mandal - Complainant(s)

Versus

The Branch manager, Bangiya Gramin Bikash bank, Patiram Branch - Opp.Party(s)

08 Apr 2022

ORDER

  The instant case has been initiated by the complainant U/S – 12 of C.P. Act,1986 against the Opposite Party claiming return of deed vide no.1030 dated 26.02.2003 & 784 dated 05.03.2003 in the name of Sunil + Compensation Rs.1,00,000/- with interest from 29.03.2018.  

   The fact of the case, in brief, is that the Complainant received loan from the Opposite Party vide loan account no. 5422300000029 which is cleared on23.03.2018. After long transaction, the Complainant filed a petition to pay the dues amount before the Opposite Party on 27.02.2018 because she wanted to clear the loan in the amount of Rs.1,30,000/-. At the time of filing of the said petition, the Opposite Party told the Complainant that she has to pay Rs.5,000/- more as legal charge. Then, the Complainant requested the Opposite Party to return back her husband land deed vide no.1030 dated 26.02.2003 and 784 dated 05.03.2003 which were mortgaged against the loan of the Complainant. After payment of the said loan the Opposite Party did not issue the clearance certificate to the Complainant. After filing several applications before the various places of the Bank, the Opposite Party was bound to issue clearance certificate of loan to the Complainant on 30.06.2018 but the Opposite Party did not return back the deeds which were mortgaged. The Complainant has also paid Rs.5,000/- to the Opposite Party as legal charge still then the Opposite Party did not return back the said deeds to the Complainant. After 29.03.2018, the Complainant met with the Opposite Party and requested him to return back the said deeds but the Opposite Party refused to return back the mortgaged deed. The Opposite Party also told that he cannot return back the said deeds because one loan is still pending in the name of her husband Sunil Mandal in his bank. Thereafter, the Complainant demanded the loan account statement of her husband’s loan before the Opposite Party but the Opposite Party did not give any statement to her husband loan account. Having no alternative the complainant filed the instant case for relief as prayed for.

 

            Notice was duly served upon the opposite Party and after receiving the notice, the Opposite Party appeared before this commission and filed his written version.

             By filing written version, the opposite party has stated that the Opposite Party extended a business loan to the Complainant to the tune of Rs.5,00,000/- on 12.10.2009 vide a/c no.5422300000029 against hypothecation of equitable mortgage of land in the name of her husband Sri Sunil Mandal who was also the guarantor of the said loan. Due to irregular repayment, the account has turned into NPA and finally the account settled by the Complainant through compromise on 29.03.2018. Apart from the above mentioned loan Sri Sunil Mandal availed a cash credit facility from the Opposite Party vide a/c no.5422250000025 which was sanctioned on 23.12.2006 in which the Complainant was the guarantor. Despite the various reminder issued from the Opposite Party the loan is yet to be liquidated. Presently, the account became NPA with outstanding balance of Rs.399380/- plus un-booked interest from 30.11.2017. According to Bankers general lien under section171 of Indian Contract Act, banker has right to lien over the mortgage property i.e. deed of Sunil Mandal and the deed comes to the hand of bank during normal banking business as per mortgage from executed by the guarantor/borrower. So, Bank is not in a position to refund the mortgage deed to the Complainant until and unless full liquidation of cash credit facility being a/c no.5422250000025. The Opposite Party did not receive any legal charges for return of the mortgage deed, all the amount deposited by the Complainant at different date, is a part of settlement amount. The statement of loan was sent in the name of Sunil Mandal through speed post to the Complainanton14.05.2019, but the addressee refund the same with a comment refused to accept as per delivery peon of Patiram Post Office. Neither Sri Sunil Mandal nor the Complainant is responding with any positive approach to liquidate the existing NPA loan of Sri Sunil Mandal in whose name the mortgaged property is held and securitized at the Opposite Party. In such circumstances, Opposite Party can not release the mortgaged property in question to Sri Sunil Mandal at the request of the Complainant so long as the loan account of Sri Sunil Mandal is not fully repaid by either Sri Sunil Mandal or by the Complainant. The instant case is false, vexatious and not maintainable in the eye of law and has been filed with mala-fide intention, so, it is liable to be dismissed.   

            

                  To prove his case, the complainant has filed 

       (i)  Photo copy of application before consumer affairs

       (ii) Photo copy of bank clearance certificate

       (iii) Photo copy of application before the bank dated 27.02.2018

       (iv) Photo copy of application before the bank dated 22.02.2017

       (v) Photo copy of deed

              On the other hand, the Opposite Party has filed the following documents in support of his defense 

       (i) c/c of sanction copy of loan under account no.5422300000029 in the name of the Complainant

       (ii) c/c of letter of guarantee executed by the guarantor under a/c no.

            5422300000029

       (iii) c/c of hypothecation of goods executed by borrower

       (iv) c/c of specimen of acknowledgement letter relating to deposit of title deeds by the borrower and the guarantor

       (v) c/c of mutation certificate of mortgaged land

       (vi) c/c of title deed bearing no.784 

       (vii) c/c of title deed bearing no.1030

       (viii) c/c of application in respect of compromise settlement 

        (ix) c/c of loan a/c statement bearing no.5422300000029. 

          The Opposite Party also filed some documents in respect of Sri Sunil Mandal under a/c no.5422250000025 

        (i) c/c of sanction copy of loan under a/c no. 5422250000025 in the name of Sunil Mandal 

        (ii) c/c of demand promissory note executed by the borrower 

        (iii) c/c of letter of guarantee executed by the guarantor under a/c no. 5422250000025 

        (iv) c/c of notice in respect of request for regularization/liquidation of credit facility of Sunil Mandal 

        (v) c/c of copy of letter of sending sanction sheet and account statement of Sunil Mandal through speed post 

       (vi) c/c of photo copy of aadhaar card of Sunil Mandal

       (vii) c/c of loan account statement bearing no.5422250000025 of Sunil Mandal.       

       

 

          In view of the above mentioned facts, the following points are cropped up for consideration    

    

 POINTS FOR CONSIDERATION

             

         1.  Whether the Complainant is a consumer to the Opposite Parties?

         2.  Whether there is any deficiency in service on the part of the Opposite

              Parties?            

     3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for? 

 

                                         DECISION  WITH  REASONS

 

           We have heard argument by Ld. Advocate for the complainant and the Opposite Party. We have also gone through the evidence on affidavit and written argument filed by both the parties. We also perused the documents produced by the Complainant and opposite party before this Commission.           

              At the time of argument Ld advocate for the Complainant narrated the fact of the case as mentioned in the plaint. He further submitted that there is willful negligent and deficiency in service on the part of the Opposite Party. Hence, the instant case should be allowed with relief as prayed in the plaint.

            On the other hand, Ld. Advocate for the Opposite Party also narrated the facts of his defense case as mentioned in his written version. Ld. Advocate also submitted that the Complainant has taken loan for commercial business so, the instant case is not maintainable. Ld. Advocate also drew our attraction towards the section 128 and section 171 of Indian Contract Act and submitted that his hands is tied so, he cannot go beyond the law. There is no willful negligent or deficiency in service on the part of the Opposite Party, so, the instant case is liable to be dismissed. 

          Before going into the merit of the case, we would like to discuss in respect of the petition dared 17.12.2021 filed by the Opposite Party on the point of the maintainability of the case. By filing the said petition, the Opposite Party has stated that the Complainant has taken loan for business purpose so, the transaction in between the bank and the Complainant, is a commercial transaction. Thus, as per provision of the Consumer Protection Act, the case is not maintainable in the eye of law and the case is liable to be dismissed.

                 On the other hand, though the Complainant has filed no written objection against the said petition even then Ld. advocate for the Complainant raised strong objection against the said petition at the time of hearing. Ld. advocate for the Complainant submitted that the Complainant took loan from the Opposite Party so, the Complainant is a consumer and the Opposite Party is a service provider. So, the instant case is well maintainable as per provision of the Consumer Protection Act and the petition filed by the Opposite Party is liable to be dismissed. 

              After hearing both sides and considering the facts and circumstances of the case, it appears that the subject matter of the case is not related with any business. Apart from it, the Complainant took loan from the Opposite Party/ Bank. So, in the eye of law the Complainant is a consumer and the Opposite Party is a service provider. Thus, we opine that the instant case is well maintainable in its present form and in law. Hence, the petition dated 17.12.2021 filed by the Opposite Party is hereby considered and rejected.

         Now, let us discuss all the points one by one. 

 

Point No. 1    

 

           On perusal of the materials on record, it appears that the complainant took  loan from the Opposite Party and the Opposite Party provided loan to the Complainant as such the complainant is a consumer and the Opposite Party is service provider. Though it is submitted by the Opposite Party that the loan was taken for business purpose but the subject matter of this case is not business. So, the Complainant is a consumer to the Opposite Party under section 2(d) of the Consumer Protection Act, 1986. 

           Accordingly, this point is decided in favour of the Complainant. 

 

Point Nos. 2 & 3  

 

           Both these points are taken up together for discussion for the sake of convenience and brevity.

           It is an admitted fact that the Complainant is the second wife of her husband Sunil Mandal . It is also an admitted fact that the Complainant took loan from the Opposite Party separately and the husband of the Complainant i.e. Sunil Mandal also took loan from the Opposite Party separately. Though the loan taken by the Complainant’s husband has not been disclosed by the Complainant in her plaint. The Complainant took loan of Rs.5,00,000/- on 12.10.2009 vide loan account no.5422300000029 and cleared the said loan on 23.03.2018. But the loan taken by the husband of the Complainant i.e. vide loan account no.5422250000025 on 13.12.2006 has not yet been cleared. In the mean time during the pendency of the case, the said Sunil Mandal died.

         At the time of taking loan by the Complainant, her husband Sunil Mandal was the guarantor of the said loan and at the time of taking loan by Sunil Mandal her both the wife i.e. first wife and the Complainant Mili Mandal were the guarantor of the said loan. Both the loan were taken by depositing/ mortgaging  two land deeds vide nos. 1030 dated 26.02.2003 and 784 dated 05.032003. Both the deeds were in the name of Sunil Mandal. 

       The loan taken by the Complainant has been fully paid but the loan taken by Sunil Mandal was turned NPA and not yet been paid. In the loan taken by Sunil Mandal, the Complainant was the Guarantor. As per section 128 of the Indian Contract Act – The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. Thus, we  opine that the Complainant is liable to pay the loan of her husband as she was the guarantor of the loan of her husband, Sunil Mandal. Further, as per section171 of Indian Contract Act, Banker has right of lien over the mortgage property deed of the Sunil Mandal. 

      Considering the above mentioned facts, we opine that the Complainant can not get back the mortgaged deed unless and until she liquidate the loan of her husband, Sunil Mandal.

 

              In view of the above mentioned discussions, it has been established that the Complainant is a bona fide consumer to the Opposite Party but there is no deficiency in service on the part of the Opposite Party.

       Accordingly, both these points are decided against of the Complainant. 

 

   Hence, it is

                                                        O R D E R E D 

 

            That the Consumer Case No. 90 of 2019 is hereby dismissed on contest but without cost.

              Let a plain copy of this order be supplied to the parties free of cost.