Andhra Pradesh

Chittoor-II at triputi

CC/25/2017

Dr. K.Rajendra, S/o. K.Narasimhulu, Medical Practitioner - Complainant(s)

Versus

The Manager, Andhra Bank - Opp.Party(s)

M.Vani, P.Murali Krishna Reddy

28 Sep 2018

ORDER

 

 

                                                                                                                                             Filing Date:- 31-05-2017                                                                                                                                                                                     Order Date:- 28-09-2018

 

                                              BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI.

Present: - Sri. T.Anand, President (FAC)

                                                                                               Smt. T.Anitha, Member

 

FRIDAY, THE TWENTY EIGHTH DAY OF SEPTEMBER, TWO THOUSAND AND EIGHTEEN

C.C.No.25/2017

 

Between

Dr. K. Rajendra, S/o. K. Narasimhulu,

Medical Practitioner, Hindu, aged about 50 years,

Residing at Flat No. 431, Bairagipatteda,

Tirupati, Chittoor District.                                                  …. Complainant

 

And

1. The Manager,

Andhra Bank,

Beri Street, Tirupati,

Chittoor District.

 

2. D. Gajendra Babu,

Managing Partner,

M/s. Sree Medhinee Builders,

D. No. 19-9-29/5,

Lakshmipuram Tiruchanoor Road,

Tirupati, Chittoor District.                                      …. Opposite parties

 

         This complaint coming on before us for final hearing on 27.07.2018 and upon perusing the complaint, written versions, written arguments of the complainant and opposite parties and other relevant material papers on record and on hearing of Smt. M. Vani, counsel for the complainant and Sri. G. Gajendra counsel for the opposite party No.1 and complaint against opposite party No.2 is dismissed, having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

        This complaint is filed by the complainant under Sections-12 of the Consumer Protection Act 1986, complaining the deficiency in service on part of the opposite parties, and prayed this forum to direct the opposite party No.1 to remit back the amount of Rs.9,00,000/- disbursed into the account of opposite party No.2 on 02.03.2017 from out of the loan account of the complainant, directing the opposite party No.1 to pay a sum of Rs.50,000/- to the complainant towards compensation for causing mental agony and to pay costs of the complaint.

        2.The brief facts of the case are:  the complainant intended to purchase the flat in opposite party No.2’s venture and entered in to an agreement towards purchase of the flat and availed loan from the opposite party No.1’s bank, accordingly the opposite party No.1 issued sanction letter on 25.03.2015 for Rs.30,00,000/- to the complainant and agrees to disburse the said loan according to the stage wise construction of the flat. The complainant further submits that meanwhile some issues were arose between the complainant and opposite party No.2, as the opposite party No.2 failed to discharge their obligation as per the agreement of sale and the civil suit is also pending before the court of law between opposite party No.2 and the complainant in O.S.No.2/2017 on the file of the Hon’ble IV ADJ Court, Tirupati, in which the opposite party No.2 was contesting in the above case. Hence in view of the issues pending between the complainant and opposite party No.2 the complainant wrote the letter to opposite party No.1 on 02.10.2016 requesting, not to disburse any loan amount to opposite party No.2. In spite of receiving the same the opposite party No.1 released a sum of Rs.9,00,000/- to opposite party No.2 in the month of March, 2017 and also prior to that the opposite party No.1 disbursed an amount of Rs.5,00,000/- to opposite party No.2 without the knowledge of the complainant.

         The complainant further submits that in spite of his instructions the opposite party No.1 released a tune of Rs.9,00,000/- in the month of March, 2017 which is nothing but deficiency in service on part of the opposite party No.1. The opposite party No.2 is well aware about the pendency of the civil suit initiated by the complainant against him and also the land owner. That being the case, he ought not to have prevailed over the opposite party No.1 and got the money released in his favour even without the consent or intimation of the complainant which clearly shows that both are in collusion with each other with an intention to gain unlawfully. The opposite party No.1 being a banker of the complainant ought not to have acted in collusion with opposite party No.2 but he has done so and thereby caused loss to the complainant which is nothing but deficiency in service on part of the opposite party No.1. The complainant further submits that he has added opposite party No.2 as a formal party in the complaint, because the opposite party No.1 has to remit back the sum of Rs.9,00,000/- released by them on 02.03.2017 as against the express instructions of the complainant. Hence the complainant got issued legal notice on 24.03.2017 and the same was served upon them, but they failed to reply the same. Hence he filed the present complaint.

        3. After receipt of the notices issued by this forum the opposite party No.2 called absent and set exparte.

        4.  The opposite party No.1 filed their written version by admitting that, the complainant availed loan from opposite party No.1’s bank and rest of the allegations are denied by them and further stated that, the land owner who is opposite party No.2 represented  by its managing  partner availed project loan by mortgaging the flat No.103. And as per agreement of sale, the bank has to release the funds as per stage wise construction with due certification by their panel engineer and also adjust towards project loan and the bank has to release payment to the builder in his loan account as per sanction letter. The opposite party No.1 further submits that the complainant asked the bank to release the loan to his personal account for which this opposite party has not agreed to do the same, as it is against the rules and regulations of the bank. The opposite party No.1 further submits that the builder has completed the flats by availing the loan along his margin and they were constantly pursuing with the builder for completion of the flats and to register the same in the name of flat owners. Likewise the bank transferred Rs.9,00,000/- from borrower account to our term loan account disbursed in the construction of representative flats. After the completion of the flats, the complainant has not come forward to register the same on the day as informed by the builder as there are some disputes among them. However he occupied the flat and served the notice and letters to the builder and bank.

        This opposite party further submits that they informed to the complainant to visit the bank along with the builder and land owner for amicable understanding and completion of the registration for which he has not responded and sent a legal notice on 24.03.2017 to bank which shows that the complainant is not interested for settling the matter, hence the opposite party has not gave any reply. The intention of the opposite party is not to create any litigation and that being a nationalized bank undertaken by Government of India is intended to lend the money for housing loans to help the people and further submits that the complainant himself approached the bank for financial assistance to purchase the flat in apartment and obstructing to release the loan. The opposite party No.1 further submits that, as per the undertaking letter dt: 09.03.2015 given by the complainant reveals that the loan amount along with borrowers margin is to be paid to the vendors by way of demand draft/pay order. But as per the complainant’s demand that the loan amount should be disbursed to his personal account. As per the terms and condition No.3 and 4 of the loan sanctioned letter reveals that bank will release the sanction limit as stage wise of the construction certified by panel engineer and the bank will release the sanctioned limit along with the applicant margin. Further the said flat mortgaged with the bank under project loan and the same was reflected in the E.C.No.31978061 dt: 27.01.2017. Therefore, the flat is subject to clearance of the loan by the vendors and the complainant is still due of Rs.5,00,000/- along with interest to this opposite party and he is liable to pay the same.

        5. This opposite party No.1 further submits that the complainant made a complaint to the banking ombudsman against this opposite party as the opposite party No.1 released an amount of Rs. 9,00,000/- to the vendor who is opposite party No.2 herein. Therefore they have reversed Rs.9,00,000/- from the builder and credited to the complainant account on 30.06.2017 and to that effect letter sent to ombudsman. Further the sum of Rs.6,00,000/- was also reversed on 18.07.2017.

        Therefore the recovery of loan amount from the builder as per the complainant demand does not arise herein as the amount already re-credited to the complainant’s account and same was aware by the complainant as the purpose and demand of the complainant was already fulfilled. Hence there is no deficiency in service on part of the opposite party No.1 and the complaint is liable to be dismissed. The opposite party No.1 further submits that the complainant himself approached the bank for financial assistance and caused mental agony to the bank. Hence the payment of compensation will not arise. 

                                 6. The complainant filed his evidence on affidavit and got marked Ex:A1 to A6. On behalf of the opposite party No.1 one M. Sreemannarayana, S/o. Late Sreeramulu, Chief Manager of Andhra Bank filed his evidence on affidavit and Ex:B1 to  B9 were marked. Both the complainant and opposite party No.1 filed their written arguments and oral arguments were heard.

                               7. Now the points for consideration is: -

         Whether there is any deficiency in service on part of the opposite party No. 1? If so, to what extent, the complainant is entitled for the reliefs sought?

          8.Point:-   The main case of the complainant is, she availed housing loan from the opposite party No.1 for the purchase of the apartment which was constructed by the opposite party No.2 with the name and style of Medhini Apartments represented by its owner. Accordingly the opposite party No.1 issued sanction letter for Rs.30,00,000/- under Ex:A2 i.e. photo copy of sanction letter dt: 05.03.2015. The counsel for the complainant further argued that, there are some disputes were arose between the complainant and opposite party No.2 as the opposite party No.2 failed to discharge their obligation under sale agreement and the civil suit is also pending in O.S.No. 02/2017 on the file of IV ADJ, Tirupati. Hence in view of pending disputes between the complainant and opposite party No.2, the complainant wrote a letter to opposite party No.1 on 02.10.2016 under Ex:A4 the office copy of letter requesting the bank authorities not to disburse the loan amount to opposite party No.2. After receipt of the letter the opposite party No.1 released an amount of Rs.9,00,000/- to opposite party No.2 under Ex:A3 loan account statement of the complainant without his consent, before that  also the opposite party No.1 disbursed an amount of Rs.5,00,000/- to opposite party No.2 without the knowledge of the complainant. Hence the opposite party No.1 had been acting to the tunes of opposite party No.2 and both are trying to cause unlawful loss to the complainant. Thus the opposite party No.1 has committed deficiency in service and he is liable to pay the compensation to the complainant. The counsel for the complainant further stated that they have added opposite party No.2 as a formal party and no claim was made against them.

           9.  The counsel for the opposite party No.1 argued that there is no dispute regarding the sanctioning of the housing loan to the complainant and further stated that the complainant along with the co-applicant agreed with the terms and conditions of the loan agreement and signed the same. The counsel for the opposite party No.1 further stated that the opposite party No.2 land owner along with the builder represented by its managing partner availed for the project loan by mortgaging Flat No. 103. The counsel for the opposite party No.1 further stated that the complainant agreed to the terms and conditions of the loan agreement that the loan amount will be disbursed from the stage wise construction and also agreed to release the said amount to the builder in his loan account, but after sanctioning of the loan the complainant asked the opposite party No.1 to release the loan to his personal account for which the opposite party No.1 refused to do so which is against the rules and regulations of the bank. Likewise the bank transferred Rs.9,00,000/- from the complainant account to term loan account of the builder. Again the counsel for the opposite party No.1 further stated that the complainant made a complaint to the banking ombudsman against this opposite party No.1 about the transfer of Rs.9,00,000/- to the account of opposite party No.2 . Hence the opposite party No.1 reversed the amount of Rs.9,00,000/- and re-credited to complainant’s account on 30.06.2017 which was transferred on 02.03.2017, and Rs.6,00,000/- was re-credited on 18.07.2017 which was transferred on 29.03.2016 under Ex:B7. Hence there is no deficiency in service on part of them as they have already re-credited amount which was transferred to the account of the builder. Hence the complaint is liable to be dismissed as the purpose was already served.

        10. After perusing the records filed by both the parties there is no dispute regarding the housing loan availed by the complainant from the opposite party No.1’s bank and also there is no dispute regarding the transfer of amount of Rs.9,00,000/- and Rs.6,00,000/-from the complainants loan account to the builder account, because same was admitted by the opposite party no.1.The main contention of the complainant is they have issued letter to the opposite party No.1 under Ex:A4 dt: 02.10.2016 not to disburse the loan amount to the opposite party No.2’s account. But even after receipt of the said letter the opposite party No.1 transferred the amount  to the builder’s account of Rs. 9,00,000/- on 02.03.2017 and also transferred an amount of Rs.6,00,000/- on 18.07.2017 which was reflected in Ex.B7 statement of account of the complainant. The opposite party No.1 failed to reply the legal notice which was given by the complainant under Ex:A5 and also to the letter issued under Ex.A4. The opposite party No.1 in the written version clearly stated that, the complainant gave a complaint to the banking ombudsman on 24.05.2017 and to the reply of that letter the opposite party no.1 sent a reply letter dt:30.06.2017  to the ombudsman, stated that they have already re-credited the amount of Rs.9,00,000/- on 30.06.2017 from the builder’s account to complainant’s account and Rs.6,00,000/- on 18.07.2017 itself. Both the amounts were re-credited to the complainant’s account only after filing of the present complaint. Hence by the date of filing of the complaint i.e 31.05.2017 the opposite party No.1 has not taken any steps to re-credit the same. Only after making efforts by the complainant by giving complaint to the ombudsman and  filing of the present complaint, the opposite party No.1 took steps to re-credit the amount.  Hence there is some sort of deficiency in service on part of the opposite party No.1 towards the complainant, as they failed to act upon the several letters issued by the complainant not to transfer the amount and also failed to give the reply to the legal notice. If at all there are any bonafides on their part they might have issued the reply to the complainant letter under Ex:A4 and legal notice under Ex:A5, but they failed to do so. Hence we are of the opinion that there is deficiency in service on part of the opposite party No.1 towards the complainant. Hence this point is answered in favour of the complainant.

         In the result, the complaint is allowed in part, directing the opposite party No.1 to pay an amount of Rs.5,000/- (Rupees five thousand only) towards compensation for mental agony suffered by the complainant and to pay a sum of Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The opposite party No.1 is further directed to comply with the order within six (6) weeks from the date of receipt of copy of this order failing which, the above said compensation amount of Rs.5,000/- (Rupees five thousand only) shall carry interest at 9 percent per annum from the date of this order till realization. The complaint against opposite party No.2 is dismissed as no relief is claimed against him.

        Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 28^th day of September, 2018.

           Sd/-                                                                                                                   Sd/-        

  Lady Member                                                                                                  President (FAC)

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Dr. K. Rajendra (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: M. Sreemannarayana (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of Agreement of sale executed by the opposite party No.2 in favor of the complainant. Dt: 10.04.2014.
	Photo copy of Loan sanctioned letter given by the opposite party to the complainant. Dt: 05.03.2015.
	True copy of Loan Account Statement (Statement of Account from 01.04.2016 to 14.03.2017). Dt: 14.03.2017.
	Office copy of letter addressed by complainant to the opposite party along with acknowledgement. Dt: 02.10.2016.
	Office copy of legal notice caused by the complainant upon the opposite parties Dt: 24.03.2017 along with postal receipts.
	Acknowledgements in Original.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	True copy of Loan application of K. Rajendra and S.V.Sailaja Kumari. Dt: 19.02.2015.
	Attested photo copy of Letter of Sanction of Housing Loan. Dt: 05.03.2015.
	Attested photo copy of Composite Agreement. Dt: 09.03.2015.
	Attested photo copy of Letter of under taking. Dt: 09.03.2015.
	Attested photo copy of Agreement of Sale. Dt: 10.04.2014.
	Attested copy of Letter sent to office of the banking ombudsmen. Dt: 30.06.2017.
	Attested photo copy of Statement of Account (From 08.03.2015 to 07.09.2017) of the complainant. Dt: 07.09.2017.
	Attested copy of Letter issued to opposite party No.1 by the complainant. Dt: 02.10.2016.
	Statement of Encumberance on Property issued by the Registration and Stamps Department, Tirupati Rural (Mee Seva copy in original). App No.726955, Statement No.31978061. Dt: 27.06.2017.

 

 

                                                                                                  Sd/-

                                                                                                         President (FAC)

 

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

Dist. Consumer Forum-II, Tirupati.

 

Copies to:  1) The Complainant, 

                  2) The Opposite parties.