DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 6th day of December, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 06/10/2021
CC/164/2021
Aminakutty,
W/o. Ummer,
Appamkandathil House,
Kulappully PO, Shornur – 2 Village,
Ottapalam, Palakkad. - Complainant
(By Adv. Sunitha Beegum)
Vs
- Co-operative Urban Bank Ltd.,
Shornur, Palakkad
Rep. by its General Manager.
- J.P. Jayaprakash,
General Manager,
Co-operative Urban Bank Ltd.,
Shornur, Palakkad.
- Jayanandan,
Asst. Manager,
Co-operative Urban Bank Ltd.,
Shornur, Palakkad.
- Ashraf P.M.
S/o.Muhammed,
Paliyathazhathu House,
Karakkad, Kavalappara (PO),
Ottapalam, Palakkad. - Opposite parties
(OPs 1 to 3 by M. Krishnadas
OP4 exparte)
O R D E R
By Sri. Vinay Menon V., President
- Complainant is an account holder of the 1st O.P. Bank, wherefrom she had availed financial assistance. O.P.s 2 and 3 are the Manager and Asst. Manager respectively of the 1st O.P. Bank. 4th O.P. is a stranger, whom the complainant claims to be a friend of O.P.3 Assistant Manager, for whose benefit, the O.P.s 1 to 3 perpetrated the alleged illegal conduct, which are detailed in brief.
- Pleadings requisite for a judicial appreciation of the facts are that the complainant had availed a housing loan bearing No. HL-799 from the 1st OP bank. Due to financial constraints the said loan could not be closed. Hence the complainant decided to extent the tenure of the loan facility. But the 1st OP bank did not permit the complainant to extent the period of loan as she was not having a TIN No. As a way out, the 3rd OP made arrangements to have the tenure of loan extended by way of arranging the loan for the complainant through the 4th OP who is a friend of the 3rd OP. Since the complainant was in dire need of funds and required assistance, she affixed her signature in a power of attorney perepared in English, a language she was unfamiliar with. In order to close the loan account, the complainant arranged a buyer for her property and when she made arrangements for having the loan closed, the 2nd OP informed the complainant that unless the loan availed by the 4th OP also is not closed, her documents would not be returned. The complainant had no intention of standing as a surety for the transactions between the 1st Bank and 4th OP stranger. The complainant is thus aggrieved by the alleged illegal conduct by O.P.s of getting a power of attorney prepared without her consent or knowledge and the refusal on the part of OPs to close her account. Hence this complaint.
- The OPs 1 to 3 filed version stating that the loan account availed by the complainant is still live and the documents submitted by her can be returned only upon the loan account being closed. They sought dismissal of the complaint.
- OP4 did not enter appearance even though he received notice and was set exparte.
- The following issues were framed for consideration:
- Whether there is failure on the part of the complainant in repaying the loan in time?
- Whether the excess amount charged in in accordance with the law / contract between the parties?
- Whether the complainant was competent to execute the power of attorney in favour of the 4th OP?
- Whether there is any deficiency in service on the part of OPs in not closing the complainant’s loan and returning the documents?
- Whether there is any deficiency in service or unfair trade practice on the part of OPs?
- Whether the complainant is entitled to any of the reliefs sought for?
- Any other reliefs?
Addl. Issue 8: Whether the complainant is a consumer?
The aforesaid 7 issues were framed based on the pleadings in the memorandum of complaint and the version filed by OPs 1 to 3.
At the time of hearing, the documents revealed an entirely different picture than what was highlighted by the version pleadings. The loan account which the complainant claimed was not closed and admitted by the O.P. in their pleadings was already closed over an year and a half prior to filing of this complaint. Documents revealed the opening of a new cash credit facility by O.P.4 wherein the complainant had stood as surety. These material facts were absent in the pleadings of the O.P.
Hence circumstances warranted framing of an additional charge subsequent to hearing the complaint on merits. Thus additional issue 8 was framed and the case was posted for re-hearing based on Addl. Issue 8. Since this issue was heard at the time of hearing before framing of additional issue, further hearing was dispensed with by both the parties.
6. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits
A1 to A5.
Marking of Ext.A5 was objected to on the ground it is only a piece of paper and no evidentiary value could be attributed. On a perusal of Ext.A5, we find merit in the objection. It is only a piece of paper upon which statements are seen written. It is only a reproduction of statements pertaining to the complainant. But, in view of the presence of documents maintained by the O.P. bank in the course of its business and marked in evidence and whose evidentiary value was not disproved, no evidentiary value can be attributed to Ext. A5. Ext.A5 is rejected.
- Even though OP was permitted to cross examine the complainant, the complainant failed to turn up on all the dates posted for her cross examination even though there was representation for her by her counsel. Hence cross examination of the complainant was dispensed with. Any adverse inference can be availed.
- OPs marked Exts.B1 to B11. There was no objection in marking any of the documents, or to contents thereof.
- Manager of OP1 bank was examined as DW1.
Additional Issue No.8
7. This issue, as already stated, was necessitated in view of a flaccid and flawed written version filed by the opposite party without paying attention to the details of the facts and circumstances of the case.
It is well settled position that a dispute has to be settled on the basis of the ground work laid bare by the pleadings adduced by the parties. But this is a case whereby the facts as revealed by the documents adduced by the parties are so persuasive that any resort to appreciate the dispute based on the pleadings in the version would lead to absurdity. We are also of the opinion that the 1st O.P. Bank should not suffer for the carelessness and negligence on the part of the officers who advised the counsel appearing for the Bank or a counsel who might have failed to appreciate the instructions and documents provided to him in the correct perspective and drafted the version.
8. Pleadings of the parties revealed that the complainant had a housing loan bearing No. HL-799. OP does not delve deep into the aspects of the specific loan account but only goes to say that the complainant is having a live unpaid loan account and the documents handed over by the complainant can be returned only upon the loan account being settled.
9. Pass book in the custody of complainant pertaining to housing loan bearing No. HL-799 was marked as Ext.A3. As per entries therein, the assistance was availed on 28/4/2017. The final entry is seen made in Ext. A3 on 15/2/2019. As on 15/2/2019, the balance amount repayable was Rs.10,05,148/-.
OP produced statement of account for the same loan account covering period from 24/4/2017 to 31/3/2020 and was marked as Ext. B1. No objection was made by complainant at the time of marking of this document. Ext.B1 reveals that the loan account HL - 799 was closed on 25/3/2020. The total amount of transaction was Rs.15,69,085/-.
Thus, we can see that Ext.A3 is an incomplete document and Ext.B1 reflect the complete transaction till the date of its closure. It transpires that the loan account upon which the entire foundation of this case is built upon, ie. Home loan bearing no. HL – 799, was closed by way of interest adjustments on 25/3/2020.
10. Rest of the documents marked by OP pertains to a Cash Credit Facility availed by one P.M. Ashraf, O.P.4. Ext. B2 application for financial assistance shows the complainant to be a surety. For this purpose, the complainant had executed Ext. B4 power of attorney and submitted Ext.B5 sale deed with the OP bank.
11. Ext. B2 reveals that the financial assistance was availed by P.M. Ashraf for a used car business and not for any purposes for which the complainant is a beneficiary. Complainant got herself tied as a surety and her property as security to the Bank so as to secure the Bank from any losses, in the event of any default by the aforesaid P.M. Ashraf in repayment of the financial assistance availed by him. By any stretch of imagination, in the facts and circumstances of the case, the complainant as a surety cannot be seen as a consumer of the O.P. Bank since the complainant had not availed any financial assistance for herself or her benefit.
12. Thus, we hold that the complaint pleadings are a deceptive concoction of half-truths aided by incomplete documents. Appreciation of the entire evidence sheds light of the fact that the complainant is not a consumer of the OP bank and hence cannot be a complainant as contemplated under the Consumer Protection Act.
Issue Nos. 1 & 2
13. In view of the discussions and findings arrived at above in additional issue 8, a discussion on any other issues is merely pedantic in nature. Yet, we are resorting to appreciation of the facts lest interest of justice be occasioned.
14. It is the grievance of the complainant that she had availed assistance of OP4 by execution of requisite documents for extending the tenure of housing loan HL-799. When she approached OP1 bank to close the loan account upon her finding a suitable vendor for the land offered as security, O.P.1 told the complainant to close the loan account of OP4 as well. She had no intention whatsoever to stand as surety to anybody else. Her only intention was to get extension of tenure for her housing loan.
In support of her pleadings, the complainant had marked Ext.A3 pass book to show that HL – 799 in not settled. OP1, by way of production of Ext. B1 statement of account, countered the said allegation of complainant and proved that HL-799 was closed on 25/3/2020 (contrary to their pleadings). OP bank further marked Exts. B2 to B11, which are documents executed for availing a Cash Credit Facility by one P.M. Ashraf. A perusal of Exts. B2 to B11 documents would portray a seamless transaction which would not warrant a deeper inspection in view of the fact that marking of these documents were not objected to by the complainant. The complainant can be seen to have executed documents to stand as surety for the financial assistance availed by the aforesaid P.M. Ashraf.
15. Thus, on an overall appreciation of pleadings, evidence adduced by the parties and the conduct of the complainant, we are of the opinion that the complainant had already repaid her loan HL-799. The complainant has failed to prove that the OP1 has directed her to remit excess amount into HL-799.
Issue No. 3
16. Complainant has pleaded that she was coerced into executing a power of attorney in English, the contents and nature of which the complainant was unable to comprehend. Thus, the OPs have jointly perpetrated fraud on the complainant. When the complainant has raised such an allegation of fraud, the following relevant factors stand out watering down the reliability of her pleadings:
i) Ext.A1 is the power of attorney which the complainant claims to have executed for extending the loan tenure. Ext.A1 Power of Attorney is executed by complainant on 25.02.2020.
Ext. B1 statement of account shows that her account was closed on 25/03/2020. Complainant had no objection whatsoever in marking of Ext. B1 statement of account. Complainant cannot therefore be heard to raise any claim to the contrary that her loan account was not closed.
Ext.A2 is the lawyer’s notice issued by the complainant to OP bank. Ext.A2 is dated 18/8/2021.
Had the complainant any grievance regarding non-receipt of her original documents, she would have noticed the fact of non-receipt on 25/03/2020 or at least within a couple of days, granting space for administrative delays, that her documents were not returned. But herein the delay is of nearly one and a half years.
ii) Even when she raises the allegation of fraud, after becoming aware of the aforesaid situation, the complainant has not sought resort before any police officials.
iii) Complainant has failed to stand trial despite granting ample opportunity.
iv) Even though witness for O.P. was examined, the cross examination could not bring out anything vital so as to cast a doubt on the case of the O.P.
17. Following the failure on the part of complainant as stated supra, this issue is also found against the complainant.
Issue Nos. 4 to 7
18. On an appreciation of the pleadings and facts and circumstances, as borne by the evidence adduced by the parties, it can be seen that the complainant’s documents are taken as security for a loan account availed by one Shri. P.M. Ashraf. This Commission cannot direct the OP bank to return the documents retained by it validly and legally by way of security.
19. Pursuant to the discussion and findings arrived at above, we hold that there is no deficiency in service or unfair trade practice on the part of OP Bank. But it is worth directing that the bank or its counsels to be cautious or careful while filing pleadings before any authority.
20. We hold that the complaint is not entitled to the reliefs claimed.
21. Accordingly, this complaint is dismissed.
22. Considering the facts and circumstances of the case, parties are directed bear their respective costs.
Pronounced in open court on this the 6th day of December, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of Power of Attorney executed by complainant
Ext.A2 - Copy of lawyers notice dated 18/8/2021
Ext.A3 - Original loan pass book of loan account HL799
Ext.A4 - Original loan card of loan No.3371
Ext.A5 - Slip of paper on which accounts are written
Exhibits marked on the side of the opposite party:
Ext.B1 – True copy of statement of account for HL-799
Ext.B2 - True copy of application for cash credit facility
Ext.B3 – True copy of Power of Attorney executed by Nafeesa K.
Ext.B4 – True copy of Power of Attorney executed by complainant
Ext.B5 – True copy of sale deed bearing No.119/2001 of SRO, Shornur
Ext.B6– True copy of sale deed bearing No.1295/2004 of SRO, Shornur
Ext.B7 – True copy of rectification deed bearing No.454/2002 of SRO, Shornur
Ext.B8 – True copy of Gehan dated 30/3/2020
Ext.B9 – True copy of promissory note dated 31/3/2020
Ext.B10 – True copy of mortgage deed dated 31/3/2020
Ext.B11 – True copy of statement of account for OD 439
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party:
DW1 – Rekha (Br. Manager, OP1 bank)
Court Witness: Nil
Dictated to my Confidential Assistant by me, transcribed by him and verified by me and found correct.
Dated this the 6th day of December, 2024.
Sd/-
Vinay Menon V
President
