BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  31 March 2016       

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 325/2015  

Complainant/s:

v/s

Respondent/s:

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.325265/- towards the balance amount in the account along with interest @18% P.A., to pay Rs.1 lakh as compensation towards damages and harassment, to pay cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

        The case of the complainant is that, the complainant along with his eldest son Moujan Ali Darugar have joint account in SB 54004838913  with the respondent bank. The complainant and her eldest son in the year 2005 have raised a loan from the respondent bank to a tune of Rs.10 lakhs by mortgaging by their 3 storage RCC Building. After availment of the loan the complainant had paid part amount. In the meantime their arise difference opinion between the complainant and her eldest son. Bing an engineer left to USA in the year 2010 & since then residing there only. The house property mortgaged towards collateral security  towards the loan amount is of the joint property owned by complainant, her eldest son & another son Murad Ali and her daughter Dr.Noor Mahim. During the pendency of the loan there arise dispute in the family of the complainant in order to resolve the dispute the complainant along with her 2^nd son Murad Ali M.Darudagar filed a Civil Suit in O.S.139/2000 on the file of Prl. Sr.Civil Judge, Hubli, for partition against her eldest son and against her daughter in respect of the suit scheduled property which was mortgaged to the respondent bank. The said suit disposed in decree on 23.07.2012 with a specific order the amount of Rs.18,45,735/- kept in FD of remained after adjusting auction amount of Rs.31,71,000/- auctioned on 09.11.2010 to be apportioned among the joint owners of the suit scheduled /mortgaged property. As per the decree out of the amount in FD Rs.18,45,735/- an amount of Rs.2,52,623/- was received by the complainant on 04.08.2012 an amount of Rs.7,07,343/- was received by complainant’s 2^nd son Murad Ali on 04.08.2012, an amount of Rs.3.60 lakhs was received by complainant’s daughter Dr.Noor Mahim on 10.05.2014. The balance amount of Rs.5,25,769/- fallen to the share of eldest son Maujam Ali M.Darugar is left in the FD at respondent’s bank as the said share holder stayed at USA. Still the said amount is with the respondent bank. In the meantime the complainant noticed some discrepancy in the accounts maintained by her with the respondent bank. Hence to know the details of the loan transactions and auction amount the complainant wrote letter to the respondent on 14.07.2015 requesting to furnish details. In response the respondent bank furnished 2 statements, but in those statements nothing is mentioned with regard to the auction sale amount and deductions. Even after repeated requests the respondent bank did not furnished. Hence, the complainant submitted an application under RTA on 21.07.2015. Despite receipt of the application on 22.07.2017 the respondent bank never cared to furnish the details. Thereafter the complainant herself by calculating her accounts got issued legal notice on 28.10.2015 to the respondent. In the said notice the complainant has shown an amount of Rs.3,24,265/- remained in her account after deduction of auction amount of Rs.31,70,000/- to the loan adjustment and demanded to pay the balance amount of Rs.3,24,265/- retained by the respondent. Despite service of notice on 29.10.2015 the respondent bank never replied nor complied. The statement of account no.54004838913 shows balance of Rs.1,16,358-95 on 08.11.2010. The said account has been closed without intimating to the complainant by giving transfer of said Rs.1,16,358-95 to the new account no.98533404931. The respondent even did not informed to the complainant with regard to opening or closing of new account also. The respondents deliberately did not intimate the complainant with regard to the closure of the account and also did not furnish the details of account statement, which is a clear instance of deficiency in service. Hence, the complainant filed the

In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that there is no deficiency in service, no cause of action and the matter involved comes within the purview of SARFAESI Act as such the Forum bar the jurisdiction to adjudicate the same as such the complaint is not maintainable and prays for dismissal of the complaint. While the respondent admits approach of the complainant, having accounts with respondent bank, avail of loan by mortgaging the property & non payment and realization of the due amount by auctioning the mortgage property under SARFAESI Act and adjusting the auction amount to the loan due amount and transfer of remaining amount to the FD accounts and thereafter remaining FD amount was released to the shares of the beneficiaries as per the decree of the civil court. The respondent also taken contention that they have not committed any deficiency in service as alleged. They have proceeded to realize the loan due amount in accordance with the procedure by intimating the complainant in all respects, knowingly well of all the proceedings the complainant accepting the amount for which she was entitled as per the court order, after lapse of 5 years without any deficiency in service and without any cause of action filed the instant against the respondent claiming spurious claim without any basis. The auction was done on 09.11.2010 & all the beneficiaries  have accepting their share amount. While the complainant alone by misunderstanding and misinterpreting the statement of account only on assumption and presumption approached this Forum and this Forum has no jurisdiction to entertain the complaint as it is barred by SARFAESI Act and Banking Regulation Act and prays for dismissal of the complaint.

        On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit and relied on documents.  Heard. Perused the records.

Finding on points is as under.

1.   
2.    
3.  As per order

R E A S O N S

P O I N T S 1 & 2

On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the complainant had maintained SB account and had raised loan with the respondent bank and due to nonpayment of the borrowed amount as the loan account was subjected to NPA the respondent bank realized the loan due amount by auctioning the mortgaged property as per SARFAESI Act.

        Now the question to be determined is, whether the respondents have retained the amount in the account of the complainant and thereby have committed deficiency in service, if so, for what relief the complainant is entitled.

 Since the facts have been revealed in detail which requires no repetition.

On going through the pleadings another point has arisen for our determination, as contention taken by the respondent whether the complaint is barred by limitation and also this Forum is barred from adjudicating the same on limitation point and on the point of SARFAESI Act and B.R.Act.

By the pleadings and evidence it is evident that the complainant along with her one son raised loan in the year 2005. Since they became defaulter the respondent bank have auctioned and realized the amount by auction conducted as per SARFAESI Act and the auction was done on 09.11.2010.

As per the own admission of the complainant it is evident that while pendency of the loan account there arise differences among the members of the family and dispute raised with regard to the joint ownership property of all the members of the complainant mortgaged as security to the loan with respondent & in this regard the complainant approached civil court in OS 139/09 & the same was finally disposed on 23.07.2012 with a specific order to apportion the amount remained out of auction amount adjusted to the loan account and transfer and kept in FD account. So also as per their own admission including complainant and other shareholders received amount as per the court direction in the year 2012 and another share amount of the another shareholder is with the respondent as he settled at USA. In this regard there is no dispute and whisper among the shareholders. Except this, the complainant did not placed any evidence before this Forum with regard to the fact that after availment of the loan and committed default she in touch with the respondent bank. So also right from the date of auction i.e. 09.11.2010 till writing of letter on 14.07.2015 or till issuance of the legal notice 28.10.2015 she has not raised any objections in anywhere disputing and questioning the conduct of auction conducted by respondent bank and realization of the loan due amount. Even at the time of receiving the share amount of the complainant from the respondent bank as per the decree in OS 139/09 received on 04.08.2012 she has not raised any voice and questioned the respondent bank with regard to the settlement of the loan amount, auction conducted, amount realized and with regard to the other proceedings of the respondent. So also the complainant without any protest has silently received the amount of her share from the respondent bank on 04.08.2012. The instant complaint is filed before this Forum on 11.12.2015 by the complainant herself without joining other members of the family. By this it is evident that this is an afterthought of the complainant without any cause of action and jurisdiction.

Even otherwise on the point of limitation and jurisdiction of this court is taken into consideration, as per the own admission of both the parties the respondent bank auctioned the mortgaged amount for realization of the loan amount in due under SARFAESI Act & B.R.Act on 09.11.2010 as discussed supra thereon till writing letter by the complainant herself or till to the date of issuing legal notice she has not taken any steps in knowing the details nor disputing the conduct of realization of the amount & payment of balance amount after deducting auction amount to the loan due amount. Simply the complainant and other members have received the remaining amount of their share as per the decree in civil suit without protest. Even either the complainant or other members of the family have not raised any objections before civil court with regard to auction conducted by respondent and deposit of residue amount after adjusting to the loan due amount. If really the complainant or any members of the family are not satisfied by the conduct of recovery of amount by respondent they would have raised & questioned in their civil suit pending before the civil court. The complainants themselves report to the civil court with regard to balance amount and the Hon’ble. Prl. Sr. Civil Judge, Hubli in its judgment and decree in O.S.139/09 dtd.20.06.2012 specifically noted the residue amount of Rs.1845735/- and effects apportionment of the said amount among the parties. So it attains its finality. So taking into consideration of auction date 09.11.2010 & date of decree of civil suit dtd.20.06.2012 & tallied with date of filing of present complaint 11.12.2015 the present complaint is filed after lapse of 2 years. The complainant filed the present complaint without any application u/s.24 (A) of the CP Act for condonation of delay if any in filing the present complaint.

Even the grievance and prayer of the complainant is taken into consideration the very grievance of the complainant is that it is the case of the complainant that she suspects the discrepancy in the counts of the respondent bank in respect of complainant’s account, so she write letter to the respondent bank on 14.07.2015. Further case of the complainant is that after she suspects she approached the respondent bank & obtained statement of accounts as per Ex.C3. In the said statement of account in the entries dtd.08.11.2010 a sum of Rs.1,16,359/-  was credited to the loan account from the account of 98533404931 & the said amount was not paid to the complainant. Whereas in the prayer column she sought for refund of Rs.3,24,265/- towards the balance of amount. For this, the respondent counsel replies, the complainant except account no.54004838913 do not owns any other account in her name in the respondent bank. Further submission of the respondent counsel is that after realization of the amount out of auction the respondent bank adjusted the auction amount to the loan amount in due residual amount was transferred to the hidden account i.e. F.D. account 98533404931 and as per the court order FD amount was refunded to the beneficiaries by giving transfer from hidden FD account to the respective shareholders account. Accordingly entry was shown as per Ex.C3 & further submits the claim of the complainant is baseless. If it is true as contended by the complainant there is still residue amount in her account she could have approached the respondent bank and could make clear of the same. For that there is no impedements. If so she could have initiate proper complaint before appropriate court or before any Forum, but whereas in the instant complaint the complainant under assumption and presumptions filed the complaint without any documents. One who approach the court with allegation the burden lies on the person who made allegation and claims reliefs. This being the consumer complaint with summary proceedings cannot adjudicate the complainants who approached this Forum with assumption and presumption without any substantive documents. Hence, there is no merit in the present complaint. The complainant failed to establish her case of deficiency in service or unfair trade practice by the respondent. Hence, complainant is not entitled for any reliefs.

        In view of the above discussions we have arrived and proceed to held issue.1 and 2  .

Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        The complaint is dismissed. No order as to costs. However it is ordered if the complainant is so interested in exercising her rights and to establish her claim before any other forums/courts/ tribunal or before Ombudsman of the respondent bank institution, this order will not come in the way of the respondents claims.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on   day of            2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR