Date of Filling      :   25.06.2008.

                                                                                            Date of Disposal  :  21.07.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                     TMT.  S.  SUJATHA, B.Sc.,                          …    MEMBER - I

Consumer Complaint No.66/2008

(Dated this Thursday the 21^th day of July 2016)

Mr. Samson Franklin,

S/o. Mr. P. Ganesan,

Plot No.106, A.K.N. Nagar,

Perumalpattu Village,

Veppampattu Railway station,

Thiruvallur District - 602 024.                                                     … Complainant.

/ Versus /

1.  The General Manager,

     Zonal Officer,

     No.55, Ethiraj Salai,

     Egmore,

     Chennai North - 600 008.

2.  The Branch Manager,

     Indian Bank,

     Pattabiram,

     Chennai.

3.  M/s. M.R. Foundations,

     Rep. by its Proprietor

     Mrs. Maragathamani,

     No.19, Ambedkar Street,

     Teachers Colony,

     Ambattur,

     Chennai - 600 053.      

4.  Mr. Ravichandran,

     No.19, Ambedkar Street,

     Teachers Colony,

     Ambattur,

     Chennai - 600 053.

5.  Mr. Elangovan,

     Branch Manager,

     Indian Bank,

     Mannady Branch,

     No.91/3, D. Block,

     Adarsh Apartment, 2^nd Street,

     Gopalapuram,  

     Chennai.

6.  Mr. Gunasekaran,

    (Ex-Loan Manager),

     Indian Bank,

     Pattabiram Branch,

     No.89, M.T.H. Road,

     Chennai - 600 072.                                                       … Opposite parties.

This complaint is coming upon before us finally on 08.07.2016 in the presence of Mr. A.R. Poovannan, Counsel for the complainant, M/s. T. Sundar Rajan, Counsel for the 1^st opposite party initially appeared and in subsequent stage remained Ex-parte, Mr. K. V. Srinivasan, Counsel for the 2^nd opposite party, M/s. V. Murali, Counsel for the 3 & 4^th opposite parties  and the 5 & 6^th opposite parties are set Ex-parte for non appearance and having perused the documents and evidences and written arguments on the side of the complainant and 1 to 4 opposite parties, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

          This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 to 6 opposite parties for seeking Rs.69,000/- towards balance amount payable to the complainant and Rs.2,00,000/- towards compensation for damages and mental agony and pain suffered by the complainant with cost.

The brief averments of the amended complaint is as follows:-

                The complainant, on believing the words of the 3^rd & 4^th opposite parties has availed a housing loan to built a home in his property from the 2^nd  opposite party’s Branch for Rs.4,75,000/- and the 3^rd opposite party was a builder for the complainant’s building.  At that time of disbursement of loan to the complainant, the 5^th & 6^th opposite parties were working in the Pattabiram Branch.  For that purpose, the complainant had to open an account with the 2^nd opposite party.  The 3 & 4^th opposite parties had all the cheques with them and made the complainant to sign in all the cheques.  The complainant was the principal borrower and his wife stood as a guarantor for the said loan.

2.       The Bank Officers acted in collusion with the 3^rd and 4^th opposite parties and disbursed all the money directly to the 3^rd opposite party without informing the complainant since the complainant had given all the cheque book in the hands of the 3 & 4^th opposite parties.  The complainant was under the bonafide impression that the disbursement of the payment towards the loan would be done only in a phased manner and that too after the inspecting authorities of the 3^rd opposite party inspected the property and satisfied themselves, that the construction had come up to the respective level before payments are made.  But the 2^nd opposite party had disbursed the entire Rs.4,75,000/- during roof level of construction during September 2004 itself and without completing the construction work and without the consent of complainant.

3.       The 3 & 4^th opposite parties after having received the entire payment from the Bank between 12.08.2004 and 29.09.2004 left away without completing the work, since the work was left as incomplete and they were trying to avoid doing any work for the complainant.  The complainant informed the said fact to the 2^nd opposite party by letter dated 13.06.2005.  At that time itself, the complainant had the report of the authorized Surveyor that the value of the work done by the builder was only Rs.2,08,025/- and that the value of the work that have to be still completed for Rs.1,40,200/-.  The 3 & 4^th opposite parties had played big fraud on the complainant with the connivance of the Bank.  After  proceedings were initiated, through the police officials before “The Superintendent of Police, Thiruvallur” in file No.287 and the 3 & 4^th opposite parteies paid a sum of Rs.71,000/- on 05.07.2005.

4.       The complainant came to understand that the 3 & 4^th opposite parties had committed a similar fraud on number of people using the name of different banks and that several complaints were lodged with the Inspector of Police C.B.I. by the residents of Veppampattu, I.O.B. Nagar and A.K.N. Nagar and number of consumer cases are also pending at District Consumer Disputes Redressal Forum, Thiruvallur.    Hence, the complainant caused a legal notice on 25.11.2006 to the 1 to 3, 5 & 6^th opposite parties about the act committed by the 3^rd opposite party and in earlier he made a representation to the D.G.M., Indian Bank, Kancheepuram on 19.09.2006.

5.       In the mean time, the Bank had been sending notices to the complainant with regard to arrears of loan amount on 06.12.2005 but the notice was received by complaint only on 04.03.2006 regarding the arrears to the tune of Rs.36,450/-.  The 3 & 4^th opposite parties had sent a reply to the complainant’s legal notice only on 08.01.2007, in which the payment of Rs.71,000/- is admitted and all the opposite parties are liable to pay the above said amount of Rs.69,000/- to the complainant.

6.       Though the 2^nd opposite party is fully aware of the misdeeds of the 3 & 4^th opposite parties and also of the fact that the 3 & 4^th opposite parties had left as high and dry without completing the construction and that the complainant had to incur further expenses to complete the work and the their Loan Manager viz. the 6^th opposite party had the fullest knowledge with regard to entire transaction between the complainant and the 3 & 4^th opposite  parties.  So all the opposite parties are jointly liable to pay a sum of Rs.69,000/- with its interest along with the damages of Rs.2,00,000/- towards mental pain and agony suffered by the complainant.  Hence this complaint.

7.       The contention of written version of the 1 & 2^nd opposite parties is  briefly as follows:-

The opposite parties deny all the allegations and averments in the complaint except those that are specifically admitted.  The complaint is not at all maintainable either on law or on facts.  The complainant approached these opposite parties through the 3 & 4^th opposite parties are denied and the complainant had approached these opposite parties for loan and the same was sanctioned after inspection by Bank official.   These opposite parties are also not concerned about the issue of blank cheques by complainant to the 3 & 4^th opposite parties.   Even so, the complainant have to work out their remedy with the 3 & 4^th opposite parties if they are aggrieved with them.

8.       It is denied that the Bank Officers acted in collusion with the 3 & 4^th opposite parties and disbursed money to the 3^rd opposite party without informing the complainant.  The complainant is making false allegations that the Bank disbursed payments to the Builder before completion of construction.  Infact these opposite parties had disbursed the loan in a phased manner only after inspection of the stages of completion by the Bank Officials.  The complainant has himself given requisition letters dated:12.08.2004, 01.09.2004, 09.09.2004 & 27.09.2004 for disbursal of the loan amount in stages and the disbursal have been made only in accordance with the request made by the complainant and after inspection of the stages of construction.  The allegation that the Bank released entire loan amount when construction work was not completed is false. 

9.       The Bank had disbursed the loan amount to the Savings Bank Account No.34216 of the complainant who had in turn paid through cheques to the 3 & 4^th opposite parties.  If the allegation of the complainant is true then he need not have made payments to the 3 & 4^th opposite parties.  This itself will show that the above complaint is devoid of merits.  The legal notice sent by the complainant to these opposite parties was suitably replied.  Since the complainant defaulted payments these opposite parties had initiated proceeding under the securitization Act as the complainants loan account was classified as a non performing asset.

10.     It is true that, the Hon’ble High Court in W.P.M.P. No.02/2007 in W.P No.18171/2007 had passed an order dated 15.05.2007 granting an interim stay of further proceedings under the SARFAESI Act on a condition that the complainant pays a sum of Rs.2 lakhs to the Bank within 1 week from the date of order.   But the complainant has conveniently chosen to suppress the fact that the said conditional order was not complied by the complainant but only a sum of Rs.1,00,000/- was paid.  Subsequently the said W.P. No.18171/2007 was dismissed on 11.03.2008 granting liberty to the complainant to approach the D.R.T. within 2 weeks from the date of receipt of the order.

11.     It is settled position of law that when a specific alternate remedy of appeal is made available particularly coupled with specific ouster of jurisdiction of civil court / Tribunal (Under Section 34 of  SARFAESI Act then the borrower / mortgager should exhaust the avenue of appeal.  In such circumstances there is no deficiency in service on the part of these opposite parties.  Having availed the home loan, it is the duty of the complainant to repay the same.  The complainant has filed the above vexatious complaint with ulterior motives to dodge repayment to the Bank.  There are no merits in the above complaint and the same is vexatious and liable to be dismissed.

12.     The contention of written version of the 3 & 4^th  opposite parties is  briefly as follows:-

It is true that they have arranged the loan for complainant in the 2^nd opposite party’s Bank.  Accordingly, the 2^nd opposite party sanctioned the loan amount.  The allegations made that the 3 & 4^th opposite parties had all the cheques with them and made the complaint to sign all the cheques is not true and correct.  It is the complainant had issued the cheque in favour of 3^rd opposite party towards the installment amount for completing the work. 

13.     The allegations that the Bank Officer acted in collusion with the 3 & 4^th opposite party and disbursed all the money directly to the 3^rd opposite party without informing the complainant since the complaint had given the entire cheque book in the hands of the 3 & 4^th opposite parties are not true and correct.  It is submitted that the bank official, after inspecting the work completed in phased manner, and on obtaining the work completion certificate from complainant only, they released the loan amount.  Accordingly, the 3^rd opposite party after completing the construction work, she used to deposit the cheque to withdraw the due amount.  Further the allegations that the 2^nd opposite party had disbursed the entire loan amount of rs.4,75,000/- during roof level of construction during September 2004 and without completing the construction work and without consent of the complainant is not true and correct.

14.     The loan amount of Rs.4,75,000/- has been disbursed in 4 instalments such as including land registration, basement, proof level and final stage of work and not as alleged by the complainant.  The allegations that the 3 & 4^th opposite parties have received the entire payment from the Bank between 12.08.2004 to 29.09.2004 left away without completing the work is not true and correct.  The opposite parties completed all the work as agreed.  Actually, the complainant who wanted to complete the wood work, flooring, plumbing, Electrical and weather coating for which the complainant received a sum of Rs.1,42,000/- through 2 cheques dated 23.04.2005 & 05.04.2005.  As such the 3 & 4^th opposite parties have completed all the work as agreed and they did not committed any deficiency in service as alleged by the complainant.

15.     The allegation that the complainant had the report of the authorized surveyor that the value of work done by the builder was only sum of Rs.2,08,200/- and the complainant brought to the notice of the 2^nd opposite party are all not true and correct.  The alleged surveyor report, if any is not known by the 3 & 4^th opposite parties.  The 3 & 4^th opposite parties are not liable to pay any amount to the complainant.  The opposite parties apart from paying a sum of Rs.1,42,000/- the 3^rd opposite party paid a sum of Rs.15,000/- by way of 2 cheques dated 08.01.2008 cheque nos.906622 & 906615.  In total, Rs.1,57,000/- was paid to the complainant for the work completed by him according to wish.  As such the 3 & 4^th opposite parties never left for work incomplete and never committed any deficiency in service.  The complainant wantonly filed this complaint to extract money from the opposite parties.  The complaint has no merits and reserved to be dismissed.

16.     In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A11 were marked.  While so, on the side of the 1 & 2^nd opposite parties, the proof affidavit is filed and Ex.B1 to Ex.B9 were marked on his side and on the side of the 3 & 4^th opposite parties, the proof affidavit is filed and Ex.B10 & Ex.B13 were marked for  their evidence.

17.     At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

2. Whether the complainant is entitled for any relief as prayed for?

18.     Written arguments had been filed on the complainant and 1 to 4 opposite parties side.

19.     Point no.1:-

As per the averments of the complaint and the evidence adduced by the complainant, it is learnt that on believing the words of the 3 & 4^th opposite parties, the complainant availed a loan of Rs.4,75,000/- for the construction of building by means of agreement with them.  The sanctioned order of the loan is marked as Ex.A1.   It is further learnt that the 1 & 2^nd opposite parties having collusion with the 3^rd & 4^th opposite parties and disbursed the entire loan amount during roof level itself and immediately on receiving the entire payment between 12.08.2004 & 29.09.2004 both the 3 & 4^th opposite parties left away without completing the work.  Actually, the 3 & 4^th  opposite  parties have completed the work only to the tune of Rs.2,08,025/- and the work yet to be completed which estimated to Rs.1,40,200/- as per the Licensed Survey Report who is attached with Ragul Foundation.  The survey report is marked as Ex.A2.  It is further narrated that for the deficiency of service on the part of the opposite parties, the complainant written the letters, Ex.A3 & Ex.B4 to the Bank Authorities and thereafter, the complainant issued Ex.A5, legal notice to the 1, 3 & 6^th opposite parties and for receipt of the same, Ex.A6 series, acknowledgement is marked.  The reply notices, Ex.A7 & Ex.A8 have been given by the 3 & 6^th opposite parties respectively.  The notice issued by the Bank Authorities under SARFAESI Act received by the complainant is marked as Ex.A9 and the copy of the Interim Stay Order passed by the Hon’ble High Court, Madras in M.P. No.02/2007 in W.P. No.18171/2007 is marked as Ex.A10 and as per the said order the complainant paid Rs.1,00,000/- to the 2^nd opposite party’s Branch and the payment challan is marked as Ex.A11.   It is further stated that the attitude of the opposite parties had caused mental agony to the complainant which amounts for deficiency in service on the part of them.

20.     Whileso, the 1 & 2^nd opposite parties though admitted the sanction of the loan of Rs.4,75,000/- to the complainant, but at the same time, they contended that the other allegations made by the complainant are all denied and further stated that only the letters with different dates which are marked as Ex.B1 to Ex.B4 given by the complainant, the loan amount was disbursed in a phased manner and infact there is no collusion by the Bank Officials with the 3 & 4^th opposite parties as alleged.  It is further stated that the said loan amount was credited only to the S.B. account and for which the Statement of Accounts of the complainant is marked as Ex.B5 & Ex.B6 which shows the payment not disbursed directly from the 1 & 2^nd opposite parties to the 3 & 4^th opposite parties and therefore, there is no deficiency in service on their part.  Furthermore, it is contended by the 1 & 2^nd opposite parties that the Writ Petition filed in W.P.18171/2007 was subsequently dismissed on 11.03.2008 by the Hon’ble High Court, Madras and the same was suppressed by the complainant which itself shows that the complainant has not moved this Forum with clean hands.  The Interim order and the Final order passed by the Hon’ble High Court, Madras is marked as Ex.B7 & Ex.B8 respectively.  The order passed in S.A. No.79/2008 is marked as Ex.B9.   Moreso, this complaint is clearly barred by limitation under section 24 A (2) of the Act.

21.     On the other hand, the 3 & 4^th opposite parties have contended that it is not correct to say that the 3 & 4^th opposite parties left away the work without completing and infact the complainant himself wanted to complete the woodwork, flooring, plumbing, electrical and whether coating and to that effect he has given the consent letter which is marked as Ex.B10 and accepting the same the 3^rd  opposite parties has given the amount of Rs.1,42,000/- by means of cheques.  Therefore, the 3 & 4^th opposite parties did not commit any deficiency of service as alleged by the complainant and to that effect Ex.B11 to Ex.B13 are marked.   Furthermore, though the complainant have received a sum of Rs.1,57,000/- from the 3 & 4^th opposite parties, suppressed the said material facts and filed this complaint only to extract money with guilt intension and hence this complaint has not merits and deserved.

22.     At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that the sanction of the housing loan for a sum of Rs.4,75,000/- towards construction of building by the 1 & 2^nd opposite party to the complainant and the disbursement of the said loan for construction purposes are all admitted facts.  Similarly, the agreement made by the complainant with the 3 & 4^th opposite parties for construction of house for the complainant also admitted by either parties.  In such circumstances, the duty cast upon the Forum to decide whether there is any deficiency of service on the  part of the 1 to 4 opposite parties has been proved as alleged by the complainant.  First of all, in respect of deficiency of service against the 1 & 2^nd opposite parties, on careful perusal of the , it goes without saying that it is the duty of the complainant to prove the same.  If it is so, on the side of the complainant none of the relevant documents filed for the allegation made against the 1 & 2 opposite parties. 

23.     At the outset, on going through the evidence of the complainant the Ex.A1 is the sanction order of the loan obtained by the complainant from the 1 & 2^nd opposite parties.  Ex.A3, letter addressed by the complainant to the Assistant General Manager, Indian Bank, Chennai for withdrawl of his compliants against  one Mr. Gunasekaran, Loan Manager of the Pattabiram Branch, who is the 6^th opposite party herein.  So, Ex.A1 to Ex.A3 are no way helpful to the complainant’s case.  The other documents viz Ex.A4 is the letter addressed by the complainant to the DGM, Indian Bank, Kancheepuram regarding the recovery of payment for the pending loan.  Ex.A5, is the legal notice issued by the complainant to the opposite parties and Ex.A6 series are the acknowledgment and for which, Ex.A7 & Ex.A8 are the reply notice given by the 3 & 6^th opposite parties respectively.  Ex.A9 is the SARFAESI Notice issued by the 1 & 2^nd opposite party and Ex.A10 is the copy of the Interim Stay Order passed by the Hon’ble High Court, Madras in W.P.18171/2007.

24.     From the above documents produced on the side of the complainant no document is showing anything about the allegations made against 1 & 2^nd opposite parties.   It is clear that only on the Ex.B1 to Ex.B4 letters of the complainant for the disbursement of the Loan amount to the S.B. Account the disposal of loan amount has been made by the Savings Bank Account of the complainant which is evident through Ex.B5, Statement of Account of the complainant.     Therefore, it is clear that the complainant himself issued the cheques to the 3 & 4^th opposite parties for payment of construction cost and the same has been proved in Ex.A6.  Therefore, it is crystal clear that the 1^st & 2^nd opposite parties has disposed the loan only as per the instruction of the complainant and hence there is no negligence or deficiency of service on the part of the 1 & 2^nd opposite parties.    It is categorically stated that though it is true that the W.P.18171/2007 was filed by the complainant and Ex.B7, Interim Stay Order was passed but subsequently the main petition was dismissed and the copy of the said order is marked as Ex.B8 and similarly, S.A. No.79/2008 filed by the complainant before the D.R.T. –III, Chennai was disposed off already on 20.11.2009 and the copy of the order is Ex.B9 and the above said facts have been conveniently suppressed by the complainant which clearly shows that the complainant had moved this Forum without clean hands.  In such circumstances on careful going through Ex.B7 & Ex.B8, as rightly pointed out by the 1 & 2^nd opposite parties the complainant has conveniently suppressed certain material facts which is crystal clear.  From the forgoing among other facts and circumstances, it can be decided that there is no deficiency of service on the part of the 1 & 2^nd opposite parties.

25.     The next point to be decided is in respect of deficiency of service on the part of the 3 & 4^th opposite parties, is that they left the site without building the full work of the house in the mid way and caused much damage and mental agony to the complainant, in order to prove the same the complainant produced Ex.A2, the work completion certificate given by the Ragul Foundation, Choolaimedu, Chennai by stating that the 3 & 4^th opposite parties after completing the work only to the tune of Rs.2,48,225/- only and the remaining working viz. weathering course, doors and windows, flooring, bath room tiles, bath room fittings & kitchen top  and compound wall which are estimated to the cost of Rs.1,40,200/- and the same yet to be completed and for non - completion of the construction work the complainant had issued legal notice which is marked as Ex.A5.  On the reply notice, Ex.A7 given by the 3^rd opposite party except those documents, no other documents filed on the side of the complainant.   

26.     At the outset, on perusal of the evidence of the 3 & 4^th opposite parties it is categorically admitted that the construction work was taken over from the complainant, and started the construction work and during the course of construction, the complainant wanted to complete the wooden work, flooring,  plumbing, electrical and weather coating by himself and in this connection letter Ex.B10 was given by the complainant and thereafter, the complainant received an amount of Rs.1,57,000/-  on various dates by means of Bank cheques and to prove the same Ex.B11, Ex.B12 & Ex.B13 are produced before this Forum.   In such circumstances, it is admitted by the complainant in his complaint itself that he has only received Rs.71,000/- on Rs.1,40,200/- and in the remaining amount Rs.69,000/- had not been paid by the opposite parties.  But it is very well seen from Ex.A1 that certain works were not completed only on the request of the complainant is very clear and Ex.B10 is not at all specifically denied or disputed by the complainant which has to be kept into account.  Similarly, Ex.B11 to Ex.B13 clearly reveals the fact that the complainant had already received Rs.1,57,000/- before filing of this complaint.  Regarding, the above document Ex.B13, the cheque amount of Rs.71,000/- dated 05.07.2005 is admitted by the complainant himself.  Regarding Ex.B11 & B12 on 08.01.2005 Rs.15,000/- was debited for the cheques bearing nos.906622 & 906615 in favour of the complainant Rs.7,000/- was debited for the cheque no.906653 in favour of the complainant on 02.04.2005 Rs.20,000/- in the name of the complainant and  Ex.B12 is the voucher dated: 12.08.2004 and the 3^rd opposite party has issued a Ex.B13, cheque in no.993402 for Rs.71,000/- on 05.07.2005 and the complainant has made an endorsement for the receipt of Rs.71,000/- as “Total amount received on 23/04/05 and Total Settlement Rs.71,000/-“. These facts have not been disputed by the complainant by means of any relevant documents before this Forum.  Therefore, it can be easily presumed from the above documents as well as evidence adduced on the side of the 3 & 4^th opposite parties, it is very well clear that the complainant has received more than the amount claimed in the complaint.    In the light of the above facts and circumstances, it is very clear that there is no deficiency of service on the part of the 3 & 4^th opposite parties.

27.     In respect of the plea taken by the 1 & 2^nd opposite parties that this complaint is barred under limitation.  It is admitted that the last transaction between the complainant and the 3 & 4^th opposite parties was taken place on 05.07.2005 as per Ex.B4 and therefore, the cause of action arose only on 05.07.2005 and thereby the time limit for filing this complaint would expire on 05.07.2007 itself this complaint actually filed on 26.11.2007.  Whileso, paragraph no.19 in the complaint it is said that the legal notice was sent on 25.11.2006 and for that the 3^rd opposite party replied on 08.01.2007 and the 6^th opposite party replied on 12.01.2007 which arises cause of action.  At the outset, this Forum wants to enlighten that mere issuance of notice and in receipt of the same cannot extract limitation at any cost.  Therefore, as rightly pointed out by the 1 & 2^nd opposite party this complaint is clearly barred by limitation u/s 24 A (2) of the Act. 

28.     In the light of the above facts and circumstances and from the foregoing among other facts and observations, the complainant has not proved the allegations made in the complaint.  Thus point no.1 is answered accordingly.

29.     Point no.2:-

As per the decision arrived in point no.1, the complainant is not entitled for any relief as prayed in the complaint.  Thus, point no.2 is answered accordingly.

30.     In the result, this complaint is dismissed.  No cost.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 21^st  July 2016.

Sd/-****                                                                                       Sd/-****

MEMBER - I                                                                            PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 1 & 2^nd opposite parties:-

List of documents filed by the 3 & 4^th  opposite parties:-

Sd/-****                                                                                       Sd/-****

MEMBER - I                                                                            PRESIDENT