Karnataka

Chitradurga

CC/139/2018

B. Chinnappa S/o Channabasappa - Complainant(s)

Versus

The Executive Engineer, T.L. and SS - Opp.Party(s)

Sri.P.S. Sathyanarayana Rao

30 Nov 2018

ORDER

COMPLAINT FILED ON:19/07/2018

DISPOSED      ON:30/11/2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO:139/2018

 

DATED: 30^th NOVEMBER 2018

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	B. Chinnappa S/o Channabasappa, Aged about 56 years, Line-man, KPTCL, Davanager. Residencial Address: B. Chinnappa, Line-man, House No. 79, KEB Colony, V.P. Extension, Chitradurga.   (Rep by Sri.P.S. Sathyanarayana Rao, Advocate)
V/S
…..OPPOSITE PARTIES	II Cross, Kaveri Towers, Davanagere.   2. The Chief Manager, Canara Bank, Chitradurga Main Branch,     (Rep by Sri.H.R. Jagadeesh, Advocate for OP No.1 and Sri. Shabbir Ahammed, Advocate for OP No.2)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OP No.1 to recover the loan amount from the legal heirs of deceased Badappa out of his death benefits to be received from OP No.1, to direct the OP NO.2 to refund Rs.25,000/-, which is collected from the salary of the complainant, Rs.50,000/- towards compensation, Rs.10,000/- towards mental agony and to grant such other reliefs.

2.      The brief facts of the case of the above complainant are that, he is working as a lineman with the OP No.1.  It is further submitted that, one B.T. Badappa was also working as a lineman along with complainant, who had barrowed loan from OP No.2 for a sum of Rs.3,20,000/- under Canara Budget Scheme and was paying installment regularly.  In the meanwhile, the said B.T. Badappa died leaving behind his wife, sons and daughters as his legal heirs for his liabilities and also estate.  Therefore, the duty of the legal heirs of said B.T. Badappa is to clear the loan amount borrowed by him.  Now the legal heirs of deceased B.T. Badappa are shortly receiving nearly Rs.20,00,000/- and compensatory job benefit from OP No.1.  Further it is submitted that, on 18.05.2018, the complainant requested the OP No.2 not to deduct any loan amount which is payable by the legal heirs of said B.T. Badappa out of his salary.  Eventhen, the OP No.2 has deducted Rs.10,000/- and Rs.15,000/- in all a sum of Rs.25,000/- from the salary of complainant.  The complainant has no other source of income to lead his livelihood except the salary and he is facing very hard days due to this loan commitments.  But, with a commercial knowledge, to gain wrongful gain, for themselves to cause wrongful loss to the complainant, OP No.2 with an ulterior motive to harass him, trying to collect the loan amount borrowed by said deceased B.T. Badappa from the salary of complainant by deducting an amount of Rs.25,000/-, which is against to the law and the same is to be refunded to the complainant.  The legal heirs of deceased B.T. Badappa are owning and possessing the immovable properties worth more than the borrowed loan amount and the same is within the knowledge of OP No.2.  But the OP No.2 has not taken any action to recover the loan amount from the legal heirs of deceased B.T. Badappa.  If the collected amount is less than the loan amount, then both the guarantors are liable to remit the balance amount to the OP No.2, for this the complainant is abide and ready to pay the balance amount.  It is further submitted that, the OP No.2 has issued a legal notice on 22.05.2018 through their Counsel to the complainant for payment of the borrowed loan amount from the legal heirs, the complainant has complied the same on 16.06.2018 to the said notice and on the same day, the complainant has issued legal notice to OP No.1 to take action to collect the loan amount from the legal heirs of deceased B.T. Badappa stating that, he is not liable to p[ay any loan amount.  The OPs are under the legal obligation to recover the loan from the Principal Borrower and not from the guarantor, failing which it amounts to deficiency of service on the part of OP No.2.  The cause of action for this complaint arose within the jurisdiction of this Forum on 22.05.2018 when the OP No.2 has issued legal notice and on 16.06.2018 when the complainant complied the same and hence, prays for allow the complaint.

3.      On service of notice, OP No.1 appeared through Sri. H.R. Jagadeesh, Advocate and OP No.2 appeared through Sri. Shabbir Ahammed, Advocate and filed their respective version. 

According to the version filed by the OP NO.1, it is true that, the complainant is working as a lineman with OP No.1.  Further averments stated in the complainant are not aware by this OP No.1.  The OP No.1 has not committed any deficiency of service and further denied all the contents of the complaint and hence, prayed for dismissal of the complaint.

According to the version filed by the OP No.2, the complaint filed by the complainant is not maintainable either in the eye of law or on facts and the same is liable to be dismissed in limine.  Further the allegations made in para 2 are denied as false.  It is true that, the complainant has given surety to one Sri B.T. Badappa, lineman for the loan of Rs.3,20,000/- obtained from OP No.2 under Canara Budget Scheme.  Further, the allegations made in para 2 are denied as false.  It is true that, the said Badappa died leaving behind his wife, sons and daughters as his legal heirs.  Further it is submitted that, the complainant and said Badappa are jointly and severally liable to pay the loan amount.  It is false to say that, on 18.05.2018, the complainant has requested the OP No.2 not to deduct any loan amount which is payable by the legal heirs of deceased B.T.Badappa out of the salary of complainant.  Further it is true that, this OP has deducted the amount of Rs.10,000/- and Rs.15,000/- in all a sum of Rs.25,000/- from the salary of the complainant since Badappa and complainant are defaulters to pay the loan amount as per the terms and conditions of the documents executed by them.  The allegations made in para 4 are all false.  Further it is stated that, this OP rightly deducted Rs.25,000/- from the salary of the complainant as per the terms and conditions of the documents executed.  The allegations made in para 6 of the complaint is false and not within the knowledge of this OP.  It is true that, OP No.2 got issued legal notice on 22.05.2018 through their counsel to the complainant and the legal heirs of deceased Badappa to pay the outstanding loan amount, for which the complainant has replied by giving false reasons, it is not maintainable under law.  The allegations made in para 8 of the complaint i.e., OPs are under the legal obligation to recover the loan from the principal borrower not from the guarantor, failing which it amounts to deficiency in service on the part of OP No.2 is baseless and also untenable under law.  Further it is stated that, the deceased Badappa under the co-obligation of the complainant had availed a loan of Rs.3,20,000/- under Canara Budget Scheme from OP No.2 on 14.11.2014.  Accordingly, the deceased Badappa and complainant have jointly and severally executed the on-demand promissory note and take delivery note to the DPN on the same day and further executed irrevocable mandate to deduct the loan amount from their salary and hence as per the terms and conditions of the documents executed by the deceased Badappa and complainant are jointly and severally liable to pay the loan amount availed by the deceased Badappa under the co-obligation of complainant.  It is further submitted that, after the death of said Badappa, the complainant being the co-obligant by accepting the liability and confirming the balance executed the letter of revival on 31.10.2017 in favour of OP No.2 and hence, the complainant is abide to pay the loan amount to the OP No.2.  It is further stated that, the LR’s of deceased Badappa and complainant becoming defaulter to pay the loan amount.  The OP No.2 got issued legal notice to the complainant and LR’s of deceased Badappa to pay the installment due, but they have failed to pay the installment amount and after that, the OP No.2 has deducted the amount of Rs.25,000/- from the salary of the complainant.  Hence, OP No.2 has not committed any deficiency of service and prays for dismissal of the complaint.      

 4.     Complainant himself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-4 were got marked and closed his side. On behalf of OP No.2, one Sri. Muniraju, the Chief Manager has examined as DW-1 by filing the affidavit evidence and Ex.B-1 to B-8 documents have been got marked and closed their side.  

 

5.      Arguments of both sides heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

 

(1)  Whether the complainant proves that the OP No.2 has no right to deduct the amount from the salary of the complainant towards the loan obtained by the deceased Badappa from OP No.2, as he stood as a guarantor and further entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

 

                    7.      Our findings on the above points are as follows:-

                    Point No.1:- Partly in Affirmative. 

                    Point No.2:- As per final order.

REASONS

8.      It is the case of the complainant that, the complainant and deceased Badappa are working as a lineman under OP No.1.  The deceased Badappa has obtained a loan of Rs.3,20,000/- from OP No.2 and the complainant was stood as a guarantor to the said loan.  The deceased Badappa was died leaving behind his legal heirs and he failed to repay the loan amount obtained from the OP No.2.  The OP No.2 has deducted the amount from the salary of the complainant.  The complainant has intimated the so many times and requested the OP No.2 to collect the loan amount due from the LR’s of deceased Badappa.  The LR’s of deceased Badappa receiving shortly nearly Rs.20,00,000/- and compensatory job benefit, but the OP No.2 instead of taking steps against the LR’s of deceased Badappa, they have deducted the amount from the salary of the complainant.  The LR’s of deceased Badappa is having sufficient source to repay the loan amount to the OP No.2, under the circumstances, the Bank authority has a right to recover the loan amount from the LR’s of deceased Badappa.  Instead of taking steps against the LR’s, they have deducted the amount from the salary of the complainant.  The complainant is depending upon the salary from the OP No.1, the entire family of the complainant is depending upon the salary of the complainant.  The Bank authorities have to take steps against the Principal barrower first, if the amount is not sufficient source from the Principal barrower, the only they have got every right to recover the same from the guarantor.  In this case, the LR’s of the deceased Badappa having sufficient sworn to repay the same.  According to the OP No.2, the LR’s of deceased Badappa has nearly getting Rs.20,00,000/- benefits from the OP No.1.  Under these circumstances, they have to pay the loan amount obtained by their father.  It is the duty of the LR’s to pay the loan amount.  The main duty of the OP No.2 is to try to collect the loan amount from the LR’s of deceased Badappa.  In this case, they have not taken any steps against the LR’s of deceased Badappa.  Hence, the OP No.2 has committed deficiency of service in deducting the amount from the salary of the complainant.                     

9.      We have gone through the entire documents filed by the complainant and OP No.2.  No doubt the deceased Badappa has obtained loan from the OP No.2, for that the complainant is the guarantor to the same.  But the OP No.2 instead of recovering the loan from the LR’s of deceased Badappa, who are well settled and also they are getting the benefit from the OP No.2 nearly for Rs.20,00,000/-.  The OP No.2 has a right to file the recovery proceedings against the LR’s of deceased Badappa as per law, but the OP No.2 has failed to take necessary steps against the LR’s to recover the same.  But they have simply deducted the amount from the salary of the complainant.  The guarantor is liable to pay the loan amount only if the amount recovered from the LR’s of the deceased Badappa if fallen shortage by filing recovering proceedings against the guarantor.  In this case, the OP No.2 has not taken any steps to recover the loan amount from the LR’s of deceased Badappa.  Such being the case, the OP No.2 has committed deficiency of service in deducting the amount from the salary of the complainant.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

 

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that the OP No.2 is hereby directed not to deduct the loan amount of the deceased B.T. Badappa, the lineman of the OP No.1 from the salary of the complainant and further ordered to return the amount already deducted from the salary of the complainant towards loan of the deceased B.T. Badappa.

It is further ordered that, the OP No.2 is at liberty to recover the loan amount of deceased B.T. Badappa from his legal heirs as per law.

It is further ordered that, the OP No.2 is hereby directed to pay Rs.5,000/- towards mental agony and Rs.5,000/- towards costs of this proceedings to the complainant. 

The complaint filed as against OP No.1 is hereby dismissed.

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

 

(This order is made with the consent of Member after the correction of the draft on 30/11/2018 and it is pronounced in the open Court after our signatures)         

 

 

                                     

LADY MEMBER                                                  PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri. Muniraju, the Chief Manager of OP No.2 by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Legal notice dated 22.05.2018
02	Ex-A-2:-	Reply notice dated 16.06.2018
03	Ex-A-3:-	Legal notice dated 16.06.2018
04	Ex-A-4:-	2 postal receipts and 3 postal acknowledgements

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Loan application dated 14.11.2014
02	Ex-B-2:-	Pronote with take delivery letter dated 14.11.2014
03	Ex-B-3:-	Letter of revival dated 31.10.2017
04	Ex-B-4:-	Irrevocable mandate for the deduction of the salary from S.B A/c
05	Ex.B-5:-	Salary certificate of complainant
06	Ex.B-6:-	Demand notice
07	Ex.B-7:-	Letter given by the complainant to bank
08	Ex.B-8:-	Statement of account

 

 

MEMBER                                                   PRESIDENT

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