West Bengal

Dakshin Dinajpur

CC/10/34

Sri Sadhan Saha - Complainant(s)

Versus

The Branch Manager - Opp.Party(s)

Ld. Adv

19 Aug 2011

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 34/2010

Sri Sadhan Saha

S/o Lt. Surendra Nath Saha

Vill. & P.O.: Patiram, P.S. Balurghat,

Dist. Dakshin Dinajpur.……………………………Complainant

V-E-R-S-U-S

1. The Branch Manager.

United Bank Balurghat Branch.

P.O. & P.S. Balurghat, Dist. Dakshin Dinajpur.

2. The Field Officer,

United Bank Balurghat Branch.

P.O. & P.S. Balurghat,

Dist. Dakshin Dinajpur. …………………Opposite Parties

For complainant ……- In Person.

For OPs ……………- Sri Arindam Chatterjee, Ld. Adv.

Date of Filing : 07.07.2010

Date of Disposal : 19.08.2011

Judgment & Order dt. 19.08.2011

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Sadhan Saha on 07.07.2010 against the two officials of United Bank of India, Balurghat Branch alleging deficiency in service.

Shorn of details complainant’s case as made out in the said complaint is that in the year 2004 he took from United Bank of India, Balurghat Branch loan of an amount of Rs.50,000/- under PMRY scheme. At the time of obtaining of the loan facility the complainant caused to be deposited with the Bank two LIC policy deeds -one concerning Policy No.:4512758157 standing in the name of his nephew and the other concerning Policy No.:451298073 standing in the name of one Satyen Saha. Amounts were repaid to some extent by him. Thereafter having received a notice from the Bank the complainant paid Rs.28,200/- being the entire amount of the dues concerning the loan. He was thereafter issued from the Bank loan clearance certificate on 15.12.09.

On being approached by the complainant for obtaining back the policy deeds the Field Officer of the Bank sent the policy deeds to the office of the LICI. Having inquired in the office of the LICI the complainant came to be aware that the policy of his nephew got matured in the month of October and that from the end of the LICI a cheque for an amount of Rs.11,869/- had been sent to the Bank concerning the said policy. The complainant and his brother approached to the two OPs for obtaining back the said amount of Rs.11,869/- but were refused to be paid. Complainant’s approaches made before the Malda Regional Office also proved abortive. The said money is badly required for the treatment of the brother of the complainant.

In such premises, the complainant brought the complaint praying for obtaining back the said amount of Rs.11,869/- and further a sum of Rs.65,000/- by way of compensation and for other incidental expenses incurred by the complainant.

The proceeding has been contested on behalf of the OP Bank on whose behalf a written version was presented on 23.11.10 admitting that the complainant was granted the loan under PMRY scheme in the year 2004 but controverting the other material allegations of the complaint.

It has been the case of the OP Bank that the complainant got two LIC policies assigned to the Bank by way of additional security and that it was agreed that in the event of complainant’s failure in paying back the dues concerning the loan account the Bank would have the authority to adjust the maturity amounts of the policies against the outstanding loan. A few months of obtaining of the loan the complainant started avoiding repayment willfully. Several letters issued to the complainant from the OP Bank for making repayment went unheeded. Finding no other alternative the OP Bank recalled the loan. The loan A/c turned NPA and the Bank did not calculate interest since the date of the A/c’s turning NPA. In the demand notice issued from the Bank the Branch Manager only mentioned the amount which stood due just before the A/c’s turning NPA. The OP is to get interest @ 6% p.a. from the date of the A/c’s turning NPA. When the complainant was intimated to make payment of the outstanding dues, the Bank authority did not charge the above interest since the A/c’s turning NPA, as it revealed from the file that the maturity value of the LIC Policy amounting to Rs.11,869/- remained available to the Bank for adjusting the interest. Thereafter the amount obtained from the LIC Policy was got adjusted against the interest of the loan A/c and Loan Clearance Certificate was issued. There was thus no deficiency in service on the part of OP Bank.

Upon the pleadings of the sides following points come up for determination :-

POINTS

1. Is the proceeding maintainable ?

2. Was there deficiency in service on the part of OP Bank?

3. Is the complainant entitled to the reliefs sought for in the complaint?

Decision with reasons

Complainant’s averment made in his POC appear to have been verified by the complainant himself. The complainant did not examine any witness but brought on record a number of documents as documentary evidence. Such documentary evidence includes copy of demand notice issued from the OP Bank as Ext.4, that of a No Dues Certificate purported to have been issued from the OP Bank on 15.12.09 as Ext.3 and that of complainant’s written application made before the OP Bank as Ext.5.

The averment made in the written version of the OP Bank, on the other hand, appear to have been verified by the Chief Manager. The OP Bank also examined its Chief Manager as OPW-1 and brought on record a copy of ledger respecting the concerned Loan A/c as Ext.A, two other statements concerning the account as Ext.B & C. No other evidence was adduced in the case.

Let us now enter into the determination on the two points formulated above.

Point No.1:

Here the OP Bank in para-3 of its written version appears to have stated that the complaint is defective on ground of non-joinder and mis-joinder of parties. The party for absence of whom, the complaint has to be viewed to be untenable, does not appear to have been stated in such written version. However, in the complaint the complainant has prayed for obtaining back from the OP Bank the proceeds of an assigned LICI policy alleging that the proceeds were received by the OP Bank from the LICI at time after he had paid up the outstanding dues and the loan clearance certificate had been issued from the OP Bank.

The proceeds which has been sought to be paid back are the proceeds of LIC policy. The policy was assigned by way of security for the loan advanced. So the interest of the concerned surety remain involved in the OP Bank’s act of receiving the proceeds after the clearance of loan alleged in the complaint. In the absence of concerned surety’s figuring as the party to the complainant, it prima facie seems, the complaint was untenable.

But the situation is this that the proceeds of the policies has been alleged to have been taken by the OP Bank after the issue of clearance certificate respecting the loan account. So by the alleged act of the OP Bank in receiving the proceeds of the policy at a time after the issue of clearance certificate and in not paying back the proceeds have the effect of thwarting aside the loan clearance certificate issued by the OP Bank which, in fact, inured some right in his favour. In such premises, the complaint of the complainant cannot be said to be untenable altogether simply in view of omission on the part of complainant in empleading the concerned surety –holder of the policy as a party to the complaint.

We thus cannot proceed treating that the complaint is untenable simply in view of absence of non-joinder of the surety. From a consideration of the circumstances, we thus decide this Point No.1 holding that the proceeding is maintainable.

Point No.2:

The copy of demand notice Ext.4 purports and it is virtually not in dispute that under the said notice dt. 10.11.09 the OP Bank informed the complainant that they had recalled the loan facility and demanded payment of an amount of Rs. 28,200/- which stood as outstanding dues concerning the Loan A/c. It also goes undisputed that the said amount of Rs.28,200/- was actually deposited by the complainant in the OP Bank on 2.12.09 under the pay-in-slip as Ext.1. It also remains admitted that from the end of the OP Bank a No Dues Certificate (Ext.1) was issued on 15.12.09.

In the complainant’s application addressed to the OP Bank the complainant purports to have stated that the LICI authority had sent a cheque dt. 30.12.09 to the OP Bank by way of proceeds of an assigned policy and that as the dues concerning the loan had been repaid earlier, he be paid back the said amount which the OP Bank received from the LICI authority subsequent to the clearing of the outstanding dues.

In course of hearing it was urged by the complainant that as certain amount was obtained by the OP Bank from the LICI by way of proceeds of an assigned policy at a time after the dues concerning the Loan A/c had been paid and No Dues Certificate had been issued, the OP Bank was under obligation to pay back the said amount to the complainant but the OP Bank did not do so despite the complainant’s making an application therefor and so there was deficiency in service on the part of OP Bank.

In Para-14 of the written version the OPs appear to have taken the case that in the notice interest w.e.f. of the date of the account’s turning NPA was not claimed as its revealed from the file that the maturity amount of the LICI policy amounting to Rs.11,869/- remained available to the Bank. But we notice that in the demand notice dt. 10.11.09 brought on record as Ext.4 there appears nothing to indicate that the such interest was not claimed in view of the proceeds of the LICI policy remaining available to the Bank. In the loan clearance certificate issued from the Bank brought on record by the complainant as Ext.3, there is also no indication that such certificate was actually issued on 15.12.09 in view of policy proceeds becoming available to the Bank for getting the interest adjusted. Such being the materials on record, we are unable to accept the defence case made out in the written version that the interest over the outstanding dues for the period of the account’s remaining as NPA was not claimed in view of policy- proceeds becoming available to the Bank.

Contention advanced by the Ld. Counsel for OP Bank was that as the loan account of the complainant turned NPA in view of complainant’s failure in paying up the dues in time, computation of interest over the outstanding dues was not shown in the computer of the Bank and so in the notice claiming payment of outstanding dues interest for the period since the date of the account’s turning NPA was not shown as the dues. Drawing our attention to a circular dt. 9.6.2010 issued from the OP Bank on Policy of the OP Bank on Recovery of NPAs, it was urged that interest over the outstanding dues w.e.f. account’s turning NPA was payable from the complainant and so the Bank authority got the proceeds of the policy adjusted against the said interest and in the situation there was no deficiency in service on the part of OP Bank.

In support of his case complainant’s main reliance is upon the demand notice dt. 10.11.09 and upon the loan clearance certificate brought on record as Ext.4 & 3 respectively. But the Chief Manager of OP Bank during his examination as OPW-1 has testified that the said demand notice and the loan clearance certificate were issued erroneously and that before the issuance of the demand notice the concerned official of the OP Bank remained under obligation to undergo, besides viewing of the statement from computer, another operation for ascertaining the actual amount remaining due as outstanding dues. It has further been testified by him that the OP Bank is entitled to charge interest over the outstanding dues of Rs.28,200/- for the period during which the account remained as NPA.

The above evidence of the OPW-1 – the Chief Manager appears to have remained unchallenged. In fact, the complainant declined to cross examine the said OPW-1. The evidence of OPW-1 that the Bank was entitled to claim interest over the amount of Rs.28,200/- which stood as outstanding dues before the account’s turning NPA for the period of the account’s remaining NPA (i.e. from 14.7.2005 on which 0% interest was entered in the computer as noted in the copy of the Loan Ledger-Ext.A) appear to be inconsonance with OP Bank’s circular dt. 6.9.10 which is the virtually a revised policy on recovery of NPA.

We thus find reasons to accept the case of the OP Bank that the notice (Ext.4) is incorrect in so far as it did not take into account the interest respecting the period from 14.7.05 – the date of account’s turning NPA as outstanding dues and that the issuance of loan clearance certificate (Ext.3) was also erroneous act on the part of OP Bank.

An error committed by an employee of the Bank cannot ordinarily to be treated as deficiency in service on the part of the OP Bank.

But here we notice that the complainant under his letter (copy brought on record as Ext.5) appears to have claimed refund of the proceeds of the policy alleging that the proceeds were made over by LICI through a cheque dt. 30.12.09 at a time after the outstanding dues had been paid up and the loan clearance certificate had been issued on 15.12.09.

Impression of endorsement appearing on such Ext.5 goes to show that such application was received at the end of the OP Bank in time. But the OP Bank does not appear to have made the situation convincing to the complainant by divulging that the notice dt. 10.11.09 and the loan clearance certificate had been issued erroneously. Consideration of the circumstances, in particular, taking of the defence case that the Bank authority did not mention the interest as outstanding dues in view of availability of the proceeds of the policy, on the other hand, persuade us to view that from the end of the OP Bank the situation was not made clear to the complainant verbally too.

Such conduct on the part of OP Bank amounts to deficiency in service on the part of the OP Bank.

Point No. 2 is thus decided in the affirmative.

Point No.3:

We have in course of our discussion on Point No.2 observed that the OP Bank’s demand notice dt. 10.11.09 to the effect that Rs.28,200/- stood at outstanding dues was erroneous in so far as interest over the said amount for the period of the account’s remaining as NPA was not included in the outstanding dues and that issuance of loan clearance certificate dt. 15.12.09 were erroneous on the part of OP Bank. We have also observed therein that the OP Bank is also entitled to interest over the said amount of Rs.28,200/- respecting the period during which the account remained as NPA.

It was urged by the Ld. Counsel for the OP Bank, that the OP Bank seeks reliasation of the interest over the amount of Rs.28,200/- @ 6% p.a. which, according to the policy of the Bank, is the minimum rate of interest recoverable over NPA. It was also urged by him that the OP Bank is ready to pay back the proceeds of the policy if the complainant makes payment of the said interest for the period of account’s remaining as NPA i.e. since 14.7.2005.

From a consideration of the attendant circumstances, we think it proper to direct the complainant to make payment of the interest over the said amount of Rs.28,200/- w.e.f. 14.7.2005 @ 6% p.a. From Para-7 of the said circular dt. 9.6.10 of the OP Bank, we find that the minimum recoverable interest is 6% but such interest would be simple interest.

Here the concerned surety i.e. the holder of the policy has not been impleaded as the party to the complaint. It has not been claimed by the OP Bank that they got the policy holder informed as to their having received the proceeds of the LIC policy from LICI. From a consideration of the circumstances we deem it proper to direct the OP Bank to pay back the amount of Rs. 11,869/- which they received from the LICI by way of maturity value of the policy but not to the complainant, but to the concerned surety in whose name the policy stood.

The said amount of money has remained in custody of the OP Bank for over a year and a half. Had such receipt of the proceeds by the Bank been within the knowledge of the concerned surety, he could have invested the amount in fixed deposit with the Bank so as to render him to continue as surety and also to earn profit by way of interest.

As the concerned surety or the policy holder does not figure as party to the complaint, we do not deem it proper to direct the OP Bank to pay interest over the said amount at certain rate but we think the OP Bank would do well to pay back the amount along with interest thereon at reasonable rate.

In the circumstances, we think it proper to direct the OP Bank to pay to the complainant a sum of Rs.500/- as compensation in view of agony and harassment caused to him and further a sum of Rs.400/- as costs of this proceeding.

Point No.3 is thus disposed of.

In the result, the complaint virtually succeeds.

The date of completion of service of notice upon the OPs is not apparent from the case record. However, the OPs appeared in the proceeding on 18.8.10 which was initially fixed in the case for S/R and Appearance. Instant case is thus getting disposed of about a year after the appearance of the OPs in the case. Such delay appears to have been caused on ground of a number of adjourments sought for mainly for the side of the OP Bank either for presentation of written version or for hearing.

Under such circumstances, it is.

O R D E R E D

That the complaint u/s 12 CP Act brought by the complainant Sri Sadhan Saha on 07.07.2010 is virtually allowed issuing directions mentioned hereinafter.

The complainant shall make payment of simple interest on Rs.28,200/- for the period from 14.7.2005 till actual payment to the OP Bank @ 6% p.a. within a month from the service of copy of this order upon him.

Within 15 days from the complainant’s making payment of interest stated above, the OP Bank shall pay to the concerned surety an amount of Rs.11,869/- and reasonable interest thereon, if necessary, having served notice therefor.

The OP Bank shall also pay to the complainant a sum of Rs.500/- as compensation and a further sum of Rs.400/- as costs of this proceeding within 15 days from the complainant’s making payment of the above said interest respecting the period of the Loan A/c’s remaining NPA.

If, however, the complainant calls at the OP Bank along with the concerned surety within the said period of 15 days from the service of copy of this order upon the complainant and if such surety consents to the adjustment of dues payable to the Bank from the complainant on account of simple interest for the period of the Loan A/c’s remaining NPA against the dues payable to him from the OP Bank by way of making over of the proceeds of the policy and thus consents to the giving of a valid discharge to the OP Bank the OP Bank would get the matter settled accordingly.

Let plain copies of this order be furnished to the parties forthwith free of cost.

Dictated & corrected

(B. Niyogi)

President

We concur

(Swapna Saha)

Member

(S.K. Ghosh)

Member

-x-