Date of Filing: 13.01.2017 Date of Final Order: 11.08.2017
Sri Asish Kumar Senapati, President.
This is an application u/s 12 of CP Act, 1986. The facts of the case are as follows :
One Ajit Kumar Roy (hereinafter referred as Complainant) took a loan of Rs.1 lakh from the State Bank of India, Main Branch, Cooch Behar (hereinafter referred as OP) on certain terms and conditions repayable by equal monthly installments from the Account No. of the Complainant vide No.11324089276. That, all on a sudden on 07.09.16, the OP unjustifiably prevented the Complainant to withdraw his pension from the said Account. Ultimately, the Complainant served a legal notice upon the OP on 23.10.16 as the attachment or set hold of the pension Account is not permissible in law. The OP activated the said pension Account on the very next date of receipt of the legal notice issued on 23.09.16. Subsequently, the OP again did not allow the Complainant to withdraw his pension from his Account without assigning any reason to the Complainant. The Complainant is an Ex-Army personnel and he has been drawing pension from the Central Govt. Vide PPO No.48568/91. The OP deducted bulk amount from the Account of the Complainant without intimating him and the difference amount of Rs.12,207/- is not explained in the statement of account of the Complainant. On query, the staff members ill-behaved with the Complainant causing financial loss and mental harassment to the Complainant. Finding no other alternative, the Complainant filed the present case before this Forum praying for passing an order so that the Complainant can withdraw his pension amount and other amount easily from his Account, compensation for a sum of Rs.15,000/- due to negligence of service and duties of the OP, compensation of Rs.10,000/- for harassment and negligence and Rs.10,000/- as litigation cost.
The OP put his appearance on 23.02.17 through his Agent and filed the w/v on 07.03.17 stating that the Complainant has no cause of action and the case is not maintainable in its present form and the Complaint is liable to be dismissed for defect of parties. The case of the OP is as follows:
That, one Smt. Mithu Roy, daughter of the Complainant took a loan of Rs.1,24,000/- from the OP/Bank on 15.12.2006 on certain terms and conditions and the Complainant was the Guarantor of the said loan. As the borrower did not repay the loan amount, the OP filed a suit before the Ld. Civil Judge, Senior Division, Cooch Behar being Title Suit No.45 of 2010 praying for realization of the loan amount and other reliefs. The Ld. Civil Judge, Senior Division, Cooch Behar vide his order dated 12.05.2011 decreed the Suit against the Complainant and his daughter Smt. Mithu Roy and directed them to pay the decreetal amount within six months. Neither the Complainant nor his daughter Smt. Mithu Roy complied the order of the Hon’ble Court. Finding no other alternative, the OP started adjustment for realization of the decreetal amount from the Pension Account of the Complainant. The OP has prayed for adjustment of balance decreetal amount from the Pension Account of the Complainant till liquidation of the loan. The OP filed evidence on affidavit on 14.06.17 supporting the statement of his w/v.
The Complainant has filed argument on affidavit on 28.07.17. The contents of the said document are in the form of evidence on affidavit.
On perusal of the contention of both parties, the following points necessarily come up for consideration:
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Is the case barred by limitation?
- Has the O.P any deficiency in service as alleged by the Complainant?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISIONS WITH REASONS
We have gone through the record very carefully along with Evidence on Affidavit filed by the parties also perused the entire materials on record and heard the argument as advanced by the Complainant and the Ld, Agent for the O.Ps, perused also the W/Ar. Filed by the Ld. Agent for the O.Ps.
Point No.1.
Admittedly, the Complainant has an Account with the OP vide Account No.11324089276. The OP is duty bound to render service to the Complainant. The Complainant avails service from the OP for consideration. Therefore, it is needless to say that the Complainant is a consumer as per Section 2(1)(d)(ii) of the CP Act, 1986.
Point No.2.
The Ld. Agent for the Complainant submits that this Forum has territorial jurisdiction to entertain the instant complaint as the cause of action arose within the territorial jurisdiction of this Forum. The Ld. Agent for the OP has not challenged the point of jurisdiction of this Forum.
Hence, it is held that this Forum has jurisdiction to entertain the instant complaint.
Point No.3.
The Ld. Agent for the Complainant submits that the cause of action arose from the date of notice to the OP dated 23.10.2016 and the present case is within the period of limitation as per Section 24 A of the CP Act, 1986.
The Ld. Agent for the OP has not raised any objection against this point. The Complainant has asserted that the cause of action arose from the date of Lawyer’s notice upon the OP dated 23.10.2016.
Therefore, it can be safely held that the case is well within the period of limitation.
Point No.4 & 5.
Both the points are taken up together for the sake of brevity, convenience and to avoid repetition.
The Ld. Agent for the Complainant submits that the loan amount of the daughter of the Complainant cannot be adjusted from the Pension Account of the Complainant. It is urged that the Complainant is not aware of the so-called money suit against him. It is contended that the OP has deficiency in service for deduction of any amount from the Pension Account without giving him any reasonable explanation for such deduction. He submits that freezing of Pension Account and deduction of any amount from the said Account is unlawful causing mental agony and harassment to the Complainant. It is argued that the Complainant has submitted Statement of Loan Account of his daughter (Annexure-1), Statement of Deduction of the Loan from the Account of the Complainant (Annexure-2), Loan Deduction vide ECS of the Complainant’s daughter (Annexure-3) and Calculation Sheet (Annexure-4). It is urged that the version of the OP is not correct and the OP is liable to pay compensation for deficiency in service, compensation for harassment and mental agony and litigation cost to the Complainant.
The Ld. Agent for the OP submits that the present case is nothing but an attempt to frustrate the order of the Competent Court. It is submitted that the Complainant never took any loan from the OP but his daughter Smt. Mithu Roy took a loan of Rs.1,24,000/- from the OP on 15.12.2006 and the OP was compelled to file a money suit against Smt. Mithu Roy and the Complainant vide T.S No.45 of 2010 before Ld. Civil Judge, Senior Division, Cooch Behar for recovery of the loan amount. It is submitted that the Complainant was the guarantor and his daughter Smt. Mithu Roy was the borrower of that loan. He contends that the Ld. Civil Judge, Senior Division, Cooch Behar vide his order dated 12.05.2011 decreed the suit ex-parte with direction upon the Complainant and Smt. Mithu Roy to make payment of the decreetal amount within six months, but neither the Complainant nor his daughter Smt. Mithu Roy paid any heed to the said order of the Ld. Court. The O.P.requested the Complainant and his daughter Mithu Roy to clear the decreetal dues but in vain. Ultimately, the OP started realization of the decreetal amount from the Account of the Complainant as the Complainant has a Bank Account with the OP. It is urged that the Complainant tried to frustrate the order of the Competent Court by suppressing the material facts for which he is not entitled to get any relief.
Perused the complaint, w/v, evidence on affidavit and written argument and considered the submission of both parties. It is the version of the Complainant in Para-2 of the complaint that he took a loan of Rs.1 lakh from the OP, but in para 2 and 3 of his evidence, it is stated that he took a loan of Rs.2 lakh and his daughter took a loan of Rs.1,24,000/- on 15.12.2006 and the Complainant instructed the Bank to deduct the EMI of his daughter @ Rs.2,000/- per month from his Pension Account. There is no document on record to substantiate that the Complainant instructed the OP to deduct Rs.2,000/- from his Account as repayment of loan of his daughter and the Bank agreed to execute his instruction.
The OP has submitted a number of documents including Xerox copy of Guarantee Agreement (Annexure-1) duly executed by the Complainant, Xerox copy of ex-parte order and decree of the Ld. Civil Judge, Senior Division, Cooch Behar dated 12.05.2011 and 25.08.2011 passed in T.S. No.45 of 2010 (Annexure-2) and the Calculation Sheet of the Loan Account of Smt. Mithu Roy (Annexure-3). It appears from Annexue-3 – Calculation Sheet of the Account of Smt. Mithu Roy that an amount of Rs.1,82,211.50 is still outstanding for repayment.
On a careful consideration, it is crystal clear that the Complainant suppressed the material facts of taking loan by his daughter on 15.12.2006 and the Complainant executed the Agreement as a Guarantor of the said loan. The Complainant also suppressed the fact that Ld. Civil Judge, Senior Division, Cooch Behar decreed the T.S. No.45 of 2010 on 12.05.2011 against him and his daughter Smt. Mithu Roy directing them to make payment of decreetal amount within six months. The Complainant is silent as to what step he has taken to make payment of the decreetal amount. The District Consumer Forum cannot be an instrument to frustrate any decree or order passed by a Competent Court of Law. In the present case, the Complainant has tried to avoid the process of realization of the decreetal amount as ordered by Ld. Civil Judge, Senior Division, Cooch Behar in T.S. No.45 of 2010. The Complainant and the OP are duty bound to abide by the Law of the Land. This Forum cannot interfere with the process of realization of the decreetal amount. On a careful consideration over the materials on record, this Forum finds nothing to hold that the OP has deficiency in service.
Hence, the Complainant is not entitled to get any relief in this case. As the Complainant is a pensioner, this Forum is not inclined to impose cost upon him.
In the result, the Complainant’s Case No.CC/5/2017 fails.
Hence,
It is Ordered,
That the Complainant’s case being No. CC/5/2017 be and the same is hereby dismissed on contest without cost.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action.
Dictated and corrected by me.
