IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Friday the 23rd day of October, 2020
Filed on 04. 05. 2017
Present
1. Sri. Santhoshkumar Bsc. LLB(President)
2. Smt. C.K.Lekhamma.BA. LLB(Member)
In
CC/No.114/2017
Between
Complainant:- Opposite parties:-
Smt. Shobha 1. The Manager.
Pallekattu Nikarthil SBI Varanadu Branch
Kokkothamangalam Village Varanadu.P.O
Varanadu.P.O, Cherthala Cherthala
(Adv. K.R.Anilkumar) (Adv.Mariya Das John)
O R D E R
SMT. C.K.LEKHAMMA (MEMBER)
Facts of complainant’s case are as follows:-
The complainant availed a loan (No.CC 67069802544) of Rs.50,000/- from the opposite party bank.But she defaulted the repayment.On 24/8/2016 opposite party conducted an adalath.As per the decision in adalath the complainant was allowed to pay Rs.15,000/- in a single remittance to clear off the loan.Matter is being soon 14/11/2016 she deposited Rs.49,500/-(Rupees Forty nine thousand five hundred only) to her account including the settlement amount as decided in adalath.Thereafter she approached opposite party bank to withdraw some amount, after deducted the settlement amount.But she was informed that her account has only having Rs.465/- only.Opposite party’s explanation was that they adjusted Rs.34,500/-(Rupees Thirty four thousand five hundred only) towards outstanding due with bank.
According to the complainant, the opposite party has no right to appropriate any amount than the amount settled in adalath.Thereafter complainant issued advocate notice showing reasons to the bank but opposite party did not respond it.The said acts of opposite party amounts to deficiency of service.Hence she approaches this commission for redress her grievances.
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According to the opposite party the complainant is defaulted to repay the loan amount after 2014, April.In accordance of that opposite party declared her account as NPA .Thereafter said issue had been settled in an adalath on 24/8/2016, conducted by opposite party bank.There is no dispute with regard to the one time settlement and decision on 24/8/2016.Even though the complainant was liable to pay Rs.54,540/-(Rupees Fifty four thousand five hundred and forty only) towards loan due but as per the settlement the complainant was allowed to pay only Rs.15,000/-(Rupees Fifteen thousand only).The terms and conditions of the settlement that the same day itself she has to remit Rs.1000/- and the remaining outstanding Rs.14,000/- will be paid on 24/9/2016.But she defaulted to pay said amount within the stipulated time hence the settlement became null and void and she is liable to pay entire outstanding due. Opposite party duly informed the complainant all these facts over phone. Thereafter bank credited said amount from her account.There is no deficiency of service committed by the opposite party.Therefore the complainant is not entitled to get any relief as prayed for.
3. The points that came up for determination are:_
1. Whether the complainant is entitled to get refund Rs.34,500/- that debited by the opposite party bank from her account?
2. Compensation and costs if any?
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Ext.A1 is the copy of compromise proposal dtd. 24/8/2016, Ext.A2 is the copy of notice with regard to one time settlement andExt.A3 is the pass book belongs to the complainant.
The case of the complainant is that she is a defaulter of loan(No. CC 67069802544) with opposite party.But on 24/8/2016 opposite party conducted an adalath as per the settlement she has to pay Rs.1000/-(Rupees thousand only) on the same day itself and the remaining balance is only Rs.14,000/-(Rupees Fourteen thousand only).On 14/11/2016 she deposited Rs.49,500/-, including the settlement amount, to her account.Instead of the settlement amount, the opposite party was debited more amount from the account of the complainant, since the reason that the settlement amount is not paid in time and she had already waived her right of one time settlement agreed by the bank.
Opposite party contented that she did not clear off her dues within the stipulated date.Hence the settlement is void, since the settlement was OTP (One Time Payment).Therefore, she cannot stick on the settlement.
On a perusal of Ext.A1 dtd.24/8/2016 it seems that the compromise offer accepted for Rs.15,000/-(Rupees Fifteen thousand only) and the terms of settlement is, Rs.1000/-up front and balance in monthly instalment starting from September-2016 and the date of payment and amount shown below is 24/9/2016 and Rs.14,000/-(Rupees fourteen thousand only).As per Ext.A1 the date of last payment was over on 24/9/2016 but the complainant deposited amount to her account on 14/11/2016 ie, after the period of compromise.Moreover RW1 deposed that they duly informed the complainant about the dues on 15/11/2016.
In this aspect it is relevant to discuss the decision rendered by Hon’ble High Court in 2014 (1) KLT 125 (Nakulam Vs. Canara Bank) the Hon’ble High Court discussed Sec.171 &174 of contract Act, in which it is so held that “Bank has a general lien over all forms of security including gold ornaments deposited by or on behalf of the borrower in an ordinary course of banking business for the general balance of account due from him”. It is further discussed that the “burden is always on the borrower to establish ‘a contract to the contrary’ in order to displace the prescription in favour of the bank under Sec.171 of the Contract Act about the existence of a right of general lien”. Therefore in view of the above discussion by Hon’ble High Court, opposite party bank has every right to retain due amount from complainant’s account claiming lien over it. Moreover there is no evidence before us that opposite party acted beyond the contract.
But it is interesting to note that the opposite party bank has not produced any document as well as did not convince us, that bank can charge more than OTP settlement amount, after the stipulated period, based on any agreement between the complainant and opposite party.However, on a discussion of above citation and discussion of the fact that bank has general lien over the assets of the borrower.Therefore we are of the view that there is no deficiency of service committed by the opposite party bank.
The learned counsel for the complainant relied the following decision rendered by Hon’ble High Court in 2018(4) KLT 876(Syndicate Bank Vs. Sheela Julian) . But it is not relevant to the facts and circumstances of the case in hand.
In view of the aforementioned discussions we are only to be dismiss the complaint without cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 23rd day of October , 2020.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri. S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Rajesh Kurup(complaiannt)
Ext.A1 - Copy of Compromise proposal dtd.24/8/2016
Ext.A2 - Copy of One time Settlement notice.
Ext.A3 - Pass book
Evidence of the opposite parties:-
RW1 - Allen Sebastian(Witness)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
