DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 20^th day of April 2013

Present : Smt.Seena H, President

: Smt. Preetha.G. Nair, Member

: Smt. Bhanumathi.A.K, Member Date of filing: 17/09/2012

(C.C.No.168/2012)

1.Rajan,

S/o.P.Balakrishnan,

House No.409, Swarnam,

KMR Avenue,

Industrial Estate Post,

Puduppariyaram, Palakkad

(By Adv.K.P.Nouphal) 

2.Mohandas,

S/o.Kesavan,

Kuttapura, Melepuram,

Olavakkode Post, Palakkad. - Complainant

(By Adv.K.P.Nouphal) 

V/s

1.Vijaya Bank,

Olavakkode Branch,

Olvakkode Post, Palakkad

Rep.by its Branch Manager

(By Adv.T.P.George)

2.Vijaya Bank,

Head Office,

41/2, MG Road,

Bangalore – 1, Karnataka

Rep.by its Manager - Opposite parties

(By Adv.T.P.George)

O R D E R

By Smt.PREETHA G NAIR, MEMBER

The 1^st complainant availed a personal loan for a sum of Rs.1,50,000/- from 1^st opposite party as per loan account number 230531. After sanctioning the loan a sum of Rs.15,000/- is taken by the 1^st opposite party from 1^st complainant, without permission and compulsorily deposited it as a Fixed Deposit in the bank and the original Fixed Deposit Receipt is kept by the bank. The 2^nd complainant stood as a surety to the 1^st complainant. The complainants were then working as employees of the Southern Railway. The repayment schedule was fixed as 60 monthly installments by 1^st complainant @Rs.3270/- per month, totaling to Rs.1,96,000/-.

Thereafter the 1^st complainant paid a sum of Rs.3270/- per month for a period of 18 months from 10/11/2003 till 9/4/2005 total Rs.58,860/- Thereafter 1^st complainant undergone a heart surgery and he was in bed rest and as such later paid a sum of Rs.10,000/- by way of Demand Draft dated 18/10/2005. On 3/12/2009, the 1^st complainant paid a sum of Rs.20,000/- to the bank by way of receipt. Thereafter 1^st opposite party illegally collected a sum of Rs.1,44,000/- each totaling to Rs.2,88,000/- from the complainants from their salary. The FDR amount of Rs.15,000/- of the 1^st complainant is also in illegal custody of 1^st opposite party. Hence altogether, instead of collecting a sum of Rs.1,96,200/- the opposite parties illegally collected a sum of Rs.3,91,860/- from the complainants. Then the complainants approached 1^st opposite party on every month from 2011 December onwards that is the date of last recovery of the amount from the complainants, demanded to settle the excess amount by reimbursement and by giving loan account repayment statements, they are unwilling to do so. The 1^st opposite party being legally liable to give back the excess amount collected with interest and the Fixed Deposit amount to the complainants. Since, the 2^nd complainant demanded the 1^st complainant to settle the amount of Rs.1,44,000/- collected by 1^st opposite party from his salary towards the loan, the 1^st complainant repaid the sum of Rs.1,44,000/- to the 2^nd complainant by way of crossed cheque dated 13/09/2012. The act of opposite parties amounts to deficiency in service. Hence the 1^st complainant prays an order directing to

1. Pay an amount of Rs.2,45,600/- with 24 percentage interest towards deficiency in service as compensation and

2. Give back the amount covered by the FDR and

3. Cost of the proceedings.

Opposite parties filed version stating the following contentions. It is admitted that 1^st complainant has taken a Pronote loan of Rs.1,50,000/- from 1^st opposite party on 10/11/03. He has agreed to repay the principal and interest at the rate of 11percentage  in 60 equal monthly installments of Rs.3270/- each. On 10/11/03 itself the loan amount was credited in his SB account No.6374 and he has withdrawn the entire amount on the same day. The complainant has executed a pronote and other loan documents and the 2^nd complainant has signed letter of guarantee as a surety. Out of the loan amount received the 1^st opposite party deposited Rs.15,000/- as a term deposit. The complainants are Railway employees and they were drawing salary through their SB Account in the 1^st opposite party. The 1^st opposite party sanctioned the loan only on the understanding that the complainants shall draw their monthly salary through 1^st opposite party bank and they have given a standing instruction to 1^st opposite party to debit the installment amount from their SB account. On the basis of that authorization the 1^st opposite party has deducted 18 monthly installments at the rate of Rs.3270/- The salaries of complainants were coming to 1^st opposite party bank till 14/5/2005 and thereafter they have transferred the salary to some other bank. After 14/05/2005 the complainants defaulted the loan repayment. 1^st opposite party has made several demands to the 1^st complainant to clear off the overdue installments. He has made some small payments and on 30/03/2006 he came to the 1^st opposite party and closed the fixed deposit receipt dated 10/11/2003 and paid Rs.17,185/- which is the FD amount to the loan account. Later 1^st opposite party has filed a suit as OS 153/08 against the complainants before the Sub Court, Palakkad for recovery of Rs.1,26,238/- that is the balance amount due as on 17/03/2008. The suit was decreed on 21/08/2008 for Rs.1,26,238/- with 11 percentage  interest and Rs.3,258/- towards cost. Even after the suit was decreed the complainants did not pay the amount. Thereafter an Execution Petition was filed before the Sub Court, Palakkad as EP No.277/2008 for a sum of Rs.1,39,524/- that amount includes interest till 10/12/08 and cost certified in the decree. After filing of the EP the 1^st complainant has paid a sum of Rs.20,000/- directly to the bank on 3/12/2009. In the EP also the complainants did not make any payments. Finally court attached the salary of the complainants at the rate of Rs.4,000/- each per month. The attached amount was deposited before the court by the Garnishee, Southern Railway. On verification from the court records it is seen that the attached amount from 12/7/10 to 13/1/12 was deposited to the court. The total amount in the court deposit was only Rs.1,52,000/. On two occasions, 1^st opposite party took amount from court deposit Rs.64,000/- on 3/9/11 and Rs.77,000/- on 15/3/12 totaling to Rs.1,41,000/-. Out of Rs.1,52,000/- deposited in court 1^st opposite party has withdrawn only Rs.1,41,000/- and balances Rs.11,000/- is still court deposit. It is incorrect to say the FDR is still in the illegal custody of 1^st opposite party.

The 1^st complainant has deposited DD for Rs.10,000/-on 20/10/05 in his SB Account. Out of that amount complainant has issued a cheque for Rs.3,768/- to HDFC Bank as per cheque dated 11/1/2005. Balance amount was recovered to the loan account. The complainants were approached the 1^st opposite party after the suit for recovery of the balance amount was filed against them. There is no deficiency of service on the part of the opposite parties. Hence the opposite parties prayed that dismiss the complaint with cost.

Both parties filed their affidavit. Ext.A1 to A5 marked on the side of complainant. Ext.B1 to B13 marked on the side of opposite parties. Witness present and produced documents marked as Ext.C1 to C3. Matter heard.

Issues to be considered are

1. Whether there is any deficiency in service on the part of opposite parties ?

2. If so, what is the relief and cost ?

Issue No.1 & 2

We perused relevant documents on record. Admittedly the 1^st complainant has taken loan of Rs.1,50,00/- from 1^st opposite party on 10/11/2003 and agreed to repay the principal and interest at the rate of 11 percentage in 60 equal installments of Rs.3,270/-. The 1^st opposite party admitted that they deposited Rs.15,000/- as a term deposit. Admitted that the 1^st opposite party has deducted 18 monthly installments at the rate of Rs.3270/- from the salary. According to 1^st opposite party after 14/5/2005 the complainants defaulted the loan repayment. On verification of Ext.B1 shown that on 30/3/2006:- closure proceeds deposited an amount of Rs.17,185/- to the loan account. 1^st opposite party stated that they closed the FDR dated 10/11/2003 and paid Rs.17,185/- to the loan account. Ext.B4 shows that complainant has paid Rs.10,000/- by Demand Draft on 20/10/2005. Out of that amount complainant has issued a cheque for Rs.3,768/- to HDFC Bank and the balance amount was recovered to the loan account.

In Ext.A5 shown O.S 153/08 amount Rs.4,000/- recovery in 36 installments. PW1 the chief office superintendent in the Personnel branch, Divisional Office, Southern Railway deposed that Ext.A5 is the Salary slip issued by the office on May 2010 and the 36 installments mentioned was computer error. Further PW1 deposed that Rs.76,000/- each attached in the salary of complainants. As per Ext.B5 the decree copy of Sub Court of Palakkad shown that directed to pay a sum of Rs.1,26,238/- together with 11percentage interest per annum from the date of suit till date of receipt or recovery of the entire amount and pay Rs.3,258/- as the cost of the proceedings.

In Ext.B6 the statement of account in OS 153/08, EP 277/08 shown that total amount received is Rs.1,52,000/- and total payment made is Rs.1,41,000/- and Rs.11,000/- as available balance. Ext.B12 is the copy of execution petition filed by the 1^st opposite party.

The answers filed by the opposite parties stating that Rs.76,000/- each attached the salary of complainant from 12/7/11 to 13/01/2012 as per the order of the court. In Ext.B8 stated that the pronote loan facility of Rs.1,50,000/- granted to repay the amounts with interest 11 percentage per annum with monthly installments of 60 months of Rs.3270/-. The loan availed to the complainants on 10/11/2003. So the last payment of installments to loan account was on November 2008. But the complainants failed to pay the entire loan amount. Thereafter the complainants failed to pay the decreed amount. Then the opposite parties had filed E.P. and the court attached the decree amount in the salary of complainants. The opposite parties had liable to claim the loan amount with interest after the loan period. In Ext.B6 shown that on 3/09/11 received an amount of Rs.64,000/- and on 15/03/12 received an amount of Rs.77,000/- by the opposite parties. The opposite parties had received the loan amount with interest as per the order of the Sub Court, Palakkad. Moreover the opposite parties argued that before withdrawing the amount from the Court due notice was given to the complainants and no objection was raised by them.

The opposite parties had given the statement of account as per the decree alongwith the version. As per Ext.B6 the balance amount was Rs.11,000/- in the case. The opposite parties argued that as on 15/3/12 there was a balance of Rs.21,046/-. But they had closed the loan account. No contradictory evidence produced by the complainants. Even if the complainants had the feeling that the 1^st opposite party had withdrawn excess amount, they could have filed a petition before the same court to rectify the mistake. In the present case, the complainants had not produced evidence to show that the opposite parties had withdrawn excess amount other than the decree amount.

The complainants had not produced evidence to show that excess amount collected by the opposite parties. We are not in a position to attribute any deficiency in service on the part of opposite parties. Complainants miserably failed to prove their case. In the result complaint dismissed.

Pronounced in the open court on this the 20^th day of April 2013.

Sd/-

Seena H

President

Sd/-

Preetha G Nair

Member

Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Copy of FDR No.476286 dtd.10/11/03

Ext.A2 – Copy of DD No.612313020424 issued from Syndicate Bank, Palakkad dtd.18/10/05

Ext.A3 – Receipt issued by 1st opposite party to the complainant.

Ext.A4 – A/c pay cheque issued to the 2nd complainant by the 1st

compalainant drawn on Canara Bank, Sulthanpet.

Ext.A5 – Photocopy of Salary Slip of Sri. Rajan. P.B

Exhibits marked on the side of the opposite party

Ext.B1 – Photocopy of Account Statement of P.B Rajan (Loan No.230531)

Ext.B2 – Photocopy of Order for payment for Rs.64,000/- dtd.3/1/11

Ext.B3 – Photocopy of Order for payment for Rs.77,000/- dtd.15/3/12

Ext.B4 – Photocopy of Statement of Accounts of PB Rajan of A/c No.6374

Ext.B5 – Photocopy of Decree in OS 153/2008

Ext.B6 – Statement of accounts in OS 153/2008

Ext.B7 – True copy of Promissory note for Rs.1,50,000/-

Ext.B8 – True copy of letter of undertaking

Ext.B9 – True copy of letter of guarantee

Ext.B10 –True copy of standing instructions dtd.10/11/03

Ext.B11 –True copy of standing instructions dtd.10/11/03

Ext.B12 –True Copy of EP No.277/08 dtd.18/12/08

Ext.B13 –True copy of plaint in OS 153/08

Witness examined on the side of the complainant

PW1- N.Ganesha Moorthy

Commission Report

C1 – Authorization letter

C2 series – Salary details of complainant P.B.Rajan for the period

May 2010 to April 2012

C3 series – Details showing salary deduction of 2^nd complainant.

Cost

No cost allowed.