Complaint filed on: 01-02-2016                                                      Disposed on: 22-02-2017

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.19/2016

DATED THIS THE 22^nd DAY OF FEBRUARY 2017

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -           

Sri.T.H.Umesh,

S/o. Horakerappa,

Aged about 42 years,

R/at Thimmanahalli village,

Chicknayakanahalli taluk,

Tumakuru district

(By Advocate Sri.B.S.Nagaraja) 

V/s

Opposite party:-       

The Branch Manager,

State Bank of Mysore,

Thimmanahalli branch,

Chicknayakanahalli taluk,

Tumakuru district

(By Advocate Sri.C.K.Seetharamaiah)

ORDER

SMT.PRATHIBHA. R.K. PRESIDENT

This complaint is filed by the complainant against the OP, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to return the original documents deposited by him and to cancel the loan agreement and other documents executed by the complainant in favour of OP at the time of availing the housing loan and to pay a sum of Rs.2,500=00 towards cost of the legal notice and to pay a sum of Rs.25,000=00 towards the cost of litigation and damages, in the interest of justice and equity.

2. The brief facts of the complaint is as under.

          The complainant had availed housing loan from the OP bank in the year 2005 for a sum of Rs.2,00,000=00 under loan account no.54052708330. The complainant has paid the said loan amount along with interest, the total sum of Rs.77,867=00 is as follows:

          The complainant further submitted that, he had paid the above said amount including principal amount, interest and panel interest amount and there is no due from the complainant to the OP bank as per the direction given by the Debt Recovery Tribunal. The complainant paid a sum of Rs.2,00,000=00 to the OP bank on 13-6-2015, but same is not reflected in the statement of account issued by the OP’s bank. The OP bank has deliberately issued incomplete statement of accounts with an intention to claim extra amount from the complainant.

          The complainant further submitted that, he had cleared the entire loan amount including interest and panel interest and the complainant requested the OP bank to cancel the loan agreement executed by the complainant and to return the original documents deposited by the complainant. Inspite of several request made by the complainant, the OP has not returned the document and not cancel the loan agreement executed by the complainant in favour of the OP bank.

          The complainant further submitted that, since the OP bank has failed to return the deposited documents and not cancel the loan agreement executed by the complainant. The complainant got issued a legal notice on 27-11-2015 to the OP bank and the said notice has duly served on the OP, but the OP has failed to reply to the said notice. Hence, the OP bank has committed deficiency in service in not returning the original documents deposited and failed to cancel the loan agreement executed by the complainant. Hence, the present complaint is filed.

3. After service of notice, the OP has appeared through his counsel and filed objection contending interalia as under:

The averments made in the complaint are false and denied. There is no cause of action to file the present complaint and the alleged cause of action is imaginary one and designed for filing the frivolous complaint against the OP bank.

Without prejudice, the OP bank submitted that, the complainant has availed all purpose mortgage loan of Rs.2,00,000=00 during the year 2005 from the OP bank. The loan account number is 54052708330. The term to repay the loan amount is by monthly installments with interest there on at 13% p.a. in default of repayment, the interest will be compounded. The complainant has also agreed to pay the varied rate of interest as per the terms agreed in the registered mortgage deed executed by the complainant. The rate of interest varied to 15.25% p.a.

The OP further submitted that, he has issued legal notice to complainant and the barrower on 13-9-2015, calling them to repay the loan amount of Rs.5,93,208=00 with interest, the notice has been duly served to complainant and the guarantor, there is no reply by them.  The complainant has failed to repay the loan amount with interest. The OP bank has issued public auction, sale notice of the immovable property mortgaged to the bank by the complainant to recover the loan amount of Rs.5,97,801=00 as on 30-9-2014 + interest from 1-10-2014 and other expenses under the securitization and reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. The sale notice has been published in the New Indian Express news paper on 11-10-2014.

The OP further submitted that, the complainant has preferred the petition to the Hon’ble Presiding Officer of Debt Recover Tribunal in SA No.510/2014 challenging the sale notice and to grant interim order. The Hon’ble Tribunal has granted interim order subject to the condition that the complainant shall deposit Rs.1,00,000=00 within one month. The counsel appeared on behalf of the complainant during the course of argument at the time of disposal of petition has submitted that, the complainant is ready to pay the entire loan amount together with interest to the satisfaction of the OP bank within three months from 8-12-2014. The Hon’ble Tribunal considered the submission of the counsel and granted three month time to pay the entire loan amount together with interest to the satisfaction of the OP bank. If the complainant fails to comply the condition, the order granted by the tribunal stands automatically canceled, the petition has been disposed off on 8-12-2014. The OP has waited for three months the complainant did not remitted the loan amount to the OP bank as per the order dated 8-12-2014 passed by the Tribunal.

      The OP further submitted that, the OP has fixed fresh date for public auction of the immovable property and published the sale notice in Kannada and English New paper, the date of action has been fixed on 18-6-2015. The loan amount due to the bank is Rs.5,49,291=00 with interest upto 14-5-2015 + interest, costs charges thereon, till the realization of the bank dues. The complainant gain has preferred another petition to the Debts Recovery Tribunal, Bengaluru in SA No.250/15 to set aside the sale notice dates 14-5-2015 and to stop the public auction of the mortgaged property going to be held on 18-6-2015.

The OP further submitted that, the Hon’ble Presiding officer of Debt Recover Tribunal has granted conditional stay order on 3-6-2015 in SA No.250/15. As per the order of the Hon’ble Debt Recovery Tribunal dated 3-6-2015, the complainant has paid Rs.2,00,000=00 on 13-6-2015 to OP bank. The certificate has been issued to the complainant for accepting the amount of Rs.2,00,000=00 and confirmed the balance loan amount is of Rs.3,94,874/- as on 13-6-2015.

The OP further submitted that, the complainant has issued a notice through his advocate on 22-6-2015 by showing Rs.13,58,697=00 an dRs.1,81,170=00 has been remitted to loan amount. The notice has been suitably replied on 10-7-2015.  In the legal notice, it has been shown the complainant has remitted an amount of Rs.1,58,697/- and Rs.1,81,170/- to OP. In fact an amount of Rs.1,58,697/- dated 27-5-2011 has been shown in the statement of account is the accrued interest from the date of loan upto 27-5-2011 as credited for accounting purpose, but which is not actual credit by the complainant. Further an amount of Rs.1,81,170=00 dated 30-9-2011 has been shown in the statement of account, the interest has been calculated which reversed duet to account become NPA as per bank norms, which is shown in the debt and credit column for accounting purpose. The complainant has not remitted the amount of Rs.1,58,697/- on 27-5-2011 and Rs.1,81,170=00 on 30-9-2011 to the OP. In case if the complainant has remitted the amount to the OP, the complainant is put to strict proof of the same.

The OP further submitted that, in addition to the above transaction, the complainant has availed ATL loan of Rs.4,50,000=00 on 30-4-2009 and KCC loan of Rs.1,50,000=00 on 11-6-2009. The complainant did not repay the loan amount. The OP has instituted a suit against the complainant on the file of Civil Judge (Sr. Dvn.) at Chikkanayakanahalli in OS No.22/2013, The suit has been decreed on 10-4-2014.

The OP further submitted that, the complainant has also availed cash credit loan facility of Rs.50,000=00 on 28-12-2006. The complainant did not repay the loan amount. The OP has instituted a suit against the complainant on the file of Civil Judge (Jr. Dvn.) at Chikkanayakanahalli in OS No.240/2014, this suit has been decreed.  

The OP further submitted that, the complainant is a chronic defaulter; he is not ready to pay the loan amount to the OP bank as per the orders of the Hon’ble Debt Recovery Tribunal. The complainant without disclosing the true facts, taking advantage of the statement of account, without any document for having remitted the loan amount to the bank of Rs.1,58,697=00 and Rs.1,81,170=00 to the OP. The entries made in the statement of account of above said amount is shown in the debt and credit column only for accounting purpose. There is no deficiency of service to the borrower at any point of time by the OP. The complainant with an intention to avoid the repayment amount has knocked the doors of this forum. Hence the complaint is not maintainable before the forum. Hence, it is prayed to dismiss the complaint with costs.     

4. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced the documents.  The OP has produced documents, which were marked as Ex-R1 to Ex-R13. We have heard the arguments of both parties and perused the documents produced by both parties and posted the case for orders.   

5. Based on the above materials, the following points will arise for our consideration.

1.      Whether there was deficiency in service on the part of the OP as alleged by the complainant?

2.      What Order?      

6. Our findings on the above points are;

                    Point no.1: In the negative

                    Point no.2: As per the final order below.

REASONS

          7. On perusal of the pleadings of the complaint, affidavit evidence, objections of the OP and documents produced by both parties, it is an admitted fact that, the complainant had availed housing loan from the OP bank in the year 2005 for a sum of Rs.2,00,000=00 under loan account No.54052708330. Further it is also admitted fact that, the complainant had remitted Rs.18,000=00 on 29-3-2006, Rs.20,000=00 on 19-12-2006, Rs.1,00,000=00 on 11-11-2014 and Rs.2,00,000=00 on 23-6-2015.

          8. The main contention of the complainant is that, he had paid the entire housing loan amount along with interest and penal interest, but the OP has not returned the mortgaged documents and also not cancelled the loan agreement executed by the complainant. The complainant further submitted that, the OP bank has deliberately issued incomplete statement of account with an intention to claim extra amount from the complainant.

          9. Admittedly, the complainant is a chronic defaulter in paying the loan installment amount. Hence, the OP bank had issued a legal notice dated 13-9-2014 to the complainant for repayment of loan amount of Rs.5,93,208.85 along with interest from 12-5-2011 is also over due and calling upon him to repay the outstanding loan amount along with interest. But the complainant has failed to repay the loan amount. Thereafter, the OP bank has issued public auction, sale notice of immovable property mortgaged by the complainant to the OP bank and sale notice has been published in the New Indian Express New paper on 11-10-2014 as per Ex.R3.

          10. Subsequently, the complainant has approached the Hon’ble Debt Recover Tribunal in SA No.510/2014 challenging the sale notice. The Hon’ble Debt Recover Tribunal had passed an order as under:

“The Appellant shall pay the entire loan amount together with interest to the satisfaction of the OP bank within three months from today.      

If the Appellant fails to comply with the above condition, the order granted today by this Tribunal stands automatically cancelled and OP bank is at liberty to proceed against the Appellant and in respect to the schedule property as required under law.

With the above direction, present SA 510/2014 stands disposed”.

11. Thereafter, the complainant has not remitted the loan amount to the OP bank and the complainant has failed to obey/follow the order the Hon’ble Debt Recover Tribunal. Again the OP bank has issued fresh public auction of the immovable property of the complainant and the notice has been published in Kannada and English daily news paper dated 14-5-2015. The auction date has been fixed on 18-6-2015. The public auction sale notice dated 14-5-2015 stated as here under:

PUBLIC AUCTION SALE NOITCE

          Auction sale of the immovable property mortgaged to the bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002

Details of Sales

                   Date of Auction:         18-06-2015 at 02.00 PM

                   Place of Auction:        At SBM, Thimmenahalli Branch     

The complainant had approached the Hon’ble Debts Recovery Tribunal in SA No.250/2015 challenging the above sale notice dated 14-5-2015, to stop the public auction of the mortgaged property. The Hon’ble Debt Recovery Tribunal has passed conditional order dated 3-6-2015 in SA No.250/2015. The order portion of the Hon’ble Debt Recovery Tribunal is as under:

“Sale of the Schedule property scheduled to be held on 18-6-2015 pursuant to impugned sale notice dated 14-5-2015 stands deferred, subject to the condition that, the appellant shall deposit a sum of Rs.2,00 lack prior to sale and shall close the loan account by paying balance due amount within 4 months from today to the satisfaction of the OP bank as undertaken by him by way of affidavit.

If the appellant fails to comply with the above direction, the order granted by this Tribunal today stands automatically cancelled and OP bank is at liberty to proceed against the Appellant and in respect to the schedule property as required under law.

Notice to OP bank is dispensed with by considering small amount involved in this case. However, the appellant shall communicate this order within 5 days from the today.

With the above direction, the present SA 250/2015 is disposed off”.

          12. Admittedly, the complainant had paid the amount of Rs.2,00,000=00 on 13-6-2015 to the OP bank. On perusal of the order of the Hon’ble Debt Recovery Tribunal in SA No.250/2015, it is clearly mentioned that, the complainant shall deposit Rs.2,00,000=00 prior to sale and shall close the loan account by paying balance due amount within four months from 3-6-2015.

          13. On perusal of the record placed before the forum and also in the complaint copy, nowhere the complainant has mentioned about the aforesaid orders. The complainant has deposited Rs.2,00,000=00 only amount to the OP bank. Further the complainant has failed to follow/comply the direction issued by the Hon’ble Debt Recovery Tribunal.  Hence the order granted by the Hon’ble Debt Recovery Tribunal stands automatically canceled and the OP bank is at liberty to proceed against the complainant and in respect to scheduled property as required under law. According to the OP bank, they have issued certificate for accepting the amount of Rs.2,00,000=00 and confirmed the balance loan amount is Rs.3,94,874=00 as on 13-6-2015. The complainant either paid the remaining balance amount or approached the appellate authority for challenge the Hon’ble Debt Recovery Tribunal order dated 3-6-2015. The complainant has issued legal notice to the OP bank stating that, he has already remitted/deposited of Rs.1,58,697=00 on 27-5-2011 and Rs.1,81,170=00 on 30-9-2011. This contention of the complainant does not hold any water as the complainant has challenged the sale notice dated 14-5-2015 issued by the OP. After considering the contention of the complainant, the Hon’ble Debt Recovery Tribunal has passed the order dated 3-6-2015. 

14. Further the complainant has not produced any supportive documentary evidence to show that, he has cleared the entire loan amount as per the order of the Hon’ble Debt Recovery Tribunal. Hence, we do not find any deficiency in service on the part of the OP bank. The OP has acted as per the terms and conditions of loan agreement and also as per banking rules and regulations and also as per the order of the Hon’ble Debt Recovery Tribunal. The Order passed by the Hon’ble Debt Recovery Tribunal has reached finality by its order dated 3-6-2015. Hence, the complainant cannot re-open the issue by issuing another legal notice dated 27-11-2015 and re-open the case. The order passed by the Debt Recovery Tribunal has attended finality. The only course open to the complainant is to obey the order of the Debt Recovery Tribunal. Hence, there is no negligence or deficiency of service on the part of the OP.

15. The oral evidence of the complainant that, the OP is negligent and there is deficiency in service on the part of the OP is not corroborated by any believable documentary evidence and as such we are of the considered opinion that, the complainant has utterly failed to prove his case with clear and tangible evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not returning the mortgaged documents. Accordingly, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint is dismissed. No costs.   

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 22^nd day of February 2017).

LADY MEMBER                                  PRESIDENT