Date of filing : 19-03-2011
Date of order : 22 -09-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 29/2010
Dated this, the 22nd day of September 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
Mehboob Theaters, } Complainant
Kasaragod represented by
It’s Managing Partner,
Sri.S.A. Wahab.
(Adv. K.M. Ballakuraya, Kasaragod)
1. H.D.F.C Bank, } Opposite parties
Kasaragod Branch.
2. H.D.F.C Bank Ltd,
H.D.F.C Bank House,
Senapathi Bapat Marg,
Lower Parel (West) Mumbai.
(Adv. A.Radhakrishnan Hosdurg)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Complainant availed a loan from Lord Krishna Bank. Later Lord Krishna Bank merged with opposite party. According to complainant he repaid much more amount than availed. However, inspite of several demand the opposite parties did not furnish the particulars of account. Meanwhile on 24-08-2009 opposite parties sent a letter to complainant claiming `17157.57. On receiving the same complainant approached opposite parties for getting the statement of account. Though opposite parties initially agreed to furnish the same later asked the complainant to pay `18,000/-. The opposite parties agreed to issue loan closure letter. But even after receiving the same they did not issue any loan closure certificate. Hence the complaint for an order against opposite parties to issue loan closure certificate in respect of his loan account No.3260791 and also a compensation of `10,000/- and costs.
2. According to opposite parties the Forum has no jurisdiction to try the complaint. Complainant has not approached the Ombudsman U/s 2(e) 42 of Banking Ombudsman Scheme 2006. The Forum has no jurisdiction to try the matter since there is separate Forum having jurisdiction to redress the grievance of complainant. Since the dispute is one of settlement of account it is not maintainable, in view of the decision of the Hon’ble National Commission in the case of Vishal Road Ways V Economic Traders reported in 1998 (11) CPJ 9 (NC).
3. On merits the contention of opposite parties is that they have not sent any letter on 24-08-2009 to the complainant. As per their accounts a sum of `23,668/- is due from the complainant as on 13-08-2010 for closing the account. Further the complainant has not produced his right or authority to represent other partners of the firm. There is no deficiency in service on the part of opposite parties and they are not liable to pay any compensation to the complainant.
4. After filing the version complainant filed proof affidavit in support of his case. Exts A1 to A8 marked through PW1. On the side of opposite parties the Assistant Legal Manager of HDFC Bank Ltd, Kozhikkode filed affidavit as DW1 and Ext.B1 marked. PW1 & DW1 were cross-examined by the respective counsels. Both sides heard and documents perused.
5. The points arises for consideration are:
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what order as to relief & costs?
6. Issue No.1 Maintainability
The opposite parties taken a contention that the complainant has not exhausted the remedies available with Ombudsman constituted under the Banking Ombudsman Scheme 2006 and hence the complaint is not maintainable. The said contention has no force. The Ombudsman scheme is introduced with the object of enabling resolution of complaints relating to certain services rendered by banks and to facilitate the satisfaction or settlement
of such complaints. It is not discharging judicial or quasi judicial functions. Therefore a consumer need not exhaust his remedy by approaching the Ombudsman. Further the Hon’ble National Consumer Disputes Redressal Commission while discussing the maintainability of a complaint after the rejection of the same by ‘Insurance’ Ombudsman has held that the role of Ombudsman is altogether different and it is to act as a counselor or a mediator in matters and the decision of the Ombudsman is not binding on a consumer even if he preferred a complaint. Therefore the complaint is maintainable before the Forum. The second contention of the opposite party is that the complaint is one for a settlement of account and hence it is not maintainable in view of the decision Vishal Roadways V Economic Traders (Gujarath Ltd) 1998 (II) CPJ 9(NC). But the said contention is also not acceptable. In this complaint the prayer of the complainant is not for the settlement of his account but for an order for the loan closure certificate. Hence the said decision is also not applicable to the instant case. Therefore we hold that the complaint is maintainable before the Forum.
7. Point No.2. Deficiency in service.
The specific case of the complainant is that after receiving Ext.A1 letter from opposite party Bank demanding `17157.57 towards the total amount payable towards the loan he approached opposite parties and enquired the details and on their advice he remitted `18,000/- on 9-10-2009 towards the closure of the loan and demanded loan closure certificate even by writing on 13-10-2009. Ext.A4 is the carbon copy of the said letter. Exts A6 & A7 are other letters demanding loan closure certificate. But it is seen that opposite parties remained silent inspite of receipt of Exts A5 to A7.
8. According to opposite parties they have not issued Exts.A1 on 24-08-2009 to the complainant demanding `17157.17 towards the total balance due to the loan. According to them as on 13-08-2010 there is a balance of `23,668/- on the unsecured account of the complainant. According to opposite parties Ext.B1 is the true and correct statement and as per that as on 10-01-2011 a sum of `26,453/- is due from the complainant which includes over due charges. But on a close perusal of the same it is seen that the payment made by the complainant on 09-10-2009 as credited only on 26-10-2009. Further Ext.B1 shows the statement from 13-03-2009 onwards only. So Ext. B1 cannot be considered as a true and correct account statement of the complainant. Further DW1 during cross-examinations has stated that he did not know in which year the transaction took place and without checking the records he cannot say what was the amount availed by the complainant and it’s rate of interest.
9. It is pertinent to note that the opposite parties remained silent even after receipt of Exts A5 to A7 requests from the complainant for the loan closure certificate. The non-admission of Ext.A1 also casts serious doubts about the way of business of the opposite parties. We do not find anything to disbelieve Ext.A1 demand for the subsequent payments by the complainant. Therefore we are of the view that complainant had promptly discharged his debt and he is therefore entitled for the loan closure certificate. The non-issuance of loan closure certificate even after compliance of the demand as per Ext.A1 amounts to deficiency in service.
10. Relief & Costs
In the result, complaint is allowed and opposite parties are directed to issue a loan closure certificate in respect of his unsecured loan account No. 3260791 and return the documents if any submitted by the complainant. Opposite parties are also directed to pay a cost of `4000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1. Letter sent by OP to complainant.
A2. 09-10-2009 Receipt for an amount of `15000/-.
A3. 09-10-2009 Receipt for an amount of `3000/-.
A4. 13-10-2009 letter sent by complainant to Manager, HDFC Bank, Kasaragod.
A5. Postal acknowledgement card.
A6.22-3-2010 letter sent by complainant to P.S.Nandakumar, Vice President, HDFC
A7.9-4-2010 letter sent by complainant to Manager, HDFC Bank, Kasaragod.
A8. Postal acknowledgement card.
B1. Statement of Account for the period from 2-12-2000 to 2-12-2010 (HDFC Bank)
PW1. S.A. Wahab.
DW1. Sojin Kumar.U.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
