BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 60/2012.
THIS THE 11th DAY OF JANUARY 2013.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. K.H. Sri Ramappa, B.A.LLB. MEMBER.
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COMPLAINANT :- 1. P. Narasimhalu S/o. P. Thippayya, Major, Occ: Business,
2. Smt. Jayashree W/o. P. Narasimhalu Major, occ: Household,
both are R/o. H.No. 8-5-255, Nawabgadda, Raichur.
//VERSUS//
OPPOSITE PARTY :- 1. The Branch Manager, Indian Bank, Gunj Road,
Branch Raichur.
2. The Public Information Officer and Deputy General
Manager (FI) Indian bank, Corporate Office, customer Service Cell 254 260, AVVAL Shanmugham Salai, Roypet, Chennai- 600 014.
CLAIM :- For to direct the opposite to make the payment of the
amount of Rs. 2,16,216/- which is illegally deducted from their account with interest and cost.
Date of institution :- 17-08-12.
Notice served :- 10-09-12.
Date of disposal :- 11-01-13.
Complainant represented by Sri. Mallangouda, Advocate.
Opposite Nos. 1 & 2 represented by Sri. Uday Keerti., Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainants Nos. 1 & 2 against opposites Indian Bank, under section 12 of Consumer Protection Act for to direct the opposite to make the payment of the amount of Rs. 2,16,216/- which is illegally deducted from their account with interest and cost.
2. The brief facts of the complainants case are that, they availed two housing loan facilities from the opposite bank, among them, one is to the extent of Rs. 7,00,000/- vide Loan A/c. No. 460239624 and another one of Rs. 8,00,000/- vide Loan A/c. No. 460239181 by mortgaging their house bearing Mpl.No. 7-6-54 situated at Raichur, they also availed OD Loan facility vide Loan A/c. No. 460205538 and S.B. A/c. No. 460168049. They became defaulter in payment of the housing loan. Hence, opposite bank initiated recovery proceeding by auctioning the said mortgaged property and adjusted the sale proceedings to their loan account. Opposite bank adopted unfair trade practice by illegal means and charged an amount of Rs. 2,16,216/- as Advocate fee. After enquiry with opposite bank, it has refused to refund the illegally deducted amount as legal charge. Hence, this complaint is filed against opposites and prayed to grant reliefs as noted in it.
3. Opposites Nos. 1 & 2 bank appeared in this case through its advocate, filed its written version by denying all the allegations made against it, it contended that, before auctioning the mortgaged property, complainant themselves approached civil court, appellate court, as well as High Court of Karnataka, there were so many litigations in between them before recovery of the loan amount, recovery proceedings took place as per the norms and provisions of SARFAESI Act. Opposite Bank not issued No Objection Certificate. Legal fee deducted in view of the litigations started by the complainants. This complaint is barred by limitation U/sec. 17 of of the SARFAESI Act. No cause of action to the complainant to file this complaint, and thereby, it prayed for to dismiss the complaint among other grounds.
4. In-view of the facts and circumstances stated above. Now the points that arise for our consideration and determination are that:
1. Whether the complainants prove that, opposite bank illegally deducted an amount of Rs. 2,16,216/- from the sale proceeds of the mortgaged property as legal proceedings charges and thereafter they requested to opposite to refund the said amount, but opposite bank shown its negligence in refunding the said amount and thereby it found guilty under deficiency in its service.?
2. Whether complainants are entitled for the relief’s as noted in their complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant No-1 was filed, who is noted as PW-1. Documents Ex.P-1 to Ex.P-4 are marked. On the other hand, affidavit-evidence of officer of opposite No-1 was filed, who is noted as RW-1. Opposite No-2 adopted the said affidavit-evidence of RW-1. Totally documents Ex.R-1 to Ex.R-22 are marked.
7. On going through the pleadings of the parties and their respective affidavit evidences. We noticed some of the following points are undisputed points:
1. It is undisputed fact that, complainants are customers of opposite bank having two housing loan account one OD loan facility account and having SB account as noted in Para-1 of the complaint.
2. It is further undisputed fact that, complainants have obtained housing loan facility to the extent of Rs. 7,00,000/- vide Loan A/c. No. 460239624 and another housing Loan A/c. for Rs. 8,00,000/- vide Loan A/c. No. 460239181.
3. It is further undisputed fact that, complainants have mortgaged their house Mpl.No. 7-6-54 situated at Vasavinagar Raichur as security to the loan borrowed by them.
4. It is further undisputed fact that, complainants became defaulter in repayment of the loan and thereby opposite bank sold out the mortgaged property by way of public auction and adjusted the sale proceedings to the loan account of opposite Nos. 1 & 2.
8. Keeping in view of these undisputed facts by the parties. Now the only one question that, arise before us is to see as to whether opposite bank is right enough in debiting an amount of Rs. 2,16,216/- from the sale proceedings in the accounts of complainants as a legal charges or as to whether complainants are right enough in saying that the said amount was illegally and arbitrarily deducted and thereby, opposite bank found guilty under deficiency in its service.
9. The learned advocate for complainant submitted his arguments in support of the claim and at the same time the learned advocate for opposite submitted his submissions in support of opposite bank.
10. Keeping in view of the circumstances stated above, one thing is very much clear that, there are number of civil litigations crept up in between the parties, namely Civil suit, writ petitions etc., The contention of the opposite bank is that, all those civil litigations crept up of only because the complainants have entered into all those litigations as such, complainants are liable to pay such legal charges and thereby, the opposite bank has rightly deducted that amount out of the sale proceedings of the mortgaged property.
11. The learned advocate for complainant submits that, there was no base for bank for to deduct such huge amount of Rs. 2,16,216/- towards legal charges, advocates certificates not filed, no one court have ordered for to pay cost of the litigation to opposite Nos. 1 & 2. No single paper is filed for having paid such huge amount either to court or to its advocates. The cost of the civil litigation is not required to pay by the complainants as there was no ordered by any one of the courts.
12. In pursuance of the submissions made by the advocate on both sides, we have gone through the bulky records filed by the bank in support of its contention. All the records are pertaining to litigations of civil suit, writ petitions etc., We have meticulously gone through all the documents filed by the opposite bank and we have not noticed from those records that the Hon’ble High Court of Karnataka or civil court awarded cost of the litigation to the opposite bank payable by these complainants. Under these circumstances we have not convinced by the arguments advanced by the learned advocate for opposite bank that bank has charged such huge amount towards legal charges. Apart from this fact the opposite bank has not filed single document to show that, it paid fee to the advocates as deducted by it out of the sale proceedings of the mortgaged property.
13. In the instant case, Ex.R-21 is a material document which shows that, recovery proceedings conducted before the Debt Recovery Tribunal at Bangalore bearing O.A. No. 395/2008 and an ordered Ex.R-14 bearing No. 41/2009 of the said Tribunal.
14. On careful perusal of the schedule of recovery we have clearly understandable that it awarded cost under three heads namely, application fee of Rs. 24,000/-, advocate fee of Rs. 24,000/- and miscellaneous fee of Rs. 500/- totally it awarded Rs. 48,500/-. So the opposite bank is entitled to recover that much amount of Rs. 48,500/- from the complainants account not more than that. In the present case opposite bank has recovered Rs. 2,16,216/- as a legal charges without any base reasons and without courts order. As such, recovery of such huge amount out of the account of the customer (complainants) without informing them and without any base is amounting to deficiency in its service towards its customers. Other contentions raised by the learned advocate for opposite regarding non maintainability of this complaint, by virtue of SARFASEI Act, and it is barred by limitation u/sec. 17 of SARFAASEI Act are not for consideration by us, in view of section 3 of C.P. Act, and section 24(A)(1) of C.P. Act.
15. As regards to other objections raised regarding cause of action to file this complaint is also not considered in view of the notices issued by complainant dt. 09-12-10 and 20-07-12. As such, the complainants have proved Point No-1, accordingly we answered Point No-1 in affirmative.
POINT NO.2:-
16. In the instant case, opposite bank has deducted an amount of Rs. 2,16,216/- out of the sale proceedings of the mortgaged property which is illegal, it entitled to recover only application fee, advocate fee, process fee and miscellaneous fee as noted in the schedule of the recovery certificate issued by the Recovery Debt Tribunal in OA No. 395/2008, as such the amount of Rs. 48,500/- as noted in the recovery certificate is to be deducted out of Rs. 2,16,216/- which comes to Rs. 1,67,716 for which the complainants are entitled to get by way of refund from the opposite bank.
17. A lumpsum amount of Rs. 3,000/- is awarded to complainants under the head of deficiency in service by the bank. Complainants are also entitled to get a lumpsum amount of Rs. 2,000/- towards cost of litigation. Accordingly, the complainants are entitled to get total amount of Rs. 1,72,716/- from opposites Nos. 1 & 2 jointly and severally. The complainants are also entitled to get interest at the rate of 9% p.a. on Rs. 1,72,716/- from the date of judgement till realization of the full amount. Accordingly we answered Point No. 1 & 2.
POINT NO.3:-
18. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainants Nos. 1 & 2 is partly allowed with cost.
The complainants are entitled to get total amount of Rs. 1,72,716/- from the opposites jointly and severally.
The complainants are entitled to recover interest at the rate of 9% p.a. on Rs. 1,72,716/- from the date of this judgment till realization of the full amount.
Opposite bank is hereby granted one month time to make the above payment to the complainant from the date of this judgment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 11-01-13)
Sri. K.H. Sri Ramappa Sri. Pampapathi,
Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur.
*RK*
