West Bengal

Paschim Midnapore

CC/34/2013

Sri K.V. Ramakrishna Guru - Complainant(s)

Versus

The Chief Manager, Syndicate Bank - Opp.Party(s)

29 Aug 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 Complaint case No.34/2013                                                         Date of disposal: 29/08/2014                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. Sujit Kumar Das.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

  

    For the Complainant/Petitioner/Plaintiff : Mr. S. Dey, Advocate.

    For the Defendant/O.P.S.                        : Mr. S. Pal, Advocate.                                   

          

    Sri K.V. Ramakrishna Guru, son of late K.V. Ramanayya, Old Settlement, Unit-3,  Block/D4,   

    Kharagpur, Police Station  Kharagpur Town,   District. Paschim Medinipur, Pin- 721304. 

                                                                                                               ……………Complainant

                                                               Vs.

1. The Chief Manager, Syndicate Bank, Kharagpur Branch, 197/259, Malancha Road, Kharagpur, Police Station  Kharagpur Town, Dist- Paschim Medinipur, Pin 721301.
2. The General Manager, Syndicate Bank, Regional Office, 27, 1^st Floor, Shakespeare Sarani, Kolkata-700017.
3. Sri Wesley Vikash Menon, Son of Clemence Prabha Menon (Borrower), Resident of Chotta Tengra, Police Station Kharagpur Town, District. Paschim Medinipur, Pin-721304…………..…Ops.

        The case of the complainant, in short, is that the complainant stood guarantor in respect of loan of 2400000/- (Twenty four lakhs) only taken by proforma respondent, Sri Wesley Vikash Menon  who maintains different accounts in the Syndicate Bank, Kharagpur Branch.  In the event of default of the proforma Op No.3 Mr. Menon, notice dated 2/08/2012 was issued by the Bank.  Subsequently, the matter was finally settled for future payment of loan installments.  Under such circumstances, further notice dated 18/09/2012 under Section 13(2) of the SARFAESI ACT, 2002 issued upon the complainant   without considering the role of proforma OP Mr. Menon (Borrower) and the complainant (Guarantor) for 60 days in the first demand notice or without following Rule -iv of Securing Interest Enforcement Rule 2002 and without permission from DRT acknowledging thereby blockage of certain accounts as mentioned therein in the name of complainant (Guarantor).  As a result, the complainant suffers withdrawal facility in various ways even he suffers his salary account being its No.95552010014929.  Thus it is alleged that the Op Bank has adopted malpractices in rendering service to the complainant which causes irreparable loss and injury to the complainant. Stating the allegation the complainant has

 

Contd…………….P/2

 

                                                                                                                   - ( 2 ) -

come before us with the prayer for realizing blockage of banking transaction in respect of all accounts and compensation by way of damages etc.

                       The Op No.1 contested the case by filling written objection challenging that the case is not maintainable for want of cause of action and jurisdiction of this Forum and as such no deficiency in service can be alleged against the Op Bank.  Admittedly the complainant is a guarantor against huge amount of loan taken by the proforma Op (Mr. Menon).  At present a sum of 1789062.83/- (Seventeen lakhs eighty nine thousand sixty two and eighty three paisa) only has become due against the borrower.  In this context, there is no otherwise agreement save and except deed of guarantee and as such it is liability of the guarantors/complainant to pay the legitimate dues of the Op Bank in the event of failure to pay by the borrower.  Thus the Op Bank has right to proceed with the matter against the complainant.  Since borrower failed to pay, the notice dated 18/09/2012 was issued against the complainant for adjustment of the loan out of complainant/guarantors fund by virtue of the existing agreement with him as continuing guarantee.  So there is no scope to avoid the liability of the complainant.  Through the written objection, the Op Bank claims for dismissal of this case.

            Mr. Menon being the borrower as proforma Op has submitted written version admitting therein that the complainant Mr. Guru is the guarantor whom notice dated 2/08/2012 was issued to in the event of failure to pay sum installment of loan amount by the borrower.  In this connection, this proforma Op Mr. Menon claimed that the bank has finally settled with the borrower Mr. Menon for future payments of the dues.  It is alleged that in spite of receiving the loan installment, the Op Bank issued further notice dated 18/09/2012 without waiting the conduct of the borrower Mr. Menon.  In view of the facts and circumstances, the proforma Op 3 prays for passing order in favour of the complainant/guarantor Mr. Guru as to his case.

                      Upon the case of the parties as above, the following issues are framed.

Issues:

1. Whether the case is maintainable in its present from?
2. Whether the complainant has any cause of action for presentation of this petition of complaint?
3. Whether the case suffers from want of jurisdiction?
4. Whether the complainant is entitled for getting relief as prayed for.?

Decision with reasons

Issue Nos.1 to 4:

              All the issues are taken up together for discussion as those are interlinked each other for the purpose of arriving at a correct decision.

              Ld. Advocate for the complainant and proforma Op No.3 made his argument that the

Contd…………….P/3

 

                                                                                                            - ( 3 ) -

 

dispute as herein this case is merited for adjudication as a civil suit and simultaneously as a petition of complaint before consumer Forum under Consumer Protection Act.  Decision reported in the AIR 2014 Calcutta 78 is referred to and explained in details.   Thus the case presented before this Forum is well maintainable.  Further, the place of occurrence as on record is well within the jurisdiction of the District Forum. Apart from that during ongoing payments for repayment of loan the alleged notice has no jurisdiction and as such initiation of such steps from the end of Op Bank stands illegal and without jurisdiction.  Moreover, once the Op Bank started receiving of loan installments from the borrower on final settlement, there should not be any continuation of guarantor’s liability by virtue of section 128 of Indian Contract Act.  So the case of the complainant/ guarantor should be accepted by the Ld. Forum in passing order in terms of the prayer made by the complainant.

        Ld. Advocate for the OP Bank has challenged the argument of the complainant by referring to the point that admittedly the borrower failed to repay the loan which prompted the Op Bank to issue notice against the guarantor in terms of the deed of guarantee.  So there is no deficiency in service from the end of the Op Bank.  In this connection, the Op Bank has observed sufficient time for the payment of installment from the borrower and there is no case of final settlement nor any question of avoiding the operation of Continuing Guarantee.    Thus the case should be dismissed.

        We have considered the case very carefully upon the materials on record and it appears that there was no talk of final settlement nor any piece of evidence to that effect relating to the payment of loan installments in order to satisfy the entire dues before the Op Bank from the end of the borrower Mr. Menon, proforma Op No.3.  So there is no valid ground for preventing the Op bank in respect of issuance of notice against the guarantor in accordance with the agreed terms and conditions enumerated in the deed of guarantee.

        Under the facts and circumstances, we do not find any bona fide ground in the case of the complainant encouraging us to allow the prayer in his favour.  Thus all the issues are failed and decided against the complainant.

                         Hence,

                           It is Ordered,    

                                                    that the case be and the same is dismissed  on contest  without cost.

Dic. & Corrected by me

              

         President                    Member              Member                       President

                                                                                                      District Forum

                                                                                                  Paschim Medinipur.