DATE OF DISPOSAL: 24.04.2024.

PER:   SRI SATISH KUMAR PANIGRAHI, PRESIDENT

            The fact of the case in brief is that the complainant has filed this Consumer complaint Under Section 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the Opposite Parties  (in short O.Ps.) for redressal of his grievance before this Commission.

            2. The complainant is a widow and out of bad luck she lost her only son Santanu Satapathy on 17.11.2020. The son of the complainant was the only earning member of the family and after his death the complainant is compelled to reside with her daughter named Amibika Kumar Padhy in village: Pattapur. The deceased son of the complainant during his lifetime had availed a loan from the O.P. vide loan  Account No. 80499910000314 for the purpose of his furniture and plywood business and the complainant stand as a guarantor for the late Santonu Satapathy. The said loanee Santonu Satapathy has died on 17.11.2020 to the knowledge of the O.P. As per the procedure, at the time of availing loan it is duty of the O.P. to make insurance of the loanee at the time of availing loan. After death of the loanee, the complainant time and again asked the O.P. to submit the insurance policy details of late Santonu Satapathy, so that the amount can be claimed from the Insurance Company and the same amount can to be adjusted against the loan amount. Instead of disclosing the insurance policy details of the loanee and instead of claim the assured amount from the insurance company, the O.P. has managed to receive the amount from the mother of the deceased as the mother of the deceased got the said amount i.e. an amount of Rs.6,50,000/- by selling the stocks  found inside the business premise at the time of death of deceased loanee. The O.P. has assured before the mother of the deceased, who is an illiterate lady, that the received amount of Rs.6,50,000/- is full and final settlement amount of the loan account of the deceased under OTS scheme. But it is utter surprise to the complainant that the O.P. has issued a letter to the complainant vide letter No. 93/8049/MIS/2021 dated 9.4.2021 calling upon the complainant to repay the outstanding loan amount, failing which suitable action musts be imitated against the complainant taking the advantage of the property mortgaged with the Bank, which is a residential house of the complainant. After death of her brother Santonu Satapathy his widow mother is residing in the said house and as per the assurance given by the O.P. the complainant is not liable to make further payment against the loan amount as a guarantor, rather the complainant and her mother are legally entitled to get refund the said amount and the said amount is to be adjusted/claimed from the insurance company as the O.P. is legally bound to make insurance of every loanee from time to time during continuation of the loan agreement. If at all the O.P. failed to make insurance of the loanee, then it amounts to deficiency in service and unfair trade practice on the part of the O.P. After receipt of the letter from the O.P. the complainant issued a legal notice to the O.P. through his advocate on 31.07.2021 by Regd. Post calling upon the O.P. to furnish the insurance details of the deceased loanee and to return the title deeds of the property of the complainant within 7 days from the date of receipt of this notice, otherwise the complainant has no other alternative to take shelter before the appropriate court of law for redressal of her grievances. Inspite of receipt of the said legal notice by the O.P. on 3.8.2021, the O.P. has not turned off to provide insurance details of the deceased loanee and also not returned the title deeds of the complainant, which are mortgaged before the O.P. Due to this act and conduct of the O.P. it presumes that as per the provision and practice no insurance policy of the loanee is taken by the O.P. which amount to deficiency in service made by the O.P. while rendering service to the complainant. The O.P. is not releasing the title deeds of the complainant by making a demand that entire other loan amount, if any of the deceased Santonu Satapathy is not fully paid by this complainant, though the complainant is not stood as a guarantor for availing other loan by the deceased except against this loan agreement. The O.P. have committed the deficiency in service while rendering service to the complainant, which is nothing but amounts to unfair trade practice, for which the complainant is living under mental agony and starvation. Due to such monopoly and unfair trade practice the O.P. is liable to pay compensation to the complainant along with the other claims made by the complainant through his complaint petition. Alleging deficiency in service on the part of the O.P. the complainant prayed to direct the O.P. to refund the amount of Rs.6,50,000/- taken by the O.P. unlawfully from the complainant along with interest at a rate of 14% per month, compensation of Rs.10,00,000/- and litigation costs of Rs.10,000/- in the best interest of justice.

            3. Notice was issued to the O.P. but he neither chooses to appear nor filed any written version. Hence the O.P. set exparte on dated 13.12.2022.

            4. On the date of exparte hearing the advocate for the complainant is present. We heard argument from the advocate of complainant. We perused the complaint petition and documents available in the case record. On analyzing the documents and sole testimony of the complainant, the O.P. has received entire loan amount of Rs.6,50,000/- from the mother of the deceased borrower on 02.02.2021 in shape of bank deposits. After receipt of entire outstanding, the O.P. cannot claim again the same amount from the mortgager. While matter stood thus, the recall of total outstanding dues of Late Santonu Satapathy issued by the OP bearing No.:93/8049/MIS/2021, Date:09.04.2021 to the complainant is unwarranted after receipt of full consideration amount from the mother of the borrower. And further non release of mortgaged documents by the O.P. when the complainant demanded through the Advocate Notice dated:31.07.2021 which was acknowledged by the opposite party on  03.08.2021 but did not consider the said notice and remained silent over the issues years together. The RBI mandates Credit Institutions/CICs to compensate complainant with Rs.100/- per day if complaints remain unresolved beyond 30 days through a circular vide No.:RBI/2023-24/72 DoR.FIN.REC..48/20.16.003/2023-24, Dated:26.10.2023. Hence, the Complainant shall be entitled to a compensation of Rs 100 per calendar day in the present case as the opposite party did not resolved after receipt of the Advocate Notice Dated:31.07.2021 till date. for loss sustained since 02.02.2021. This Commission by relying upon a citation passed by Honorable National Commission, New Delhi in Magma Fincorp limited versus Arshad Hussain 2011 (1) CPR 223 such as:-“Finance Company cannot refuse to issue NOC even after clearance of loan amount”. Further, the Commission also relied upon the law settled by the Hon’ble National Commission in HDFC Bank Ltd. v. Praveen Solanki in RP No.:737 of 2011. In the instant case, the opposite party remained silence over the issues of the complaint. The legal principle is that "silence may sometimes amount to admission" of fact. In Union of India v. Prakash P. Hinduja (2003):- This case dealt with customs duty evasion, and the Supreme Court observed that when a person, upon questioning, fails to provide any explanation or response, it can be inferred that they do not have any valid explanation, and their silence can be used against them. Further it establishes a presumption that when evidence is deliberately suppressed by a party, the court may presume that such evidence, if produced, would be unfavorable to that party.

5. On foregoing discussion it is crystal clear that the O.P is  negligent in rendering proper service to the complainant. Hence, in our considered view there is deficiency in service on the part of the O.P.

           6. So far as the compensation and cost of the case is concerned, we are convinced that the O.P failed to take any effective steps to short out the problem of the complainant, as per above mentioned mandate of the RBI Dated:26.10.2023, for which the complainant has suffered physically and mentally. As such the complainant is entitled to get compensation and cost of litigation since he has hired the services of an advocate for filing his complaint in this Commission and has incurred expenses attending the case.

In the result we direct the opposite party to release the entire mortgaged documents to the complainant and to issue the loan clearance certificate i.e., No Due Certificate / N.O.C to the complainant. Further the O.P. is directed to pay compensation of Rs.100/- per day since 03.09.2021 till actual date of payment is made together with litigation cost of Rs.10,000/- to the complainant. The OP is also directed to disclose the insurance policy details of the Loanee of MSME Loan Account No.: 80499910000314 and handover the said assured amount to the complainant and refund the excess amounts to the complainant received from the original loanee Late Santonu Satapathy of the above mentioned account. The above points of order are required to be complied by the opposite party within 45 days from the date of receipt of this order. And the complainant is being guarantor of MSME loan account bearing No.:80499910000314, needs not required to pay any amount to the opposite party.

In the event of non-compliance of the above order by the opposite party within the stipulated time period of 45 days from the date of receipt of the order, the complainant is at liberty to recover the entire amount from the O.Ps with interest @ 12% per annum from the date of filing of the case i.e. on 27.10.2021 till actual realization of the same is made under the Consumer Protection Act, 2019.

This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission.

The file is to be consigned to the record room along with a copy of this Judgment.

__________________________________

Pronounced on 24.04.2024