The brief facts of the case is that Complainant has been carrying on the trade business in the sphere of Hosiery Goods under the name and style of “R.S. Joyguru Traders” and her place of business is situated at 215, Ghoshal Para, Nabagram, P.S. -Serampore, Dist.- Hooghly. Opposite Party is the corresponding bank. That on 27.01.2000 the complainant for the purpose of her proprietorship business opened a current account being account no. 456 with the OP Bank Branch for transaction of her business. Complainant due to the development and smooth running of her business approached the OP Bank for granting a cash credit accommodation for an overall limit of Rs. 50,000/- and OP Bank pleased to sanction on 08.03.2000 when her said current account was converted to OCC account No. 456. During the period of sanctioning cash credit loan of Rs. 50,000/- the OP Bank did not issue any sanction letter to the complainant despite several requests made by her to that effect. But as per instruction and direction of the OP Bank this complainant was to open a fixed deposit account amounting to Rs. 25,000/- only as also one recurring deposit account in which she was to deposit a sum of Rs. 500/- per month. The OP Bank created lien on the said fixed deposit account and recurring deposit account of the complainant as security for granting and disbursing the cash credit loan of Rs. 50,000/-. Thereafter, the complainant further approached the OP Bank for enhancement of her cash credit overall limit at Rs. 1,25,000/- from Rs. 50,000/-. The OP Bank considering the viability of the business and growth pleased to enhance the OCC limit at Rs. 1,25,000/- on 13.01.2001. Again she has to open another fixed deposit account of Rs. 25,000/- for enhancing overall limit and another monthly recurring deposit of Rs. 5,000/-. Both of which were kept as security in favour of the OP Bank by way of lien. The complainant availed of the said cash credit loan facility to the fullest extent and developed her business. Then the complainant again approached the OP to enhance the limit to the tune of Rs. 5,00,000/-. But this OP sanctioned or enhanced the limit upto Rs. 3,50,000/- vide sanction dated 03.11.2004. The OP Branch Manager insisted this complainant to make payment of the run down balance in the said cash credit loan with the threatening that he would not allow this complainant to operate her said account upto the limit of Rs. 3,50,000/- only as per earlier sanction. So this complainant compelled to act according to the swift will and whims of the Branch manager with great hardship otherwise, she might have to close her business which is the only source of her family income. That on 06.11.2004 when the complainant had been to the OP Bank for withdrawal of a sum of Rs. 15,000/- only from her said OCC account being no. 456 lying which the OP Bank by self-drawn cheque. Then the Manager of the OP Bank informed her that the self-drawn cheque would not be honored. But the Branch Manager did not assign any reason therefore. So, finding no way this complainant on 08.11.2004 wrote a letter addressing the Opposite Party to ascertain the reason for which dishonor of willful withholding of enhancement of the said self-drawn cheque amounting to Rs. 15,000/-. The complainant again requested the OP Bank to convert her from OCC account into OD account for carrying on her business. But the OP neither gave any reply nor took any action. At the pressure of the OP this complainant compelled to procure a sum of Rs. 14,175/- only for liquidating the said loan being OCC account No. 456 and upon repayment of the said amount the said cash credit loan was closed by the OP No. 1 on 12.11.2004. This petitioner again requested the OP to disburse the sanctioned cash credit loan facility by reducing the limit at Rs. 3,00,000/-only. Then the OP opened a new OCC account being no. 586 having overall limit of Rs. 3,00,000/-. That on 10.01.2006 the complainant wanted to know the reasons for the existence of her earlier OCC account No. 456 which was closed a long before. Then the OP on 06.03.2006 through a letter informed this complainant that OCC account no. will be 456 and the outstanding balance in her OCC account no. 586 was closed and transferred to account no. 456. It appears from the certified copies of statement of accounts of her aforesaid OCC account nos. 456 & 586 it is crystal clear that there is a different amount of Rs. 12340.60 due to the whimsical and arbitrary transfer of the loan amount from OCC account no. 586 to OCC account no. 456. This complainant further averred that the OP charged excessive interest beyond the contractual rate of interest as also beyond the directive of the RBI illegally and arbitrarily of which this complainant came to know only on 12.01.2007 when the OP sent a computerized statement of account to this complainant and after knowing the same she wrote a letter to the OP on 17.02.2007 by registered post with AD to ascertain the reasons. Due to negligent service of the Bank she suffered a huge monetary loss of Rs. 4,90,000/- only along with interest. So, she filed the instant complaint before this Forum for getting a direction upon the OP to pay a sum of Rs. 4,90,000/- only along with interest and any other reliefs as this Forum deems fit and proper.
OP No. 1 filed written version denying the allegations as leveled against him and averred that circle office of the Indian Bank had sanctioned an amount of Rs. 350000/- only as per sanction ticket dated 15.09.2004 and the same was duly accepted by the complainant and her husband was the guarantor. This complainant being borrower could not fulfill the terms of sanctions of the OP. So this OP modified the sanctions and issued fresh sanction ticket with loan limit of Rs.3,00,000/- only in order to continue the business on good faith. The borrower complainant and the guarantor accepted the sanctioned terms and conditions of the revised sanctioned loan amount of Rs. 3,00,000/- only and executed necessary documents. According to the terms and conditions of the loan this borrower has to submit stock statement as and when the loan amount was granted and availed. But the complainant failed to maintain and to submit the stock statements ever since the disbursement of the loan amount in spite of repeated requests of the OP. Due to non submission of stock statement and non compliance of terms and conditions, the OP has no other alternative except to review/renew the limit and to proceed for recovery action. Opposite party is charging contractual rate of interest as per terms and conditions. Having failed to fulfill the terms of sanction including submission of required stock statement and other financial papers in reference to letter dated 23.12.2006 and 28.02.2007 the complainant has leveled such frivolous allegation in order to avoid repayment of the OP Bank. Moreover, the borrower according to her application dated 29.11.2006 has overdrawn a sum of Rs. 25,000/- only due to labour payment and other allied payments. But the said amount has not yet been deposited till the date of filing of complaint. So this answering OP prayed to dismiss the instant complaint with exemplary cost and to direct the complainant to fulfill terms of sanctioning loan and to submit stock statement and financial papers and to repay overdue of Rs. 40,045.10.
OP No. 2 being added as necessary party appeared subsequently and filed written version denying the allegations leveled against him and he averred that in or about 13.03.2005 the complainant availed cash credit facility from Indian Bank, Serampore Branch for enhancement of her business running in the name and style of M/s. R.S. Joyguru Traders. The said credit facility was duly guaranteed by the husband of the complainant namely, Sri Dhiraj Pal. In order to secure the said credit facility the complainant and her husband created equitable mortgage by depositing original title deed in respect of property and also created hypothecation of her moveable properties by a hypothecation dated 13.03.2005. The complainant defaulted in repayment of her dues as such a huge sum became due and payable under the said loan agreement. Being constrained the Bank by a deed of assignment dated 28.10.2010 transferred it’s all right, title and interest along with underlying security of the complainant in favour of ARCIL the answering OP. Then the answering OP reminded the complainant of her dues but the complainant failed and neglected to repay the same. As on 06.05.2016 a sum of Rs. 7,78,915.22 is due and payable by the complainant to the OP. So, this OP denied and disputed that any order be passed by this Forum directing the OP to make any payment to the complainant or any interest as alleged and also disputed and denied that any order be passed to return the title deeds deposited towards mortgage or moveable assets hypothecated with the OP Company be returned to the complainant without clearing her dues. So, this OP prayed to dismiss the instant complaint against the answering OP.
This complainant filed a lot of affidavit-in-chief. So, this Forum has no alternative but to choose one of them. The evidence on affidavit filed on 11.05.2012 speaks that the OP Bank did not create any equitable mortgage either at the time of sanctioning the loan in her favour or any time thereafter. But they kept the title deeds of the property of her husband illegally which the Bank took from her for enhancing the loan limit upto Rs. 3,50,000/-. So, the title deeds of the property of her husband requires to be returned to her by the OP Bank. The OP Bank most arbitrarily and illegally deprived her from the loan facility and other related opportunities of her loan account and thus violated the basic condition of the banking transactions and hence the OP Bank cannot take opportunity and advantage of the benefits of the L.I.C. policies kept with the OP Bank at the time of opening her loan account just as to collateral security without any formal assignment. So, she deserves to get back the L.I.C. policies in her name and also in the name of her husband. She is informed by a letter dated 18.04.2011 that the OP Bank has assigned the loans/debts allegedly payable by her in c/w the loan account in favour of Asset Reconstruction Company Limited and also forwarded the alleged assignee all the cheques, loan agreement, security documents and other financial documents. She was also advised by the OP Bank to contact with the Customer Care executive of the alleged assignee for future correspondence. She further stated that without any legal authority and legal sanction the OP completely ignoring the facts of pendency of litigation over the matter of the aforesaid loan account has been doing the aforesaid illegal acts only to threaten her to refrain herself from persuading her legal rights against the OP Bank. The OP Bank even after the interim order of the Ld. Forum continued its legal activities in sheer violation of the said order. So, the complainant prayed before this Forum to restrain the OP Bank from causing the assignment and/or giving effect to the assignment if already made in favour of the alleged assignee vide order dated 18.04.2011. And also prayed for a direction upon the OP to recall or cancel the said assignment made by the OP Bank and to direct the OP Bank not to disturb and/or interfere with her said disputed account in any manner. She also assailed the interference of the OP Bank during the pendency of proceeding before this Forum which leads to deficiency in service that caused her mental agony, anxiety and harassment to the extreme point.
OP No. 1 files affidavit-in-chief in which he asserted that the complainant in order to delay and drag the payment of Rs. 311,450.10 in her OCC account has malafidely filed this complaint. The complainant is also a defaulter in servicing the interest and the overdraft amount as per terms and conditions, but the complainant has failed and willfully neglected to repay the overdraft amount. OP Bank several times asked the complainant to submit the stock statement as per terms and conditions of the loan. But the complainant has willfully and motivatedly failed to submit the stock statement before the Opposite Party. They denied the loss of the complainant amounting to Rs. 4,90,000/- but assailed that the complainant is liable to pay Rs. 340,045.10. The complainant filed the instant case in order to evade the entire amount. So it is liable to be rejected with cost.
OP No. 2 files evidence-on-affidavit in which he stated that, it is evident from the reading of the complaint petition that the complainant availed credit facilities from Indian Bank, Serampore Branch, Hooghly for enhancement of her business which was day by day increased. The complainant availed of cash credit facility from Indian Bank, Serampore Branch for enhancement of her business running in the name and style of M/s. R.S. Joyguru Traders. The said credit facility was duly guaranteed by the husband of the complainant. The OP No. 2 Bank by a deed of assignment dated 28.12.2010 transferred its all rights, title and interest along with the underlying security of the complainant in favour of ARCIL. The Opposite Party after acquiring its right, title and interest in respect of the complainants account gave reminders to the complainant to pay her dues. But the complainant failed and neglected to repay the same. OP No. 2 submitted that a sum of Rs. 778,915.22 is due and payable by the company to the Opposite Party Company as on 06.05.2016. Due to default committed by the complainant her loan account was declared as NPA by the Bank which was subsequently assigned in favour of the OP Company. The OP No. 2 also denied in respect of claim of the complainant as well as allegations leveled against the OPs. He also submitted that loan account of the complainant having been declared as non-performing asset. The Bank under the provisions of Section 5(1)(b) of the SARFAESI Act assigned the NPA port folio of the Bank including the loan account of the complainant together all the rights, title and interest underlying securities pledged and guarantees in favour of the OP Company. So the assignment is not illegal and permissible due to pendency of consumer company. As such any order in respect of returning the title deeds, deposited towards mortgage or moveable assets, hypothecated with the OP Company, be returned to the complainant without clearing her dues, will be fatal to the OPs.
Argument advanced by the agents of the parties heard in full. Both sides filed brief notes of argument which are taken into consideration for passing Final Order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Smt. Rita Pal is a ‘Consumer’ of the Opposite Party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions hereinabove we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Smt. Rita Pal is a ‘Consumer’ of the Opposite Party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the OP Bank, is maintaining a loan account so she is entitled to get service from her service provider i.e. OP No. 1, Bank and AIRCL being assigned by the O.P. No. 1, Bank for collecting the dues of the complainant.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents and/or carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the Opposite Parties carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that the OP Bank cannot show two debit balance bank accounts in respect of one trade finance loan of OCC account. And the OP Bank cannot run a closed account with a running loan account concurrently. This complainant vehemently admit that he transacted only in OCC account being no. 586.The complainant further averred that how the OP Bank showed initial balance of Rs. 196499.60 in an expired bank account being no. 456. The OP Bank also failed to make entry of Rs.13545/- of this complainant and it is crystal clear from the statement of account.
By producing one letter dated 21.05.2014 the ARCIL showed that the agreement which was made between the Indian Bank and the complainant that is the Home Loan agreement bearing loan account no. 501099034 and on the basis of such document they have tried to mislead the Hon’ble State Consumer Commission, WB that because of such Home Loan notice was issued under Section 13(2) of the SARFAESI Act, 2002. As because the agreement between the complainant and the Indian Bank was not a Home Loan agreement but one OCC under Trade Finance Loan and the Loan Certificate of the Branch Manager speaks that the loan of the complainant one OCC under Trade Finance of Rs. 3,00,000/-. But the OP never sanctioned loan of Rs. 3,00,000/- by mortgaging of her husband’s property. The OP No. 2 tried to implement the SARFAESI Act which is not applicable in the agreement of complainant and the Indian Bank. The complainant also raised question regarding what authority the OP have en cashed prematurely LIC certificates, FD certificates and Money of Recurring Deposit which is the exclusive jurisdiction of this Forum. The OP No. 2 i.e. ARCIL cannot claim any relief for invoking SARFAESI Act, if they have got any grievance against the complainant they can file any case against the complainant before the appropriate Forum. But invoking the SARFAESI Act by the ARCIL cannot be sustainable in law and fact. It appears from the case record that this complainant challenged the inclusion of OP No. 2 as necessary party before the Hon’ble State Commission, West Bengal challenging the order dated 03.09.2015 of this Forum and Hon’ble State Commission, West Bengal vide its order dated 24.02.2016 affirmed the order of this Forum dated 03.09.3015 as such revision preferred by the complainant was rejected.
OP No.1 Bank in his evidence-on-affidavit stated that he sanctioned an amount of Rs. 3,50,000/- as per sanction letter dated 15.09.2004 but the complainant failed to fulfill the terms of sanctioned letter. And thereafter, they modified the limit to Rs.3,00,000/- and issued fresh sanction letter of limit of Rs. 3,00,000/- and the same was communicated to the complainant. Opposite Party requested the complainant to submit stock statement but the complainant failed to submit the same. Not only that the borrower by the name of Labour payment overdrawn a sum of Rs. 25,000/- but till date she could not deposit the same. So the complainant filed the instant complaint just to avoid the financial liability.
OP No. 2 in his written notes of argument stated that the complainant availed cash credit facility from Indian bank, Serampore Branch for enhancement of her business running in the name and style of M/s. R.S. Joyguru Traders and the credit facility was duly guaranteed by complainant’s husband Sri Dhiraj Pal. The complainant and her husband created equitable mortgage by depositing original title deed in respect of the property being hypothecated in accordance with the agreement dated 13.03.2005. The complainant avoided the repayment of her dues as a result a huge amount became due and payable under the said loan agreement. Subsequently, the OP bank by a deed of assignment dated 28.12.2010 transferred its all rights, title and interest along with the underlying security of the complainant in favour of the ARCIL. OP No. 2 after acquiring its right, title and interest in respect of the complainant’s account gave reminders to the complainant to pay her dues. But the complainant failed and neglected to repay the same. As on 06.05.2016 a sum of Rs. 778915.22 is due and payable by the complainant to the Opposite Party Company. Complainant failed to produce any documentary evidence to substantiate her claim that she repaid the outstanding loan amount of the Bank. Due to persistent default committed by the complainant the Bank by a deed of assignment dated 28.12.2010 transferred its right, title and interest in favour of the OP No. 2 company. And, consequently, complainant became the debtor of the OP Company. The complainant prayed for return of original title deeds deposited at the time of availing of credit facilities. But the immoveable property in respect of which mortgage has been created by the complainant is the only secured assets and the Opposite Party company as a paramount charge over the same the right of the company can be discharged only upon payment of total outstanding. Unless the complainant clears her entire dues the complainant is not entitled to get return of title deeds or get benefits of the insurance policy certificate which are lying with the OP Company. The OP No.1 bank filed a title sui being no.192 of 2009, before the Civil Judge ( Sr. Divn.) 2nd Court, at Chinsurah, Hooghly against the Complainant (Borrower)and her husband namely Dhiraj Pal ( Guarantor) praying for a direction upon the defendants to pay Rs.416399/-, a declaration that the schedule LICI policy and others hereunder remain mortgaged as security for the plaintiff’s claim, a decree for attachment of the schedule property and sale of mortgaged property for realization of loan amount including interest by way of liquidation and decree of injunction retraining the defendants from disposing of and parting with possession of LICI policy. The Sub Divisional Legal Services Committee, Serampore called twice in the Lok Adalat at Serampore on 12th may, 2014 & 19th June,2014 in connection with the title suit No.192/09 & title suit no.110/2014 to settle the disputes but the dispute remained unsettled.
So from the above discussion it is clear that the complainant failed to make transaction with the bank as per agreement so the OP bank reduced the limit of loan amount and directed the complainant to file asset statement but the complainant apart from doing the same tried to escape from her liability on lame excuses. In the several case decisions the Hon’ble apex court held that granting loan is not mandatory but it is the bank who is the sole authority to sanction the loan considering the viability of the loanee. From the face of the case record it is clear that due to nonpayment of loan amount the loan account of the complainant turned to NPA for which the OP No.1 getting no alternative assigned by a deed of assignment dated 28.12.2010 transferred its all rights, title and interest along with the underlying security of the complainant in favour of the ARCIL. OP No. 2 after acquiring its right, title and interest in respect of the complainant’s account gave reminders to the complainant to pay her dues. But the complainant failed and neglected to repay the same.
It is the Maxim of Equity that ‘He who comes into equity must come with clean hands’. So from the above discussion it crystal clear that the complainant failed to clear the dues of the complainant and approached this Forum for getting reliefs which is not tenable in the eye of law. The complainant failed to put forward the corroborative evidence from which we can infer the deficiency of service of the opposite party No.1 & 2.
From the above discussion we are in the opinion that the complainant failed to prove her case by producing sufficient documents and argued on the point whether the OP is deficient in providing service, so the opposite party are not liable to pay compensation alongwith other reliefs prayed in the prayer portion of the complaint.
4. Whether the complainant proved her case against the opposite party, as alleged and whether the opposite parties are liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has failed to prove her case and the Opposite Party bank is not liable to pay any compensation for mental pain and agony of the complainant.
ORDER
Hence, it is ordered that the complaint case being No.24 of 2007 be and the same is dismissed on contest against the Opposite Party.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
