COMPLAINT FILED: 26.08.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 25th OCTOBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1881/2008<br /> <br /> <br /> COMPLAINANT Sri. B.J. Padmarajaiah,<br /> S/o. Late B.J. Jinadathayara,<br /> Aged about 67 years,<br /> R/o. No. 7/9-1, 7th Main,<br /> Vittal Nagar,<br /> Chamarajpet,<br /> Bangalore – 18.<br /> <br /> <br /> Advocate (Kamaleshwara Poojary)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Sri. Thyagaraja Co-Operative Bank Ltd.,<br /> Represented by its<br /> General Manager,<br /> H.O. No. 5, 9th Cross,<br /> N.R. Colony,<br /> Bangalore – 19.<br /> <br /> <br /> 2. The Shashikumar P.V.<br /> President,<br /> Thyagaraja Co-Operative <br /> Bank Ltd.,<br /> H.O. No. 5, 9th Cross,<br /> N.R. Colony,<br /> Bangalore – 19.<br /> <br /> <br /> 3. Mr. Mohan N. Hardekar,<br /> General Manager,<br /> Sri. Thyagaraja Co-Operative <br /> Bank Ltd.,<br /> H.O. No. 5, 9th Cross,<br /> N.R. Colony,<br /> Bangalore – 19.<br /> <br /> <br /> 4. Sri. C.L. Shivalinge Gowda,<br /> Assistant Genral Manager,<br /> Sri. Thyagaraja Co-Operative <br /> Bank Ltd.,<br /> H.O. No. 5, 9th Cross,<br /> N.R. Colony,<br /> Bangalore – 19.<br /> <br /> <br /> Advocate (C.N. Surendra Kumar)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.18,00,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant availed a loan of Rs.30,00,000/- under account No. BL 13/02 from OP.1 Bank on 13.07.2002. OP.2, 3 and 4 are the officials of the said Bank. As a collateral security complainant offered a valuable property worth of more than Rs.3 crores, it is a mortgage loan. Complainant agreed to repay the said loan in an monthly instalment of Rs.25,000/- in 120 instalments with 16% interest p.a. commencing from 13.07.2002. Though complainant invested the said amount for the improvement of his business and factory, unfortunately he incurred a loss day by day. Having came to know of the same OP.3 and 4 approached the complainant to sell the said property which is mortgaged to OP.1 Bank and they will take care of the loan and they will also pay Rs.25,00,000/- extra. When complainant did not agree for the same, as the offer made by OP.3 and 4 was very meager they have developed some kind of enimosity against the complainant and started giving all sort of pinprick in one or the other way. They also took the blank cheque from the complainant, then insisted the complainant to pay the outstanding dues within 60 days. When complainant failed to do the same OP illegally invoked the provisions of Securitisation Act and brought the said mortgage property for sale. Being aggrieved by the arbitrary act of the OP which is illegal and unjust, complainant challenged the said notice by filing a Writ Petition before the Hon’ble High Court of Karnataka at W.P. No. 22547/05, which was ultimately came to be allowed and the notice was quashed. But the harassment from OP continued. Without finding any other way complainant was forced to sell the said property at a low price of Rs.1.01,00,000/-, though it is worth of Rs.3.22,50,000/-. He suffered the loss because of the hostile attitude of the OP, not only that OP got created a document and filed a false complaint under sec - 138 of N.I. Act by using the blank cheque with a malafide intention contending that the amount mentioned therein pertains to account No.12/2000. At no point of time complainant availed a loan under account No. BL 12/2000. On appearance of the complainant as an accuse in the said complaint No. 19383/2003 OP withdrew the said complaint. OP officials have mislead the court in producing the false and fabricating evidence, committed an offence of perjury punishable under sec 193 to 199 of I.P.C. Hence complainant filed complaint against OP, which is registered and pending for trial. The repeated requests and demands made by the complainant to OP to compensate him with regard to the mental agony, it went in vain. Thus felt the deficiency in service on the part of the OP’s. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. When the complainant became the defaulter in repayment of the said huge loan amount OP exercised its power for the recovery of the said loan in accordance with the law. That act of the OP cannot be termed as deficiency in service. To clear the said loan OP gave a cheque on 05.07.2003, when it was presented it bounced, that is why OP filed a complaint under sec - 138 of N.I. Act. Due to oversight and typographical mistake the loan account is mentioned as 12/2000, though the cheque issued by the complainant is with respect to the account No. BL 13/2002. Complainant took his own sweat time of two years to appear in the said complaint. In the meantime as the complainant has paid the loan amount OP withdraw the said complaint. The other allegations of the complainant that OP.3 and 4 shown their interest to purchase the said property, etc., are all false and frivolous. At no point of time OP insisted or caused any force or intimidation to the complainant to clear of the said loan. There is no harassment as alleged. Of course as a counterblast complainant has filed a complaint against OP.3 and 4 alleging perjury, etc, it is pending for trial. Actually the complainant is not the owner of the said mortgaged property it is one A. Chandra Prabha, A. Padma Prabha and A. Vijaya Prabha who are the owners. Complainant sold the said property as per the market value fixed to that area. If the said property was sold to the lesser cost the original owner would not have kept mum who are the party to the sale deed, even under-valuation would not have been allowed by the Sub-Registrar. So that contention of the complainant because of the loan clearance insistence made by the OP, he was forced to sale the property for lesser cost is false. There is no deficiency in service of any kind on the part of the OP. The complaint is devoid of merits. The complainant is not entitled for the relief claimed. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence along with evidence of a valuator and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant availed a huge loan of Rs.30,00,000/- from the OP.1 Bank and OP.2 to 4 are the officers of the said Bank in one or the other capacity. As a collateral security complainant offered a property worth of more than Rs.3 crores, actually belonging to one A. Chandra Prabha, A. Padma Prabha and A. Vijaya Prabha. The said mortgaged loan was availed on 13.07.2002 with a loan account No. BL 13/02 repayable in 120 instalments with 16% interest at the rate of Rs.25,000/- per month. It is contended by the complainant that he is a GPA Holder for the said property. Complainant suffered the loss in his business, as such he could not fully utilize the benefit of the said loan.<br /> <br /> 7. It is further contended by the complainant that OP.3 and 4 having came to know the financial crisis faced by the complainant, who suffered the loss in his business thought of purchasing the mortgaged property, hence approached him and promised him that they are going to take care of the loan, in addition to that they will pay extra amount of Rs.25,00,000/-. The price offered by the OP.3 and 4 was very much lesser than the market value, hence complainant did not heed to their request and demand. For all these allegations basically there is no basic proof. Hence these allegations does not find force.<br /> <br /> 8. It is further contended by the complainant that when he did not heed to the demand of the OP they started giving him all sort of trouble and insisted to pay off the outstanding dues immediately and also forcibly took a blank cheque. Not only that OP invoked the provisions of Securitisation Act and brought the said mortgaged property for auction, which is unjust and improper. Being aggrieved by the said notice complainant was forced to file a Writ Petition before the Honble High Court of Karnataka. The said Writ Petition came to be allowed, the notices were quashed. These facts are not at dispute. It is further contended that OP did not stop their harassment they went to the extent of mis-utilizing the cheque given by him and presented the same, which was bounced, thereby filed a complaint under sec – 138 of NI Act before the CMM Court that too alleging non-payment of the loan amount borrowed pertaining to account No. 12/2000. It is further contended by the complainant that at no point to time he has availed loan from OP.1 with respect to account No. BL 12/2000 as alleged by the OP in the said criminal complaint.<br /> <br /> 9. OP have given as explanation contending that the cheque which was bounced pertains to account No. 13/2002, through oversight and inadvertence so also due to typographical mistake the account number was mentioned in the complaint as BL 12/2000. The fact that present complainant took his own sweat time of 2 years to appear before the Criminal Court pertaining to the said complaint of cheque dishonour is also not at dispute. Why complainant avoided appearance before the concerned criminal court is not known. When complainant appeared in the said cases OP has withdrawn the complaint. The reasons for withdrawal is that by that time complainant has cleared all the loan account pertaining to account No. 13/2002. That act of the OP cannot be termed as deficiency in service.<br /> <br /> 10. The fact that complainant filed another criminal complaint against OP.3 and 4 alleging perjury punishable under section 196 to 199 of IPC and that criminal case is pending for trial is not at dispute. It is further alleged by the complainant that due to the force and harassment caused by the OP he was forced to sell the property worth Rs.3 cores to a meager amount of Rs.1 crore. He got filed the affidavit of the valuator, who valued the property a worth more than Rs.3 crores, it is done in the year 2006, but whereas the property was sold in the month of June 2005. If the said property is under valued and sold than that of the prevailing market value of that area concerned the Sub-Registrar would not have entertained it, because there is a loss to the government revenue with respect to stamp duty. Over and above this the original owner of the said property who are the party to the sale deed would have raised the objections if complainant sold their property for a lesser price. But no such steps are taken. Nobody has raised the objections, that means to say that the property is sold for the appropriate value prevailing as on that day. <br /> <br /> 11. Under such circumstances the contention of the complainant that because of the force used by the OP he sold the said property for lesser value, thereby suffered monetary loss and mental agony cannot be believed. Viewed from any angle, on the perusal of the document produced by the complainant as well as OP the so called EMI cheque given by the complainant towards repayment of the said loan were bounced not on one occasion but on many more times. That speaks of the default on the part of the complainant. OP.1 being the co-operative society has got a right to protect the interest of the said society as well the deposits made therein by their customers. When complainant became the defaulter in non-payment of the loan availed, naturally OP initiated some proceedings for the recovery of the said loan, for those steps complainants feels that he is harassed, again we do not find force in the said allegations. Viewed from any angle, the complaint appears to be devoid of merits. There is no proof of deficiency in service as contended. Hence the complainant is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25th day of October 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />