Advocate Sanjay Gaikwad for
the Complainant
Advocate H.V.Gadgil for
the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 30th April 2013
This complaint is filed by Zeal Education Society u/s 12 of the Consumer Protection Act, 1986 against the Opponent Union Bank of India for deficiency in service. Brief facts are as follows-
[1] Complainant is an Education Society registered under the provisions of Societies Registration Act, 1860 as well as under the provisions of B.P.T. Act, 1950. The objects of the Society are educational in nature and to pursue its Aims and Objects the complainant runs Pre-Primary, Primary, High School, Junior College, Senior College, Computer Learning Centre etc. The Complainant Society had availed term loan of Rs.90,00,000/- from the Opponent for education purpose. The said loan was repaid by the complainant alongwith accrued interest. The Opponent had also issued No Dues Certificate on 2/3/2007. The Opponent had also returned the original documents which were deposited by way of security with the same. Then all of sudden on 19/12/2007 i.e. after 9 months from the date of closure of loan account complainant had received letter from the Opponent in which it has asked the complainant to pay 2% pre-payment penalty i.e. to the tune of Rs.3,02,000/-. According to the complainant there was no clause in the term loan agreement as regards pre-payment penalty. After lapse of three years i.e. on 2/3/2010 complainant had received letter about payment of Rs.3,02,000/- as pre-payment charges @ 2%. That letter was replied by the complainant on 17/3/2010 and denied illegal demand by the Opponent. Thereafter on 20/8/2010 complainant had received another letter of same illegal demand. The said letter was also replied by the complainant on 6/9/2010. Then on 3/12/2010 Opponent had illegally debited amount of Rs.3,02,000/- from the Current Account of the complainant and it was informed by the Opponent that the said amount was debited as pre-payment penalty charges. This act of Opponent is nothing but criminal breach of trust and deficiency in service. The complainant had issued notice to the Opponent and asked them to reverse the entry as regards the debit of Rs.3,02,000/-. The Opponent did not pay any heed to the request of the complainant. Hence complainant has filed present complaint and prayed for declaration that there is deficiency in service. The Opponent is engaged in unfair trade practice. The Opponent be directed to pay amount of Rs.3,02,000/- alongwith interest @ 21% p.a. from 3/12/2010 till its realization. Complainant has also asked for compensation of Rs.1,00,000/- for deficiency in service, Rs.50,000/- for mental harassment, Rs.2,500/- by way of cost of legal notice and Rs.10,000/- by way of cost of proceeding.
[2] The Opponent resisted the claim by filing written statement in which the contents of the complaint are flatly denied. It is specifically denied that the Opponent has caused deficiency in service. It is specifically averred that as the complainant is registered Trust it is not a consumer and complainant is not entitled to file present complaint as per the provisions of the Consumer Protection Act, 1986. The facts as regards the loan transaction are not disputed by the Opponents. It is further contended that the loan was to be repaid within 60 monthly installments. But that was repaid well in advance. The complainant has suppressed material fact that loan was repaid after obtaining loan from Abhyudaya Co-Op. Bank Ltd. As the loan was not repaid by the complainant themselves they are bound to pay pre-payment penalty charges. It is further contended that the Opponent has every right to recover penalty charges from Current Account of the complainant as right of lien As there is no deficiency in service Opponent has prayed for dismissal of the complaint.
[3] Considering the pleadings of both parties, scrutinizing the documentary evidence as well as affidavits which are filed on behalf of both the parties and hearing the argument of both counsel following points arise for my determination. The Points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that opponent has caused deficiency in service ? | In the affirmative |
2 | What order ? | Complaint is partly allowed |
REASONS-
As to the Point Nos. 1 and 2 –
The undisputed facts in the present proceeding are that the complainant has obtained loan from the Opponent and it was repaid well in advance. It is also not disputed by the Opponent that there was no clause in the Term Loan Agreement that complainant is bound to pay pre-payment charges by way of penalty @ 2%. It is not disputed by the Opponent that amount of Rs.3,02,000/- was debited in the current account of the complainant. According to the Opponent the Bank has every right to recover the dues from any account of the party u/s 171 of the Indian Contract Act as it has right of lien over the amount which is in the custody of the Bank. There is no quarrel about this legal proposition but the Bank has to prove that the certain amount is legally due from the complainant and then and then only it can take such defence. In the present proceeding admittedly there was no agreement between the parties as regards pre-payment charges by way of penalty @ 2% p.a. In absence of such agreement the Bank has no right to claim pre-payment penalty charges. It is more significant to note that the Bank has not claimed alleged pre-payment penalty charges immediately at the time of closure of the account. But the said amount was claimed after lapse of nine months. This fact itself is sufficient to eloquent as regards conduct of the Bank. In such circumstances I held that the complainant has made out case of deficiency in service as the Opponent has wrongly debited amount of Rs.3,02,000/- from the current account of the complainant towards pre-payment penalty charges.
The learned Advocate of the Opponent has argued before me that the present complaint is not at all maintainable as the complainant is a Trust and as per the definition of ‘person’ the Trust is not included. According to him the Trust is not entitled to file complaint in the Consumer Forum. He has placed his reliance upon the ruling of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in IV (2007) CPJ 33 (NC) in case of Pratibha Pratisthan & Ors. Vs. Allahabad Bank & Ors. It has been observed in the said ruling that the Trust is not included in the definition of ‘person’ hence complaint filed by the Trust is not maintainable under the Consumer Protection Act, 1986. It reveals from the facts of the said proceeding that the Trustees sought relief under the Consumer Protection Act, 1986 when them themselves were party to the fraud.
The facts of the present case and that of the ruling sited by the learned Advocate for the Opponent are totally different. It is further significant to note that the complainant is an Educational Society, it is not registered only under Bombay Public Trust Act 1950 but it is also registered under the Societies Registration Act 1860. As per para 41 of the said ruling sited above it is categorically observed that-
“In our view, this submission is required to be accepted because, under the Consumer Protection Act, 1986 the complaint can be filed by a consumer. Under section 2(1)(d) ‘consumer’ is defined to mean ‘any person’ who buys goods or hires or avails of any services for consideration. The word ‘person’ is also defined under section 2(1)(m), which includes – (i) a firm, whether registered or not; (ii) a Hindu Undivided Family; (iii) a Co-operative Society; and (iv) every other association of persons whether registered under the Societies Registration Act, 1860 or not.”
It reveals from the above observations that the Co-operative society and every other association of persons whether registered under the Societies Registration Act 1860 or not included in the definition of word ‘person’ u/s 2(1)(m) of the Consumer Protection Act, 1986 can filed a complaint before the Consumer Forum. Hence I held that the complaint is maintainable as the complainant has produced extract of registration of the complainant society under the Registration Act at Serial No.1 page No.14. I held that the facts of the rulings sited above and the present proceeding are totally different hence observations made in the said ruling are not helpful to adjudicate the issue before this Forum. In my opinion complainant has proved that there is deficiency in service and complainant is entitled for compensation for deficiency in service and for mental and physical harassment and costs of the proceeding. I answer the points accordingly and pass the following order –
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponent has caused deficiency in service by wrongly debiting amount of Rs.3,02,000/- from the current account of the complainant.
3. The Opponent is directed to pay to the complainant amount of Rs.3,02,000/- alongwith interest @ 9% p.a. from the date of deduction i.e. 3/12/2010 till its realization within six weeks from the date of receipt of copy of order.
4. The Opponent is directed to pay to the complainant amount of Rs.5,000/- by way of compensation for deficiency in service within six weeks from the date of receipt of copy of order.
5. The Opponent is directed to pay to the complainant amount of Rs.5,000/- by way of compensation for mental and physical harassment and Rs.2,000/- by way of costs of proceeding within six weeks from the date of receipt of copy of order.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 30/04/2013
