DATE OF FILING : 4.3.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 28th day of October, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDHU SOMAN MEMBER
C.C No.53/2011
Between
Complainant : Adv. Shiji Joseph,
Koonammackal House,
Mannamkandam P.O.,
Millumpady, Adimali,
Idukki District.
(By Adv: Lissy M.M)
And
Opposite Parties : 1. The General Manager,
Idukki District Co-operative Bank Ltd.,
Idukki Colony P.O.,
Idukki District.
2. P.J. George,
The Manager, Idukki District Co-operative Bank Ltd.,
Cheruthony Branch,
Idukki Colony P.O.,
Idukki District.
(Both by Adv: C.K. Babu)
O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
The complainant is a practising lawyer at Idukki, who availed a loan of Rs.1,50,000/- from the 2nd opposite party with the security of the salary certificate of the complainant's wife and another teacher. The loan was to be repaid in 60 instalments with interest. The monthly instalment was Rs.4,000/- each. The expiry period of the loan was 1.1.2012 and the complainant was promptly repaying the same. The 2nd opposite party issued a notice to pay Rs.17,000/- as due of the loan. So the complainant issued a cheque for an amount of Rs.12,000/- which is issued in the name of the complainant by one Mr. K.B. Vijayan, Puthenpurayil, Elappara. The complainant was convinced that there was enough fund in the account of Mr. Vijayan, but the cheque was bounced due to insufficient fund. But the matter was never informed by the 2nd opposite party to the complainant and issued a recovery notice. At the time of receiving the notice only the complainant revealed about the
dishonour of the cheque. So he paid Rs.12,000/- in the loan account on 4.12.2010.
(cont....2)
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Another notice was sent by the opposite party in the month of January, for the recovery of Rs.3,000/- from the salary of his wife. The notice issued by the opposite party is illegal and unnecessary one, because the outstanding loan is Rs.46,810/- and one year is left for the expiry of the loan period. The instalment amount was only Rs.4,000/-. So the complainant again remitted Rs.10,000/-, but the opposite party sent another notice on 18.2.2011, which is a prosecution notice, to the superior officers of the sureties of the complainant's loan and also to the Regional Deputy Director of the Higher Secondary Education. The outstanding amount of the complainant's loan is Rs.37,995/- and the loan period expires only on 1.1.2012. In response to the demand notice of Rs.6,000/-, the complainant paid Rs.10,000/-. So the notices issued by the opposite party is only to harass the complainant and it is deficiency in service from the part of the opposite party, also it caused humiliation pain and mental agony to the complainant. Moreover, the opposite party received Rs.2,000/- in excess to interest from 1.1.2007 to 4.2.2011 and the opposite parties are liable to refund the same. So this petition is filed for getting the compensation for the deficiency in service of the opposite parties.
2. As per the written version filed by the opposite party, it is admitted that the complainant availed a loan of Rs.1.5 lakhs and it was to be repaid in 60 monthly instalments of Rs.2,500 + interest on the 1st day of every month, commencing from 1.2.2007. The complainant was not regular in repayments and so the opposite party issued notices on 1.10.2007 and on 11.1.2008 in order to clear the arrears. But it was not responded by the complainant and so registered notices were issued on 13.5.2008 to the complainant and his sureties to repay the entire loan amount. Again on 22.12.2008, a notice was issued calling upon him to repay the entire outstanding amount, but he did not respond. Though a cheque was issued by the complainant to the opposite party, it was bounced. It was for protracting the payment. The complainant was bound to ensure the payment of the cheque, instead he is attributing the liability of bouncing upon the shoulders of the opposite parties. They are not liable to inform the dishonour of the cheque to the complainant. It is the duty of the complainant to repay the loan promptly. The averment that the complainant had remitted Rs.1,20,000/- on 4.12.2010 is absolutely false. On 3.12.2010, the complainant had remitted only Rs.12,000/-. As on 1.12.2010, the complainant must have remitted 47 instalments. So that the opposite party constrained to issue recovery notices on 24.1.2011 and on 18.2.2011 to the disbursing officers for collecting the amount from the salary and there is no deficiency from the part of the opposite party. The complainant remitted Rs.8,810/- towards the principal and other charges on 4.2.2011 and the opposite parties are at liberty to realise the entire amount at any time after the notice dated 13.5.2008. The opposite party never collected any excess amount from the complainant. All the calculations in his account is computer-generated which is done as per the norms of co-operative and RBI laws. So the complainant is not entitled to get any amount as refund.
(cont....3)
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3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?
4. The evidence consists of oral testimony of PW1 and Exts.P1 toP5 marked on the side of the complainant and Exts.R1 to R9 marked on the side of the opposite party.
5. The POINT :- The complainant filed affidavit and produced evidence as PW1. PW1 was promptly paying the amount availed from the opposite party which is Rs.1,50,000/-. In November, 2010, a notice was issued by the opposite party for an amount of Rs.17,000/- so a cheque was issued for Rs.12,000/- which was given by one Mr. K.B. Vijayan to the complainant. But unfortunately it was bounced due to lack of fund, but the matter was not intimated by the opposite party to the complainant. The recovery notice was issued by the opposite party so that the complainant was never aware of the dishonour of the cheque but PW1 paid an amount of Rs.12,000/- on 4.12.2010 in the account. Again the 2nd opposite party sent another notice for the recovery of Rs.3,000/- from the salary of his wife. But the outstanding amount was only Rs.46,810/- and there is one year period to expire the loan period. On 4.2.2011 the complainant paid Rs.10,000/-. But again the opposite party issued a prosecution notice on 18.2.2011 along with the notices to the superior authorities of the sureties. Ext.P1(series) are the recovery notice issued to the Principal, St. Thomas HSS, Thankamany with reference to the surety of Laisamma K.A, for a total amount of Rs.58,780/- and another notice issued on 25.11.2010, to the Principal of FM GHS School, Koompanpara, with reference to the surety of Lucy Joseph. While the cheque issued by the PW1 was bounced, it is the duty of the opposite party to inform the matter to the PW1 about the dishonour of the cheque. Copy of the page of the Master Circular of the RBI regarding the dishonour of the cheque is marked as Ext.P2, which is opposed by the counsel of the opposite party. Ext.P3(series) are the notices issued by the opposite party on 24.1.2011 to the Principals of the sureties, Lucy Joseph and Laisamma K.A., for remitting an amount of Rs.47,761/- with the instalments of Rs.3,000/-. The statement of account of the loan of the complainant produced and marked as Ext.P4. Another notice issued by the 2nd opposite party to the Principal of the sureties stating they are constrained to initiate prosecution proceedings against the sureties are marked as Ext.P5(series). It is also deposed by the PW1 that in the original complaint, in paragraph 3, it is written that he paid an amount of Rs.1,20,000/- to the opposite party, but it was mistakenly written and the amount paid was only Rs.12,000/-.
The complainant is a practising lawyer and not an ordinary prudent man, it is admitted by PW1 himself that there is an agreement created between the complainant and the opposite party bank for the repayment of the loan and it is produced by the
(cont....4)
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opposite party, is marked as Ext.R1. PW1 also stated that he is bound to act as per the loan agreement. It is also admitted by the PW1 on the cross examination of the learned counsel for the opposite parties, Ext.R1 signed by PW1 and he is bound to obey the conditions of Ext.R1. It is also admitted by him that he has not at all done the same completely. It is stated that if the loan becomes due, the opposite party has the right to recover the entire amount from the complainant. While a specific question raised by the learned counsel for the opposite party, PW1 deposed that it is absolutely correct that the opposite party bank is entitled for recovery of the entire loan, if there is due. But PW1 stated that, as per his knowledge, it can be recover only after giving notice to him and it is also admitted by PW1 that the notices were issued by the opposite party on 1.10.2007 and 11.1.2008, in the original deposition page No.3. But PW1 has made repayment as per the notices and the notices issued by the opposite party to the complainant on 1.10.2007 and on 11.1.2008 are marked as Ext.R2(series). The notices issued on 13.5.2008 is marked as Ext.R3. Copy of the postal Acknowledgement Cards for serving the notices are produced and marked as Ext.R4(series). But PW1 deposed that he has regularised the loan on receiving the Ext.R3 notice. The notices dated 6.3.2009 issued by the opposite party to the guarantors of the complainant's loan are marked as Ext.R6(series). The notices issued to the guarantors of the loan through their Principal, on 25.11.2010 are marked as Ext.P1 and it is also admitted by the PW1. After receiving the same, the cheque has been issued by the complainant to the opposite party. So the complainant has never paid the amount on receiving the recovery notice issued to the complainant, but he issued a cheque to the opposite party bank for the payment of the loan which is issued by another person Mr. Vijayan to the complainant. But unfortunately, there was insufficient fund to honour the cheque, in the account of the said Vijayan and so it was dishonoured. So that the opposite party initiated recovery proceedings against the complainant and against the sureties again through their Principals, as per Ext.R8(series) notices dated 24.1.2011. As per the statement of loan account of the complainant, produced by the opposite party, the number of instalments due upto May 2011, for the complainant's loan account is 52 instalments and it comes to an amount, 52 x 2500 = 1,30,000/-. The amount paid by the complainant is Rs.1,14,666/- and so an over due of Rs.15,334/- in the loan account of the complainant, which is marked as Ext.R9 eventhough it is objected by the learned counsel for the complainant.
If the statement of account of the loan produced by the bank is not correct, what prevented the complainant, who is a practising lawyer, to file a petition before the Forum to direct the opposite party for producing the exact statement of account of the loan and to provide the calculation details of the account of the loan. The complainant never produced any statement of account of the loan to show that such an amount is due to the opposite party, by the complainant. Another main contention of the complainant is that the opposite party misbehaved and harassed him while he approached the opposite party bank. But there is no evidence produced by the (cont....5)
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complainant to show the same. The complainant never tried to produce the opposite party or his staff or any other person as witness to show that they have misbehaved against the complainant or to substantiate his contention. Eventhough there is payment of some amount on 3.12.2010 and on 4.2.2011, the loan had became due. The complainant is not made payment in the loan account promptly even after 4.2.2011. That matters are also not challenged by the complainant. The main contention raised by the complainant is that the opposite party misbehaved the complainant and never issued any notice to the complainant while the cheque has been bounced. They have initiated the recovery proceedings against the sureties of the complainant.
So we think that the complainant was not promptly paying the loan account in the opposite party bank. So they have issued several notices to the complainant and that also admitted by the complainant. The complainant, who is a practising lawyer, who admitted the fact that he is liable to pay the amount as per the loan agreement, Ext.R1 and he himself issued the cheque for the payment of an amount of Rs.12,000/- to the opposite party which was issued to the complainant by a 3rd person, one Mr. Vijayan. But it was the duty of the complainant to assure that the cheque given to the opposite party for the payment of the loan was having sufficient fund in the account. Without having sufficient fund in the bank account, the complainant issued the cheque for the repayment of the loan which was in due and the only contention of the complainant is that the bank has not informed the matter to the complainant that there was no sufficient fund in the account in which the cheque has been issued. The cheque was not in the name of the complainant, but in the name of a 3rd person who issued to the complainant himself. So the bank has initiated recovery proceedings against the complainant because the complainant never paid the loan amount which was in due and issued a cheque which is not having sufficient money. That means the complainant issued the cheque only for delaying the payment, for getting some time for payment. The complainant never produced any evidence to show that misbehaviour has been caused from the part of the opposite party against the complainant. So the complainant never proved any deficiency against the act of the opposite party.
Hence the petition dismissed. No cost is ordered against the complainant.
Pronounced in the Open Forum on this the 28th day of October, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
Sd/-
SMT. BINDHU SOMAN (MEMBER)
(cont...6)
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APPENDIX
Depositions :
On the side of the Complainant :
PW1 - Shiji Joseph
On the side of the Opposite Parties :
Nil.
Exhibits :
On the side of the Complainant :
Ext.P1(series) - Copy of notices issued by the opposite party to the superiors of
the sureties, dated 25.11.2010.
Ext.P2 - Copy of the page of the Master Circular of the RBI regarding the
dishonour of the cheque.
Ext.P3 - Copy of notices issued by the opposite party to the superiors of
the sureties, dated 24.1.2011.
Ext.P4 - The statement of account of the loan of the complainant.
Ext.P5(series) - Copy of notices issued by the opposite party to the superiors of
the sureties, dated 18.2.2011.
On the side of the Opposite Parties :
Ext.R1 - Copy of the loan agreement created between the complainant and
the opposite party bank, dated 1.12007.
Ext.R2(series) - Copy of the notices issued by the opposite party to the complainant
on 1.10.2007 and on 11.1.2008.
Ext.R3 - Copy of the notices issued by the opposite party to the complainant
on 13.5.2008.
Ext.R4(series) - Copy of the postal Acknowledgement Cards - 3 Nos.
Ext.R5 - Copy of the notices issued by the opposite party to the complainant
on 22.12.2008.
Ext.R6(series) - Copy of notices issued by the opposite party to the superiors of
the sureties, dated 6.3.2009 and 25.11.2010.
Ext.R7 - The cash receipt issued by the opposite party dated 18.4.2011.
Ext.R8(series) - Copy of notices issued by the opposite party to the superiors of
the sureties, dated 24.1.2011 and 18.2.2011.
Ext.R9 - Copy of the details of Loan Account of the complainant.
