C. Palanisamy,

s/o Chinnappa Nayacker(late),

Vadavathoor Villagae,

Namakkal TK and District . .. Complainant



/versus/



1. The Branch Manager,

The United Commercial Bank,

Shevapet, Salem.



2. The Branch Manager,

The United Commercial Bank,

Nallipalayam, Namakkal. ..Opposite Parties



This complaint coming on 30th day of June 2009 for final hearing before us in the presence of Thiru R. Rajamani, Counsel for Complainant and Thiru K. Subramanian, Counsel for opposite parties and after hearing the both sides and having stood over till this day for consideration, this Forum passed the following order:
ORDER

1. The facts of the complaint is : -

The complainant’s grandmother one Mrs. Kamakkal had mortgaged her lands and obtained a loan of Rs.3,000/- on 13.5.1971 vide Loan No. AW10/231. Towards the security for the said loan the above said Mrs. Kamakkal had deposited property documents with the first opposite party. The complainant prior to 12 years had repaid the entire loan amount in installments and had obtained receipts. The said Mrs. Kamakkal died in June 1981.


Subsequently the complainant had approached the first opposite party officials and requested for return of original documents and for cancellation of mortgage. The complainant requires the above said original documents in order to obtain loans and due to non-availability of the same he was not able to get loans. On 5.1.2007, the complainant had given an application for return of original documents and subsequently a lawyer notice was also sent for which there was no response. The complainant alleges deficiency in service and has lodged this complaint for return of documents and compensation.



2. The contentions in the written version filed by the first opposite party and adopted by the second opposite party are as follows:-

The first opposite party had denied all the allegations made by the complainant in his complaint. The first opposite party has stated that as soon as the loan is discharged all the documents would have been returned to the said Mrs.Namakkal. That as per Guidelines of Banking Law soon after discharge of the loans the documents shall be discharged after a prescribed period. As such no documents are available with the bank. The complainant has issued notice and the opposite party too had given reply informing the fact. But, the complainant had concealed this before this Forum. The complainant has not filed any documents to show that he is the legal heir of the deceased also. Hence, there is no deficiency in service on the part of the opposite parties and the complaint has to be dismissed.



3. The point for consideration is whether there is any deficiency in service on the part of the opposite parties and if so to what relief the complainant is entitled for?



4. POINT : The complainant to prove his complaint has filed proof affidavit along with 7 documents marked as Exhibits A1 to A7 and the 2nd opposite party has filed proof affidavit along with 3 documents and the same has been marked as Exhibit B1 to B3.



5. The complainant’s alleged grandmother one Mrs. Kamakkal had mortgaged her lands and obtained a loan of Rs.3,000/- on 13.5.1971 vide Loan No. AW10/231. The complainant has produced receipts as Exhibits A1 and A2 to prove the loan and payment of installments. The complainant had alleged that towards the security for the said loan the above said Mrs. Kamakkal had deposited property documents with the first opposite party. But the complainant has not produced and placed before this Forum as to what documents had been deposited with the opposite parties nor was he able to give specific particulars as to the document number, nature of deed, date of documents etc., and the acknowledgement issued by the first opposite party.


The complainant himself had admitted in the complaint that prior to 12 years, he had repaid the entire loan amount in installments and had obtained receipts. If so why the complainant kept quite for almost a decade. No proper explanation has been provided by the complainant in this regard. The said Mrs. Kamakkal died in June 1981 and subsequently only in 2007 the complainant had approached the first opposite party officials and requested for return of original documents and for cancellation of mortgage.


The complainant ought to have approached the oppositae parties immediately after the death of said Mrs. Kamakkal along with legal heir certificate for getting back the alleged documents but he had not done so. After keeping quite for around 15 years, only on 05.01.2007 the complainant had given an application for return of original documents and subsequently issued a lawyer notice too and has alleged that there was no response for the same. On the other hand, the oppositae party has produced and placed before us an acknowledgement card signed by complainant’s advocate for receiving the reply as Exhibit B2 and contends that the complainant had concealed this fact before the Forum. Further, there is also merit in the contention of the opposite party that complainant has not filed any authentic documents like succession certificate from the Court of Law to establish that he is the legal heir of deceased Mrs. Kamakkal and he is entitled to get back the alleged deposited documents. The first opposite party has stated that as soon as the loan is discharged all the documents would have been returned to the said Mrs. Kamakkal.


Further as per Guidelines of Banking Law soon after discharge of the loans the documents shall be discharged after a prescribed period and in support of the same has produced and placed before us the guidelines as Exhibit B3. The opposite parties have categorically stated that no documents are available with the bank and this fact has been informed to the complainant in reply to the lawyer notice. In view of the above discussions and on perusal of the documents placed before us by both sides we are not inclined to grant any relief to the complainant by fastening deficiency in service on the part of the opposite parties. Point is answered accordingly.

6. In the result, the complaint is dismissed. No order as to costs.

APPELLANTS/COMPLAINANTS :

1. Rafik Jamadar .

S/O Latif Zamadar,

2. Sahidabibi ,

W/O Latif Zamadar,

Both of Ghutiary Sharif,

P.O- Bansara, P.S- Canning,

District- South 24 Parganas.



RESPONDENTS/O.P.S : :

1. Chairman, United Commercial Bank .

Brabourne Road, Kolkata- 700 001.

2. General Manager, United Commercial Bank,

15, India Exchange Place, Kolkata- 700 001.

3. Regional Manager, United Commercial Bank,

1, R.N. Mukherjee Road, Kolkata- 700 001.

4. Branch Manager, United Commercial Bank,

Belvedere Road, Kolkata- 700 027.



BEFORE : HON’BLE JUSTICE : Mr.A.Chakrabarti,PRESIDENT.

HON’BLE MEMBER : Shri A.K. Ray.

HON’BLE MEMBER : Smt. Silpi Majumder.



FOR THE PETITIONER : Sri S.K. Das. Advocate.

FOR THE RESPONDENT : Sri S.M. Roy. Advocate.

Sri M. Sikdar. Advocate.

--------------------------------------------------------------------------------------

Sri. A.K. Ray, Hon’ble Member.





The appeal is directed against the order dated 7.4.09 passed by the District Forum South 24 Parganas in case no 41 of 2008 wherein the complaint was dismissed on contest without cost. Being aggrieved, the Appellant filed the instant appeal before us. The fact of the case in brief was that the Appellants applied for a housing loan to Respondent no 4,the Branch Manager , U.CO Bank, Belvedere Road , Kolkata- 700 027, and the said bank sanctioned a housing loan for a sum of Rs. 15 lakh with interest @ 8.5% p.a. The loan was sanctioned on 17.12.03 under the “scheme U.CO shelter”. On 29.12.03 a sum of Rs. 7 lakh was paid towards the first installation. A further sum of Rs. 1 lakh was disbursed as second installment on 24.02.05. The amounts were utilized in the construction of their house on their own land as per sanctioned plan. A further amount of Rs. 4 lakh was required to complete the construction. The Bank was requested to disburse Rs. 4 lakh out of the plan sanctioned loan of Rs. 7 lakh as the third and last instalment. The Bank after spot inspection and several discussions recommended for disbursing Rs. 2 lakh on 22.06.07.This was not accepted by the Appellants. Hence, the case before the Forum below for a direction on the United Commercial Bank to disburse Rs. 4 lakh out of the balance of the sanctioned amount.



2. United Commercial Bank no-4 contested the case by filing written version contending inter alia that the Complainants who are the Appellants before us were sanctioned term loan re-payable in 120 monthly instalments beginning from July, 2005; but the borrower failed and neglected to pay the instalments after 31.3.05. It was further averred that the loanees in violation of the terms and conditions were utilizing the money in constructing a building for commercial purpose, i.e a super market on some other plot and not on their homestead land. The Dag number, Khatian number and Mouza were different. The entire activity came to light when the Branch Manager and other officials from the regional office inspected the property at site. The contesting United Commercial Bank no-4 accordingly raised objection that the case was not maintainable and should be dismissed.

3. Both the parties filed their respective brief of written arguments before us. The Appellants in their written argument stated inter alia that it was totally incorrect and untrue that they did not make any construction work on their homestead land mentioned in the sanctioned loan dated 4.8.03.This was suppressed by the bank before the Forum below. The bank also failed to adduce any substantive evidence to prove their allegation that the actual construction was made by the Appellants on a different land mentioned in another plan sanctioned on 15.7.06 by utilizing the entire amount disbursed by the bank. This was not proved by evidence. The bank before releasing the fund held inspection at site and on being satisfied on gradual progress of construction and utilization of fund disbursed the amounts in 2 intalments. The last and 3rd intalment of Rs. 2 lakh was also ordered for disbursement on 22.06 07. This was not accepted by the Appellants as they were in need of Rs. 4 lakh to complete their construction work. The Bank for the first time in their letter dated 12.8.07 stated that the property being developed was a different property. The Bank in their earlier letter dated 22.12.06 stated about making the construction for commercial purpose, but in this letter there was no mention that the construction was being made on a different plot. The last inspection was in fact in favour of the Appellants when the third instalment of Rs. 2 lakh was ordered to be disbursed. The Bank should not take a different stand now. It is estopped from taking a different plea.



4. In their brief note of argument the Respondent Bank stated amongst others that the Appellants suppressed and concealed the facts that the U.CO Shelter loan was sanctioned by the Respondent for the domestic purpose to build a dwelling house and not for a commercial purpose as in the instant case. The Appellants used and diversified the loan amount for commercial purpose. The Residential building plan was sanctioned by the Bansara Gram Panchayat, District South 24 Parganas on 4.8.03 under cover of which the bank loan was sanctioned. The RS plot was shown as 1647 and 1648 under Mouza Bansara, JL no 181 Canning: but the actual construction was undertaken under Mouza Gaurdaha, JL no 181, RS dag no 1288 and 1273, PS- Canning. The plan was sanctioned by Bansara Gram Panchayat on 15.7.06. The activities of the Appellants came to light after inspection by the bank officials at the site.

5. The Ld. Forum below observed after going through the loan agreement that a plan was sanctioned in 2003 for residential purpose on RS. Plot no 1647 and 1648 and the loan was sanctioned in 2003. It was further seen that in the year 2006 another plan was sanctioned for a shopping complex on RS plot no 1288 and 1273. The U.CO bank conducted spot survey of this project in 2006 and it was found that the project was in RS plot no 1288 and 1273. Therefore it was clear that the terms of the agreement for granting loan were violated by the Complainants. We have also gone through the evidences on affidavit filed by the Appellants and the Respondent Bank. It appears to us that the Appellants are not entitled to get the balance loan amount on the grounds that the loan account was declared NPA on 31.12.05 . They also violated the terms of agreement with regard to repayment of loan and utilization of the disbursed amount for construction of a commercial complex in place of a residential house on a different plot of land. The Appeal therefore fails to succeed.



6. It is accordingly ordered that the appeal be dismissed on contest without cost. The impugned order of the Forum below be affirmed.

LCR be returned forthwith with a copy of this order.

APPELLANTS

1. Dr. Subhash Chandra Pratihar

2. Arya Pratihar

BG-20, Sector-II, Salt Lake, Kolkata-700 091

P.S. Bidhannagar East, District North 24 Parganas.

RESPONDENTS

1. Branch Manager

United Bank of India

Baisakhi Branch, BF-162

Salt Lake City

Kolkata-700 064

Sector-I, P.S. Bidhannagar North,

Dist. North 24 Parganas.

2. Chief Regional Manager

United Bank of India

Kolkata North Region, EC-Market,

Sector-I, Kolkata-700 064

Bidhannagar (North).



BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY

MEMBER : MR. S.COARI



FOR THE PETITIONER / APPELLANT : Mr. P.B.Banerjee, Ld. Advocate

FOR THE RESPONDENT / O.P.S.: Mr. A.K.Sarkar, Ld. Advocate

: O R D E R :


MR. S.COARI, LD. MEMBER

The present Appeal has been directed against the judgement and order dt. 18.3.09 passed by District Consumer Disputes Redressal Forum, North 24 Parganas, Barasat, in C.C. No. 174(s)/2007 wherein the Ld. District Forum dismissed the complaint ex parte without cost.

The case of the complainant before the Ld. District Forum, in brief, was that the complainant secured House Building Loan from the OP/Bank to the tune of Rs. 5.00 lacs after observing all the formalities. The OP/Bank fixed interest @ 12.5% p.a. and the EMI was settled at Rs. 6,150/- inclusive of interest. The property in question was mortgaged with the OP/Bank along with additional security in the form of KVP worth Rs. 2.50 lacs. The transaction between the parties continued for some time and thereafter the OP/Bank informed the complainant that inadvertently the interest rate was fixed at Rs. 12.5% instead of Rs. 13.5%. The complainant asked for clarifications, but the Ops without clarifying the matter adjusted the KVP amount beyond the knowledge of the complainant. Subsequently, the complainant repaid the entire loan amount and the loan account was duly closed. On calculation it was detected that the OP/Bank has charged Rs. 30,000/- excess amount of interest, which was beyond the agreed terms and conditions between the parties and the OP did not refund the excess amount of interest so charged. Being aggrieved the complainant filed the petition of complaint before the Forum below for proper redressal.

The OP/Bank did not contest the case before the Ld. District Forum and the Ld. District Forum while disposing of the petition of complaint has observed that as the rate of interest was not within the control of the OP/Bank and the same was at the hands of RBI and as per agreed terms and conditions between the parties floating rate of interest was agreed upon, the complainant was not entitled to any relief and accordingly, the Forum below dismissed the petition of complaint.

The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as discussed above.
DECISION WITH REASONS

At the time of hearing it has been submitted on behalf of the Appellant/complainant that the Ld. District Forum did not appreciate the actual state of affairs and surrounding circumstances involved in the transaction between the parties and as such, has arrived at a wrong and improper decision which is liable to be set aside. In this connection, it has further been submitted on behalf of the Appellant that the Respondent/Bank did not contest the case before the Ld. District Forum and besides that, there was not a single paper in support of fixing a higher rate of interest than what was agreed upon between the parties. While concluding his submissions the Ld. Advocate for the Appellant has also urged before us that the Ld. District Forum did not appreciate the case of respective parties, specially the case of the complainant/Appellant and has arrived at a wrong and improper decision. The denial of relief to the complainant is nothing but an arbitrary act on the part of the Ld. District Forum and the impugned judgement is liable to be set aside.

We have duly considered the submissions put forward on behalf of the Appellant and have also gone through the materials on record including the impugned judgement and find that in this case the complainant has prayed for relief with the allegation that the Respondent/Bank has charged interest in excess than what was agreed between the parties. Now, on perusal of the materials on record we find that it is an admitted position that the parties was agreed to floating rate of interest and it is also an admitted position that RBI is the ultimate controlling authority in case of fixation of interest in a transaction of similar nature. However, on careful scrutiny of the materials on record we find that the Ld. District Forum without giving an opportunity to the complainant to adduce evidence has disposed of the petition of complaint, which, in our opinion, was not proper on the part the Ld. District Forum. Considering the present matter in the light of above observation we think that ends of justice would be met if the same is sent on open remand to the Ld. District Forum below thereby affording opportunity to both sides to adduce evidence, if any and to dispose of the matter as per law. In the result, the Appeal succeeds.

Hence, it is ORDERED that the Appeal stands allowed on contest without any order as to cost. The impugned judgement is set aside. The case is sent back on open remand to the Ld. District Forum with a direction to afford opportunity to both sides to adduce evidence, if any, in support of their respective cases and to dispose of the petition of complaint as expeditiously as possible, preferably within three months from the date of receipt of this order.