Date of Filing : 21.08.2019
Date of Disposal: 12.10.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR, B.A,B.L., .....MEMBER-I
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.34/2019
THIS WEDNESDAY, THE 12th DAY OF OCTOBER 2022
Mr.P.Victor Chandran,
S/o.Mr.Samuel Paulraj,
No.239, Imayam Colony,
Anna Nagar, Chennai 600 101. .........Complainant.
//Vs//
1.The Branch Manager,
ICICI Bank, Anna Nagar Branch,
School Road, Near SBOA School,
Mugapair, Chennai 600 101.
2.The Regional Manager/Zonal Manager,
ICICI Bank,
Plot No.24, Arihant Insight Building,
South Phase, Ambattur Industrial Estate,
Chennai 600 058. ...Opposite parties.
Counsel for the complainant : Mr.C.Justeen, Advocate.
Counsel for the opposite parties : Mr.E.Anandan., Advocate.
This complaint is coming before us on various dates and finally on 29.09.2022 in the presence of Mr.C.Justeen Advocate, counsel for the complainant and Mr.E.Anandan Advocate, counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service by freezing the complainant’s account and illegally deducting Rs.16,868/- on the ground that an earlier loan taken in 2005 has not been repaid along with a prayer to direct the opposite parties to De Freeze the Saving Account No.039501004198 and de-mark the lien and to repay a sum of Rs.16,878/- to the complainant and to pay a sum of Rs.4,50,000/- as compensation for the mental agony caused to the complainant along with cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
It was the case of the complainant that he was a savings account holder in the 1st opposite party bank (Account No.039501004198) that the 2nd opposite party is the Regional Manager of the said Bank. The complainant went to ATM to withdraw cash from his account, though he had around Rs.16,000/- in his account, he got a receipt as “Insufficient fund” and hence the transaction got declined. On very next day i.e. 13.05.2019, when he approached the 1st opposite party bank to enquire what had happened to his account he came to know that his account has been illegally freezed by the 1st and 2nd opposite parties without intimating him and a lien has been marked in it. Hence he was shocked at that moment and he enquired the 1st opposite party on what ground his account has been freezed and lien had been marked, the 1st opposite party replied that the complainant’s account has been freezed for the non payment of 3 EMIs (Rs.10,919/-)for the loan that he had taken in the year 2005 and ended in the year 2008. It was submitted that the complainant paid all the instalments and presently he has no records relating to the said loan as the loan was closed before 10 years and till date none of the bank official or court persons had approached him regarding the said loan. Later in the end of the month he had received a letter dated 09.05.2019 from the opposite parties that his account had been freezed and a lien has been marked. Hence he was unable to withdraw money for his basic necessities and medical expenses and faced severe difficulty. Explaining the facts he had sent a notice on 18.05.2019 though the 1st and 2nd opposite parties had received the notice had not given any reply and ignored the said notice. The opposite parties have sent a letter dated 21.05.2019 received by the complainant on 01.06.2019 that the complainant had agreed to pay Rs.11,304/- and the opposite parties had denied to grant him any relief. It is submitted that he had never made such statements orally or in writing and put the opposite parties in strict proof of the same. In such instances, on 01.07.2019 the opposite parties have debited a sum of Rs.16,878/- to adjust the alleged pending loan amount. Thus aggrieved by the act of the opposite parties the present complaint was filed for the following reliefs as mentioned below;
To direct the opposite parties to De Freeze the Saving Account No.039501004198 and to de-mark the lien and to repay a sum of Rs.16,878/- to the complainant;
To pay a sum of Rs.4,50,000/- as compensation for the mental agony caused to the complainant along with cost of the proceedings to the complainant.
Crux of the defence put forth by the opposite parties:-
The opposite parties filed version disputing the complaint allegations contending inter alia that the complainant had availed a loan of Rs.1,00,000/- via Loan No.LPCHE00003734447 on 22.04.2005 with a tenure of 36 months agreeing to pay EMI amount Rs.3,768/-. Though the complainant had cleared 33 EMIs had defaulted 3 EMIs amounting to Rs.11,304/- including the bouncing charges of Rs.1,575/- and overdue charges of Rs.31,446/-. Thus the complainant had an outstanding amount of Rs.44,235/- as on May 2019. While applying for the said credit card facility by him, he inter alia agreed to abide by the terms and conditions governing the usage of the said credit card facility and assured to make payments regularly to the Bank. The opposite party informed to the complainant that despite sufficient time and opportunity he had failed and neglected to clear his outstanding dues under the above said card. Therefore, the Bank has duly exercised its rights and powers. The relevant extract from the terms and conditions is set forth hereunder for reference “in addition to the general right to set off or other right conferred by law or under any other agreement, ICICI Bank, with notice, combine or consolidate the standing balance on the card account with any other account(s) which the card member maintains with ICICI bank and its group companies, and set off or transfer money standing to the credit of such other account(s) in or towards the satisfaction of the card member’s liability to ICICI Bank under his/her card account”. Further savings account was lien marked on May 09.05.2019 against his delinquent PL account No.LPCHE00003734447. Bank has a Banker’s lien on his account as statutorily granted and available to any banker and the same right of lien has been exercised by Bank while marking lien on the complainant’s ICICI bank saving/current account to the extent of outstanding amount due on the credit card. The opposite parties sent a letter dated 21.05.2019 calling upon the complainant to pay the total outstanding amount. Initially customer was disputing that he has not taken any loans with ICICI, later on loan application copy was shown to him in the system and details pertaining to the loan was provided to him. Thereafter customer agreed with the same and put forwarded a request to settle the loan for Rs.11,304/- as he was unaware of the pending EMI amount as also he had not received any communication regarding the same. As per complainant’s request Bank initiated settlement request for Rs.11,304/- on 17.05.2019. However, during the WAT team call, complainant turned down the offer stating that he is not willing to settle the loan as he had cleared all his dues but does not have the proof for the same. Complainant walked in to the branch requesting to remove the lien from his savings account, which was declined form Bank’s end stating to clear the pending amount or close the loan or else opt for a settlement which complainant was not willing. Therefore bank exercised the right of Bankers lien whereby opposite party Bank has put lien/charge over complainant’s ICICI Bank saving Account No.039501004198 towards the unpaid loan. The opposite parties submitted that the complainant is not entitled any compensation as the claim made by him was not maintainable and the same liable to be dismissed.
The complainant filed proof affidavit and documents Ex.A1 to Ex.A4 were marked on their side. On the side of opposite parties proof affidavit was filed and documents Ex.B1to Ex.B5 were filed by them.
Point for consideration:-
Whether the opposite parties had committed deficiency in service by freezing the complainant’s Saving Banking Account No.039501004198 and illegally deducting Rs.16,868/- on the ground that an earlier loan taken in 2005 has not been repaid in entirely?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
ATM Receipt and letter from the opposite parties was marked as Ex.A1;
Letter sent by the complainant to the opposite parties dated 18.05.2019 was marked as Ex.A2;
Letter from the opposite parties dated 21.05.2019 was marked as Ex.A3;
Letter from the opposite parties dated 29.06.2019 was marked as Ex.A4;
On the side of opposite parties the following documents were filed in support of their defence;
Loan agreement dated 22.04.2005 was marked as Ex.B1;
Lien marked intimation letter dated 09.05.2019 was marked as Ex.B2;
Debit intimation letter dated 29.06.2019 was marked as Ex.B3;
Request denied by the opposite parties dated 21.05.2019 was marked as Ex.B4;
Statement of Account of loan LPCHE00003734447 was marked as Ex.B5;
Arguments of both parties heard and perused the written arguments and materials evidence produced by both the parties. It was the case of the complainant that he was having Saving Bank Account with the 1st opposite party and inspite of having sufficient balance in his account when he tried to withdraw money through ATM, no money was disbursed for the reason of insufficient funds. Thereafter the complainant found that his account has got freezed. It was argued that before freezing his account he was not given any intimation, further no notice was sent to the complainant with regard to the pending loan amount and also no loan agreement related to loan dated 22.04.2005 was produced by the opposite party and also it was stated that the opposite parties had illegally debited Rs.16,868/- from the complainant’s bank account on 01.07.2019 without getting any permission from the complainant. Being a senior citizen with health issue the complainant alleges that he was unable to withdraw money even for the basic necessities and medical expenses which causes severe difficulty. Thus he submitted that freezing of account by the opposite parties was illegal and prayed for the complaint to be allowed.
On the other hand, the opposite parties submitted the loan agreement dated 22.01.2005 and also the lien marked intimation letter dated May 2019 and stated that the complainant has availed loan for Rs.1,00,000/- vide loan No.LPCHE0003734447 sanctioned as on 22.04.2015 with repayment tenure of 36 months. The EMI was fixed at Rs.3768/- and the complainant had paid 33 months instalments and defaulted 3 EMIs amounting to Rs.11,304/- and the total repayment amount comes to the outstanding of Rs.44,235/- as on May 2019. It was argued that inspite of information and sufficient time provided the complainant failed and negligent to clear his outstanding dues under the said personal loan. Thus only after the issuance of letter dated 09.05.2019 intimating the complainant to pay a sum of Rs.44,235/- within 10 days thereafter the bank had right of exercised their lien over the complainant bank account No.039501004198 for which intimation was also provided marked as Ex.B2. It was further argued that the complainant agreed to settle the loan for Rs.11,304/- as he was unaware of the pending EMI amount for which the bank agreed. However when WAT team called, the complainant turned down the offer stating that he was not willing to settle the loan amount. Thus the opposite parties argued that there is no deficiency in service on their part and sought for dismissal of the complaint.
On perusal of the material records it is seen that vide Ex.A3 a letter was sent by the complainant intimating that his account was freezed illegally and when enquired with the opposite parties he was shocked to know that three EMIs of the loan taken in the year 2005 remains unpaid which ended in the year 2008. It is his case that he had paid all the installments and as the loan was closed before 10 years he was not having any records and also he was not approached by bank officials or any court persons until filing the present complaint. Further it was also alleged that he was a senior citizen having health issues and only for the purpose of convenience he had the Bank Account near his house and thus freezing the Account without informing him caused him irreparable loss and mental agony.
Now an issue arises as to whether the opposite parties are justified in marking lien over the complainant’s bank account for a time barred loan. It is an admitted fact that the loan was obtained in 2005 and ended in 2008. Though it is the contention of the opposite parties that three instalments were not repaid by the complainant it is not established by way of any document produced by the opposite parties to the effect that they have issued any notice or letter to the complainant with regard to the non payment of EMIs. On the other hand it is the case of the complainant that he had completely repaid all the 36 instalments and as the loan has ended in 2008 a long time before, he was not in possession of any papers. Further even as per the Statement of Account of loan No.039501004198 submitted by the opposite parties it is seen that as on 17.06.2022 under the instalment paid column it was given as 36/135.648.00. It was also found that no installments is pending. Further we are of the view that for a loan obtained in 2005 which ended in 2008 the opposite parties keeping quiet until 2018 and exercising lien over complainant’s Account in 2019 is a clear abuse as the loan itself has become a time barred.
In the decision rendered by Karnataka High Court in the matter of State Bank Of India, Super Market ... vs Ravindra decided on 28 May, 1999 it has been held suit filed for recovery of loan amount after a long time was not maintainable and the plaint itself was rejected. In the said case loan was borrowed on 24-2-1992 and as per the Ledger extract the defendant has not paid even a single instalment as on the date of the suit and as such the suit is not filed within a period of three years. As such the suit has been barred by limitation on the ground that it has not been filed within three years from the date of cause of action.
Further the Court held that the cause of action for filing the suit did accrue in favour of the plaintiff immediately when the first instalment became due and was not paid by the defendant viz., date the first default did take place in the case and that the plaintiff (revision petitioner) could not be permitted to file the suit after waiting up to the expiry of 50 months and as such it found that the suit is barred by limitation and dismissed the suit and rejected the plaint.
The said judgment squarely applies to the present case and we hold that a loan obtained by a consumer if remains unpaid for several years as in the present case and no recovery measures taken for more than 10 years is no longer a legally enforceable or collectable because it becomes as ‘time-barred debt’ also known as debt that is beyond the statute of limitation.
We find support from the above judgment in holding that the opposite parties were not justified in freezing the account of the complainant and the same amounted to clear deficiency in service. Thus we answer the point accordingly in favour of the complainant and as against the opposite parties.
Point No.2:
With respect to the relief to be granted to the complainant for the inconvenience, mental agony and hardship caused to the complainant being a senior citizen unable to utilise his bank account due to the lien marked over it by the opposite parties, we feel Rs.25,000/- would be the appropriate compensation to be paid to the complainant. Further the illegal deduction of Rs.16,868/- made from the complainant’s account also has to be re-credited to him. We also award a cost of Rs.5,000/- litigation expenses to the complainant.
In the result, the complaint is partly allowed directing the opposite parties 1 & 2;
a) to De Freeze the Savings Accounts No.039501004198 and to de-mark the lien and to repay a sum of Rs.16,868/- (Rupees sixteen thousand eight hundred and sixty eighty only) to the complainant within four weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the mental agony caused to the complainant;
c) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;
d) Amount in clause (a) if not paid within four weeks from the date of receipt of copy of this order, interest at the rate of 6% will be levied on the said amount from date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 12th day of October 2022.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 12.05.2019
& 09.05.2019 ATM Receipt & Letter from the opposite parties. Xerox
Ex.A2 18.05.2019 Letter sent by the complainant to the oppostie parties. Xerox
Ex.A3 21.05.2019 Letter from the oppostie parties. Xerox
Ex.A4 29.06.2019 Letter from the opposite parties. Xerox
List of documents filed by the opposite parties:-
Ex.B1 22.04.2005 Loan Agreement. Xerox
Ex.B2 09.05.2019 Lien marked intimation letter. Xerox
Ex.B3 29.06.2019 Debit intimation letter. Xerox
Ex.B4 21.05.2019 Request denied by the opposite parties. Xerox
Ex.B5 17.06.2022 Statement of Account of Loan No.LPCHE00003734447. Xerox
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
