(Order dictated by Shri. V.S. Gotakhindi, Member)
ORDER
U/s.12 of the C.P. Act, the complainant has filed the complaint against the O.P. alleging deficiency in service of non issue of No Due Certificate.
2) After service of notice opponent appeared through counsel and filed their objection.
3) The complainant and O.P. have filed their affidavits and certain documents are produced.
4) We have heard the arguments of both learned counsel for complainant and O.P. and have perused the records.
5) Now the point for our consideration are that;
1) Whether the complainant is entitled for No Due certificate as prayed?
2) Whether the complainant has cleared loan of Rs.48,000/-?
3) Whether the opponent establish that there is due to be paid by complainant towards the loan of Rs.48,000/-?
4) Whether there is deficiency of service on the part of opponent for non issuance of No Due certificate for loan clearance of Rs.4,80,000/-?
5) To what relief the complainant is entitled?
6) We answer the above point as under;
1) Affirmative,
2) Affirmative,
3) Negative,
4) Affirmative,
5) As per order;
:: R E A S O N S ::
7) The complainant has alleged in this complaint that he is customer of opponent bank and has availed the loan of Rs.4,80,000/- and has cleared the loan as on 26/5/2014 under account No.05188540003198 and to that effect the opponent bank has issued detailed statement of account on 17/6/2014 disclosing zero balance and the complainant requested the opponent bank to issue No Due Certificate, but the opponent Bank even after giving written request letter on 12/12/2014 by R.P.A.D and evenafter issuing legal notice through RPAD on 6/2/2015 the opponent bank did not issue No Due Certificate. The complainant further alleges that he has cleared the loan availed for Rs.48,000/- and the Bank has issued No Due Certificate on 29/8/2008 in respect of Survey No.88 and 47/B of Kangralli Village. The complainant further alleges that after clearance of previous loan he has availed loan of Rs.4,80,000/- from opponent Bank by pledging his property bearing Survey No.88 and 47/B under loan account No.05188540003198. The complainant further alleged that there is no loan outstanding for Rs.48,000/- and prayed to allow the complaint directing opponent to issue No Due Certificate as prayed in the complaint.
8) On the other hand, the opponent filed the objection and contending that the complainant has filed the complaint baselessly and the contents are false and the complainant has suppressed true facts before the court and there is no deficiency of service on the part of the opponent and the forum has no jurisdiction to entertain the complaint. The opponent further contends that the bank is registered under Banking Companies Act V of 1970 and as per the definition of section 2(1) of the said Act does not cover the claim under the present dispute and the complainant is not a consumer. The opponent further contends that on 17/2/2006 has availed the loan of Rs.48,000/- to carry out Horticulture in 3 Acres of land bearing R.S. 88 and 47/B of Kangralli Village and the due date of loan was 31/1/2007 and the opponent bank has opened the loan account No.SKCC8/06 and the total due amount is Rs.79,598/- and the account has been rephrased and on 30/6/2015 the amount outstanding is Rs.97,137/-. The opponent further contends that on 29/8/2008 the bank has issued No Due Certificate to the complainant without prejudice to banks rights to recover against the named person and the opponent contends that they have filed recovery proceedings against the complainant under Karnataka Agricultural Operations and miscellaneous provision Act 1974 before ARCS under case No.10/A/658/R.C.09-10. The opponent further contends that they have right to recover amount due from the borrowers and the complainant has no legal right to approach the Forum and the allegations are baseless and with motive to harass the opponent and recover the amount. The complainant has filed this complaint and there is no cause of action to file the complaint and complaint deserve to be dismissed.
9) On perusal of the allegations and objections and documents produced by both the parties, it is the case of the complainant that opponent bank has not issued No Due Certificate for the loan availed of Rs.4,80,000/- which has been paid by the complainant and the opponent has to issue N.O.C. We have perused the documents that is the statement of account bearing No. 05188540003198, which shows nil balance as on 26/5/2014. It is clear that as per the case of the complainant the loan has been cleared and there are no dues and also it is to be noted that the documents issued is by the opponent and it is not the case of the opponent that the complainant has not cleared the loan of Rs.4,80,000/-. But the opponent even after written letter given by the complainant and also after issuance of legal notice to issue No Due Certificate, the opponent contention is that the complainant has availed the loan of Rs.48,000/- in the year 2006 and which was due in the 2007 and as on 9/11/2009 there is a due and outstanding balance of Rs.69,995/- and the complainant has not cleared the said loan. The opponent contends that this loan is availed by securing the property bearing Survey No.88 and 47/B, and the opponent is having right to recover outstanding loan dues. After perusal of the documents produced by the opponent has issued No Dues Certificated dated 29/8/2008 wherein it has been clearly certified that the complainant does not owe any amount to the branch as on 8/8/2008 and also that the available records does not have any liability against the land situated in Survey No.88 and 47/B. It is clear by this certificate that as on 8/8/2008 there are no loan dues to be paid by the complainant to the opponent bank. Hence the claim of the opponent that still the complainant is liable to pay Rs.69,995/- as on 9/11/2009 cannot be believed and accepted. Moreover except the notice issued to the complainant on 9/11/2009 showing loan dues of Rs.69,995/- there are no statement of account of loan dues in this regard. It is also pertaining to note that the opponent has produced a document of loan account No.SKCC8/06 along with the first copy the second page of this copy reveals that the complainant has availed the loan of Rs.48,000/- and on 28/11/2010 the balance shown is nil and under the ‘balance column’ the opponent has rounded up the balance amount, but at the end of the page the opponent has endorsed as ;
“A/c rephrased as per cir No.268/09 New A/c. No. in CBS is 0518/838/1351”.
10) Even though for the sake of matter the account has been rephrased as per the opponent as the account number shown supra. But the opponent and neither in the objection nor in the affidavit has explained or produced any documents or a letter issue to the complainant showing that the account has been rephrased and new account has been created. By this itself goes to show that without any documentary evidence the opponent has taken a contention that there is a still balance of loan taken under account No.05188380001351. Therefore the opponent has not proved their allegations in regards to the balance of loan. Hence mere taking a contention will not suffice when there no supportive document established the allegations made on by the complainant. The statement so produced of A/c No. 05188380001351 after going through it reveals under the heading current arrears details at the fag end of the statement which is a computer print out dated 27/7/2015 reveals that installment arrears as 0.00 and penalty PMI arrears as 0.00. Hence when there is no arrears in regards to installments it is to be construed that there is no balance to be paid by the complainant in regards to the loan outstanding to the opponent bank and moreover the opponent bank has issued a No Due Certificate which also goes to shows that, in 2008 there was no loan dues to be owe to be opponent Bank. Hence the contention taken by the opponent does not hold any water and has to be rejected.
11) Coming to the contention of the complainant that opponent is at deficiency of service in non issuance of No Due Certificate in regards to the loan account No.05188540003198, has to believed and accepted and the statement of account in this regard shows nil balance and the opponent has shown as E.F.S. by cash, it is goes to show that there is no dispute in regards to the outstanding loan. Therefore the complainant has proved that the opponent has played unfair trade practice and deficiency in service in non issuance of No Due Certificate even after the complainant has paid the entire loan amount.
12) In regards to the loan of Rs.48,000/- the complainant himself has admitted in his complaint and affidavit that he has availed the loan of Rs.48,000/- and repaid the same and bank has issued No Due Certificate to that effect and after clearance of the above loan the complainant applied for the second loan of Rs.4,80,000/- and same has also been cleared. Moreover it is the opponent who has to explain why they kept mum till November 2009 when the due date of loan account No. 05188380001351 was in 2007 for the loan availed in the year 2006 by the complainant and the opponent issued a notice in the year 2009, that is after lapse of 2 years from the due dates which goes to shows that the opponent carelessness and without perusing the documents issued noticed to the complainant and upon that the opponent has utterly failed to established the dues of Rs.69,995/- as on 9/11/2009. Considering the facts and documents we are of the opinion that the complainant has proved deficiency of service unfair trade practice on the part of the opponent and is liable to compensation and as per prayer in the complaint. Hence we answer the point no 1, 2 and 4 in affirmative and point No 3 is answered in negative.
13) The complainant has relied the reported ruling of Hon’ble Delhi State Commission reported in (I) 2012 CPJ page 293 between Satish K R Jain V/s. CITI Bank and another’s wherein the appellant appealed before the State Commission for enhancement of the compensation ordered by District Forum making liable the bank for non issuance of No Due Certificate. Herein the present case on hand the complainant has also approached for non issuance of No Due Certificate from the opponent and has proved the allegations against the opponent and the decision is applicable to the present case on hand restricting to the compensation granted by the Hon’ble State Commission in the decision supra
14) Taking into consideration of the facts, evidence on record and the discussion made here before deficiency in service on the part of the opponent has been proved.
15) Point No 4: Considering the Point No 1 to 3, we pass accordingly, following order.
O R D E R
The complaint is partly allowed.
The Manager representing opponent bank is hereby directed to issue No Due Certificate to the complainant in regards to the loan account No.05188540003198 within one month from the date of passing of this order.
So also, The Manager representing opponent bank is hereby directed to pay a sum of Rs.15,000/- to the complainant as compensation and Rs.3,000/- towards costs of the proceedings. Failing which the opponent shall pay additional compensation of Rs.5,000/- including the compensation of Rs.15,000/- within 30 days from the date of the order.
(Order dictated, corrected and then pronounced in the open Forum on: 11th day of May 2016)
Member Member President.
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