BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 12^th DAY OF APRIL 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to reverse unauthorized debit made and to pay compensation of Rs.100/- per day from the date of unauthorized debit till the date of reversal with costs.

2. The brief averments made in the complaint are as under:

The complainant Hariprasad Jayaram is represented by his GPA holder N.Vijaya Dhwaja.  The complainant is in the USA on an assignment and in his absence he has made his father-in-law a GPA holder to perform all necessary things for him in India including to look after his Banking transactions.  The complainant has a savings Bank account holder in the OP Bank bearing No.54003878538.  The complainant availed two house building loans from the OP Bank.  The loan HBL account numbers are (1) 54003924609 and 64004220551.  The equated monthly instalments for the first account is Rs.16,720/- and for the second account is Rs.6,949/- as fixed by the OP Bank.  The complainant is paying the EMI for the first account from 19.07.2005.  The EMI’s were first paid by cheques and then by standing instructions to the OP to debit S.B account No.54003878538 held by the complainant in the OP Bank.  The complainant has always taken care to see that, on the due date of each EMI for both loans, he maintains sufficient balance to enable the OP to debit the EMI for both loans.  The OP had no occasion to remind the complainant or inform the complainant about any shortage of funds to debit the EMI from his S.B account.  The OP has made debits of Rs.13,500/- on 22.05.2009 and Rs.23,669/- on 03.06.2009.  The above said both debits are unauthorized debits because the EMIs at the end of May 2009 are already debited on 03.06.2009.

The complainant approached the OP and demanded to reverse the unauthorized debits to reverse the debits.  However, the OP did not reverse the unauthorized debits.  Thereafter, the complainant sent a registered letter requesting the OP Bank to reverse the unauthorized debits immediately as the same is causing inconvenience and mental agony to the complainant.  The OP Bank neither replied the said letter nor reversed the said unauthorized debits.  The OP has committed deficiency in service by unauthorizedly debiting the above mentioned amount from the S.B account of the complainant.  The above said debits are contrary to the standing instructions to the OP Bank.  Since, the OP Bank did not reverse the unauthorized debits.  The complainant was compelled to approach this Forum for redressal.

For the aforesaid reasons, the complainant prays for an order directing the OP Bank to reverse the unauthorized debits made in the S.B account of the complainant and to pay him compensation of Rs.100/- per day from the date of unauthorized debit till the date the debits are reversed.    

3. In response to the notice issued, OP Bank entered their appearance through their advocate and filed their version admitting the two loan transactions by the complainant and also admitting that, the complainant has S.B account with them and further contended as under:

The EMI for the loan account bearing No.54003924609 is Rs.16,720/- whereas the EMI for the second loan account bearing No.64004220551 is Rs.8,520/- but not Rs.6,949/- as claimed by the complainant.  The complainant availed housing loan of Rs.20,00,000/- and executed loan documents on 22.11.2004 being the loan account No.54003924609.  In view of the sanction letter, the complainant has agreed to repay the said loan in 240 EMI of Rs.16,720/- and the repayment of the installment to commence from January 2005.  The complainant has paid installments commencing from January 2005 up to July 2005 and he has made payment for the month of August 2005.  The complainant has made payment of Rs.16,720/- on 22^nd September 2005 being one month installment even though 2 installments for the month of August and September were due.  Thereafter, the complainant has made continuously payment of Rs.16,720/- even though one installment of previous month was overdue and the same is continued.  The OP has intimated the complainant several times to clear the said overdue installment of Rs.16,720/-.  The OP has furnished the statement regarding particulars of payment of installments by the complainant in respect of loan account No.54003924609.  The said account since August 2005 was not regular and the same was observed by the Bank Auditors and the computer system also made observation regarding the said overdue.  Due to non-payment of above mentioned one installment from august 2005 the said account became NPA asset.  The OP has debited the said overdue installment of Rs.16,720/- to loan account from his savings account on 03.06.2009 by exercising its right of set-off and cleared the said overdue amount and regularized the loan account.

The complainant has availed another loan of Rs.9,35,000/- from the OP Bank and executed the loan documents.  The loan account number is 64004220551.  In view of the sanction of the loan letter the complainant has agreed to repay the said loan in 222 monthly installments of Rs.8,520/- each and the repayment will be commencing after 18 months from the date of disbursement or possession of house whichever is earlier.  The complainant has not made payments regularly towards interest on loan amount for the period of 18 months and loan account was irregular.  The same has been regularized by the complainant with the efforts of the OP.  The complainant in terms of the sanction letter dated 27.03.2006 has to pay EMI of Rs.8,520/- with effect from December 2007.  However, the complainant has been paying EMI @ Rs.6,949/- only from December 2007 instead of agreed installment of Rs.8,520/- and an amount of Rs.1,571/- per month is overdue.  The complainant has to pay the part of unpaid installment of Rs.1,571/- per month from December 2007 up to the date of installment made by the complainant.  The overdue amount for the 19 months from December 2007 to August 2009 at Rs.1,571/- per month amounts to Rs.32,991/-.  The complainant has to pay interest thereon from the date of due at agreed rate.  The OP has informed the complainant on several times about the said overdue.  Since, the complainant failed to make payment of the said loan account has agreed by him and the overdue became NPA in view of the irregularities.  Therefore, the OP by exercising its right of set-off has debited Rs.13,500/- on 22.05.2009 and Rs.6,949/- on 22.05.2009 (totally in all Rs.20,449) to the above said loan account from his savings account towards overdue amount for the period of December 2007 to December 2008.  The complainant has to pay further balance overdue amount with interest to the OP Bank for which the OP Bank has reserved its right to initiate appropriate steps.

The OP by exercising its right of set-off has recovered overdue amount by debiting the amount of Rs.13,500/- and Rs.6,949/- to loan account No.64004220551 and an amount of Rs.16,720/- to loan account No.54003924609 of the complainant from his savings account.  Hence, the transaction is not unauthorized and the same is in accordance with the law.  The complainant is having knowledge of the above facts.  The complainant has filed this complaint with an ulterior motive to gain wrongfully and to harm and harass the OP.   

For the aforesaid reasons, OP prays for dismissal of the complaint.      

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        5. The complainant to substantiate the allegations made in the complaint filed the affidavit of his GPA holder N.Vijaya Dhwaja in which he reiterated the allegations made in the complaint.  The OP in support of their case filed the affidavit evidence of their Branch Manager Sri.Maskeri G.S.  Written arguments were filed by the complainant.  The OP did not choose to file any written arguments.

          6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both the parties, various documents filed by both sides, written arguments submitted by the complainant and other materials placed on record.

7. Our answer to the above points are as under:

REASONS

8. The housing loan transactions as claimed by the complainant in his complaint is admitted by the OP.  OP has also produced the relevant documents pertaining to both the loan transactions.  As for as the loan transaction in account bearing No.54003924609 is concerned the complainant had issued standing instructions to OP Bank to deduct sum of Rs.16,720/- from his S.B account held in same branch.  It is not in dispute that, the complainant was maintaining sufficient amount so as to enable the OP Bank to deduct the said sum of Rs.16,720/- from his account every month.  The complainant was paying the said EMI of Rs.16,720/- either by way of cash or cheque till march 2006 and from April 2006 onwards standing instructions were given to deduct the said amount from the S.B account.

9. OP claims that, the complainant failed to make EMI of Rs.16,720/- for the month of August 2005 and he failed to remit the said amount despite repeated reminders.  Therefore, having no other alternative the said installment for the month of August 2005 was debited to S.B account on 03.06.2009 by exercising right of set-off.  The complainant seriously disputes this claim of OP and contends that prior to authorizing the bank to debit the EMI from his S.B account he was paying EMI either by way of cash or cheque.  He further claims that, he never defaulted in paying EMI prior to authorizing the Bank to debit the EMI from his S.B account held in very same Bank.

10. OP claims that, they repeatedly intimated the complainant regarding the alleged default and requested him to pay the said EMI and after having waited for a sufficiently long time they debited said amount from the S.B account of the complainant by exercising the right of set-off.  When the complainant denied that, he was never informed by the Bank regarding the alleged default, OP did not produce copy any of the letters or other mode of communication through which they have allegedly requested the complainant to make the said payment.  To counter the allegations of OP, the complainant has produced the copy of the challan dated 18.08.2005 for having paid the EMI for the month of August by way of cheque and the Xerox copy of the same is at Exhibit-K.  The copy of the said challan discloses that the complainant has paid the EMI for the month of August 2005 by way of cheque on 18.08.2005.  OP has no answer to the said claim of the complainant and also OP does not deny that a sum of Rs.16,720/- has not been paid under the said challan dated 18.08.2005.  For the reasons best known to them, OP Bank has failed to show the remittance of Rs.16,720/- on 18.08.2005 by way of cash by the complainant under the above mentioned challan.  Thus, it is apparent from the material produced by the complainant that, he never committed any default in making payment of the installments for the month of August 2005.  Therefore, OP Bank is not at all justified in debiting the said sum of Rs.16,720/- from the S.B account of complainant.  The said act of OP in causing debit of Rs.23,669/- on 03.06.2009 is not at all correct and amounts to deficiency of service.  Therefore the OP Bank is liable to reverse the said debit amount and compensate the complainant for the wrong debit made by them.

11. As for as second loan transaction is concerned the complainant is authorized OP Bank to cause debit of the EMI from his S.B account every month till the entire loan is paid.  In this particular transaction the complainant has not made payment of any installments either by way of cash or by way of cheque and since from the said first EMI the requisite amount has been debited from the S.B account of complainant.  Admittedly the complainant has signed the loan agreement on 11.05.2006 and the EMI has commenced from 31.05.2007.  Admittedly the complainant has instructed the OP Bank to deduct/debit the EMI from his S.B account.  OP claims that though the EMI is Rs.8,520/- per month, the complainant has paid only Rs.6,949/- since from the first EMI.  It is pertinent to note here that the complainant has not made payments either by way of cash or cheque but as instructed the OP Bank to debit the requisite EMI amount from his S.B account held in the same branch.  It is significant to note here that the complainant never instructed OP Bank to debit a sum of Rs.6,949/- only instead of Rs.8,520/- which is actual EMI paid to be complainant as per the loan agreement.

12. We wonder what made the OP Bank to cause debit of Rs.6,949/- per month only, instead of Rs.8,520/- in terms of the loan agreement.  Since it was the duty of OP Bank to deduct the requisite EMI amount from the S.B account of the complainant, we don’t understand what made them to debit a sum of Rs.6,949/-.  It is apparent that the OP Bank itself committed a serious mistake while debiting the EMI Amount from the S.B account of the complainant.  As stated above, the complainant never instructed OP Bank to debit a sum of Rs.6,949/- only.  Therefore, the OP Bank cannot be permitted to penalize the complainant for the serious mistake committed by their staff while debiting the EMI.  The said act of OP Bank in causing debit of Rs.13,500/- on 22.05.2009 amounts to deficiency of service.  More over the OP Bank never intimated either in writing or by any acceptable communication that the amount remitted was Rs.6,949/- instead of Rs.8,520/-.  OP Bank alone has to be blamed for debiting lesser amount than the actual amount.  The complainant cannot be penalized for the mistake committed by the officials of the OP Bank.

13. The OP Bank without there being any justification has made a debit of Rs.13,500/- on 22.05.2009 and Rs.23,669/- on 03.06.2009.  OP Bank having made wrong and unnecessary debit have caused great hardship and inconvenience to the complainant.  The complainant has been made to pay the above mentioned amount without there being any fault on his part.  Therefore, OP Bank has to be directed to reverse the said entries together with interest @ 9% p.a from the date of wrong debit entries till the date of realization of the said entries.  In the event the complainant has closed his S.B account in the said branch they shall make the payment as stated above together with compensation of Rs.5,000/-.  The complainant has successfully proved the deficiency of service on the part of OP Bank.  Accordingly, point No.1 is answered.      

          14. The order could not be passed within the stipulated time due to heavy pendency.

15. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OP Bank is directed to reverse the unauthorized debit of Rs.33,440/- immediately together with interest @ 9% p.a from the date of unauthorized debit till the date of realization.  Further the Bank shall pay compensation of Rs.5,000/- for the deficiency committed by them together with litigation cost of Rs.3,000/-.

This order is to be complied within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 12^th day of April 2016)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 16.10.2009.

Sri.N.Vijaya Dwaja.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 26.10.2009.

Sri.Maskeri G.S.

Documents produced by the Opposite Party:

MEMBER                                                              PRESIDENT

Vln*