The case of the complainant, in brief, is that the complainant and his wife, Kalpana Kundu obtain one bank loan(mortgage) from the OP No.1 at a tune of Rs. 10,00,000/- on 15.01.2003 with a time schedule of repayment of the same within 10 years but complainant due to bad condition in business became unable to make the payment of said bank loan. It is contended in the petition of complaint that the bank authority sold the dues amount to be recovered by another authority that is OP No.2 Asset Construction Co.(India Ltd.) (Arcil) Arms and after such sale of the above dues loan amount by the bank to the Arcil, the persons of that Arcil came at the house of complainant on 31.03.2011 for recovery of the dues amount and entered into the house of the complainant, complainant resisted them and assured them that he would make payment and would meet the branch manager of OP No.1 and thus complainant met the branch manager of the bank
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regarding dues amount and took some time for payment of the loan amount. It is further stated in the petition of complaint that after that time during the period on and from 14.11.2011 to 02.09.2013 complainant made payment of Rs. 1,06,000/- to OP No.1 as against the incident of 31.03.2011 as dues showing the loan account No. 504555858 of the complainant. In the mean time complainant received one letter dtd. 31.07.2013 from the Arcil Calcutta(Kolkata) with a direction to make payment of Rs. 5,82,588.21/- as dues amount against the house building loan sanctioned. Complainant became astonished as to how Indian bank, OP No.1 could sell the Arms Arcil the said dues of the house building loan(hereinafter to be mentioned as HBL). Complainant asked OP No.1 verbally and OP No.1 replied that the bank can sell to Arms Arcil at any time but fact remains that said bank had sold the dues loan amount to the Arcil on 31.03.2013. After receipt of such letter dtd. 31.03.2013 complainant had decided to settle the full and final dues as offered by the Arcil Arms to the tune of Rs. 3,50,000/- including the principal amount of Rs. 2,95,000/- and Arcil Arms by a letter dtd. 28.03.2014 agreed on ultimately that the complainant had paid the tune of Rs. 2,00,000/- as well as Rs.1,50,000/- on 20.04.2014 to the Arcil Arms. Then complainant sent one letter by registered post with A/D to OP No.1 which was duly received by OP No.1, Branch Manager Indian Bank and OP No.1 gave reply of the same to the complainant but complainant became dissatisfied as OP No.1 in that reply did not mention about/for return of the amount deposited by complainant with the Indian Bank at the tune of Rs. 1,05,000/- which was excess amount and was not adjusted with the sale settlement as full and final payment of the HBL. Complainant thereafter on 04.07.2015 sent one letter to OP No.2 which was returned to the complainant by the postal department with endorsement that OP No.2, “addressee left the place which was of dated 08.07.2015”. OP No.1 Indian Bank sent one advocate’s letter dtd. 08.10.2015 to the complainant and bank authority prior to that also sent one letter dtd. 04.07.2015 but the reply was not satisfactory as per complainant and thereafter finding no other alternative complainant filed this instant case against the OPs along with a prayer for return of excess amount (Rs. 1,05,000/-) deposited by the complainant with the bank by installments as against loan amount along with interest @ 10% per annum thereon and for compensation of Rs. 1,00,000/- and litigation cost of Rs. 25,000/- totaling Rs. 2,30,000/-. It appears from the order of this Forum dtd. 14.03.2017 that the instant case has been running ex-parte against the OP No.1. OP No.2 is contesting this case and filed written version. It is the contention of the written version of OP No.2 that said OP is a registered non-banking financial company as per scrutinization and reconstruction of financial assets and enforcement of security interest Act, 2002 and denied all the
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allegations as contained in the complaint. It is further stated in the written version that the complainant’s basic grievance that he paid some amount in extra and if that amount is so paid before the transfer of loan account from OP No.1 to OP No.2 then OP No. 2 has nothing to do in the said matter and ultimately OP No.2 has prayed for dismissal of this case as no deficiency in service or unfair trade practice has been committed against the complainant.
It is found from the record that the complainant has filed affidavit-in-chief in support his case and alikely OP No.2 filed evidence in writing along with an affidavit. Both the OP no.2 and the complainant filed written notes of argument here in this case. It is pertinent to note here that the documents which were filed by the complainant initially in photo copies most of those documents subsequently filed by the complainant in originals. Ld advocates of both the parties advanced their oral arguments in support of the case respectively.
Under the facts and circumstance the following issues are framed for determination of this case:-
- Is the complainant a consumer as per definition of the term as embodied in the C.P. Act. 1986?
- Has there been any deficiency in service against the complainant from the part of the OPs?
- Has there been any unfair trade practice by the OPs upon the complainant?
- Is the complainant entitled to get the relief as prayed for?
DECISION WITH REASONS.
ISSUE NOS. 1, 2, 3 & 4.
All the four issues are taken up together for convenience of discussion and for consideration.
The main grievance of the complainant is that as against Loan Account No. 504555858 of himself with OP No.1 amounting Rs. 10,00,000/- which was obtained on 15.01.2003 with repayment condition within 10-years became transferred and assigned and ultimately released in favour of OP no.2 and during course of repayment of loan amount which was House Building Loan complainant paid an excess amount of Rs. 1,05,000/- which was not adjusted with the whole repayment amount ultimately and it is the allegation of the complainant that here arises deficiency in service and unfair trade practice against the OPs of this case. During scrutiny of all the materials on case record it appears that the complainant is a consumer as per definition of Section 2(1)(d) of the C.P. Act 1986 and there is no doubt in it. Now, for consideration of the issues of deficiency in service as well as unfair trade practice as to whether those have been committed upon the
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complainant or not, we have gone through the documents as filed by the complainant. It is found from the record that OP No.1 as well as OP No.2 at times sent some letters and notices to the complainant for repayment of loan amount but complainant did never give importance or attention to those notices of the OPs. It is admitted by the complainant in the petition of complaint in Paragraph No.3 that he paid some installments to respondent No.1 but due to down status of his business he was unable to make payment of the bank loan and subsequently from other documents of the complainant as furnished here in this case it appears that complainant failed to repay the loan amount within 10-years of stipulated time in its entirety due to the cause that for last few years his income was not generating properly and in support of that we have noticed one document which is the letter dtd. 31.10.2013 of complainant addressed to OP No.1, Indian Bank, H.C. Road, Siliguri in respect of said Home Loan Account No. 504555858. It is to be borne in mind that admittedly loan was obtained by the complainant and his wife from OP No.1/Indian Bank, H.C. Road at the tune of Rs. 10,00,000/- on 15.01.2003 which was required to be repaid within 10 years from that date but this letter as mentioned above has shown outstanding Rs. 3,00,000/- even after completion of 10-years period of repayment. The question of natural justice is required to keep in our mind and it would be pertinent to note here that one of the maxims of equity says “he who seeks equity must do equity” or “he who comes to equity must come with clean hands”. Thus here in this case while complainant is seeking equitable relief then it appears that as per terms of the loan entered with the OP No.1, Indian Bank on the point of repayment of the same within 10-years the complainant himself violated the same. OP No.1, Indian Bank is the original lender in respect of loan amount obtained by the complainant and it is the present case of the complainant that he paid an excess amount of Rs. 1,05,000/- to the OP No.1 as against loan account during repayment transactions. About this excess payment of Rs. 1,05,000/- as claimed by the complainant the OP No.2 (to whom the loan matter of the complainant has been transferred by OP No.1) has been denying the same and in this context we have gone through the Statement of Account as produced as Statement from 01.01.2010 to 31.10.2013 prepared by Indian Bank, OP No.1 but no such amount of Rs. 1,05,000/- as deposited by complainant is seen. For consideration of the claim of the complainant as regards excess payment of Rs. 1,05,000/- we have also gone through the letter of Indian Bank, OP No.1 addressed to the complainant dtd. 18.05.2015 and from that letter the mention of letter of Arcil dtd. 31.07.2013 as addressed to the complainant is found wherefrom it is clear that OP No.1 Bank has requested the complainant for production of necessary documents to OP No.2 by which it would be shown that after 31.03.2011 complainant prior to transfer of
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said loan account to the Arcil, OP No.2 had paid that amount of Rs. 1,05,000/- to the original lender OP No.1, Indian Bank. In this respect during consideration of the case, we have not found any cogent document from the side of the complainant regarding payment of that sum of Rs. 1,05,000/- to the OP No.1 and thus it is considered that such claim of excess payment is baseless as raised by the complainant and at the same time on this backdrop it is held that the present case of the complainant over the excess payment fails. Accordingly, the question of deficiency in service against the OPs or that of unfair trade practice upon the complainant by the OPs does not arise. Thus under the facts and circumstances of the case we are of the considered view that the complainant is not entitled to get any relief as prayed for. All the issues are thus disposed of. Devoid of merit, the case of the complainant fails.
Proper fees paid.
Hence, it is,
O R D E R E D,
that the instant Consumer Case being No. 19-S-2016 be and the same is dismissed on contest against OP No.2 and ex-parte against OP No.1 and accordingly disposed of. No order as to cost.
Let a copy of this final order/judgment be given to the parties free of cost at once.
