CC No: 380/2015

 Filed on 24.02.2015

Disposed on 01.06.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027

DATED THIS THE 1^st DAY OF JUNE 2016

CONSUMER COMPLAINT NO.380/2015

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Party under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Party to release the documents after receiving the balance amount of Rs.1,79,280/- from the Complainant and further to pay damages of Rs.1,50,000/- towards mental agony.

2.         The brief facts of the Complaint can be stated as under:

In the complaint, the Complainant alleged that he and his brother Sri Syed Mansoor borrowed a home loan of Rs.8,17,464/- from the Opposite Party Bank under Account No.LBBNG00001437134 repayable in 120 equated monthly installments of Rs.11,494/- which will come to an end by 18.11.2016 and accordingly, as per the said EMI, the Complainant and his brother Sri Syed Mansoor are liable to pay Rs.13,79,280/-.  As on today and the Complainant is holding valid receipts for having paid the said amount.  For the reason that the Complainant’s brother Sri Syed Mansoor has relinquished all his rights over the property mortgaged in favour of the Opposite Party Bank.  The Complainant had approached the Opposite Party Bank to permit him to clear the loan amount and release the bank documents.  Now the balance payable towards the said loan account by the Complainant is Rs.1,79,280/-.  The Complainant got issued legal notice dt.23.12.2014 and since there was some typographical mistake about his name and further wrongly stating the fact that his brother died, necessary rejoinder to the same has been issued on 09.02.2015 directing the Opposite Party Bank to correct the said mistakes, requesting it to receive the balance amount and release the documents.  Inspite of receipt of the notice, the Opposite Party has not received the balance amount payable by the Complainant and release the documents.  Hence, this complaint.

            3.         In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  In the version pleaded that one Mr.Syed Mansoor approached the Opposite Party Bank to avail home loan and submitted necessary applications.  Considering the request, the Opposite Party sanctioned a sum of Rs.8,17,464/- to the Complainant and Sri Syed Mansoor.  Infact the Complainant has admitted for having borrowed the loan from the Opposite Party Bank.  The sanction letter dt.09.11.2006, it could be seen from the sanction letter, the Complainant specifically agreed to pay the interest at floating rate of interest.  Towards the discharge of the said liability, an equitable mortgage has been created in respect of the immovable property bearing No.37, Muneshwara Temple Street, 20^th Main, Kariyannapalya, Bangalore by delivering the title deeds.  The Complainant and Sri Syed Mansoor have also executed the loan agreement and declaration in favour of the Opposite Party agreeing by the terms and conditions governed under the loan agreement.  It is the duty of the Complainant to pay the installments regularly and punctually as agreed upon.  It could be seen from the statement of account produced and the Complainant was irregular in paying the loan installments.  As the Complainant has committed default in paying the installments, during the year 2011, the loan has been classified as NPA and the proceedings has been initiated under the Sarfaesi Act.  When the proceedings has been initiated under the Sarfaesi Act, the Complainant has come forward and paid the balance pending installments.  Again now the Complainant has committed default in paying the outstanding due amount to the Opposite Party Bank.  The Complainant by suppressing the actual material fact had approached this Hon'ble Forum.  He himself being a party to the agreement and had agreed to pay the rate as floating rate of interest by suppressing the same, he had contended before this Hon'ble Forum that installments agreed is 120 months and is liable to pay a sum of Rs.1,79,280/- only.  When the rate of interest is floating rate of interest, whenever the BPLR has been increased in accordance with the market index, the installments shall be automatically increased.  As the rate of interest has been increased by time to time, the installments have also been increased.  The Complainant is bound to pay the same.  When such being the fact stood thus, knowing fully well that he agreed for floating rate of interest, further knowing fully well that the Complainant defaulted in paying the installments as and when they become due and penal interest shall be attracted for the same.  The Complainant had approached before this Hon'ble Forum on the ground that he is bound to pay only Rs.1,79,280/-.  The aforesaid contention of the Complainant is suggesio falsi.  The foreclosure statement enclosed herewith discloses that the Complainant is liable to pay a sum of Rs.8,65,024.44 as on 28.07.2015.  It is false that the Complainant and his brother Sri Syed Mansoor are liable to pay only a sum of Rs.13,79,280/- and they paid a sum of Rs.12,00,000/-.  The statement of account disclosed that the Complainant so far has paid only Rs.10,38,357/-.  When such being the case, the contention of the Complainant that he paid Rs.12,00,000/- to the Opposite Party as false and far from truth.  The release deed alleged to have been executed by Sri Syed Mansoor in favour of the Complainant is a collusive documents and the same has been executed in violation of the terms of the agreement.  The alleged transaction is not binding on the Opposite Party Bank and the Opposite Party Bank is having every right to proceed against the secured asset in case of default committed by the Complainant and his brother Sri Syed Mansoor.  This Forum has no jurisdiction to entertain the complaint.  The Complainant has to approach the Civil Court to redress his grievance.  As per Sec.21(A) of the Banking Regulation Act charging of interest in not under the scrutiny of this Hon'ble forum.  On this ground alone the complaint is not maintainable.  The Complainant is still and liable to pay a sum of Rs.8,65,024.44.  The question of accepting a sum of Rs.1,79,280/- does not arise at all.  As the Complainant is a defaulted in paying the installment amount, the Opposite Party is taking steps to classify the account as NPA and also to initiate the proceedings under Sarfaesi Act.  The Complainant being a defaulter, in order to avoid the proceedings under the provisions of the Sarfaesi Act, a false complaint has been filed before this Hon'ble Forum.  This Hon'ble Forum has no jurisdiction to entertain the complaint and the Sarfaesi Act bars any jurisdiction of any Civil Court or authority to entertain the complaint relating to recovery of loan amount by the Bank or Financial Institution.  There is no deficiency in service rendered by the Opposite Party Bank to the Complainant, therefore, prays to dismiss the complaint.

            4.         During the pendency of the case, the Complainant has filed application u/s 13(4) of the Consumer Protection Act, 1986 r/w Sec.151 of CPC and prays to permit him to file additional affidavit.  In support of this application, the Complainant has filed affidavit and pleaded that the Complainant filed this complaint against the Opposite Party to release the documents after receiving the balance amount.  The Opposite Party Bank in their objection is claiming additional amount.  The Complainant through his Chartered Accountant Sri P. Sridhar got prepared the statement showing the payments made by him with interest in installments to show the amount paid by him to the Opposite Party Bank, it is necessary to file additional affidavit.  By allowing this application, no hardship could be caused to either side and on the other hand, if this application is rejected, it will cause irreparable loss to the Complainant.

            5.         The Opposite Party Bank opposed this application by filing objection.  In the objection pleaded that this application is not maintainable either in law or on facts.  The Complainant falsely contended that he has paid a sum of Rs.12 lakhs.  When the Opposite Party filed its version denying the allegation of the Complainant with regard to the payments made and brought it to the notice of the Hon'ble Forum with regard to the payments made by the Complainant.  The Opposite Party Bank denied the allegation of the Complainant that he is liable to pay a sum of Rs.1,79,820/-.  Such being the case, the Complainant contended that in the additional affidavit the Opposite Party is claiming a sum of Rs.1,79,820/-.  The so called allegation is false, the Complainant is liable to pay a sum of Rs.8,65,024.44 as on 28.07.2015.  When such being the case, the allegation of the Complainant is false and baseless.  The Opposite Party has already filed his written arguments instead of arguing on merits, a false application has been filed and prays to dismiss the application.

            6.         In support of the complaint, the Complainant has filed affidavit by way of evidence.  For the Opposite Party one Sri Babu Srijeeth, Legal Manager of the Opposite Party has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

7.         Now the points that arise for consideration are:-

1. Whether is it necessary to permit the Complainant to file additional affidavit?
2. Whether the Complainants have proved the alleged deficiency in service by the Opposite Parties?
3. If so, to what relief the Complainants are entitled?

8.         Our findings on the above points are:-

                        POINT (1):-  Affirmative    

                        POINT (2):-  Affirmative    

                        POINT (3):-As per the final Order

REASONS

9.         POINT NO. 1:-         The learned counsel for the Complainant argued that the Opposite Party Bank in their version take a defence that the Complainant is still due for a sum of Rs.8,65,024.44.  So in order to substantiate the contention of the Complainant that the Complainant has paid Rs.12 lakhs and he is due only Rs.1,79,820/-.  The Complainant got prepared statement of account through his Chartered Accountant Sri P. Sridhar. Now the Complainant wants to give additional evidence by way of filing affidavit to substantiate this contention.  By allowing this application, no prejudice will be caused to the other side and on the other hand, by rejecting this application, it will cause irreparable loss to the Complainant.  The additional evidence is very much required to decide the real question involved in this case.  On the other hand, the learned counsel for the Opposite Party Bank argued that this application is not maintainable either in law or on facts.  The Complainant is still liable to pay a sum of Rs.2,65,024.44 as on 28.07.2015.  Such being the case, the allegation of the Complainant is false and baseless.  Instead of arguing the case on merits, the Complainant is filing this false and frivolous application only to drag on the proceedings.  Hence, prays to dismiss the application.

            10.      With this argument and perusal of record, the Complainant filed this complaint against the Opposite Party to release the surety document deposit with the Opposite Party Bank at the time of availing home loan after receiving the balance amount of Rs.1,79,820/-.  But the Opposite Party Bank in their version denied this fact that the Complainant has not paid Rs.12 lakhs and on the other hand, the Complainant is still due to pay a sum of Rs.8,65,024.44.  So to substantiate the contention of the Complainant that the Complainant is due only a sum of Rs.1,79,820/-, he wants to adduce additional evidence by filing additional affidavit since the Complainant got prepared the statement of account through his Chartered Accountant Sri P. Sridhar.  In order to decide the case, it is essential to give opportunity to the Complainant to file additional evidence by way of filing affidavit.  By allowing this application, no prejudice will be caused to the Opposite Party Bank as submitted by the learned counsel for the Complainant and on the other hand, if this application is rejected, definitely it will cause greater hardship to the Complainant.  So in the interest of justice and equity, it is just and necessary to give an opportunity to the Complainant to file his additional affidavit by way of the evidence.  Hence, this point is held in the affirmative.

            11.      POINT NO.2:-          As looking into the averments of the cm and also the version filed by the Opposite Party, it is not in dispute that the Complainant and his brother Sri Syed Mansoor availed home loan of Rs.8,17,446/- from the Opposite Party Bank by creating equitable mortgage by depositing title deeds of his property.  To substantiate this fact, the Complainant in his affidavit reiterated the same and also produced the prepayment of loan against the property account No.LBBNG00001437134.  As looking into this document, it is clear that the Complainant has availed the loan from the Opposite Party Bank and as on 20.10.2014 the Complainant is due for a sum of Rs.6,40,227/- towards the principal amount, late payment penalty of Rs.1,22,369/-, cheque bouncing charges and other charges of Rs.17,599, interest for the month is Rs.6,349/- and total amount payable by the Complainant is Rs.7,97,489.44.  It is the further case of the Complainant that the loan availed by the Complainant is repayable in 120 equated monthly installment of Rs.11,494/- which will come to an end by 18.11.2016.  Accordingly, as per the said EMI the Complainant and his brother are liable to pay Rs.13,79,280/-, out of which they have paid Rs.12,00,000/- as on the date of complaint.  But the Opposite Party in their version denied this fact and according to the Opposite Party, the Complainant is still due for a sum of Rs.8,65,024.44.  So the burden is on the Complainant to establish that as on the date of the complaint, the Complainant is due to pay only a sum of Rs.1,79,280/- and he repaid Rs.12,00,000/-.  To substantiate this fact, the Complainant in his sworn testimony reiterated the same and produced payment receipts.  As looking into this payment receipts on 07.12.2011 the Complainant has paid Rs.3,20,000/-.  On 09.03.2012, 07.02.2012, 12.05.2012, 13.06.2012, 01.05.2012, 14.06.2012, 13.10.2012, 13.11.2012, 16.03.2013, 15.02.2013, 05.05.2013, 16.04.2013, 14.08.2013, 12.07.2013, 23.09.2013, 31.08.2013, 19.10.2013, 18.11.2013, 17.12.2013, 18.02.2014, 17.01.2014, 22.05.2014, 18.03.2014, 16.06.2014, 30.07.2014,15.05.2014, 2605.2014, 28.08.2014, 20.10.2014 the Complainant has paid Rs.11,000/- and on 27.09.2014 and 29.11.2014, the Complainant has paid Rs.31,160/- and 10,950/- respectively.  So from this material evidence placed by the Complainant, it is crystal clear that the Complainant is very much regular in repayment of the loan amount.  This evidence of the Complainant falsifies the defence taken by the Opposite Party Bank that the Complainant is very irregular in repayment of the loan amount.  On the other hand, he is regularly repaying the loan amount and totally he has repaid Rs.10,50,901/- as on 29.11.2014.  On the other hand, the defence of the Opposite Party is that the Complainant is still due for a sum of Rs.8,65,024.44.  In support of their defence one Sri Babu Srijeeth, Legal Manager has filed his affidavit and in the sworn testimony he reiterated the same.  In support of the evidence, he produced account statement for loan account of the Complainant bearing No.LBBNG00001437134.  As looking into this account statement, as on 11.07.2015 the Complainant is due for a sum of Rs.2,35,167.44 only, but not Rs.8,65,024.44 as the defence taken by the Opposite Party.  As on 31.03.2015, the Complainant is due to the Opposite Party Bank for a sum of Rs.1,65,812.44.  So this evidence of the Opposite Party and the account statement produced by the Opposite Party Bank itself falsifies the defence taken by the Opposite Party Bank that the Complainant is still liable to pay Rs.8,65,024.44.  On the other hand, the contention taken by the Complainant is the Complainant is due to pay Rs.1,79,280/- as on the date of the complaint.  To discard this evidence, there is no contra evidence, therefore, it is proper to accept the contention of the Complainant that as on the date of the complaint, the Complainant is liable to pay a sum of Rs.1,79,280/- to the Opposite Party Bank regarding the home loan amount.

            12.      The Opposite Party in their version take a defence that the Complainant is irregular in repayment of the borrowed loan amount is a willful defaulter and he has been classified as NPA during the year 2011 and proceedings has been initiated in Sarfaesi Act.  When the proceedings have been initiated, the Complainant has come forward and paid the balance pending installments.  To substantiate this defence, except his interested version, the Opposite Party Bank has not produced any document.  Even according to their own document i.e. account statement of the loan account of the Complainant bearing No. LBBNG00001437134, it clearly reflect that the Complainant is regular in repayment of loan amount and he is not a defaulter as the defence taken by the Opposite Party Bank.  If really the Complainant is a defaulter and the loan has been classified as NPA and the proceedings have been initiated under the Sarfaesi Act, in support of this, the Opposite Party Bank ought to have place some material evidence, but the Opposite Party Bank have not produced any such document to substantiate their defence.  On the other hand, the Opposite Party Bank in support of their defence, produced the pre-payment of loan against the property account No. LBBNG00001437134 addressed to the Complainant informing that as on 28.07.2015 due amount is Rs.8,65,024.44.  But the Opposite Party Bank having placed any evidence, how they arrived this figure.  On the other hand, as stated earlier even their own account statement of the loan account of the Complainant bearing No. LBBNG00001437134 as on 31.03.2015, the outstanding amount is only Rs.1,65,812.44 and as on 11.07.2015 the outstanding amount shown as Rs.2,35,167.44, thereby the document produced by the Opposite Party Bank themselves falsifies their defence taken by them that the Complainant is still liable to pay a sum of Rs.8,65,024.44. 

13.      As the allegation made in the complaint even though the outstanding amount towards the repayment of the loan amount of the Complainant is only Rs.1,79,280/- and the Complainant is ready to repay the said amount and requested for release all the documents which are title deeds of the property in his favour by issuing a legal notice dt.23.12.2014.  Even though the notice was served on the Opposite Party Bank, the Opposite Party Bank fails to comply with the same and falsely contended that the Complainant is liable to pay Rs.8,65,024.44.  So withheld of the loan documents of the Complainant even though the Complainant is ready to pay the due amount amounts to deficiency in service on the part of the Opposite Party Bank.

            14.      The learned counsel for the Opposite Party Bank argued before me that this Forum has no jurisdiction to entertain this complaint.  In view of Sec.21(B) of the Sarfaesi Act clearly bars the jurisdiction of the Civil Court or other authority to entertain the complaint/suit relating to recover all the loan amount by bank or financial institution.  In support of his argument, he relied upon a decision reported in Indo Pacific Housing Finance Ltd., and another v/s Gopala Shetty – II (2014) CPJ 638 (NC).  We carefully gone through the decision relied upon by the learned counsel for the Opposite Party, but the law laid down in the said decision is not applicable to the present case since in the present case, the Opposite Party has not produced any evidence to show that they initiated any proceedings against the Complainant under Sarfaesi Act.  Except taking defence the Opposite Party Bank classify the loan of the Complainant as NPA and initiated the proceedings against the Sarfaesi Act.  Therefore, it is not proper to accept the argument putforth by the learned counsel for the Opposite Party that this forum has no jurisdiction to entertain the complaint.  On the other hand, as argued by the learned counsel for the Complainant eventhough the Complainant is regular in repayment of the loan amount and he has repaid the loan as agreed by him and he has also ready to pay the due amount and asked for release of the mortgaged documents, but inspite of it, the Opposite Party refused to release the documents.  This amounts to deficiency in service on the part of the Opposite Party.  Hence, this point is held in the affirmative.

15.      POINT NO.2:-          In view of the finding on Point No.2, we proceed to pass the following;

ORDER

The IA filed u/s 13(4) of the Consumer Protection Act, 1986 r/w Sec.151 of CPC is allowed.

The Complaint is allowed holding that there is deficiency in service on the part of the Opposite Party.  The Opposite Party is directed to receive a sum of Rs.1,79,280/- from the Complainant and release the documents of the Complainant within 45 days from the date of this Order.  The Opposite Party is further directed to pay a sum of Rs.25,000/- as compensation and Rs.2,000/- as costs of this litigation to the Complainant.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 1^st day of June 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.380/2014

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Smt. Syed Mansoor has filed his affidavit for the Complainants.
2. Sri Babu Srijeeth, Legal Manager has filed his affidavit for the Opposite Party.

List of documents filed by the Complainant :

1. Copy of the loan details.
2. Copy of the Deed of Release.
3. Copy of the legal notices.
4. Copy of the postal receipt and postal acknowledgement.
5. Copy of the postal cover of Opposite Party.
6. Copy of the account statement.

List of documents filed by the Opposite Party :

1.      Copy of the power of attorney.

2.      Copy of the loan application.

3.      Copy of the sanctioned letter.

4.      Copy of the loan agreement.

5.      Copy of the declaration.

6.      Copy of the statement of account

7.      Copy of the foreclosure statement.

8.      Copy of the citations.

MEMBER                                                                               PRESIDENT