Chandigarh

DF-II

CC/569/2013

Rajni - Complainant(s)

Versus

The Federal Bank Limited - Opp.Party(s)

Deepak Aggarwal,Adv

04 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	569 of 2013
Date  of  Institution	:	10.12.2013
Date   of   Decision	:	04.01.2017

 

 

 

 

 

Rajni daughter of Sh.Buta Ram, resident of Flat No.18-A, First Floor, Gurdev Nagar, Parbhat Road, Zirakpur District SAS Nagar, Mohali (Punjab)

 

             …………..Complainant

 

Versus

The Federal Bank Limited, SCO No.139-140, Sector 8C, Chandigarh through its Manager/Branch Head.

…………… Opposite Party

BEFORE:  SH. RAJAN DEWAN           PRESIDENT

                                MRS. PRITI MALHOTRA       MEMBER

SH.RAVINDER SINGH          MEMBER

           

 

Argued By: Sh.Deepak Aggarwal, Counsel for complainant.

Sh.Nitin Grover, Counsel for the OP.

 

 

 

PER RAVINDER SINGH, MEMBER

 

                   The facts in issue are that the complainant purchased Maruti Ritz VDI Car bearing Regd. No.CH-04-K-8154 on 15.06.2001 for a total sum of Rs.4,73,254/- after getting it financed from Opposite Party by availing car loan of Rs.3,55,000/-.  The loan was disbursed to her vide Draft No.427463, dated 21.7.2009 by the Opposite Party.  It is averred that the Opposite Party got several documents signed from the complainant and the complainant being an illiterate lady neither filled any details in the agreement nor could read the contents thereof nor any documents were supplied to her.  It is also averred that the complainant was surprised when official of Opposite Party approached her in Aug., 2013 and disclosed that on account of default in payment of installments in the account, her account had been declared as Non-Performing Asset (NPA). Allegedly the official, who was accompanied with four musclemen/goons tried to pressurize the compliant to handover the keys of the vehicle to take it away. It is stated that the complainant had always deposited the installments on time and never defaulted.  It is further stated that on perusing the Statement of Accounts pertaining to the Car Loan Account NO.13737400001972 and Savings Account No.13730100029260 of complainant, it transpired that there are certain transactions made by third party vide some debit card/ATM Card, whereas no ATM/Debit Card was ever requested for or issued to and received by the complainant.  Further, there are some transactions through cheques purported to be issued by the complainant, but in reality the same cheques have never been issued by the complainant.  It is also averred that the cheques vide which wrongful transaction have been made are not part of cheque books issued by the Opposite Party to the complainant.  It is pleaded that the statement of accounts will reflect two things that the complainant had already made the payment of entire loan and further that bank had indulged in unfair trade practices by illegally debiting the saving account of the complainant time and again causing huge financial loss to the complainant. Hence, this complaint has been filed for claim of compensation of Rs.2.00 lacs for mental agony, harassment along with litigation charges etc. for deficiency in service and unfair trade practice on the part of OP.

 

2]       The Opposite Party has filed reply and while admitting the factual matrix of the case, has stated that the OP Bank had taken only five post-dated cheques bearing Nos.1009921, 1009922, 1009923, 1009924 & 1009925 which are still in possession of the bank and were never utilized and misused.  It is denied that OP Bank had got signed blank documents, agreement and not read the contents thereof to the complainant.  It is stated that the complainant had executed the loan documents and other agreements in favour of OP Bank and the complainant cannot, at this stage, question the terms and conditions regarding agreed rate of interest.  It is submitted that after the complainant’s consequent default in three EMIs, the loan account automatically classified as NPA account and the same can also be ascertained from the statement of loan account (Ann.R-8). Due to non-payment of EMIs, the complainant was intimated telephonically number of times by the Opposite Party.  It is also submitted that rights had been given to the bank to take possession of the car/vehicle under Securitization Act, 2002 (SARFAESI ACT), therefore, the allegations of engaging muscleman/goons for pressuring the complainant for the recovery does not arise. It is pleaded that the ATM Card issued to the complainant against her saving account was handed over to her, who also signed the register at the time of receiving it and it can only be utilized by using secret code number/PIN code known to complainant only.  It is also pleaded that the complainant never made any complaint to the Bank about misuse of her ATM Card and the story put-forth is totally concocted one to escape from the liability to pay outstanding loan amount. Pleading no deficiency in service and denying rest of the allegations, the Opposite Party has prayed for dismissal of the complaint.

 

3]       The complainant also filed rejoinder reiterating the contentions as raised in the complaint.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have carefully examined the facts and pleadings along with entire evidence on record.

 

6]       The complainant has filed the present complaint for compensation interalia on the following grounds:-

(a) The Federal Bank Limited-Opposite Party sent an official with four musclemen/goons in August, 2013 and pressurized her, the complainant, to handover the keys of the vehicle to take it away.

(b) The amount has been illegally, by fraudulent means, debited/withdrawn from the Savings Account NO.13730100029260 of the complainant, through cheques, which were never issued by the complainant and also by way of use of Debit Card/ATM Card, which was never got issued by the complainant.

  

7]       The Opposite Party in its reply, without refuting the contentions, as raised by the complainant, as mentioned above at sub-para (a), have further stated and justified their right to take possession of the car/vehicle under Securitization Act, 2002 (SARFAESI ACT).

 

8]       The Hon’ble Supreme Court of India in Appeal (Crl.) 267 of 2007 – Manager, ICICI Bank Ltd. Vs. Prakash Kaur & Ors, decided on 26.2.2007, on the identical facts, has held as under:_

“The practice of hiring recovery agents, who are musclemen, is deprecated and needs to be discouraged.  The Bank should resort to procedure recognized by law to take possession of vehicles in case where the borrower may have committed default in payment of the installments instead of taking resort to strong arm tactics.”

 

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Citicorp Maruti Finance Ltd. Vs. S.Vijayalaxmi, III(2007 CPJ-161(NC) has also held “even though the hire-purchase agreement may give right to take possession of the vehicle, money lenders/financial institution/banks have no power to take possession by use of force and have to follow the statutory remedy which may be available under the law.”

 

         The Hon’ble State Consumer Disputes Redressal Commission, Delhi in C.C. NO.2007/49 – Sh.Tapan Bose Vs. ICICI Bank Ltd. & Ors., decided on 02.11.2007 has further held that

‘Hire Purchase Agreement or loan agreement is a civil contract and dispute arising from it has to be settled by way of civil remedy and not through musclemen and given directions to all the Banks and financers as well as the Police:-That No Bank or Finance Company or Financer and OPs shall in future take the possession of the vehicle or for that purpose any goods forcibly by employing musclemen and goons shall enforce this right through process of law and omission or failure of these directions shall invite penal action u/s 27 of the Consumer Protection Act, 1986.’

 

9]       The action taken by the Opposite Party by sending official with four musclemen to intimidate the complainant for the purpose of forcibly taking away the vehicle, though hypothecated with the bank for the purpose of loan, cannot be held to be justified and is condemnable. 

 

10]      The complainant has stated to have lost money by illegal/fraudulent use of cheques and ATM Card from her account.  Whether the cheques through which any amount has been fraudulently withdrawn from the account of the complainant, were actually issued by the complainant herself or not and as to whether the Debit Card/ATM Card was actually used by the complainant herself or not, the District Consumer Disputes Redressal Forum has no expertise to investigate these facts.  The contentions raised by the complainant with regard to fraudulent withdrawal of money from her account, are complicated questions of facts, which can only be decided by Civil Court or by the Civil Police by way of investigations.

 

11]      Keeping in view the above facts & circumstances of the case, the present complaint is disposed of with direction to the Opposite Party not to resort to any coercive method for recovery of the car by sending official or musclemen at the residence of the complainant and only to take legal recourse, as per law.  However, the complainant is given liberty to approach the Civil Court for redressal of her grievance as per law.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

4^th January, 2017                                                                            Sd/-

(RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER