DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK

Dated the 31st day of July, 2018

                                                   Present 1. Shri Raghunath Kar, President

                                                                2. Shri Basanta Kumar Mallick, Member

                                                                3. Afsara Begum, Member

C.D Case No. 04 of 2016

Sri Bijaya Kumar Bal

S/o Kamadev Bal

At: Charitaraf

Po: Samantaraypur

Via: Pirahat Bazar                                                                                                 

Ps: Tihidi

Dist: Bhadrak

                                                        ……………………. Complainant

            (Versus)

 1. Managing Director

 I.C.I.C.I Bank

 At: Remuna

 Dist: Balasore

2. The Branch Manager

I.C.I.C.I Bank, Bhadrak Branch

At: Dahanigadia

Po: Charampa

Ps: Bhadrak (T)

Dist: Bhadrak

3. Branch Manager

Bhadrak Urban Co-operative Bank Ltd.

At/Po/Ps/Dist: Bhadrak

                                                    …………………………..Opp. Parties

Counsel for Complainant: Sk. Jamil Ahmed (Advocate) & Associates

Counsel for O.Ps No. 1 & 2: Sri L. Nayak & B. K Mohanty, Advocates

Counsel for OP No. 3: Sri R.K Ray, Advocate

Date of hearing: 12.07.2017

Date of order: 31.07.2018

SRI BASANTA KUMAR MALLICK, MEMBER 

This dispute arose out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice.

The complainant purchased a Hero Honda Passion bike on 13.07.2016 from M/s Sanjib Motors Bhadrak on hire purchase scheme with the credit support of ICICI Bank, at  Dahanigadia Bhadrak. The said motor cycle was registered under R.T.O Bhadrak vide No. OR-22A-4915. OP No. 1 & 2 advanced a sum of Rs 31,800/- which was repayable in 24 equated monthly installments commencing from 5^th September, 2006 together with interest @ 19.07% P.A and the amount of installment together with interest was fixed Rs 1,579/- P.A. At the time of documentation OP No. 2 demanded for payment of amounts of 1^st installment in advance and 23 Nos. of post dated cheques which was compiled by the complainant and availed the loan from OP No. 2 Bank. OP No. 1 & 2 submitted the cheques in a regular manner on monthly basis to OP No. 3 which were cleared up by the OP No. 3 Bank that is the complainant’s Banker. The last cheque bearing No. 12848 was cleared by the OP No. 3 Bank on 21.07.2008 and as such the loan account maintained with OP No. 1 & 2 was liquidated finally. After clearing the debt complainant requested OP No. 2 orally to issue No Due Certificate and to cancel hypothecation of vehicle. But the O.Ps, in reply, demanded payment of the last installment together with other charges including cheque bouncing charges and did not issue NOC to the complainant. Being aggrieved, the complainant served notice upon the OP on 25.09.2015 through his advocate requesting issue of NOC within 15 days which was also not responded by the said O.Ps. Finding no other alternative, complainant preferred this dispute in this Forum for adjudication and praying for direction to the OP to issue NOC along with cost and compensation.

O.Ps objected the allegations of the complainant and contested the case. OP No. 1 & 2 (here in after said as OP Bank) submitted written version stating that the complaint is not maintainable both in facts and law and this Forum has no jurisdiction to entertain, try and determine the complaint. OP Bank also raised the question of cause of action within the jurisdiction of this Forum. It is raised by the OP Bank that this dispute involves the accounts matter of a Bank for which not maintainable and in view of conclusive contract the complaint cannot be enforced nor can be adjudicated in the present Forum. Apart from above, it is also submitted that the relation between the complainant and the OP Bank is of ‘Debtor’ and ‘Creditor’ respectively and therefore not maintainable in the consumer Forum. In narrating the entire state of affairs starting from the date of filing of dispute, the OP Bank stated that on the request of complainant sanctioned a sum of Rs 31,800/- and on execution of relevant documents together with loan agreement, the OP Bank released the loan amount so as to enable the complainant to have his motor cycle passion plus model of Hero Honda Brand. The amount advanced was repayable in 24 equated monthly installments @ Rs 1,579/- per month starting from 5^th September, 2006 to 5^th July, 2008 and the 1^st installment amount of Rs 1,579/- was deposited/paid by the complainant in advance and submitted 23 numbers of post dated cheques of Bhadrak Co-operative Urban Bank, OP No. 3 (here in after referred to as ‘Urban Bank’) for realization of loan amount by the OP Bank in a regular Manner. Accordingly the cheques bearing No. 12826 to 12847 (22 Nos.) were cleared smoothly but the last cheque bearing No. 12848 was bounced but neither the dishonor memo nor the bounced instrument nor any intimation was given to the OP Bank for a prolonged period which forced the OP Bank to intimate complainant over phone and in service of notice upon the complainant requesting payment of the last EMI dues together with other charges including bouncing cost as per terms of the agreement. Instead of clearing the dues of OP Bank, complainant filed this dispute in consumer Forum which is liable to be dismissed with cost.

Urban Bank objected the claim of the complainant and contested the case. In the written version submitted by Urban Bank, it is started that the case is not maintainable on the ground of cause of action, barred by limitation and there was not any deficiency of service. It is admitted fact that the complainant is a customer having his SB account bearing No. 92 maintained with the Urban Bank and was issued with a cheque book for transaction purpose. It is learnt from the transactions that the complainant had submitted some cheques to the OP Bank to secure the loan. The OP Bank presented the said cheques in many occasions for collection which were collected and the proceeds of cheque were paid/remitted to the OP Bank without causing delay but the OP Bank did not intimate the Urban Bank about bouncing of the cheque bearing No. 12848 nor the matter was brought to the notice of the Urban Bank by the complainant. Hence the Urban Bank has not caused any deficiency of service nor the complainant has alleged anything against the Urban Bank in the complaint. Hence it is crystal clear that the Urban Bank is not deficient in providing proper service to the complainant nor has resorted to any kind of unfair trade practice.

Gone through the complaint, written version of all O.Ps, heard the parties to this dispute, perused materials on record and observed as detailed below.

Admittedly the complainant is a borrower of OP Bank and had borrowed a loan of Rs 31,800/- from OP Bank for purchase of a motor cycle, which is repayable in 24 monthly installments @ Rs 1,579/- per month on due dates, i.e. on 5^th day of every month. Out of 24 EMIs, the complainant had paid one installment in advance and for residual installments the complainant had submitted 23 numbers of Bhadrak Urban Bank post dated cheques for ensuring smooth recovery of the loan. It is also admitted fact that 23 numbers of post dated cheques have been collected and credited to the loan account of the complainant maintained with the OP Bank. The dispute arose on the last cheque bearing number 12848 when it was bounced as said by the OP Bank.

We have gone through the complaint, written version of OP Bank and Urban Bank, perused materials on record, heard the parties in course of hearing and observed as analysed here under.

1. O.Ps in filing written version commonly have raised a question that the complainant is not a consumer within the meaning of CP Act, there is no cause of action and there is no deficiency of service from the O.Ps. OP Bank have also question of maintainability of the case as the relationship between the complainant and the OP Bank is that of borrower and lender which can be resolved/adjudicated the Court of arbitration as per terms of the loan agreement executed by the complainant. Hence the dispute raised by the complainant in this Forum is not maintainable at all. Simultaneously the complainant raised that while applying the loan he has paid the service charge before final documentation and therefore he is a consumer under the OP Bank for which the case is maintainable.

Perused the materials on record and observed that the complainant has paid non-refundable service charges to the OP bank for enjoying service to be provided by the OP Bank and hence the complainant is a consumer within the meaning of CP Act and the dispute filed by him is maintainable.

2. The complainant contented that he has submitted 23 numbers of post dated cheques to OP Bank which were of Bhadrak Co-operative Urban Bank. Out of the said cheques, the OP Bank went on presenting the cheques one after one in each and every month which were cleared by Urban Bank except one that is cheque bearing No. 12848 which was bounced by OP No. 3 due to insufficient of funds as claimed by OP bank. But in reality the said cheque was not bounced as the Urban Bank has debited the cheque amount from the outstanding balance of SB A/c of the complainant maintained with Urban Bank bearing account No- 92. As such it is crystal clear that the Urban Bank has cleared the cheques instantly as revealed from the SB accounts statement. OP No. 3 (Urban Bank) conceded the submission of complainant in stating that it has cleared the cheque and the proceeds of the said cheque had been remitted to OP Bank in shape of a cheque drawn on Axis Bank. But no further complain was not received from OP Bank on the matter of bouncing of cheque. On the other hand OP Bank submitted that the proceeds of cheque was remitted through another cheque drawn on Axis Bank which was dishonored by the Banker of Urban Bank as a result of which the loan A/c of complainant could not be credited to liquidat the loan account and to issue no due certificate in favour of the complainant.

The complainant further submitted that the OP Bank has not intimated him about dishonor of the said cheque. Had the OP Bank intimated about the dishonor of cheque, the complainant could have taken adequate step to resolve the issue and to close the loan account. But the OP Bank with an oblique motive did not intimate the complainant about dishonor of cheque for a longer period deliberately so that it can charge penal interest and other charges by way of debiting the loan account of the complainant. Secondly, when the cheque issued by Urban Bank was dishonored, why the OP Bank did not take any action against Urban Bank to recover the amount from the complainant. This makes everything crystal clear that the OP Bank, instead of initiating action against Urban Bank, has charged huge late payment charges and cheque dishonor charges by debiting the loan account of the complainant. Such action of the OP Banka mounts to unfair trade practice and causing inordinate delay in providing NOC to complainant amounts to deficiency of service.

Heard the parties to this case and perused materials on record. Urban Bank was directed to furnish relevant documents pertaining to cheque No. 12848 and the records showing remittance of collection proceeds to the OP Bank before the Forum which was not complied by Urban Bank intentionally in spite of several opportunities given. Secondly the OP Bank failed to adduce any evidence regarding intimation given to complainant soon after the cheque was dishonored and therefore the OP Bank is found to have committed gross negligence in its legitimate performance and the Urban Bank has issued a cheque drawn on Axis Bank knowing the fact that there is no credit balance in the account maintained with Axis Bank. Hence both the OP Bank and Urban Bank are found negligent in providing service as a result of which the innocent complainant suffered both financially and mentally which need to be compensated by the O.Ps. Hence it is ordered;            

ORDER

In the result, the present complaint be and the same is allowed against the O.Ps on contest. OP No. 1 and 2 are directed to liquidate the loan account of the complainant, issue No due certificate, cancellation of hypothecation of Motor Cycle and pay Rs 2,000/- as cost of litigation to the complainant. OP No. 3 is directed to pay Rs 5,000/- to the complainant for mental agony and harassment along with ensuring payment of cheque amount plus interest matching to lending rate of OP Bank, if not paid earlier to this order, must be paid to OP Bank and this order must be complied by both the O.Ps within 30 days from the date of receipt of this order failing which interest @ 9% shall be charged on order amount from the date of order till payment is practically made.

This order is pronounced in the open Forum on this day of 31^st July, 2018 under my hand and seal of the Forum.