Ld. Advocate(s)
For Complainant: Kanai Lal Biswas
For OP/OPs : Anindya Mukhopadhyay
Date of filing of the case :03.07.2018
Date of Disposal of the case :20.07.2023
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Final Order / Judgment dtd.20.07.2023
Complainant above named filed this complaint u/s 12 of the Consumer Protection Act, 1986 against the aforesaid opposite party praying for order directing the OP to issue no due certificate in the name of complainant in respect of loan account being no.0217210013545, return back of all deposited documents, compensation amounting to Rs.50,000/-, cost of the case, amounting to Rs.15,000/- and other reliefs.
He alleged that he is a borrower of loan vide CC loan account being no. ODTPRD account no.0217210013545. He got sanction of limit of Rs.10,00,000/- against the said CC account. His father is the guarantor of the said loan. On 04.07.2015, he got a notice u/s 13(2) of Sarfaesi Act, 2002. From the OP bank in respect of amount of Rs.9,22,871/-. Thereafter, on several occasions complainant’s father as guarantor paid the entire loan amount said loan was lastly paid on 19.08.2015. Complainant requested the OP to issue no dues certificate but they did not issue the same on 28.08.2015. Complainant sent a letter to the OP requesting him to issue no dues certificate. But they did not provide the same. On 07.05.2018 complainant‘s father sent a letter to the OP and requested him issue no dues certificate in favour of the complainant. On 07.05.2018 one statement was handed over to the complainant showing balance of Rs.14/- which is absolutely illegal concoctate and of no basis. Thereafter, complainant one before the OP then OP disclosed that another case is pending before the DRT Kolkata in respect of CC loan.
Hence, the complainant filed this case.
OP contesting this case by filing a W/V. He denied the entire allegations. He further stated that complainant is the property of M/S. Durgaji Telecom Services. To develop his business he took to loan one OD facility of Rs.10,00,000/- vide account no.0217210013545 and another his CC facility of Rs.16,00,000/- vide account no.0217250017569 from OP/Bank. OD loan their sanctioned on 14.03.2011 and CC loan was sanctioned on 15.11.2011. Customer ID of both the CC loan account is 40392468 favour of the complainant is the guarantor of the said of loan. Bank account shown loan of the mortgaged property for both the loan on 30.06.2015 both the loan became NPA. Getting no other alternative bank issue a notice u/s 13(2) of Sarfaesi Act. Doubt repeated follow up by the bank official. The borrower settled the OD loan on 19.08.2015 but the CC loan is yet to be settled and as NPA as on date on 28.08.2015 the bank has filed a case being OA No.431/15 before the DRT on the Kolkata for said CC loan and it is still pending as on date. As the litigation is pending before the DRT2 Kolkata , release of the mortgaged property will be harmful to the interest of the bank. He prayed for dismissal of the case.
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Trial
During trial complainant filed affidavit in chief. OP filed interrogatories and complainant gave answer.
Documents
Complainant produced the following documents viz :
- Notice u/s 13(2) of Sarfaesi Act dated 04.07.2015..........(Three sheets)..........(Original)
- Envelop..........(One NO.)
- Deposited slip in respect of Rs.10,000/- on 06.07.2015, Rs.68100/- on 26.11.2014 and Rs.21020/- dated 31.05.2015...........(Three sheets).......(Original)
- Deposit slip Rs.30,000/- on 01.08.2015, Rs.1,00,000/- on 05.07.2015 and Rs.27,245/- on 19.08.2015, Rs.4685/- on 19.08.2015, Rs.35,000/- on 20.07.2015 and Rs.3,50,000/- on 16.07.2015..........(Five sheets)...........(Original)
- Letter issued by bank on 06.07.2015.............(One sheet)..........(Original)
- Statement of loan account ..........(Two sheets).............(Original)
Brief Notes of Argument
Complainant filed BNA. OP is not taking any steps since 17.10.2022. He did not file BNA.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP, affidavit in chief filed by the complainant, document filed by the complainant and BNA filed by the complainant. We have carefully considered those documents.
On perusal of affidavit in chief of the complainant, we find that he corroborated the allegation which he stated in the petition of complaint. As per the statement of affidavit in chief complainant’s father paid the entire dues of the loan account but OP kept balance amounting to Rs.14/-.
During hearing Ld. Advocate for the complainant argued before this Commission that OP noted Rs.14/- as due with the intention to keep the
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loan account alive. He further argued that OP did not return the documents of complainant’s father till date in spite of his repeated request.
On perusal of the loan statement of the aforesaid loan account, we find that on 30.05.2015outstanding balance of the loan account was Rs.10,00,518/-. On 20.06.2015 deposit has made amounting to Rs.8,91,052/- and outstanding balance was Rs.9,11,366/-. We find that thereafter, deposit has made in the said loan account amounting to Rs.10,000/- on 06.07.2015, Rs.3,50,000/- on 16.07.2015, Rs.3,50,000/- on 20.07.2015, Rs.1,15,000/- on 22.07.2015, Rs.21,020/- on 01.08.2015 and Rs.30,000/- on 01.08.2015 on that date outstanding dues was Rs.46,851/-, we find that on 19.08.2015 complainant paid Rs.46,851/-. Thereafter, outstanding balance was calculated and complainant paid Rs.7,245/- on 19.08.2015. But in spite of aforesaid payment said loan account shows outstanding dues as Rs.14/-.
From the aforesaid discussion, it is clear before us that entire loan amount has almost paid from the side of the complainant. Even complainant is ready to pay the remaining Rs.14/- at any time.
We failed to understand as to why the OP is not giving the original documents in favour of the guarantor where guarantor paid the entire loan amount on behalf of loanee. When there was an outstanding due then OP sent notice directed the guarantor to repay the loan amount. But when guarantor himself paid the entire loan amount then why the OP is not giving the original documents in favour of the complainant or guarantor.
During hearing Ld. Advocate in the OP was not present. We did not get any chance to hear the reason as to why the OP is not giving the original documents.
In this context, we have carefully gone though the decision of the Bombay High Court Nagpur Bench vide writ petition no. 32/2022 in Mr. Sunil Vs Union Bank of India dtd. 13.06.2022.
We find that petitioner took loan of Rs.21,00,000/- which was repayable in Rs.300/- monthly instalment. Petitioner is a Director and Personal-Guarantor in the Company under the name and style as ‘Sunil Hitech Limited’. The company was in debt went in the liquidation. Liquidator was appointed as per order of National Company Tribunal. Thereafter he approached before the Respondent Bank for seeking permission to sell flat which was purchased by him after obtaining the aforesaid loan. Title deeds of the said flat was handed over to the Bank as security. Despite repeated requests no response received from the Bank regarding return of deeds in favour of the purchaser of flat. Thereafter petitioner issued a legal
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notice to the respondent /Bank with a request to issue no objection certificate to sale the flat but instead of giving no objection certificate respondent /Bank issued one notice under SARFAESI Act, 2002. By the said notice loan account of the petitioner was declared as NPA and petitioner was called upon to pay loan amount. The respondent Bank vide reply dtd. 24.03.2021 gave no objection to the petitioner to sell out the flat. The respondent/ Bank further intimated the petitioner that he shall adjust the sale amount towards home loan and remaining amount is to be adjusted towards loan account of the Company. Accordingly, the petitioner closed the loan account i.e Home Loan. Thereafter, the petitioner requested the respondent Bank to remit the property papers to the purchaser Shri Ishwar Narsing Phunde but respondent Bank has not paid to heed. Thereafter, the petitioner filed the present writ petition. In response to the notice, respondent Bank has filed its reply. As per the respondent bank the petitioner has alternate efficacious remedy before the DRT, New Delhi so petitioner is not entitled to documents.
Hon’ble High Court of Bombay (Nagpur Branch) allowed the aforesaid writ petition partly and directed the respondent bank to release the documents of title and other documents and further directed to the Bank to consider the request of petitioner regarding the issue of no dues certificate .
In the said case Hon’ble High Court Bombay ( Nagpur Banch) Bank gave liberty to recover the said loan amount and also gave liberty to take the legal recourse but merely because another loan account is there, wherein the petitioner and other Directors are borrowers, bank has no right to retain the said documents by exercising the right of lien.
Ld. Adv. for the complainant cited another decision of Madras High Court ( Madurai Bench) dtd 09.08.2017 . We find that Hon’ble Court held:-
33. In the present case the bank is not willing to release the title deeds which were deposited in relation to the petitioner’s demand loan, even if the petitioner discharge the entire loan and wipe out the mortgage debt. It is true that the amount is not settled by the petitioner to get back the documents as on today. However, the petitioner’s conduct in approaching this Court even before discharge of loan cannot be faulted, in view of the genuine grievance expressed by the petitioner in the wake of specific stand taken by the respondent bank that they will not return the documents and instead claimed that the stay are entitled to proceed against the security while initiating recovery proceedings against the principal
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borrower in respect of a different transaction in which the petitioner stood as guarantor.
34. This Writ Petition was moved along with W.P ( MD) no. 12612 of 2016 in respect of other properties of the Writ Petitioner which are also the subject matter of a mortgage by deposit of title deeds in connection with a loan obtained by petitioner’s brother . After entertaining the Writ Petition , the petitioner therein settled the entire dues pursuant to orders of this Court. There was no serious objection for entertaining the Writ Petition and on receipt of entire money, the Bank has filed a statement that they will not proceed further with the notice issued under Section 13(2) of Securitisation Act. The pendency of O.A. No. 244 of 2016 filed by the Bank for recovery of money against M/s. CMS Educational Trust, before the Debt Recovery Tribunal, Madurai is also stated to be a fact as part of cause of action to file the Writ Petition before this Bench. In O.A No. 244 of 2016, the petitioner is also a party. Hence this Court relies upon Para 42 (4) of the judgment reported in 2008(7) MLJ 1012 in the case of E. Mary Oliviya v. E. Jsohua Milton and Para 24 in the judgment of Full Bench in W.P. 5709 of 2011 dated 04.07.2012, in the case of B. Stalin’s case to hold that the Writ Petition is maintainable and taking note of the fact that substantial amount has been deposited pursuant to the orders passed by this Court in the connected Writ Petition, this court is not inclined to dismiss the Writ Petition for want of territorial jurisdiction.
35. It is to be noted that the bank has filed O.A. no. 244 of 2016 before the Debts Recovery Tribunal, Madurai as against M/s. CMS Educational Trust. Petitioner is also impleaded as a party as a guarantor. Even in the said proceedings the respondent bank has not included the properties which are subject matter of the Writ Petition.
36. The bank never claimed any right of lien in respect of the properties of the petitioner which are given as security for the demand loan obtained by the petitioner. The petitioner is a party and has been impleaded only in her capacity as guarantor and not as a mortgagor of the properties.
We find that Hon’ble Madras High Court (Madurai Bench).
Allowed the said petition and directed the respondent bank to return the documents in respect of the properties belonging to the petitioner which were
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given as security by way of deposit of title deeds in respect of the loan transaction covered by sanction letter dtd. 04.04.2013 upon payment of entire amount due.
In the present case complainant’s father as guarantor paid the entire amount of loan in favour of the OP but OP did not return the pledged gold in favour of the complainant.
Having regard to the aforesaid discussion, it is clear before us that complainant is the consumer and OP is the service provider.
In view of the aforesaid discussion and principle of law enunciated in the aforesaid decisions, it is clear before us that complainant has established his grievance by sufficient documents beyond reasonable doubt and accordingly he is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against the OP with cost of Rs.5,000/-(Rupees five thousand) to be paid by OP in favour of the complainant.
OP is directed to take the Rs.14/- (Rupees fourteen) along with interest for aforesaid Rs.14/-(Rupees fourteen) for the period from 19.08.2015 to till date and thereafter he shall return all the original documents filed by the complainant’s father relating to the loan account vide CC loan account being number ODTPRD A/C. 0217210013545 within 45 days from this date failing which complainant shall have liberty to put this order into execution.
OP is further directed to pay Rs.20,000/- (Rupees twenty thousand) as compensation in favour of the complainant for his harassment, mental pain and agony within 45 days from this date failing which aforesaid
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amount shall carry interest at the rate of 9% per annum from this date to file the actual date of payment and complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
