Karnataka

Chitradurga

CC/104/2016

Eshanna, - Complainant(s)

Versus

The Manager, Vijaya Bank - Opp.Party(s)

M. Mohan kumar

31 Mar 2018

ORDER

COMPLAINT FILED ON:04.11.2016

DISPOSED      ON:12.12.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

 

CC.NO: 104/2016

 

DATED:  12^th DECEMBER 2017

 

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        :MEMBER

                                 B.A., LL.B.,   

 

 

……COMPLAINANT	Eshanna, S/o Late Gowranna, Age: 63 Years, Agriculturist, M.D. Kote Village, Hiriyur Taluk, Chitradurga.      (Rep by Sri. M. Mohankumar, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Manager, Vijaya Bank, Hiriyur Branch, Hiriyur, Chitradurga District.   2. The Proprietor/Manager, Sri Navadurga Agencies, Bank Mukadams & recovery Agents, No.627, 5th Cross, 1st Main, K.B. Extension, Jadav Clinic, I Floor, 1st room, Davanagere-02,   3. Sri P.M. Vedamurthy, S/o P.T. Thyaramallappa, Age: 45 years, R/at M.D. Kote village, Hiriyur taluk, Chitradurga District.   4.  Sri P.T. Thyaramallappa, S/o Thyuaranna, Age: 72 years, R/at M.D. Kote village, Hiriyur taluk, Chitradurga District.   (Rep by Sri.M.G. Raghavendra, Advocate for OP No.1, OP No.2 exparte and Sri.E. Shivakumar, Advocate for OP No.3 and 4)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay a sum of Rs.7,73,200/- and such other reliefs.

2.     The brief facts of the case of the above complainant are that, he approached OP No.1 for financial help for the purpose of purchasing the tractor-trailer.  OP No.1 agreed to advance the loan for the purpose of purchasing the tractor-trailer for a sum of Rs.5,00,000/- under loan A/c No.108409511000062.  The complainant has purchased the tractor-trailer bearing Reg. No.KA-16 T-1682-7683.  It is further submitted that, due to some reasons, fails to pay the installments well in time.  The OP took the possession of the tractor-trailer about 5 years back and kept the same in the godown at Davanagere.  The OP has filed a suit against the complainant for recovery of the amount dues from the complainant.  According to the complainant he has paid Rs.3,00,000/- on 20.08.2014 and further paid Rs.3,00,000/- on 26.08.2014 and on 04.09.2017 the complainant has paid Rs.1,02,000/-.  Again, the OP has recovered a sum of Rs.3,20,193/- from the complainant by filing a suit and in all the OP has recovered a sum of Rs.7,22,232/-.  It is further submitted that, the loan obtained by the complainant is an agricultural loan, the same should not be levied more than 6% p.a with simple interest.  But the OP intentionally and purposely recovered the above said amount imposing compound interest ½ yearly rest which is against the guidelines of the RBI.  It is further submitted that, the OP has withdrawn the suit filed against the complainant and received the court fee of Rs.62,300/- from the court but, it is not shown in the loan account or adjusted to the account of the complainant.  It is the gross error and it shows the deficiency of service on the part of OP.  Further, the complainant requested the OP to give possession of the above said tractor.  But the OP has issued only NOC stating that, there is no dues from the complainant.  It is further submitted that, the complainant has issued the legal notice through his counsel on 21.07.2016, the same was served to the OP.  But the OP neither issued the reply nor settled the claim of the complainant.  The complainant also filed an application under RTI to the OP but, the OP did not give any information in this regard.  The complainant wondering from pillar to post of the office of the OP.  It is further submitted that, the OP Bank has received subsidy amount under Vidarba scheme for Rs.1,98,000/- and deposited cash of Rs.48,000/- to the Bank.  But the OP has not shown the said transaction in the loan account of the complainant.  The OP has imposed compound interest half yearly from 01.06.2012 to 11.03.2015 for a sum of Rs.11,02,476/- and recovered Rs.10,22,332/- from the complainant without their being any reason and thereby the OP cheated the complainant without giving proper and convincing information, which shows the deficiency of service.  It is further submitted that, the OP seized the tractor bearing Reg.No.KA-16 T-7682 5 years back and kept in the godown.  The complainant deposited the entire loan amount under protest and requested the OP to handover the tractor to the complainant immediately.  Even after expiry of 1 ½ years, the OP did not handover the tractor to the complainant, thereby the complainant sustained monetary loss of Rs.30,000/- p.m. for a period of 18 months in all a sum of Rs.5,40,000/-, refund court fee of Rs.62,300/- and subsidy amount of Rs.1,98,000/-and complainant has paid an amount of Rs.48,000/- in total,  Rs.7,42,200/- and also excess amount recovered from the complainant by imposing compound interest half yearly.  The complainant further submitted that, the complainant is entitled Rs.20,000/- towards pain and sufferings and Rs.5,000/- towards cost of the proceedings.  The cause of action for this complaint arise when the complainant has got issued legal notice to the OP on 21.07.2016 which is at Hiriyur taluk, Chitradurga District within the jurisdiction of this Forum.  Hence, prayed for allowing this complaint.    

 3.    On service of notice, one sri. M.G. Raghavendra, Advocate filed on behalf of OP No.1 and filed version.  OP No.2 to 4 subsequently impleaded as proposed OPs.  OP No.2 placed ex-parte.  Proposed OP No.3 and 4 appeared through Sri. E. Shivakumar, Advocate and they have not filed any version.  But, they have filed objections to the application u/o 1 Rule X (2) of CPC.        

OP No.1 submitted that, it is true to state that, the complainant has approached the OP for financial assistance for the purpose of purchasing the tractor-trailer.  It is further true that, the OP agreed to pay a sum of Rs.5,00,000/- to the complainant for the purchase of purchasing the said tractor bearing Regn.No.KA-16 T-7682 and 7683.  Except this, the remaining facts mentioned in the complaint are denied as false.  The complaint is strict proof of the same.  The complaint is not maintainable in law or on facts and the same is liable to be dismissed in limine.  It is further submitted that, the complainant has approached the OP for financial assistance for the purpose of purchasing tractor.  The OP No.3 and 4 stood stands as surety.  The complainant has hypothecated his tractor-trailer and mortgaged the said property in a simple registered mortgage deed dated 23.02.2006 in favour of the OP Bank and also creation of charge over the property.  The complainant agreed to return the same along with interest at the rate of 10% half yearly to the OP Bank.  The complainant and guarantors have jointly and severally borrowed a loan on 23.02.2006.  Complainant and other borrowers have jointly executed to take delivery letter on the same day whereby they are agreed that the payment or acknowledgement made by them will have to save the limitation and this loan should have been repaid the loan limit is tenable for three years subject of annual renewal and the same is effect from the date of disbursement and interest should be paid as and when due.  The said borrowers have jointly created charge over the land by executing simple registered mortgage deed.  The complainant and borrowers have due for Rs.9,94,484/- as on 20.08.2014.  The complainant and borrowers have agreed to pay the revised rate of interest charged from time to time and also the penal interest at 2% p.a compound quarterly in the event of default in repayment of the loan amount regularly in accordance with monthly, quarterly and yearly installments.  Further the borrowers are agreed to pay the necessary expenses in connection with the said loan.  The borrowers are liable to pay the interest as notified by the Head Office of the Bank and the RBI.  It is further submitted that, in spite of repeated demands made by the Bank, the borrowers have not paid the amount due.  Hence, the OP has seized the tractor only through recovery agency called Sri. Navadurga Agencies on 20.07.2011 and sent to godown of Navadurga Agencies.  By that time, loan outstanding was Rs.6,41,000/-.  After seizing also, the complainant and other borrowers have not visited the Bank and tried to pay the loan amount.  Thereafter, the OP has intimated to the complainant through letter dated 28.11.2011 regarding public auction of the tractor.  The complainant and borrowers have not tried to pay the entire due amount.  Further the Bank authority have conducted public auction on 20.08.2012 but, intentionally no one come and take the tractor of the complainant.  The OP has conducted somany public auctions but the said tractor has not been sold or disbursed.  The above complainant and borrowers are the chronic defaulters of the loan borrowed from the Bank.  Thereafter, the Bank authority has decided to file recovery suit before the Civil Judge (Sr.Dn) in O.S. No.26/2012, Hiriyur against complainant and borrowers.  On 20.08.2014, the complainant has come forward for one time settlement.  On 20.08.2014, the OP has conducted Vijaya Adalath Scheme at Hiriyur Branch, the complainant and borrowers are also participate in the said Adalath.  By that time, the balance amount due is of Rs.9,94,484/-.  The complainant and OP have amicably settled the matter for a sum of Rs.7,03,000/-.  On that day itself, the complainant has deposited Rs.3,00,000/- and further agreed to pay the remaining amount within 30 days from the date of auction.  Thereafter, the complainant has paid Rs.4,02,000/- and Rs.1,00,000/- as per the terms and conditions of the Bank.  On that day itself, the Branch Manager has told the complainant and loan borrowers to take back the tractor from Navadurga Agencies godown at Davanagere by paying balance amount.  It is the duty of the complainant to take back the tractor from Navadurga Agencies on payment of balance towards rent.  As per the terms and conditions of the loan agreement, the OP No.2 to 4 are only the formal parties to the proceedings.  There is no cause of action for filing this complaint.  The OP has not committed any deficiency in service or not cheated the complainant.  Hence, prayed for dismissal of the complaint.

4.     Complainant himself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-6 were got marked.   OP No.1 has examined one Sri.N. Mohan, the Branch Manager and PA Holder of Vijaya Bank, Hiriyur Branch and relied on Ex.B-1 to B-14 documents. 

 

5.     Arguments heard. 

6.     Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OP No.1 has committed deficiency of service in handing over the tractor-trailer to the complainant after recovery of the entire loan amount?

              (2) What order?

 

        7.     Our findings on the above points are as follows:-

        Point No.1:- Partly in Affirmative.

        Point No.2:- As per final order.

 

 

REASONS

8.     It is not in dispute that, complainant is the RC owner of tractor bearing Regn. No.KA-16 T-7682 and 7683, the same has been purchased by obtaining loan for a sum of Rs.5,00,000/- from the OP No.1.  After obtaining the loan, the complainant paid the loan amount to the OP on 20.08.2014 of Rs.3,00,000/-, on 26.08.2014 for Rs.3,00,000/- and on 04.09.2014 for Rs.1,02,000/- in all Rs.7,02,000/- and also the OP has recovered Rs.3,20,193/- from the complainant in total Rs.10,22,232/- as per Ex.A-1.  According to the OP, the complainant has obtained loan for Rs.5,00,000/- from the OP and the complainant has not paid the loan installment regularly.  At the time of filing of the suit, the complainant was due for a sum of Rs.10,22,232/- as on 20.08.2014.  After that, the OP No.1 has filed a suit against the complainant and borrowers for recovery of money before the Civil Judge (Sr.Dn) in O.S.No.26/2012, the same was decreed.  After that, the OP has conducted Vijaya Adalath and issued notice to the complainant and borrowers and give an opportunity to settle the entire loan amount in one time settlement.  At the time of Adalath, the loan amount is due for Rs.9,94,484/-.  The complainant agreed to pay the amount of Rs.7,03,000/- in one time settlement.  On that day itself, i.e., on 20.08.2014 the complainant has deposited Rs.3,00,000/- to the OP and agreed to pay the remaining amount within 30 days.  Again, the complainant has deposited Rs.4,02,000/- and Rs.1,00,000/- in total Rs.9,94,484/-.  As per Vijaya Adalath, the OP has received the entire amount from the complainant.  After that the OP told the complainant to take tractor-trailer from OP No.2 i.e., Navadurga Agencies by paying rent.  This is only a dispute between the complainant and OP No.1, whether the complainant has to pay the charge to Navadurga Agencies or OP No.1 has to pay the charge to the Navadurga Agencies.  As per the documents produced by the complainant and OP No.1, clearly shows that the complainant has paid the entire loan amount to the OP No.1.  It is the duty of the OP No.1 to hand over the said tractor to the complainant as per the documents and objections filed by OP No.3 and 4. 

9.   We have gone through the entire documents filed by the complainant and OP No.1.  According to the complainant, he has obtained a loan of Rs.5,00,000/- from OP No.1 for purchasing the tractor-trailer.  As per the agreement, OP No.1 has sanctioned the above said loan amount of Rs.5,00,000/- to the complainant.  The complainant has agreed to pay the entire loan amount along with interest to the OP No.1.  In spite of request and demands made by the OP No.1, the complainant has failed to pay the installment due amount.  Finally, the OP No.1 filed a suit before the Civil Judge (Sr.Dn), Hiriyur in O.S.No.26/2012 recovery of loan amount.  The OP No.1 has conducted Vijaya Adalath for the loan borrowers.  As per the Adalath, the OP No.1 has send the notice to the complainant and borrowers to participate in the Adalath.  The complainant and OP No.1 have come together and settled the above said dispute in one time settlement scheme.  At the time of Vijaya Adalath, the complainant has to pay the amount of Rs.9,94,484/- to the OP No.1.  Both of them sit together and compromise the matter, the complainant has agreed to pay the loan amount in one time settlement scheme and OP No.1 has agreed to receive Rs.7,03,000/- from the complainant.  On that day itself, the complainant has paid Rs.3,00,000/- to the OP No.1 and agreed to pay the remaining amount within 30 days.  After that, complainant has paid the amount of Rs.4,02,000/- and Rs.1,000/- in total, Rs.7,03,000/- within one month.  The main contention of the complainant is that, after payment of entire amount to the OP No.1, it is the duty of the OP No.1 to hand over the vehicle to him.  As per the terms and conditions of the agreement and Vijaya Adalath, it is the duty of the OP No.1 to hand over the tractor-trailer to the complainant.  When the OP No.1 has received the entire amount from the complainant as per the exhibits, it is its duty to hand over the said tractor-trailer bearing Regn. No.KA-16 T-7682 and 7683.  Here the OP No.1 has told the complainant to take the vehicle from Navadurga Agencies after payment of parking charges, it is not correct and the same is deficiency of service on the part of OP No.1.  It is the duty of the OP No.1 to hand over the said tractor to the complainant.   Accordingly, this Point No.1 is held as partly affirmative to the complainant.

 

          10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

          The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

          It is ordered that, the OP No.1 is hereby directed to hand over the Tractor-Trailer bearing Regn.No.KA-16 T-7882 and 7883 to the complainant within 30 days from the date of this order.  Failing which, the OP No.1 is liable to pay a sum of Rs.5,40,000/- to the complainant along with interest @ 9% p.a to the complainant from the date of complaint till realization.

          It is further ordered that, the OP No.1 is hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of the proceedings to the complainant. 

          The complaint as against proposed OP No.2 to 4 are hereby dismissed.

          It is further ordered that, the OP No.1 is hereby directed to comply the above order within 30 days from the date of this order.

            (This order is made with the consent of Member after the correction of the draft on 12/12/2017 and it is pronounced in the open Court after our signatures)         

 

 

                                     

          MEMBER                                                    PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:- N. Mohan, the Branch Manager and PA Holder of Vijaya Bank, Hiriyur Branch

 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Statement of account from 24.02.2006 to 12.03.2015
02	Ex-A-2:-	Postal receipt
03	Ex.A-3:-	Postal acknowledgement
04	Ex.A-4:-	Postal order slip
05	Ex.A-5:-	Postal receipt
06	Ex.A-6:-	Legal Notice dated 18.07.2016                               21

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Agricultural loan application form
02	Ex-B-2:-	Certificate of loan papers obtained
03	Ex-B-3:-	Loan sanction letter
04	Ex-B-4:-	Form 15
05	Ex-B-5:-	Letter dated 05.12.02012 to Navadurga Agencies by the OP No.1
06	Ex-B-6:-	Photo of the seized tractor
07	Ex-B-7:-	Letter dated 15.02.2012 by the Vijaya Bank to the AGM, R.O. Shimoga
08	Ex-B-8:-	Letter dated 12.05.2014 by the vijaya Bank
09	Ex-B-9:-	Bill dated 02.04.2014
10	Ex-B-10:-	Letter dated 25.04.2013 by the Vijaya Bank
11	Ex-B-11:-	Letter dated 20.08.2014 by the complainant to OP No.1
12	Ex-B-12:-	Letter dated 20.08.2014 by the OP No.1 to complainant
13	Ex-B-13:-	Letter dated 16.03.2015 to complainant
14	Ex-B-14:-	Statement of account from 01.04.2007 to 31.03.2015

 

 

MEMBER                                                            PRESIDENT

Rhr**