IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/54/2011
Date of Filing: 25.04.2011 . Date of Final Order: 11.05.2016.
Complainant: 1. Sri Chiranjib Dutta, 2. Sri Sanjib Dutta- Both are sons of Sri Sukumar Dutta, Vill.& P.O. Jibanti P.S. Kandi, Dist. Murshidabad.
Rep. by the Secretary, Sri Sitaram Das, Murshidabad District Consumers' Association,
at Office at 18, Nirupama Devi Road, Gorabazar, P.O.& P.S. Berhampore,
Dist. Murshidabad.
-Vs-
Opposite Party: 1. The Chief Manager, United Bank of India, Berhampore Branch, P.O.& P.S.
Berhampore , Dist. Murshidabad.
2. The Chief Manager, United Bank of India, Murshidabad Regional Office, P.O.& P.S.
Berhampore, Dist. Murshidabad.
3. The Regional Manager, United Bank of India, Murshidabad Region, P.O.& P.S.
Berhampore, Dist. Murshidabad.
4. Sri Subhas Prosad Bhakat, S/O Late Ram Narayan Bhakat, Vill & P.O. Palsanda,
P.S. Nabagram, Dist. Murshidabad.
5. Sri Paresh Nath Bhakat, S/O Late Ram Narayan Bhakat, 12, A.C. Road, P.O. Khagra,
P.S. Berhampore, Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for an order directing OP Nos. 1 to 3 to refund Rs.3, 50,000/- along with interest to the complainant and also to pass an order directing the Ops to pay compensation amounting to Rs.50,000/- for harassment, mental agony .
The complainant's case, in brief, is that while the complainants were searching a house property for purchase they came to know that OP No.1 Bank would sell some mortgaged property. Then they came to Op no.1 and after consideration it was stated that the defaulter OP Nos. 4 & 5 who created equitable mortgage are unable to repay the outstanding dues and have given consent to sell that mortgage property at a consideration of Rs.14, 00,000/- and if they deposit 25% of the same he would than handed over the copies of entire mortgage paper. Then they returned home for discussions and again met OP No.1 who asked them to cove on 30.3.2006 and on that day he introduced them with OP No.4 & 5 in his chamber and instructed Opno.4 & 5 to execute a Bainanama for sale of mortgaged property in favour of the complainants. On 31.3.2006 seeing the deed of Bainanama the Op no.1 demanded a cheque of Rs.3,50,000/- from the complainant towards earnest money and the complaint No.1 issued a blank cheque bearing No. 697526 dt. 31.3.2006 to Op No.1 who in her own hand noted Rs.3, 50,000/- on the said cheque and kept the same in her possession and asked OP Nos. 4 & 5 to execute the impugned Bainanama. But, the Op No. 1 did not perform her duties or made any arrangement for sale of the mortgage property to the complainants. Subsequently, the complainants came to know that at the instance of OPNo.1 the impugned cheque was deposited in the loan A/c of OP No.4. Thereafter, in reply to the advocate notice dt. 24.4.2006 of the complainants the OP Nos. 4 & 5 agreed to sell that property up to 4.5.2006, though complainants were ready but no result. The complainants met Op no.1 time to time but no result, only assurance. On 10.1.2009 the Chief Manager, CO&M and CSD), UBI, Kolkata gave a letter to Sri Ashoke K. Mondal, advocate of the complaints intimating that the matter is under observation of its vigilance Department. Again, as per telephonic request of Op No.1 on 02.02.2009, an agreement was written in the chamber of Op No.1 to solve the matter in presence of OP no.1 and OP No.5 and one Subhas Bhakat brother of the Op No.4. But the earnest money for Rs.3, 50,000/- has not been returned by the Ops to the complainants in spite of several requests. Hence, the instant complaint.
The written version filed by OP No.1, in brief, is that the OP No. has challenged the entire complaint categorically. The complainants are not consumers of OP Nos. 1 to 3. They have no locus-standi to file this complaint against the Ops. If there is any agreement as to sale of mortgaged property that is in between the complainant and OP Nos. 4 & 5, if there is any signature of any bank official, the same was as witness and as per her personal capacity and not as representative of this bank. The complainant never paid any amount to bank and OPNo.3 Bank and for that his case is not maintainable. As the OP Nos. 4& 5 did not pay the dues with interest as such this OP was bound to take shelter of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Accordingly, all the notices were issued upon the borrowers and at last possession was taken. The complainant never issued any blank cheque in favour of this OP No.1. This dispute is of civil nature. The complainants are not entitled to get any relief. The complainants are not entitled to get any amount from this OP. As there is no nexus between the petitioner and this OP, so the question of deficiency of service does not arise. The complaint is liable to be rejected. Hence, the written version.
The written version filed by OP Nos. 4 & 5, in brief, is that they have challenged the complainant's case entirely. The complainants have no locus standi to file this case and the same is barred by the law of limitation. Also, the complainants are not consumers and for that they are not entitled to get any relief. The complaint is not maintainable and the same is liable to be rejected. Hence, the instant written Version.
Considering the pleadings of both sides the following points have been framed for the disposal of the complaint.
Point for decision.
1. Whether the case is maintainable in its present form and in law?
2. Where there is any cause of action to file this case?
3. Whether the case is barred by law of limitation?
4. Whether the complainant is entitled to get relief as prayed for?
5. To what other relief/reliefs the complainant is entitled to get?
Decision with reasons.
Point Nos. 1 to 5:- All the points were taken up together for the sake of convenience.
The instant complainant is for refund of Rs.3.5 lacs with interest by Op No.1 to 3 Bank plus compensation of Rs.50, 000/-.
The complainant's case is that the complainant has a current A/C holder of OP No.1 Bank. The complainant intended to purchase the mortgaged property of Op No.4&5 from the OP No.1 Bank. Thereafter, the Op No.1 Bank got executed a 'biyananama' by Op Nos. 4 & 5 and complainant on 31.03.06. Trusting the manager OpNo.1, the complainant agreed to purchase the mortgaged property of OP Nos 4 & 5 at a consideration of Rs.14 lacs in their presence. Then as per demand of OP No.1 to deposit 25% of consideration money of Rs. 14 lacs the complainant handed over a bank cheque bearing No. 697526 dt. 31.03.06 to OP No.1 wherein the Op No.1 in her own handwriting noted Rs.3.5 lacs . But, the Op No. 1 did not perform her duties or made any arrangement for sale of the mortgage property to the complainants. Subsequently, the complainants came to know that at the instance of OP No.1 the impugned cheque was deposited in the loan A/c of OP No.4. Thereafter, in reply to the advocate notice dt. 24.4.2006 of the complainants the OP Nos. 4 & 5 agreed to sell that property up to 4.5.2006, though complainants were ready but no result for registration. Thereafter, the complainant took several attempts for refund of earnest money but in vain. Then the complainant filed the instant complaint.
On the other hand the case of the OP Nos. 1 to 3 -Bank, in brief, is that in this case the complaint is not a consumer under the Bank. There is relationship in between the complaint and Op Nos. 4 & 5. The complainant deposited Rs.3.5 lacs in the Loan A/c of Op No.4 & 5 by depositing the said amount the complaint can never be a consumer of OP-Bank. the OP-Bank has not taken the alleged money amounting to Rs.3.5 lack direct from the complaint. There was agreement for sale of the mortgaged property in between the complaint and OP Nos. 4 & 5 at a consideration of money of Rs.14 lacs and getting earnest money of Rs.3.5 lacs towards that agreement for sale the OP Nos. 4 &5 deposited the said amount of Rs.3.5 lacs in their loan A/c. It is not the duty of the OP Banks to refund the said amount to the complainant as there is no direct relation of the complainant with the bank and for that the OP Bank is not liable to repay the said amount of Rs.3.5 lacs to the complaint.
Again, on the side of Op Nos. 4 & 5 the ld. lawyer for the OP No.4 & 5 has advanced argument that in this case the complainant has prayed for passing an order for refund Rs.3, 50,000/- along with interest to the complainant which was paid by the complainants to the Bank as advance regarding the proposed purchase of mortgage property of OP Nos. 4&5 and also to pass an order directing the Ops to pay compensation amounting to Rs.50,000/- for harassment, mental agony .In this case the complaint has not claimed any relief from OP No.4 & 5. The Complainant deposited Rs.3.5 lac in the loan A/c of Op No. 4 & 5 without their knowledge. After advertisement of auction sale of the mortgaged property of the Op Nos. 4 & 5 , they met with the OP-Bank and deposited Rs. 2 lacs and thereafter deposited the entire dues and they asked for return of the documents with lien free but refused, then they filed case No. 58/11 before this Forum. Save and except depositing Rs.3.5 lacs in the loan A/c of Op No. 4 & 5 , there is no relation in between complainant and OP no.4 & 5. Without establishing the alleged relationship the complaint is not entitled to get any relief.
He has further advanced argument that the impugned agreement for sale is an unregistered agreement and in case of breach of agreement the only remedy is civil suit for special performance of Contract. The complainant has failed to comply with the terms of agreement but no suit has yet been filed for this breach of agreement. Agreement being unregistered the complainant is not entitled to file any suit against the OP Nos. 4 & 5 before any Court of Law.
He has also advanced argument referring the letter dt. 3.5.2006 written by OP Nos. 4&5 to the Ld. lawyer for the complainant that they have extended the period of depositing the balance consideration money of Rs.10,50,000/- up to 08.05.2006 as per verbal request of the complainant and then they will get the property of Bainanama registered.
He further argued referring this letter dt. 3.5.06 that if the terms of agreement are not complied, the deposited amount of Rs.3.5 lacs will be forfeited and since 9.5.06 the agreement for sale will be terminated.
The ld. lawyer for the complainant has advanced argument in the same tune of complainant's case.
The ld. lawyer for the complainant has also advanced argument on several points.
He has argued that in this case the complainant is a bona-fide A/c holder of Op N9o.1 bank and the impugned mortgage is n the equitable mortgage of the property of Op no.4 & 5 with Op No.1 banks and the Op no.1 bank has violated the duty.
He has also advanced argument referring para-9 of the Written Version filed by OP-Bank that when OP-Bank issued notice upon the OP no.4 & 5 under SARFAESI Act, the OP-Bank became owner of the disputed mortgage property.
Regarding deed of compromise dt. 3.2.2009 he has argued that both parties including Bank signed the deed of compromise.
He has argued that there is no defiance of OP Bank as to forfeiture of claim of the complaint for registration as well as refund of money on the ground that the complaint has failed to purchase in time.
He has strongly argued that there is dereliction of duty of OP-Bank as the OP-Bank in collusion with OP No.4 & 5 credited Rs. 3.5 lacs in the loan A/c of OP Nos. 4 & 5.
The complainant has filed Xerox copy of cheque issued in favour of Op no.4&5 for purchasing mortgage property from his current A/c No. 19781.
In this regard the ld. lawyer for the complainant has advanced argument that this shows that the complainant has current bank A/c with OP No.1 Bank and in this cheque was encashed by OP-Bank and as such the complainant is a consumer of the OP-Bank.
He has further reiterated during his argument that OP-Bank ought to discharge their duties by disclosing the fact about issues of notice under SERFAESI Act.
He has argued that the OP-Bank and OP Nos. 4 & 5 in collusion with each other and for illegal gain and to protect the interest of the Bank encashed the cheque amounting to Rs.3.5 lacs issued by the complainant No.1 by applying fraud and knowing mortgaged property.
He has also argued that the Bank is the competent authority to execute the agreement for sale and dispose of the mortgaged property and this act of encashment is deficiency of service. Bank is customer as he is holding A/c with the Bank and complainant is beneficiary and as such the case is maintainable.
He has also argued referring the proviso u/s 2(1)(d) of C.P. Act, that the act of encashment of the cheque in the loan A/C of OP nos. 4&5 knowing the existence of mortgage is misleading representation and the same is unfair trade practice of the OP-Bank.
He has argued that the lien to the mortgaged property has not yet been cleared up and for that Op No.4&5 is not now owner of the property which is under agreement for sale and for that OP-Bank is now owner of the property and the said mortgaged property is under the possession of OP-Bank under SARFAESI Act and for that OP-Bank is to execute the document for sale of the property after getting balance consideration money.
In this case Sri Sitaram Das, the Secretary, Murshidabad District Consumers Association has represented the case being duly authorized by the complainants.
To prove this the complainant No.1 has adduced his evidence on affidavit on 5.8.2014 under O 18 R 4, CPC and has adduced the Xerox copies of following documents in support
In this case the OP Nos 1 to 3 -Bank and Op Nos. 4&5 -Borrower have neither adduced any evidence on affidavit nor any documentary evidence to rebut the complainant's case.
Prior to adducing evidence on affidavit on 5.8.2014 the complainant filed a petition dt. 20.11.2013 for call for the documents from Op Nos. 1 to 3 Bank and against this petition the OP Nos. 1 to 3 Bank have filed written objection against the petition and this Forum rejected the call for petition dt. 5.8.2014 on contest on 22.7.14 and fixed 5.8.14 for filing evidence by both sides litigants enclosing and noting those matters of documents in gist for marking the documents as Exhibits without fail, with liberty to take steps in view of the petition mentioned here before accordingly.
In this case inspite of fixing the date for adducing evidence the OP Bank and other contesting OP Nos. 4&5 have neither adduced any evidence on affidavit nor filed any documents in support of their respective case.
Also, none of the OPs have cross-examined the complainant Nos. 1 who has filed examination-in-chief by way of affidavit u/O 18 R-4 CPC.
From the call for petition dt. 5.8.14 it appears that the complainant called for the documents relating to the documents involved in case No. 58/11..
The impugned call for petition dt. 5.8.14 was rejected on contest by this Forum on 22.7.14 giving opportunity to both parties to ad duce evidence and for exhibiting the documents with liberty to take steps in view of the call for petition of the complainant.
But, the complainant has neither challenged nor took any steps in view of his call for petition as directed by this Forum while rejecting the call for petition on 22.7.14.
Also, the OP-Bank and Op Nos. 4&5 have not adduced any evidence as per opportunity given by this Forum while disposing the call for petition filed by the complainant.
The complainant No. 1 has therefore, adduced evidence in chief u/O 18 R 4 CPC to the tune of complainant's case but he has not been cross-examined where there is allegation against the then Manager Shibani Maitra as to her interference in the entire matter of the complainant's case including introducing the complainants with OP Nos. 4&5 and asking for executing bainanma for purchasing the mortgage property of OP Nos. 4&5 with the OP-Bank and giving blank cheque by complaint to her and she noted the amount of Rs.3.5 lacs in that blank cheque in her own handwriting.
In this case the hen Bank Manager, Shibani Maitra of Op no.1 -Bank has not deposed. Also, the PW-1 , the complainant has not been cross-examined.
Be that as it may, this proceeding is before the Consumer Forum and strict compliance of CPC for adducing evidence is not mandatory.
Rather, from the materials on record particularly the Written version filed by both OP-Bank and Op Nos. 4&5 and argument advanced by their respective Ld. lawyers and also from this written objection filed by OP-Bank on 08.01.2014 against the call for petition dt. 20.11.13 filed by the complainant, it is clear that the complaint No. had current A/c No. 1978 with the OP No.1 bank and the concerned cheque was admittedly issued by the complaint No.1 from that current A/c and the same was encashed and credited to the loan A/C of OP Nos. 4&5.
It is also clear that the OP Nos. 4&5 have filed a separate case bearing No. 58/11 in respect of this disputed loan A/C for return of mortaged original title deeds and other documents and for issuing loan clearance certificate or NOC.
Though in this case there is admittedly question of depositing cheque amounting to Rs.3.5 lacs issued by the complainant No. 1 in favour of OP No.4 in their loan A/c which is the subject matter of case No. 58/11 but the case No. 58/11 is being tried separately and this instant case No. 54/11 is not tried analogous with case No. 58/11.
That being so to our mind the documents filed in case No. 58/11 as called for is not essential for disposal of this case.
Admittedly, the concerned loan A/c of Op Nos. 4&5 is still not lien free and the same is under the control of Op Nos. 1 to 3 -Bank. Also, the possession of the concerned mortgaged property is under the possession of OP-Bank.
It is also clear being not rebutted by the OP-Bank by cogent evidence that there was specific involvement of Op No.1, the then Manager in the matter of issuing cheque of Rs.3.5 lacs by the complainant No.1 for purchasing the mortgage property of OP Nos. 4 & 5.
From the documents filed by the complainants it appears that there was agreement for sale of the concerned mortgage property in between the complainant and Op Nos. 4&5 on 31.03.06 and compromise document on 03.02.09where two employees of Op No.1-Bank acted as witness namely Prosanta Bhattacharyya and Sukharanjan Saha.
Also, there are some documents filed by the complaint wherefrom it appears that OP-Bank wrote to the Ld. Lawyer for the complainant intimating that the matter is under the observation of their vigilance Deptt, Head Office and thereafter Solenama was held on 03.02.2009 for performance of the agreement and then the representatives of the complainant, Secretary, Murshidabad Dist. Consumer Association wrote to the OP-Bank on 31.03.10 and 15.6.10 and having no result the complainants ultimately filed this complaint on 25.4.11.
Considering the above facts and circumstances we can safely conclude that this case is not barred by the Law of Limitation.
It is clear that there was an agreement for sale of the mortgage property and there was sufficient attempt to complete the transaction by giving advocate notice dt. 03.05.2006 and thereafter, a gain Solenama was held on 3.02.2009 which was also f ailed.
Now, the only prayer of the complainant for return of Advanced Money of Rs.3.5 lacs along with interest from OP No.1 to 3 Bank and compensation of Rs.50,000/- from all the OPs.
PW-1 , the complaint No.1 in his examination-in-chief has deposed that as per request of the Branch Manager as well as Opposite Party Nos. 4&5 he issued a blank cheque in favour of Branch Manager who at that time informed him that the said unrest/initial consideration money amounting to Rs.3,50,000/- which was deposited in suspense account and in collusion with Opposite Party No. 4&5 the then Branch Manager without intimation to the complainant the Branch manager deposited /submitted the said cheque and credited the said amount in the loan account of the Opposite Party Nos. 4&5 and he issued a blank cheque being Cheque No. 697526 to the Opposite Party No.1. Subsequently, he came to know from the Bank that the then Branch Manager Shibani Maitra filled up the said Blank Cheque and noted the amount of Rs.3, 50,000/- which was kept in the custody of the Branch Manager.
In this case OP Nos. 1 to 3-Bank and OP No. 4&5 have not adduced any evidence to rebut the evidence adduced by the complainant though they have denied the complainant's case in their respective written version.
During hearing argument the Ld. Lawyer for the Op Nos.4&5 has advanced argument that the complaints deposited Rs.3.5 lacs in their loan account without their knowledge.
From the earlier discussions it is clear that the Loan A/c of OP Nos. 4&5 is not lien free and the same is under the control of Op No.1 to 3 Bank.
Considering the entire discussions as a whole we can safely conclude that the Op Nos. 1 to 3 Bank cannot avoid their liability to refund the amount of Rs.3.5 lacs credited in the loan A/c of Op Nos. 4&5 which is not entitled by OP Nos. 4&5 being the agreement for sale of mortgage property of Op Nos. 4&5 has not been executed and registered and for that the same is to be returned to the complainant by the OP No.1 to 3 bank from the Loan A/C of OP No.4 &5 along with interest earned in that loan A/C from the date of deposit till date of payment .
As per settled principle interest being paid the complainant is not entitled to get any further amount as compensation.
On the basis of above discussions as a whole we find that all the points are disposed of in favour of the complainants in part and as such the complaints will get Rs.3.5 lacs along with interest earned in the loan A/c of Op Nos. 4 & 5 from the date of deposit till realization to be paid by Op Nos. 1 to 3 Bank.
Hence,
Ordered
that the Consumer Complaint No. 54/2011 be and the same is hereby allowed in part on contest against all the OPs..
The complainants will get Rs.3.5 lacs along with interest earned in the loan A/c of OP Nos. 4&5 from the OP Nos. 1 to 3 Banks.
The OP No. 1 Bank is directed to pay Rs.3.5 lacs from the loan A/c of OP No. 4&5 along with interest earned in the loan A/c of Op Nos. 4&5 from the date of deposit of the cheque till realization of the amount to the complainants within two months from the date of this order, failing which the OP No1 is to pay Rs.100/- as fine for each day's delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under registered post with A/D to the concerned parties as per rules, for information and necessary action.
MEMBER MEMBER PRESIDENT
