Orissa

Rayagada

CC/15/89

Sri Subash Chandra Bidika - Complainant(s)

Versus

The Chief Manager, SBI, Rayagada - Opp.Party(s)

Self

29 Feb 2016

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA

C.C. Case  No.89/ 2015.

P R E S E N T .

            Sri Pradeep Kumar Dash, LL.B,                             President.

            Smt. Ch.  Nirmala Kumari Raju, LLB,                    Member.

            Sri Subash Chandra Bidika, S/o late Balaji Bidika, aged 41 years, Resident of Co-   operative Colony,1^st Line, Rayagada, Po/Ps/Dist. Rayagada, Odisha.                                                                                                                                      …….Complainant

                                                            Vrs.

1.                  Chief  Manager, State Bank of India, Main Branch, Rayagada, Po/Ps/Dist. Rayagada, Odisha.

2.                  Branch Manager, State Bank of India(ADB), New Colony, Po/Ps/Dist. Rayagada(Odisha).

3.                  Regional Manager, SBI, Saipriyanagar, Rayagada, Po/Dist. Rayagada,(Odisha).

4.                  Pali Enku Naidu, S/o Sri Tamil Nadu, aged 61 years, Resident of Dakuluguda, P.O.Suri, Kolonara,  Tahasil, Dist. Rayagada, Odisha.                      …..Opp.Parties

Counsel for the parties:

For the complainant: Sri V.R.M.Patnaik, Advocate, Rayagada.

For the O.P .1 & 3:  Sri N.K.Das & Associate Advocate, Rayagada.

For the O.P 2: Sri N.N.Panda, Advocate, Rayagada.

For the O.p 4:  Exparte

                                                                      JUDGMENT

The case of the complainant is that the  complainant is a customer of O.p 1 & 2 having account with  O.P No.1  vide A/c No.11039030847. The O.p has hold up the account of the petitioner  with the instruction of the Opp.Party 2 without any intimation  for which he could not be able to withdrawn his monthly salary credited by his employer and  unable to maintain his day to life. The action of the O.ps are illegal, unjust and contrary to law.  The complainant is a guarantor of the Opp.Party 4  who has taken loan from O.p 2 .  The Opp.Party has seized the hypothecated tractor   and sold the  tractor but the rate for which the tractor was sold is concealed by the O.p 2 . In the civil suit the O.p 2 has made a prayer for passing a preliminary decree against the defendants including the complainant  and in the suit the Plaintiff (the O.p 2)  has not obtained any order for such attachment of the salary of the complainant.  The O.P 1 has hold the account since five months   and not allowing the complainant to withdraw his monthly salary  and by doing so   the O.p 1 has committed deficiency of  service  and .  If the  landed property  would have attached  belongs to the O.p 4 along with the standing crops  at that time and subsequently, definitely the entire loan amount could have covered and as such the O.p ;2 has no reason to act illegally causing  financial harassment  and mental agony to the complainant and the O.p 2 has allowed d the O.p 4 to continue the cultivation and to enjoy the crop  though the land  which were under mortgage and  no petition under Order 21 rule 58 C.P.C is filed by the O.p 2   in the above matter for recovering the loan amount . Hence, prayed to direct the O.p 1 & 2  to revoke the said actions till such final order   obtained from any court of law and  to allow the petitioner to withdraw the salary amount from his account and   award monetary compensation of RS.10,000/- for mental agony  and harassment  also pass such other orders as deems fit and proper  for the ends of justice. Hence, this complaint,

The O.P No.1,2 & 3 appeared through their learned counsels and  filed their written version inter alia  denying the petition allegations on all its material particulars. The O.p ;No.4 neither appeared nor filed written version as such the O.p No.4 was set exparte. It is submitted by the O.p. No.1  & 3 that  the allegations made in the complaint are not true and correct and  those are not specifically admitted  and the complainant is put to strict proof of the same .  The O.p 1 has not held up the account of the petitioner and it is the O.p 2  which has withhold the operation of the account of the complainant  being maintained by the O.P1. Under the present computerized system, when the O.p 2  who was the financier of the loan and the complainant was the guarantor the said O.P ;2 has withhold the operation of the account of the complainant for recovery of its bank dues of the O.p 4 and the O.p 2 is the competent authority  who can withdraw the withholding of the operation of the account of the complainant. The present O.p has not committed any deficiency of service and the proceeding is not maintainable for non joinder of necessary party and hence it is prayed  to drop the present proceeding.

The O.p. No.2 submitted that  the complainant is a guarantor to his own mother Smt.Hema Mahanandia who has taken a loan of Rs.8.,00,000/- to purchase a tractor and other agriculture implements on 10.4.2007 from J.K.Pur Branch and the complainant has executed the Deed of Guarantee of Smt.Hema Mahanandia . The mother of the complainant has not given the installments to the bank as per the terms and condition executed by them so the bank has power to hold the account of the complainant for the total dues as a guarantor and also a son of Smt.Hema Mahanandia . The complainant is liable to pay the total dues with interest till the date of payment.  The complainant has also received notice from the Advocate of the Bank for the dues and also non payment of the loan amount still than the complainant kept quite and never arranged money for payment of the ban k loan and as per the agreement executed by the complainant before the bank, the complainant is liable to pay the total dues. The O.p 2 has filed suit against the O.p 4 and the complainant for recovery of the loan dues  in the court of the Civil Judge(Sr.Division),Rayagada and also obtained an attachment order to deduct from the  salary of the complainant’s account which was with the O.p 1. The  complainant has raised the same plea before the  Civil Court for the same cause of action and same matter of dispute as such  the present proceeding before the District Consumer Forum is not maintainable .The   Civil Judge(Sr.Division) Rayagada has rejected the objection raised by the complainant for the attachment of the  salary in view of the decision reported in 2015 S.A.R page-219. Hence, prayed to dismiss the complaint with  costs.

                 

It is submitted by the O.p 2 that the complainant has executed the loan document as  a guarantor and taken the loan by the O.p 4  and purchased the tractor and  the same was registered in the name of O.p 4  and paid some installments but not regularly as per the norms of the bank. So the bank taken his financed vehicle and sold it in public auction and for the balance amount the  bank filed the suit    and suit is registered as C.S.97/2012 which is pending. The complainant has filed a petition before the Civil Judge to release the amount  from the salary account and the Civil Judge has passed  an order to pay 25% of the net amount credited to the account of the complainant. The matter already pending before the  Civil Court on the same subject cannot be entertained under the consumer Protection Act,1986 and hence  prayed to dismiss the case with cost against the complainant.

     FINDINGS

 

Admittedly the complainant stood as a guarantor for the loan availed by his mother Smt.Hema Mahanandia  and if the loan amount is not paid the responsibility of the guarantor is not coexist .  The Hon’ble Supreme Court  in the case of Sobhan Singh Vrs. State of UP and others declared that no proceedings for recovery of the outstanding loan amount can be taken against  a guarantor so long as the property of the borrower which is mortgaged, charged or encumbered  is not first sold(see page 8,9 of 2015 SAR(Civil)159).In view of the above decision of the Apex Court, we are of the opinion that the Bank can not hold up the account of the complainant who is a guarantor to her mother so long as the property of the borrower  which is mortgaged , charged or encumbered is not first sold .

During the course of hearing the complainant has filed a petition along with the order of the interim order of the Hon’ble High Court in which the Hon’ble High Court, Orissa ,Cuttack  has   passed interim order directing the O.P 1 ,2 & 3  to release the holding  of 75% salary of the complainant and paid to the complainant so that the complainant can  look after his family and also directed the complainant  not to transfer his account from O.p No.1 Bank   and not to change his account for drawl of his monthly salary. Hence, it is ordered.

                                             ORDER

  Hence, in view of the aforesaid orders of the Hon’ble High Court  of Orissa, Cuttack vide Civil Miscellaneous Jurisdiction Cases No.770 of2015 , the O.p No.1,2 & 3 are  directed    to release the holding  of 75% salary of the complainant and paid to the complainant  and un hold the Savings Account No.11039030847 of the complainant with immediate effect.  Accordingly the case is disposed of.

Pronounced in open forum today on this 1^st  February,2016 under the seal and signature of this Forum.

A copy of this order be forwarded to the parties free of charge as per the statutory requirements.

 

 

Member                                                                                       President

Documents filed:

By the Complainant:

1.      Copy of   petition vide C.S No.97 of 12

2.      Copy of Cheque No.906050 dt.20.03.2015

 By the O.ps.: Nil

 

 

        President