Complaint filed on: 23.06.2015
Complaint Disposed on:30.11.2016
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.103/2015
DATED THIS THE 30th DAY OF NOVEMBER 2016
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
A. Dakshina Murthy
S/o Late Annamalai,
Aged about 48 years,
R/o Rameshwara Nagara,
Chikmagalur City.
(By Sri/Smt. H.Maheshkumar, Advocate)
V/s
OPPONENT:
The Manager,
Bank of India,
Chikmagalur Branch,
Thogarihankal Circle,
Chikmagalur.
(OP By Sri/Smt. D.Dhruvanarayana, Advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP alleging deficiency in service in not returning the original documents which were deposited at OP/Bank at the time of availing the loan. Hence, prays for direction against the OP to return all original documents by issuing NOC along with payment of compensation of Rs.50,000/- for deficiency in service.
2. The brief facts of the complaint is that:
The complainant had availed a loan from OP/Bank in the year 2005 by creating charge over the house property situated at Rameshwara Nagara, Chikmagalur City and also deposited title deeds and at the time of obtaining the loan, the complainant also executed the mortgage deed in favour of OP. Subsequently after obtaining the loan, the complainant is regular in paying the installments. In the year 2012, the complainant in order to close the loan account, approached the OP/Bank to know about the outstanding balance of the loan account No.844375100060361, for which the OP/Bank has issued statement of account showing that the complainant is in due of Rs.5,21,664/-. After obtaining the said statement of account, the complainant with an intention to clear the said entire loan amount, had paid an amount of Rs.5,21,665/- on 04/10/2012 and OP/Bank had issued counter challan in this regard. Thereafter the complainant sought for clearance of the charge created over the property and to cancel the mortgage executed by complainant. But the OP/Bank even after accepting the entire loan amount as full and final settlement had not returned the title deeds and other documents which were deposited at the time of executing the loan/mortgaged deed in favour of OP/Bank.
The complainant on several occasions has requested the OP/Bank to return the title deeds and other documents and also to remove the charge created over the property. But the OP had not responded properly. Subsequently the complainant issued a legal notice and called upon the OP to return the original documents. Even in spite of receipt of the legal notice also, the OP not returned the original documents. Later-on, the complainant approached the District Legal Services Authority at Chikmagalur to redress the grievance. Even the OP/Bank had not appeared before the said Authority in spite of issuance of the notice by the said Statutory Authority. Hence, the OP rendered a deficiency in service in not returning the original documents to the complainant. Again, the complainant issued a legal notice on 05/05/2015 and called upon the OP to return the original documents along with cancellation of the mortgage. Even in spite of that, the OP stood reluctant. Hence, the complainant filed this complaint alleging deficiency in service against the OP and prays for direction against the OP to return the original documents and to pay compensation for deficiency in service as prayed above.
3. After service of notice the OP appeared through his counsel and filed version and contended that the complainant is not a consumer as per the consumer protection Act and there is no relationship of consumer and service provider between the complainant and this OP as the complainant is a borrower and this OP is a lender of financial facility as per the Banking Act. Hence, the complainant is to be dismissed.
The OP further contended that the complainant availed financial facility from this OP/Bank, but after availing the loan, he committed default in paying the installments as agreed by him. Subsequently the accounts of the complainant become NPA (Non Performing Asset). For all NPA account, the interest is calculated as on the date of becoming NPA. Thereafter the interest will be calculated up-to date. In-case, the defaulter were to clear the entire outstanding loan, the complainant requested this OP for an account extract of his loan account, for which they have provided the statement of account. At the time of providing statement of accounts, the complainant had become NPA and the account extract disclosed the interest up-to date of becoming NPA, the subsequent interest was not included in the account extract. The complainant on receipt of the account extract it seems that he was under the impression that the balance in the statement of account is to be payable by him and accordingly the complainant had paid the said amount which is reflected in the loan account. But the complainant has not taken into consideration the subsequent interest to be payable by him. Thereafter after payment of the amount of Rs.5,21,665/-, the complainant approached the OP and demanded for return of the entire documents, for which this OP politely directed the complainant to the balance interest charged after the loan account become NPA. But the complainant refused to pay the same basing on the statement of accounts. But it is false that they have accepted the loan amount as full and final settlement. The complainant had not settled the dues in the loan account.
The OP further contended that this OP/Bank is run by public money and is answerable to all the depositors and if the interest portions subsequent to the loan account become NPA is to be waive off then it is the superior authority which has to consider to waive off the interest that too if any appeal or requisition made by complainant to that effect and this OP has no power to entertain or waive off such defaulted interest if loan account becomes NPA. Hence, there is not deficiency in service on the part of this OP and prays for dismissal of the complaint.
4. The complainant filed affidavit and marked the documents as Ex.P1 to P7. The OP filed also filed, affidavit but no documents produced.
5. Heard the arguments:
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is deficiency in service on the part of OP.
2. Whether complainant entitled for any relief & what Order?
7. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
8. There is not dispute that the complainant had obtained a loan in the year 2005 from OP/Bank by depositing the title deeds of his house property and executed the mortgage deed in favour of OP/Bank and also agreed to pay installments towards the loan. Subsequently, the complainant approached the OP/Bank in the year 2012 in order to clear the entire loan and obtained statement of loan account. By looking at the loan account statement the complainant had paid Rs.5,21,655/- towards the loan and requested for return of the original documents by cancelling the charge on the house property of the complainant. But the OP refused to return the documents and insisted for payment of further interest on the loan account. Hence, complainant alleges deficiency in service.
9. On contrary, the OP had taken a contention that the loan account of the complainant was become NPA and after loan account becomes NPA the subsequent interest will not be reflected in the statement of account, but complainant had only cleared the amount reflected in the statement of account and has not paid the interest on the loan amount which was accrued after the loan account become NPA. Hence, submits that the complainant is liable to pay the accrued interest on the loan account after NPA and also submits that there is no deficiency in service on their part.
10. The complainant has produced statement of accounts issued by OP/Bank marked as Ex.P3 which goes to show that the outstanding loan is due as Rs.5,21,664/- as on 18th June 2012. After obtaining the said loan account statement, the complainant had paid Rs.5,21,665/- on 04/10/2012 as per Ex.P4. The said payment is not disputed by OP. Further, we also noticed that the OP/Bank on 24/07/2012 issued a letter and called the complainant to settle the loan account (NPA) under one time settlement (OTS). As per the Ex.P6 and the said Ex.P6 disclosed that the OP/Bank has offered to settle the loan account under one time settlement by offering waiver of penal interest and interest concession and also suggested to issue no due certificate on the spot if the entire amount paid. Accordingly after the said letter, the complainant had paid the loan of Rs.5,21,665/-. But subsequently as per Ex.P7 the OP further issued another letter dated:10/06/2013 and called upon the complainant to settle the loan amount. The OP/Bank had not explained why they have not settled the loan account of the complainant after issuance of the offer letter dated:24/07/2012. We are of the opinion that after the issuance of the offer letter for settlement of the loan account under OTS, the OP/Bank had accepted the entire loan of Rs.5,21,665/- towards the loan. We observed that the OP/Bank had not made any attempts to intimate the complainant that he is due of further interest after the NPA. Without intimating the said dues, the OP/Bank had received the entire loan amount which was reflected in the statement of loan accounts. Hence, it is clear negligence on the part of OP/Bank in not intimating the outstanding dues. It is also observed that at the time of accepting the said outstanding dues as per the statement of loan account, how much the OP/Bank offered to waive off towards the interest was not disclosed. The OP/Bank has intentionally received the entire loan amount in order to close the loan account. But after receipt of the said loan amount, the OP/Bank had not returned the original documents which amounts to a deficiency in service.
11. The learned Advocate for OP vehemently argued that the NPA account will not disclose the further interest accrued on the loan account. Hence, the statement of accounts issued by this OP had not disclosed the accrued interest on the loan amount. The complainant is still liable to pay interest to the tune of Rs.1,30,000/- towards interest portion after the loan account become NPA. The arguments submitted by the Advocate for OP is not acceptable, because they have not produced any materials or a single piece of document to show that the complainant’s account after becoming NPA had accrued interest to the tune of Rs.1,30,000/-. Hence, there is no crux or substance on the defense taken by OP/Bank. We are of the opinion that as per the intimation given by OP/Bank for OTS the complainant had cleared the loan and there is no due on the part of complainant. The OP is liable to return the original documents to the complainant after cancelling the mortgage deed executed by the complainant. The OP/Bank is also liable to pay a compensation of Rs.10,000/- for deficiency in service in not returning the original documents to the complainant by cancelling the mortgage deed after clearance of the loan along with litigation expenses of Rs.2,000/-. As such for the above said reasons, we answer the points above accordingly, and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is allowed in part.
- The OP is directed to return the original documents to the complainant after cancelling the mortgage deed executed by the complainant.
- The OP is further directed to pay Rs.10,000/- towards compensation and Rs.2,000/- towards litigation cost to the complainant.
- The OP is further directed to comply the above order within 30 days from the date of receipt/knowledge of the order, failing which the OP is directed to pay Rs.10,000/- to the complainant for non-compliance of order within the stipulated time and also directed to pay interest @ 9% P.A. on the payable amount from the date of complaint to till realization.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by him, transcript corrected by me and then pronounced in Open Court on this the 30th day of November 2016).
(RAVISHANKAR)
President
(B.U.GEETHA) (H. MANJULA)
Member Member
ANNEXURES
Documents produced on behalf of the complainant:
Ex. P1 - Office copy of the legal notice
Ex.P2 - Postal Acknowledgment due
Ex.P3 - Copy of the statement of the loan account for the period
28.01.05 to 03.10.12
Ex.P4 - Copy of the counter challen for deposit of Rs.5,21,665/-
Dated:04/10/2012.
Ex.P5 - Letter issued by OP for settlement of the loan account
Dated:10.06.2013
Ex.P6 - Another demand notice for settlement (OTS)
Dated:24/07/2012
Ex.P7 - Notice issued by Loka-Adalath dated:24/03/2014 for
Settlement of the dispute.
Documents produced on behalf of the OPs:
NIL
Dated:30.11.2016 President
District Consumer Forum,
Chikmagalur.
Tss
