C.F. CASE No. : CC/11/57
COMPLAINANT : Sri Arabindu Saha,
S/o Late Priyanath Saha,
Uttar Ghosh Para,
P.O. & P.S. Chakdaha, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) The Regional Manager,
United Bank of India, Kolkata
16, Old Court House Street,
Kolkata – 700001
2) The Branch Manager,
United Bank of India,
Chakdaha Branch,
P.O. & P.S. Chakdaha, Dist. Nadia
3) The Manager,
L&HPF, K.S.D.O., LICI,
Salt Lake City, Kolkata – 700054
4) The Branch Manager,
LICI, Kalyani Branch,
Central Park, B-Block,
Kalyani, Nadia, Pin – 741235
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 27th March, 2012
: J U D G M E N T :
In brief, the case of the complainant is that his wife took loan from the OP No. 2 against equitable mortgage of land and building standing in her name with collateral security including life insurance policy of the petitioner being Jeevan Anand. Be it mentioned that the complainant was the guarantor for that loan on behalf of his wife. It is his further case that due to unforeseen circumstances, the said loan could not be repaid as per EMI. On receipt of a notice dtd. 29.09.10 under Section 13(2) of the SARFAESI Act, 2002 from the OP No. 2 the borrower sent a representation on 23.10.10 requesting for settlement of her loan account. Thereafter, this petitioner repeatedly visited the bank to settle the above mentioned loan standing in the name of his wife, but the General Manager of the OP No. 2 stated that the petitioner had to repay the entire outstanding amount as on that date in the OP bank, i.e., the sum of Rs.8,20,000/- or the OP No. 2 bank would liquidate the collateral securities standing in the name of the petitioner and also proceed under the SARFAESI Act to attach the mortgaged property of the borrower. Finding no other alternative and to safeguard the collateral security or attachment of the mortgaged property the petitioner and his wife finally agreed to repay the entire outstanding amount, i.e., Rs. 8,20,000/- which they communicated the OP bank praying for instalments for repayment of the same. In spite of the agreement to repay the outstanding amount of the OP No. 2, this OP bank sent muscleman to take possession of his building making some false allegation against the petitioner. On 21.02.10 the petitioner went to the OP bank to deposit a sum of Rs. 20,000/- towards his outstanding in the loan amount when he came to learn that one of his LIC policies being Jeevan Anand policy which was kept as collateral security against the said loan account of his wife was already surrendered by the OP bank. Then his wife, the borrower wrote a letter on 21.02.11 to the Branch Manager of the OP bank requesting to take necessary step so that the policy remained in force and not to surrender the same. The borrower further deposited Rs. 67,000/- towards her first instalment for the remaining sum of Rs. 8,00,000/-. In spite of their request the OP bank did not take any step to stop the surrender of the said policy standing in the name of the petitioner without his consent. The petitioner visited the office of the OP No. 4, LICI from whom he learnt on 21.03.11 that the schedule policy was already surrendered and the same could not be reinstated. Thereafter, the petitioner served a lawyer’s letter on 01.04.11 to the OP No. 2 to stay the liquidation of the said policy and to take necessary step for reinstatement of the said policy. But the OP No. 2 did not consider his prayer, rather intimated him by a letter dtd. 14.05.11 that the surrendered value would be adjusted against the EMI of the borrower. Be it mentioned that the OP bank has no right to surrender the policy of the guarantor without liquidated the movable and immovable property standing in the name of the borrower. This activity of the OP No. 2 is a great deficiency in service which cannot be compensated by money as this petitioner has no scope to avail of a new policy at this stage. So having no other alternative, he has filed this case praying for the reliefs as stated in the petition of complaint.
The OP No. 2, United Bank of India, Chakdaha Branch has filed a written version in this case, inter alia, stating that this case is not maintainable in its present form and nature. It is his contention that house building loan was sanctioned by this OP against wife of the complainant and the complainant himself is a co-borrower and guarantor of the CC loan. The petitioner deposited a LICI policy (Jeevan Anand) as collateral security at the time of taking loan. It is his specific contention that the borrowers of both the loan accounts committed default in the matter of payment of Bank’s dues in spite of notice served upon them on 29.09.10 under SARFAESI Act for which this OP forwarded the LIC policy for adjusting the surrendering value in order to release the outstanding loan amount and the surrender value was received by the OP bank by 11.02.11. Thereafter, on 11.02.11 this OP bank took symbolic possession of the security charged to the bank when the complainant requested the bank for compromise and to settle of the payment of the dues and also to take up the matter of the policy with the LIC for revival of surrender policy. That in fact the settlement was reached to the petitioner and his wife on the one side and the bank on the other side amalgamating both the accounts of loan and it was settled that the petitioner and his wife would have to pay a total amount of Rs. 8,12,000/- and this settlement took placed on 08.03.11. Down payment of Rs. 20,000/- was to be made by the borrower and a balance amount of Rs. 7,92,000/- would be paid by the borrower by 12 equally instalments @ Rs.66,000/- per month with interest of 6% per annum till the final payment of entire loan amount. Accordingly, the petitioner and his wife paid Rs. 20,000/- as down payment and first instalment of EMI and Rs. 60,000/-, was also paid by them. Thereafter, no other instalment of EMI was paid by them and the balance amount is still unpaid. After the settlement this OP sent a letter to the LICI for revival of the policy of the petitioner at which the OP No. 4, LICI intimated by a letter dtd. 06.04.11 that the said surrendered policy would not be revived as per the LIC rules. Thereafter this OP adjusted the surrender value of the LIC with the monthly instalment of loan standing in the name of the complainant’s wife. This OP further submits that there is no deficiency in service on his part as LIC policy was pledged to the bank and in view of nonpayment of the dues of the bank the OP bank had the right to enforce of adjustment of the documents pledged and such enforcement of documents was exercised by the bank after issuance of notice dtd. 29.09.10 under the SARFAESI Act. So this complainant has no cause of action to file this case against him and he is not entitled to get any relief as prayed for. Therefore, the case is liable to be dismissed against him.
OP No. 3 & 4 have filed a written version in this case, inter alia, stating that the case is not maintainable against them and they are not the necessary parties in this case also. It is their submission that the complainant took one Jeevan Anand policy from LICI and the date of commencement was 27.06.03. That the petitioner’s wife took a loan from the OP No. 2 and the petitioner is a guarantor of pledged document. The said policy is a collateral security to the OP bank. The OP bank surrendered the said policy to the OP No. 3 for liquidation to reimburse the defaulted dues of the bank and as per the norms the surrendered policy value was disbursed in favour of the assessee of the policy i.e., to the bank. As per circular dtd. 01.10.07 after surrender the LICI has no authority or scope to reinstate the surrendered policy. So this complainant has no cause of action to file this case and the same is liable to be dismissed also.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint and the written versions filed by the OPs along with the annexed documents and oral evidence filed by the parties and also after hearing the arguments advanced by the ld. lawyers on all sides it is available on record that the wife of the complainant one Padma Saha took loan from the OP bank after equitable mortgage of land and building standing in her name and made collateral security including life insurance policy (Jeevan Anand) belonging to the petitioner. The petitioner himself was the guarantor on behalf of his wife. From the documents as well as pleadings of the petition of complaint it is revealed that the complainant’s wife i.e., the borrower failed to repay the loan amount in time as per the agreement. So the OP bank served a notice under SARFAESI Act on 20.01.09. From the documents filed by the OP bank, it is available that in spite of that notice no step was taken by the borrower and as such the OP bank took proceedings against her and took symbolic possession of the mortgaged property and to that extent notice was also served. Subsequently, the borrower moved before the OP bank for settlement of the entire loan amount at which the OP was agreed. This settlement took place on 29.06.11 at which the borrower and the complainant were ready to pay the settled amount of Rs. 8,12,000/-. At the time of settlement the OP bank adjusted the surrender value of the LIC policy belonging to the complainant amounting to Rs. 84,529/-. In that settlement the complainant and his wife were allowed to pay the loan amount of Rs. 6,41,771/- in 11 monthly installments @ Rs. 58,320/- starting from July, 2011 and interest @ 6% per annum since the date of settlement till final payment. But the complainant or his wife did not make any payment of the instalment amount for liquidation of the loan amount after making settlement. Rather this case was filed on 14.06.11. The complainant’s specific allegation is that the OP bank without his consent surrendered his Jeevan Anand policy which was produced before the bank by his wife at the time of taking loan as a collateral security. So admittedly, it is evident that this LIC policy was a collateral security which was pledged before the bank against the loan sanctioned in the name of the complainant’s wife. From the petition of complaint it is clear that the complainant’s wife did not repay the loan by EMI which she took from the bank on 30.04.04 and 04.05.04. Complainant submits that he is a guarantor of that loan taken by his wife. But from the application form filed by the complainant it is available that the complainant’s wife was the applicant No. 1 and the complainant himself signed his name as applicant No. 2 before the OP bank for taking a loan of Rs. 4,00,000/-. So from the documents, it is clear to us that both the complainant and his wife were the borrowers from the bank which the complainant has suppressed in the petition of complaint. As the complainant did not repay the loan amount in time so the bank surrendered the LIC policy for liquidation of loan amount as the policy was pledged with the bank as per Bank Law. The OP bank has the right to surrender the pledged instrument for realization of the unpaid loan amount. Even after settlement with the OP bank the bank voluntarily sent a letter to the LIC authority requesting to revive of the policy of the complainant. In answer LIC has intimated by a letter that as per LIC rules surrender policy cannot be revived. So we don’t find any latches on the part of the OP No. 3, LIC in this case in not reviving the policy of the complainant.
It is decided in a case referred from (2002) 1 CRP page 223, Andhra Pradesh that, “Nobody can be rewarded for his own faults. None acquires a right of action for his own wrong. Therefore, the complainant in the circumstances of this case cannot claim any compensation/relief and in view of his default in payment of instalments regularly. There is no deficiency in service on the part of the appellant.”
On a careful perusal of the above cited ruling we hold that it is applicable in the instant case also as in this case the borrowers did not repay the loan amount as per EMI granted by the OP bank. Even after the settlement between the parties the complainant or his wife did not repay the loan amount as per instalment granted by the bank. So we don’t find any deficiency in service on the part of the bank in surrendering the pledged Jeevan Anand policy of the complainant against loan. Besides this the Hon’ble Supreme Court has decided in a case as mentioned in AIR, 2010 Supreme Court, page 3413 that “Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, Section 17 – Remedies against action for recovery of secured debt – Words ‘any person’ includes guarantor or any person affected by action taken under S. 13(4).”
Therefore, on a careful perusal of the facts of this case along with the annexed document filed by the parties and in view of the above discussions our considered view is that in the instant case the complainant has not become able to prove any deficiency in service on the part of the OP bank as the complainant himself is a borrower along with his wife who are defaulters in repayment of loan since inception. We do further hold that both the complainant and his wife are the borrowers, but the complainant alone has filed this case. His wife is not a party in this case also. So on this point the case is defective for nonjoinder of a necessary party. Considering all these we hold that as the complainant has not become able to prove his case, so he is not entitled to get any relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/11/57 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
